Exhibit 10.2


 


CONFIDENTIAL TREATMENT OF CERTAIN DESIGNATED PORTIONS OF THIS EXHIBIT
HAS BEEN REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED. SUCH
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED, AS INDICATED BY A [*] IN THE TEXT, AND
SUBMITTED TO THE COMMISSION.


 


EXECUTION COPY


 


LAUNCH
SERVICES CONTRACT


 


BETWEEN


 


ICO
SATELLITE SERVICES GP


 


AND


 


LOCKHEED
MARTIN


COMMERCIAL
LAUNCH SERVICES, INC.


 


 


ICO/LMCLS PROPRIETARY


 

















 


TABLE OF
CONTENTS


 


	
  ARTICLE 1 — DEFINITIONS

  	
   

  	
  4

  
	
  ARTICLE 2 — CONTRACTUAL DOCUMENTS

  	
   

  	
  9

  
	
  ARTICLE 3 — LAUNCH SERVICE
  AND LAUNCH PRICE

  	
   

  	
  9

  
	
  ARTICLE 4 — PAYMENTS

  	
   

  	
  10

  
	
  ARTICLE 5 — LAUNCH
  SCHEDULE

  	
   

  	
  12

  
	
  ARTICLE 6 — LAUNCH
  POSTPONEMENTS

  	
   

  	
  14

  
	
  ARTICLE 7 — OBLIGATIONS
  BEFORE AND AFTER LAUNCH

  	
   

  	
  16

  
	
  ARTICLE 8 — COMMUNICATION
  BETWEEN LAUNCH PROVIDER AND ICO

  	
   

  	
  17

  
	
  ARTICLE 9 — PERMITS, APPROVALS AND COMPLIANCE WITH UNITED STATES
  GOVERNMENT REQUIREMENTS

  	
   

  	
  18

  
	
  ARTICLE 10 — TITLE TO
  PROPERTY

  	
   

  	
  20

  
	
  ARTICLE 11 — LAUNCH RISK
  PROTECTION

  	
   

  	
  20

  
	
  ARTICLE 12 — REPLACEMENT
  LAUNCH

  	
   

  	
  21

  
	
  ARTICLE 13 — TERMINATION

  	
   

  	
  23

  
	
  ARTICLE 14 — EXCLUSION OF
  WARRANTY, WAIVER OF LIABILITY AND ALLOCATION OF CERTAIN RISKS

  	
   

  	
  27

  
	
  ARTICLE 15 — INSURANCE

  	
   

  	
  34

  
	
  ARTICLE 16 — CONFIDENTIAL
  INFORMATION

  	
   

  	
  35

  
	
  ARTICLE 17 — RIGHTS TO
  INVENTIONS AND DATA

  	
   

  	
  35

  
	
  ARTICLE 18 — CHANGES

  	
   

  	
  35

  
	
  ARTICLE 19 — ASSIGNMENT

  	
   

  	
  37

  
	
  ARTICLE 20 — PUBLIC RELEASE OF INFORMATION

  	
   

  	
  37

  
	
  ARTICLE 21 — DISPUTE
  SETTLEMENT

  	
   

  	
  37

  
	
  ARTICLE 22 — APPLICABLE
  LAW

  	
   

  	
  39

  
	
  ARTICLE 23 — SEVERABILITY

  	
   

  	
  39

  
	
  ARTICLE 24 — WAIVERS

  	
   

  	
  39

  
	
  ARTICLE 25 — APPROVAL; INTERNAL
  AUTHORIZATION

  	
   

  	
  39

  
	
  ARTICLE 26 — COOPERATION
  ON INSURANCE AND REGULATORY MATTERS

  	
   

  	
  39

  
	
  ARTICLE 27 — RULES OF
  CONSTRUCTION

  	
   

  	
  40

  
	
  ARTICLE 28 — ENTIRE
  UNDERSTANDING BETWEEN THE PARTIES

  	
   

  	
  40

  
	
  ARTICLE 29 — KEY PERSONNEL

  	
   

  	
  40

  
	
   

  	
   

  	
   

  
	
  Exhibit A — Statement of
  Work

  	
   

  	
   

  
	
  Exhibit B — Interface
  Control Document

  	
   

  	
   

  
	
  Exhibit C — Mutual
  Non-Disclosure Agreement

  	
   

  	
   

  
	
  Exhibit D — Launch Risk
  Protection

  	
   

  	
   

  



 


2

















 


LAUNCH SERVICES CONTRACT


 


This
launch services contract is made and entered into as of March [10], 2006 by and
between ICO Satellite Services GP, a general partnership organized under the
laws of the State of Delaware (“ICO”), and Lockheed Martin Commercial
Launch Services, Inc., a corporation organized under the laws of the State of
Delaware (“Launch Provider”).


 


3

















 


ARTICLE
1 — DEFINITIONS


 


The terms used in the
Contract shall have the following definitions:


 


	
  1.1

  	
   

  	
  Affiliate means, with respect to any person, each
  person that controls, is controlled by or is under common control with such
  person. For the purpose of this definition, “control” of a person shall mean
  the possession, directly or indirectly, of the power to direct or cause the
  direction of its management or policies, whether through the ownership of
  voting securities, by contract or otherwise.

  
	
   

  	
   

  	
   

  
	
  1.2

  	
   

  	
  Business Day means any day other than the following: a Saturday, Sunday and any other Legal
  Bank Holiday.

  
	
   

  	
   

  	
   

  
	
  1.3

  	
   

  	
  Change Request shall have the meaning ascribed to that
  term in Article 18.1.1.

  
	
   

  	
   

  	
   

  
	
  1.4

  	
   

  	
  Compromise Schedule shall have the meaning ascribed to that
  term in Article 6.1.

  
	
   

  	
   

  	
   

  
	
  1.5

  	
   

  	
  Confidential Information shall have the meaning ascribed to that
  term in the NDA.

  
	
   

  	
   

  	
   

  
	
  1.6

  	
   

  	
  Contract shall have the meaning ascribed to that
  term in Article 2.1

  
	
   

  	
   

  	
   

  
	
  1.7

  	
   

  	
  CSLA means the Commercial Space Launch Act, 49
  U.S.C. Sections 70101 -70119.

  
	
   

  	
   

  	
   

  
	
  1.8

  	
   

  	
  Day or day means a calendar day unless
  otherwise indicated.

  
	
   

  	
   

  	
   

  
	
  1.9

  	
   

  	
  Delivering Party shall
  have the meaning ascribed to
  that term in Article
  7.1.1.

  
	
   

  	
   

  	
   

  
	
  1.10

  	
   

  	
  EDOE means the date the amendment described in
  Article 12.1.3 is executed by the Parties.

  
	
   

  	
   

  	
   

  
	
  1.11

  	
   

  	
  Effective Date of Contract or “EDC” means March [10],
  2006.

  
	
   

  	
   

  	
   

  
	
  1.12

  	
   

  	
  Escalation Fee shall have the meaning ascribed to that
  term in Article 3.3.

  
	
   

  	
   

  	
   

  
	
  1.13

  	
   

  	
  Escalation Fee Damages shall have the meaning ascribed to that
  term in Article 13.1.1.

  
	
   

  	
   

  	
   

  
	
  1.14

  	
   

  	
  Failure means with respect to the Replacement
  Launch, any loss of operational capacity or expected lifetime of the
  Spacecraft.

  
	
   

  	
   

  	
   

  
	
  1.15

  	
   

  	
  General Provisions means all articles of this launch services
  contract.

  
	
   

  	
   

  	
   

  
	
  1.16

  	
   

  	
  ICO Proposed Revised
  Schedule shall have
  the meaning ascribed to that term in Article 6.1.

  
	
   

  	
   

  	
   

  



4

















 


	
  1.17

  	
   

  	
  Insured Launch Activities means (i) the activities carried out by
  either Party or the Related Third Parties of either Party in accordance with
  the terms of this Contract and the launch license to be issued under the CSLA
  to Launch Provider by the Office of the Associate Administrator for
  Commercial Space Transportation (or any successor agency thereto) to conduct
  the Launch Service at the Launch Site, including transportation of the
  Spacecraft between the various locations of the Launch Site, (ii) the use by
  Launch Provider of United States Government launch facilities at the Launch
  Site, (iii) activities carried out by the United States Government at the
  Launch Site relating to the conduct of Launch Service, and (iv) the Launch
  from the Launch Site.

  
	
   

  	
   

  	
   

  
	
  1.18

  	
   

  	
  Intentional Ignition means, with respect to the Launch Vehicle,
  the point in time during the launch countdown when the engine start command
  is issued, causing the start bottle to be pressurized and hypergols to enter
  the chamber.

  
	
   

  	
   

  	
   

  
	
  1.19

  	
   

  	
  Interface Control Document
  or “ICD”
  means the document referred to in the Statement of Work and to be attached as
  Exhibit B to this Contract upon mutual approval of the Parties that defines
  in detail the interfaces between the Spacecraft system (including support
  equipment as relevant) and the Launch Vehicle system (including facilities
  and support equipment as relevant) for the specific mission.

  
	
   

  	
   

  	
   

  
	
  1.20

  	
   

  	
  L means the first day of the then-current
  Launch Period, Launch Slot or Launch Day related to the Launch Service,
  whichever has been most recently established.

  
	
   

  	
   

  	
   

  
	
  1.21

  	
   

  	
  Launch means Intentional Ignition followed by
  either (i) release of the Launch Vehicle from the launcher hold down
  restraints for the purpose of lift-off, or (ii) total loss or destruction of
  the Spacecraft or Launch Vehicle.

  
	
   

  	
   

  	
   

  
	
  1.22

  	
   

  	
  Launch Day means the Day within the then-current
  Launch Slot established for the Launch pursuant to Article 5, LAUNCH
  SCHEDULE, as may be subsequently modified pursuant to Article 6, LAUNCH
  POSTPONEMENTS, on which the Launch is scheduled to occur.

  
	
   

  	
   

  	
   

  
	
  1.23

  	
   

  	
  Launch Matters shall have the meaning ascribed to that
  term in Article 26.2.

  
	
   

  	
   

  	
   

  
	
  1.24

  	
   

  	
  Launch Opportunity means an adequate time period during which
  Launch Provider, in its reasonable judgment, may provide the Launch Service
  for ICO, taking into account all relevant conditions necessary for the Launch
  of the Spacecraft during such time period, which include, without limitation,
  contractual commitments to other customers, maintenance of appropriate
  clearance times between flights, hardware and range availability and requirements
  of the United States Government, as applicable, for range support.

  
	
   

  	
   

  	
   

  
	
  1.25

  	
   

  	
  Launch Period means the period of days originally
  established pursuant to Article 5, LAUNCH SCHEDULE, as may be subsequently
  modified pursuant to Article 5.2

  



 


5

















 


	
   

  	
   

  	
  or Article 6, LAUNCH
  POSTPONEMENTS, during which the Launch is scheduled to occur.

  
	
   

  	
   

  	
   

  
	
  1.26

  	
   

  	
  Launch Price means the price specified in Article 3.2,
  subject to any revisions to such price pursuant to Article 18, CHANGES.

  
	
   

  	
   

  	
   

  
	
  1.27

  	
   

  	
  Launch Ready Spacecraft means, with respect to the Spacecraft, ICO
  has determined that the Spacecraft is ready for delivery to the Launch Site.

  
	
   

  	
   

  	
   

  
	
  1.28

  	
   

  	
  Launch Schedule means the then-current Launch Period,
  Launch Slot or Launch Day, whichever has been most recently established.

  
	
   

  	
   

  	
   

  
	
  1.29

  	
   

  	
  Launch Service(s) means the services to be provided by Launch
  Provider under this Contract.

  
	
   

  	
   

  	
   

  
	
  1.30

  	
   

  	
  Launch Site means (i) the Spacecraft processing
  facilities that the Parties utilize at or near Cape Canaveral Air Station,
  Florida, (ii) the launch processing facilities utilized by Launch Provider
  and located at or near Cape Canaveral Air Station, Florida, and (iii) any
  other facilities, including the launch pad, used for the Launch and located
  at or near Cape Canaveral Air Station, Florida.

  
	
   

  	
   

  	
   

  
	
  1.31

  	
   

  	
  Launch Slot means a thirty (30) day period of time
  within the then-current Launch Period established pursuant to Article 5, LAUNCH
  SCHEDULE, as may be subsequently modified pursuant to Article 6, LAUNCH POSTPONEMENTS,
  during which the Launch is scheduled to occur.

  
	
   

  	
   

  	
   

  
	
  1.32

  	
   

  	
  Launch Vehicle means the Atlas V 421 XEPF launch vehicle
  system to be used by Launch Provider for the Launch of the Spacecraft.

  
	
   

  	
   

  	
   

  
	
  1.33

  	
   

  	
  Legal Bank Holiday means any day on which national banks are
  authorized to be closed in New York City, New York, USA.

  
	
   

  	
   

  	
   

  
	
  1.34

  	
   

  	
  LP Proposed Revised
  Schedule shall have
  the meaning ascribed to that term in Article 6.2.

  
	
   

  	
   

  	
   

  
	
  1.35

  	
   

  	
  LP Request shall have the meaning ascribed to that
  term in Article 18.2.1.

  
	
   

  	
   

  	
   

  
	
  1.36

  	
   

  	
  LRP Fee shall have the meaning ascribed to that
  term in Article 11, LAUNCH RISK PROTECTION.

  
	
   

  	
   

  	
   

  
	
  1.37

  	
   

  	
  LRP Option shall have the meaning ascribed to that
  term in Article 11, LAUNCH RISK PROTECTION.

  
	
   

  	
   

  	
   

  
	
  1.38

  	
   

  	
  LRP Protection shall have the meaning ascribed to that
  term in Article 11, LAUNCH RISK PROTECTION.

  



 


6

















 






 


[*]  
CONFIDENTIAL TREATMENT REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS)
LIMITED


 


	
  1.39

  	
   

  	
  NDA means the Mutual Non-Disclosure Agreement
  between ICO and Launch Provider, effective November 9, 2005, which is
  attached to this Contract as Exhibit C.

  
	
   

  	
   

  	
   

  
	
  1.40

  	
   

  	
  New Spacecraft Type means with respect to the Replacement
  Launch, any spacecraft that is not a Prior Spacecraft Type.

  
	
   

  	
   

  	
   

  
	
  1.41

  	
   

  	
  Party or Parties means Launch Provider or
  ICO, or both, depending on the context.

  
	
   

  	
   

  	
   

  
	
  1.42

  	
   

  	
  Post-Launch Services means the reports and range services as
  defined in the Statement of Work that are to be provided by Launch Provider
  to ICO after Launch.

  
	
   

  	
   

  	
   

  
	
  1.43

  	
   

  	
  Postponement Fees shall have the meaning ascribed to such
  term in Article 6.4.

  
	
   

  	
   

  	
   

  
	
  1.44

  	
   

  	
  Prior Spacecraft Type means (i) commercially
  available spacecraft from the following manufacturers: [*]; and (ii) any
  other type or class of spacecraft that, at the time that ICO designates a
  spacecraft for the Replacement Launch, Launch Provider (A) has previously
  integrated with the Atlas launch vehicle selected by ICO, (B) is scheduled to
  integrate prior to the Replacement Launch with the Atlas launch vehicle
  selected by ICO, or (C) is already contracted to be integrated with the Atlas
  launch vehicle selected by ICO.

  
	
   

  	
   

  	
   

  
	
  1.45

  	
   

  	
  Recipient shall have the meaning ascribed to that
  term in Article 7.1.1.

  
	
   

  	
   

  	
   

  
	
  1.46

  	
   

  	
  Related Third Parties means (i) the Parties’ directors,
  officers, agents employees and customers; (ii) the Parties’ contractors,
  subcontractors and suppliers at any tier involved directly or indirectly in
  the performance of this Contract, and their directors, officers, agents and
  employees; (iii) entities involved with Spacecraft processing or other
  activities in the Spacecraft processing facilities, including the contractor
  providing the Spacecraft processing facilities, other customers of the
  Spacecraft processing facilities contractor, and all employees and
  contractors of those contractors and customers; (iv) parties having any
  right, title or interest, whether through sale, lease or service arrangement
  or otherwise, directly or indirectly, in the Spacecraft or any portion
  thereof, the Launch Vehicle or the Launch Service; (v) any party with a
  financial interest in Launch Provider, ICO or any Affiliate of Launch
  Provider or ICO; and (vi) any Affiliate of ICO or Launch Provider.

  
	
   

  	
   

  	
   

  
	
  1.47

  	
   

  	
  Removal Fee Damages shall have the meaning ascribed to that
  term in Article 13.1.1.

  



 


7

















 


	
  1.48

  	
   

  	
  Replacement Launch shall have the meaning ascribed to that
  term in Article 12.1.

  
	
   

  	
   

  	
   

  
	
  1.49

  	
   

  	
  Replacement Launch Notice shall have the meaning ascribed to that
  term in Article 12.1.1.

  
	
   

  	
   

  	
   

  
	
  1.50

  	
   

  	
  Replacement Launch Price shall have the meaning ascribed to that
  term in Article 12.1.4.

  
	
   

  	
   

  	
   

  
	
  1.51

  	
   

  	
  Revision shall have the meaning ascribed to that
  term in Article 18.1.2.

  
	
   

  	
   

  	
   

  
	
  1.52

  	
   

  	
  Spacecraft means the payload hardware to be supplied
  by ICO for Launch by Launch Provider pursuant to the Contract.

  
	
   

  	
   

  	
   

  
	
  1.53

  	
   

  	
  Spacecraft Manufacturer means Space Systems/Loral, Inc., which
  shall produce the Spacecraft for ICO.

  
	
   

  	
   

  	
   

  
	
  1.54

  	
   

  	
  Statement of Work means the statement of work attached as
  Exhibit A, dated March 8, 2006, as the same may be amended from time to time
  in accordance with the Contract.

  
	
   

  	
   

  	
   

  
	
  1.55

  	
   

  	
  Taxes shall have the meaning ascribed to that
  term in Article 4.6.

  
	
   

  	
   

  	
   

  
	
  1.56

  	
   

  	
  Terminated Ignition means Intentional Ignition not followed by
  Launch.

  
	
   

  	
   

  	
   

  
	
  1.57

  	
   

  	
  Termination Damages shall have the meaning ascribed to that
  term in Article 13.1.1.

  
	
   

  	
   

  	
   

  
	
  1.58

  	
   

  	
  Termination Date means the later of (i) the termination
  date specified in the written notice of termination provided by the
  terminating Party, or (ii) the date that such notice of termination is deemed
  effective under Article 8, COMMUNICATION BETWEEN LAUNCH PROVIDER AND ICO.

  
	
   

  	
   

  	
   

  
	
  1.59

  	
   

  	
  Termination Amount means with respect to any termination of
  this Contract by ICO pursuant to Article 13.1.1 or by Launch Provider
  pursuant to Article 13.2.2, the amount associated with the Termination
  Schedule Date in the Termination Schedule as specified in Article 13.1.1 or
  with respect to the Replacement Launch, as specified in Article 12.1.7.

  
	
   

  	
   

  	
   

  
	
  1.60

  	
   

  	
  Termination Schedule Date means with respect to any termination of
  this Contract by ICO pursuant to Article 13.1.1 or by Launch Provider
  pursuant to Article 13.2.2, a specific point of time listed in the
  Termination Schedule set forth in Article 13.1.1 or with respect to the
  Replacement Launch, in Article 12.1.7.

  



 


8

















 






 


[*]  
CONFIDENTIAL TREATMENT REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS)
LIMITED


 


	
  1.61

  	
   

  	
  Termination Schedule means the schedule specifying each
  Termination Schedule Date and the related Termination Amounts, as set forth
  in Article 13.1.1 and with respect to the Replacement Launch, in Article
  12.1.7.

  
	
   

  	
   

  	
   

  
	
  1.62

  	
   

  	
  Third Party means any individual or legal entity other
  than (i) the Parties, (ii) the Related Third Parties, and (iii) the United
  States Government and its agencies, contractors or subcontractors involved in
  the Launch Service.

  



 


ARTICLE
2 — CONTRACTUAL DOCUMENTS


 


2.1           The “Contract” shall be the following documents:


 


	
  2.1.1

  	
   

  	
  the
  General Provisions,

  
	
   

  	
   

  	
   

  
	
  2.1.2

  	
   

  	
  Exhibit A, the Statement
  of Work,

  
	
   

  	
   

  	
   

  
	
  2.1.3

  	
   

  	
  Exhibit B, the Interface
  Control Document (once executed and delivered by the Parties and the
  Spacecraft Manufacturer),

  
	
   

  	
   

  	
   

  
	
  2.1.4

  	
   

  	
  Exhibit C, the NDA, and

  
	
   

  	
   

  	
   

  
	
  2.1.5

  	
   

  	
  Exhibit D, Launch Risk
  Protection.

  



 


2.2           In the event of conflict between any of the items that comprise the
Contract, the following order of precedence shall prevail: (i) the General
Provisions and Exhibit D, Launch Risk Protection (provided that the terms of
Exhibit D, Launch Risk Protection, shall only apply to the LRP Option available
under Article 11, LAUNCH RISK PROTECTION, and shall not be used for the
interpretation of any of the other articles of the General Provisions), (ii)
the Interface Control Document, and (iii) the Statement of Work.


 


ART1CLE
3 — LAUNCH SERVICE AND LAUNCH PRICE


 


3.1           Launch Provider shall provide to ICO one (1) Launch Service for the
Spacecraft using the Launch Vehicle and the Launch Site facilities in
accordance with this Contract. The Launch Vehicle shall deliver the mission
performance as specified in the Statement of Work. Except for Post-Launch
Services, the Launch Service provided under the Contract shall be deemed
complete upon Launch. A Launch shall not be deemed complete in the event of a
Terminated Ignition.


 


3.2           The total Launch Price to be paid for the
Launch Service is [*].


 


3.3           If the aggregate length of postponements of the Launch Schedule by ICO
under Article 6.1 exceeds [*] then ICO shall pay an additional fee (the “Escalation
Fee”) in the amount of [*] for each day of postponement by ICO


 


9

















 






 


[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


in
excess of [*] of postponement for which ICO has not previously paid and an
Escalation Fee is due and payable. For the avoidance of doubt, aggregate length
of postponements of the Launch Schedule by ICO under Article 6.1 shall be
measured in accordance with Article 6.3.


 


3.4           In the event ICO postpones the Launch Schedule pursuant to Article 6.1
and Launch Provider must remove the Launch Vehicle or part thereof from the
vehicle integration facility or the launch pad, ICO will pay the actual and
reasonable costs incurred by Launch Provider for such effort, including,
without limitation, to remove, place and maintain in storage the Launch
Vehicle, re-process the Launch Vehicle and Spacecraft, and to re-integrate the
Spacecraft; provided that (i) in no event shall ICO’s liability for such costs
exceed [*], and (ii) Launch Provider shall not begin the assembly of the
booster on-stand operation for the Launch Service before the Launch Day has
been selected pursuant to Article 5.4.


 


ARTICLE
4 — PAYMENTS


 


4.1           All payments shall be made in U.S. Dollars.
ICO shall pay the Launch Price in accordance with the following schedule, as
such schedule may be amended or revised pursuant to this Contract:


 


[*]


 


[*]
In the event Launch Provider postpones the Launch Schedule for the Launch
Service pursuant to Article 6.2, all payments under this Article 4.1 which have
not already been paid shall be suspended on a day-for-day basis for the length
of the postponement and then resumed with all remaining payments postponed by
the length of the postponement.


 


4.2          Payment of the Launch Price and the Escalation
Fees shall be as follows:


 


4.2.1       Launch Provider shall submit an invoice to
ICO pursuant to Article 8, COMMUNICATION BETWEEN LAUNCH PROVIDER AND ICO, for
the amount due on EDC after the execution of the Contract by both Parties, and
ICO shall pay such invoice within thirty (30) days of the receipt thereof. With
respect to any payment of the Launch Price owed by ICO other than


 


10

















 






 


[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


such amount owed based on EDC,
Launch Provider shall submit
an invoice to ICO thirty (30)
days in advance of the scheduled
payment due date in accordance with Article 4.1, and ICO shall pay such invoice
on the later of (i) the due date for such invoice, or (ii) thirty (30) days after receipt of such invoice. If the due date for any payment falls on a Saturday, Sunday, or Legal Bank Holiday, payment shall be due on
the following Business Day. [*]
Postponement of the Launch
caused by ICO’s failure to make timely payment pursuant to the preceding sentence shall be a postponement attributable to ICO under
Article 6.1.  [*]


 


4.2.2        Any Escalation Fees that are due under Article 3.3 shall be divided evenly over the remaining payments of the Launch Price specified in
Article 4.1 and invoiced and paid at the same time as the Launch Price payment. If ICO further postpones the
Launch Schedule after [*] has been submitted and Escalation Fees are due
pursuant to Article 3.3, such
Escalation Fees shall be due within thirty (30) days of receipt of
Launch Provider’s invoice prepared in
accordance with this Contract.


 


4.3           Except for the payments made by ICO pursuant to
Article 4.1 and Article 4.2, payments to Launch Provider pursuant to this Contract shall be due within thirty (30) days of receipt of Launch Provider’s invoice prepared
in accordance with this Contract. Payment to ICO shall be to the account designated in writing by ICO and shall be due within thirty
(30) days of receipt of ICO’s invoice
prepared in accordance with this Contract.


 


4.4           All payments under this Contract shall be made by electronic bank transfer and shall not be reduced by any wire transfer
fee, bank processing fee, or other fee pertaining
to the rendering of payment.
Subject to the terms of this Contract, payments shall be in the amount
specified in the invoice and be made pursuant to the instructions contained in the invoice.


 


Payment
to Launch Provider shall be wire transferred to:


 


Lockheed Martin Commercial Launch
Services, Inc. 


Citibank N.A.


[*]


[*]


ABA
[*]


Acct [*]


 


11

















 






 


[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


Payment
shall be deemed to have been made when credit for the due and payable amount
has been established in the payee’s designated bank account.


 


4.5           In the event payment has not been received by
the payee by the due date, or has been received in part only, the payor shall
pay the payee interest on any unpaid amount based on the interest rate charged
by Citibank of New York City to its preferred customers [*] per annum or, if
such amount is higher than the highest permissible interest rate allowed under
applicable law. the payor shall pay the payee interest based on the highest
permissible interest rate allowed under applicable law. Notwithstanding
anything herein to the contrary, other than payments scheduled to be made by
ICO in accordance with the terms of the Contract, any amount which is the
subject of a bona fide dispute shall not be considered due and payable until
the dispute is resolved in accordance with Article 21, DISPUTE RESOLUTION.


 


4.6           The
Launch Price and other fees payable by ICO pursuant to this Contract include all
taxes, duties and other levies (“Taxes”) imposed by the governments of
the United States or any other nation, and/or any political subdivision of any
of the foregoing on any services or materials furnished or arranged by or on
behalf of Launch Provider; but exclude any Taxes that may be imposed by the
governments of the United States or any other nation, and/or any political
subdivision of any of the foregoing on the Spacecraft, support equipment, or
material used in the transportation of the Spacecraft or support equipment
(unless such equipment or material has been furnished or arranged by or on
behalf of Launch Provider). Any Taxes imposed on the Spacecraft, support
equipment, or material used in the transportation of the Spacecraft or support
equipment that become the obligation of Launch Provider to pay, will be
reimbursed by ICO to Launch Provider within thirty (30) days of the receipt of
Launch Provider’s request and invoice for payment with appropriate
documentation; provided, that Launch Provider shall cooperate with ICO in any
good faith contest or challenges by ICO of such Taxes.


 


ARTICLE
5 — LAUNCH SCHEDULE


 


5.1           The Launch of the Spacecraft shall be in
accordance with the following Launch Schedule, as subsequently modified by the
Parties in accordance with this Contract:


 


	
  Launch
  Period

  
	
  [*]

  



 


5.2           The
Launch Period shall be for the duration indicated in Article 5.1 above; provided,
however, [*].


 


12

















 






 


[*]  
CONFIDENTIAL TREATMENT REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS)
LIMITED


 


5.3           ICO shall request a Launch Slot in writing at
least [*] to the first day of the then-established Launch Period. Launch
Provider shall use commercially reasonable efforts to provide ICO with its
requested Launch Slot.  Within fifteen
(15) days of the receipt of the written request for Launch Slot, Launch
Provider shall either inform ICO that a Launch Opportunity is available for the
Launch Slot as requested or if a Launch Opportunity is not available for the requested
Launch Slot, Launch Provider shall recommend an alternative Launch Slot and
agree to meet (either in person or telephonically) with ICO at a mutually agreeable
time, provided that such meeting shall take place within seven (7) days of Launch
Provider’s receipt of ICO’s written request for a meeting with Launch Provider.
Prior to such meeting, Launch Provider shall inform ICO, in writing, of all
available Launch Opportunities within [*] and after the Launch Slot that ICO
requested. The Launch Slot shall be determined by [*] of the Parties on or
before [*] to the first day of the then-established Launch Period based on the
availability of Launch Opportunities. If the [*] on the selection of a Launch
Slot, ICO shall be assigned the first available Launch Slot for which there is
a Launch Opportunity after the Launch Slot initially requested by ICO; provided
that the period of time between the Launch Slot initially requested by ICO and
the first available Launch Slot for which there is a Launch Opportunity after
such Launch Slot initially requested by ICO shall not constitute a postponement
requested by ICO or Launch Provider under Article 6.1 or Article 6.2,
respectively.


 


5.4           Launch Provider shall propose a Launch Day in
writing at least [*] prior to the first day of the then-established Launch Slot.
 Within seven (7) days of the receipt of
the written recommendation of a Launch Day, ICO shall agree to such Launch Day
or shall agree to meet (either in person or telephonically) with Launch Provider
at a mutually agreeable time, provided that such meeting shall take place within
seven (7) days of Launch Provider’s receipt of ICO’s written request for a meeting
with Launch Provider. Prior to such meeting, Launch Provider shall inform ICO, in
writing, of all available Launch Opportunities, both prior to and after the
recommended Launch Day. The Launch Day shall be determined by [*] on or before [*]
prior to the first day of the established Launch Slot based on the availability
of Launch Opportunities.  Launch Provider
shall use commercially reasonable efforts to provide ICO with the Launch Day it
requests. If the [*] on the selection of a Launch Day, ICO shall be assigned
the first available Launch Day for which there is a Launch Opportunity after
the Launch Day requested by ICO in such meeting; provided that the period of time
between the Launch Day requested by ICO and the first available Launch Day for
which there is a Launch Opportunity after such Launch Day requested by ICO
shall not constitute a postponement requested by ICO or Launch Provider under
Article 6.1 or Article 6.2, respectively.


 


13

















 






 


[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


5.5           Throughout the duration of this Contract, Launch Provider shall provide
monthly status reports to ICO of [*] for the time period that is [*] before and
[*] after the Launch Schedule. In addition, if Launch Provider obtains
information regarding [*] between the provision of monthly status reports,
Launch Provider shall promptly provide such information to ICO.


 


5.6           ICO shall notify Launch Provider of the scheduled delivery of the
Launch Ready Spacecraft to the Launch Site not less than ten (10) days prior to
the scheduled delivery.


 


ARTICLE
6 — LAUNCH POSTPONEMENTS


 


6.1           ICO may request a postponement to the Launch
Schedule by providing written notice to Launch Provider of the desired change
of the Launch Schedule. ICO shall request a postponement in writing as soon as
ICO knows that ICO will not be able to maintain the Launch Schedule. At the
time of the request for such postponement, ICO shall propose a new Launch
Schedule (“ICO Proposed Revised Schedule”). Within fifteen (15) days of
the receipt of the written request for a Launch Schedule change, Launch
Provider shall either inform ICO that a Launch Opportunity is available for the
requested ICO Proposed Revised Schedule or shall agree to meet (either in
person or telephonically) with ICO at a mutually agreeable time, provided that
such meeting shall take place within seven (7) days of Launch Provider’s receipt
of ICO’s written request for a meeting. Prior to such meeting, Launch Provider
shall inform ICO, in writing, of all available Launch Opportunities, both prior
to and after the ICO Proposed Revised Schedule, and, in any event, Launch Provider
shall use commercially reasonable efforts to provide a Launch Schedule to Launch
the Spacecraft as soon as possible after it becomes a Launch Ready Spacecraft.  At such meeting or as soon as practicable
thereafter, [*] for which there is a Launch Opportunity (“Compromise
Schedule”), and [*] such Compromise Schedule. If the Compromise Schedule is
after the ICO Proposed Revised Schedule, the period of time between the first
day of the ICO Proposed Revised Schedule and the first day of the Compromise
Schedule shall not be deemed a postponement by ICO pursuant to this Article 6.1
or Launch Provider pursuant to Article 6.2.


 


6.2           Launch Provider shall request a postponement
in writing to ICO as soon as Launch Provider knows that Launch Provider will
not be able to maintain the current Launch Schedule. At the time of the request
for such postponement, Launch Provider will provide ICO with a reasonably
detailed explanation of the reason for such postponement and a proposed new
Launch Schedule (“LP Proposed Revised Schedule”). Within fifteen (15)
days of the receipt of the written request for a Launch Schedule change, ICO
will either accept the LP Proposed Revised Schedule or shall agree to meet
(either in person or telephonically) with Launch Provider at a


 


14

















 






 


[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


mutually
agreeable time, provided that such meeting shall take place within seven (7)
days of Launch Provider receipt of ICO’s written request for a meeting. Prior
to such meeting, Launch Provider shall inform ICO, in writing, of all available
Launch Opportunities, both prior to and after the LP Proposed Revised Schedule,
and, in any event, Launch Provider shall use commercially reasonable efforts to
provide a Launch Schedule to Launch the Spacecraft as soon as possible after it
becomes a Launch Ready Spacecraft. At such meeting or as soon as practicable
thereafter, [*] a Compromise Schedule, and [*] such Compromise Schedule. If the
Compromise Schedule is after the LP Proposed Revised Schedule, the period of
time between the first day of the LP Proposed Revised Schedule and the first
day of the Compromise Schedule shall not be deemed a postponement by Launch Provider
pursuant to this Article 6.2 or by ICO pursuant to Article 6.1.


 


6.3           The length of each postponement attributable
to either ICO under Article 6.1 or Launch Provider under Article 6.2 shall be
measured from the first day of the then-current Launch Schedule to the first
day of the Launch Schedule proposed by the postponing Party. The selection of a
Launch Slot or Launch Day, as applicable, for a postponed Launch Schedule shall not be considered a postponement
attributable to either Party. The total amount of postponement days
attributable to ICO shall be the sum of all days of postponement attributed to
ICO and the total amount of postponement days attributable Launch Provider
shall be the sum of all days of postponement attributed to Launch Provider, and
calculated in accordance with this Article 6.3.  With respect to conversion of days of
postponement to months of postponement under this Contract, thirty (30) days of
postponement will equal one (1) month of postponement.


 


6.4           In the event that postponements attributable to Launch Provider under
Article 6.2, including postponements under Article 7.1.2 caused by Launch
Provider’s failure to meet its obligations under ARTICLE 7, OBLIGATIONS BEFORE
AND AFTER LAUNCH, exceed [*] in the aggregate, then Launch Provider shall pay postponement
fees (collectively, “Postponement Fees”) as provided in this Article 6.4.
Launch Provider shall be assessed a Postponement Fee for each such day of postponement
attributable to the Launch Provider in excess of [*] at the [*] per day, up to
a maximum aggregate fee of [*] for the Launch Service. Postponement Fees shall
be deemed as liquidated damages and not as a penalty. Both ICO and Launch
Provider agree that the Postponement Fees represent (a) a knowing and
considered allocation of ICO’s risks, (b) ICO’s reasonable assessment of the
potential future actual damages related to this Contract and (c) fair
compensation for ICO relative to a potential postponement hereunder. Except as
otherwise expressly provided in this Contract (including, without limitation,
as provided in Article 13, TERMINATION, and Article 4, PAYMENTS), Postponement
Fees shall be the sole remedy available to ICO for any and all impacts
associated with a postponement or cumulative postponement of the Launch.


 


15

















 






 


[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


6.5           In the event of a launch failure of any Atlas
launch vehicle immediately preceding the Launch Service, ICO may postpone the
Launch Schedule in order not to be [*] for the Atlas launch vehicle. Within
fifteen (15) days of such
postponement, Launch Provider shall provide a LP Proposed Revised Schedule that
identifies the first Launch Opportunity for which ICO is not the [*] for the
Atlas launch vehicle. Within fifteen (15) days of the receipt of such LP
Proposed Revised Schedule, ICO shall either accept the LP Proposed Revised
Schedule or the Parties shall agree to meet (either in person or
telephonically) at a mutually agreeable time, provided that such meeting shall
take place within seven (7) days of Launch Provider’s receipt of ICO’s written
request for a meeting. Prior to such meeting, Launch Provider shall inform ICO,
in writing, of all available Launch Opportunities after the LP Proposed Revised
Schedule, and, in any event, Launch Provider shall not require ICO’s Launch to
be [*] for the Atlas launch vehicle. At such meeting or as soon as practicable
thereafter, [*] a Compromise Schedule, and [*] such Compromise Schedule.  If the Compromise Schedule is after the LP
Proposed Revised Schedule, the period of time between the first day of the LP
Proposed Revised Schedule and the first day of the Compromise Schedule shall
not be deemed a postponement by Launch Provider pursuant to this Article 6.2 or
by ICO pursuant to Article 6.1.


 


ARTICLE
7 — OBLIGATIONS BEFORE AND AFTER LAUNCH


 


7.1           Launch Provider shall provide to ICO and ICO
shall provide to Launch Provider the data, hardware and services identified in
the Statement of Work according to the schedules provided therein. The data,
hardware and services shall be received in a condition suitable for their
intended use as defined by the requirements of the Statement of Work. In the
event that the data, hardware or services are not received according to their
schedule or requirements, and the non-availability will affect the Launch
Schedule, the following procedures shall apply:


 


7.1.1        The Party receiving or failing to receive the
data, hardware or services (the “Recipient”) shall promptly provide the
Party obligated to deliver such data, hardware or services (the “Delivering
Party”) with written notice that includes a statement of the discrepancy
and recommended solutions. The Delivering Party shall consider the recommendations
of the Recipient and shall provide the Recipient written direction about how to
proceed within seven (7) days of the receipt of notice.


 


7.1.2        The Recipient shall use commercially
reasonable efforts to continue its obligations under the Contract without
affecting the Launch Schedule, and the Parties shall discuss measures to
mitigate the delay caused by the failure to deliver the data, hardware or
services. If, however, the Recipient is unable, despite its commercially
reasonable efforts, to continue its obligations under the Contract without
affecting the Launch Schedule and,


 


16

















 






 


[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


as
a result of the failure of the Delivering Party to deliver the data, hardware
or services, the Launch Service cannot be performed within the Launch Schedule,
then the Delivering Party shall request a postponement of the Launch Schedule
pursuant to Article 6.1 or Article 6.2, as applicable; provided, however, that
the number of days of postponement attributable to the Delivering Party shall
not exceed the number of days after the scheduled delivery date of the data,
hardware or services that the Delivering Party delivers such data, hardware or
services.


 


7.2           Launch Provider shall perform the Post-Launch Services for the Launch
Service and provide ICO with access to and use of the data and other reports
regarding the Launch Service specified in the Statement of Work.


 


ARTICLE
8 — COMMUNICATION BETWEEN LAUNCH PROVIDER AND ICO


 


8.1           All notices and communications between the Parties that are required or
permitted under the Contract, in order to be given effect, shall be in writing
and shall be addressed as listed below; provided that each Party may change its
address and contact information by written notice to the other Party. A notice
shall be deemed effective upon (i) acknowledgement of receipt (electronically
or otherwise) if sent by facsimile (or, if acknowledged electronically after
normal business hours, then upon the next succeeding commencement of normal
business hours) or (ii) actual receipt if delivered in person, by reputable
overnight delivery service or by any means other than by facsimile.  Electronic mail (e-mail) communication shall
not constitute notice under this Article 8.1.


 


All
Notices to Launch Provider:


 


Lockheed
Martin Commercial Launch Services, Inc.


1660
International Drive, Suite 800 


McLean,
VA 22102 


Attention:             [*]


[*]


 


All
Notices to ICO:


 


ICO
Satellite Services GP


222 North Sepulveda Blvd., Suite 1770


El
Segundo, CA 90245


Attention:             [*]


[*]


 


with a copy (which shall not constitute notice) to: 


 


Davis Wright Tremaine LLP


 


17

















 


1501
Fourth Avenue, Suite 2600


Seattle,
WA 98101


Attention:              Joseph Weinstein


Fax:
(206) 628-7699


 


8.2           All documentation, notices, reports and correspondence required
pursuant to the Contract shall be submitted and maintained in the English
language. All communication at the Launch Site between the Parties and with
Related Third Parties and between the personnel of the Parties or Related Third
Parties shall be in English. The Parties shall mutually agree upon standards
for transliteration and translation of non-English information.


 


ARTICLE 9 — PERMITS, APPROVALS AND COMPLIANCE WITH
UNITED STATES GOVERNMENT REQUIREMENTS


 


9.1           Launch Provider has executed agreements with
various United States Government agencies for use of United States
Government-owned property and facilities relating to launch operations at the
Launch Site. ICO and Launch Provider agree that they shall comply with the
United States Government’s laws, regulations, policies and directives as they
relate to the performance of this Contract. Launch Provider shall provide ICO
with reasonable notice (either verbally or in writing) of the requirements
regarding access to the Launch Site. The Parties shall, before Launch, execute
and deliver the Agreement for Waiver of Claims and Assumption of
Responsibility, the execution of which is required by the United States
Department of Transportation (14 C.F.R. Section 440.17(c)) as a condition of
granting Launch Provider’s license to conduct launch activities and Launch the
Spacecraft.


 


9.2           It is the policy of the United States Government to support the commercialization
of domestic launch services by making available to United States launch
services providers its launch-related facilities. However, both ICO and Launch
Provider agree that, in the event of imperative national need as set forth in
49 U.S.C. Section 70109 of the CSLA, the United States Government may require
use of United States Government or Launch Provider property and personnel. In
the event such use by the United States Government necessitates subsequent
rescheduling of ICO’s Launch Service, Launch Provider shall promptly notify ICO
of any delay and reschedule the Launch Service in accordance with Article 6.2.


 


9.3           Each of the Parties acknowledges and agrees that it will comply with
all applicable statutes and regulations relating to the export and import of
commodities, services or technical data out of and into the United States of
America.


 


9.4           ICO and Launch Provider hereby agree to identify and promptly notify
the other Party of all of its non-U.S. person employees, non-U.S. person employees
of its Related Third Parties and non-U.S. person consultants of any of them who
will participate in, or receive any commodities, technical data or defense
services in


 


18

















 


connection
with the performance of this Contract. For the purposes of conformance with the
International Traffic in Arms Regulation, U.S. resident aliens (with green
cards) shall be considered U.S. persons.


 


9.5           Each of the Parties acknowledges that a Party must refuse to admit to
any meeting and refuse to transmit any commodities, technical data or provide
any defense services, to a non-U.S. person participant who is not covered by an
applicable license or agreement issued by the United States Government and duly
executed by the appropriate parties.


 


9.6           Each Party agrees to exercise commercially reasonable efforts to obtain
and maintain thereafter all necessary licenses, clearances, permits and
governmental authorizations necessary in order to comply with all requirements
and to perform all obligations under this Contract in a timely manner. Each
Party agrees to assist and support the other Party to the extent practicable,
in obtaining such licenses, permits, approvals, and authorizations.


 


9.7           Without limitation to the foregoing, Launch Provider shall be
responsible for providing the below-listed tasks and services for the Launch
Service to the extent such tasks and services are required by applicable law or
regulation:


 


(i)            Provide Defense Technology Security
Administration (“DTSA”) monitors during all technical interface meetings
related to the Launch Service including, if required, having such monitors at
the Launch Site for the duration of the Launch Service;


 


(ii)           Provide for a security guard detail at the
Launch Site for the Launch Service, if required, in compliance with Launch
Provider’s TAA requirements and DTSA-approved Spacecraft security plan;


 


(iii)          Include both ICO and the Spacecraft
Manufacturer as signatories to Launch Provider’s TAA(s) to cover all related
pre-Launch activities/interfaces in respect to the Launch Vehicle, the Launch
Service as well as all activities at the Launch Site, and Post-Launch Services;
and include as signatories to such TAA(s) such other parties as requested by
ICO, subject to U.S. Government approval; and


 


(iv)          Provide the required security plan(s) as it
relates to the Launch’s TAA requirements for the Launch Site and the activities
to be performed in connection with the Launch Service.


 


The
Launch Provider’s performance of the tasks and services described in clauses
(i) through (iv) above is included in the Launch Price.


 


19

















 






 


[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


ARTICLE
10 — TITLE TO PROPERTY


 


10.1         ICO understands and agrees that at no time
does ICO obtain title to or any ownership of or any other legal or equitable right
or interest in or to any part of any Launch Vehicle, or in any other property
of Launch Provider, whether real or personal, tangible or intangible, including
without limitation hardware used or furnished by Launch Provider in providing
the Launch Service under this Contract. Such property of Launch Provider shall
be considered between the Parties to be the property of Launch Provider.


 


10.2        Launch Provider understands and agrees that
at no time does Launch Provider obtain title to or any ownership of or any
other legal or equitable right or interest in or to the Spacecraft of ICO or
any part thereof, or in any other property of ICO, whether real or personal,
tangible or intangible, including any hardware or equipment used or furnished
in performing the obligations of ICO hereunder. Such property of ICO shall be
considered between the Parties to be the property of ICO.


 


ARTICLE
11 — LAUNCH RISK PROTECTION


 


Subject to insurer
agreement, ICO shall have the right to exercise launch risk protection pursuant
to the terms of Exhibit D and this Article 11, LAUNCH RISK PROTECTION (“LRP
Protection”), by providing written notice to the Launch Provider no later
than [*] (“LRP Option”). If ICO exercises the LRP Option, the fee for
such LRP Protection shall be $[*] (“LRP Fee”). The LRP Protection amount
for such LRP Option shall be $[*].
The LRP Fee shall be payable as follows: (i) [*] of the LRP Fee shall be
invoiced by the Launch Provider promptly after exercise of the LRP Option by
ICO and due within ten (10) days of invoice, and (ii) [*] of the LRP Fee shall
be invoiced and due [*] to the then-established Launch Day.  The LRP Fee is fully refundable if ICO
terminates the LRP Option, except (a) $[*] shall be non-refundable (if the
second payment in clause (ii) above is paid), and (b) in no event will ICO be
entitled to a refund of the LRP Fee in an amount greater than the amount
received by Launch Provider from the insurers. In the event of a claim on the
LRP Protection, Launch Provider agrees that it will diligently and in good
faith pursue such claim with its insurers and pay any proceeds received by the
insurers to ICO, provided however, if the insurer refuses to pay the claim and
the claim is submitted to arbitration or is mediated or litigated, ICO will
direct Launch Provider regarding the pursuit of the claim, including but not
limited to discussions or agreements regarding settlement, and may participate
in any arbitration, mediation or litigation regarding such claim at its own
expense and shall reimburse Launch Provider for all reasonable, out-of-pocket
costs associated with pursuing such claim. [*]


 


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[*]  
CONFIDENTIAL TREATMENT REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS)
LIMITED


 


ARTICLE
12 — REPLACEMENT LAUNCH


 


12.1        In the event that ICO determines that the
Launch results in a Failure within the first [*], then ICO shall have the right
to require Launch Provider to perform another launch service in accordance with
this Article 12.1 (the “Replacement Launch”).


 


12.1.1      If ICO has a Failure, ICO’s right to obtain the Replacement Launch is exercisable
by written notice (the “Replacement Launch Notice”), which ICO shall
provide not later than [*].


 


12.1.2      The Replacement Launch Notice shall indicate the new ninety (90) day Launch
Period desired for the Replacement Launch. Launch Provider shall use [*] to
provide ICO with the Launch Period desired for the Replacement Launch. Launch
Provider shall inform ICO, within fifteen (15) days after receipt of the
Replacement Launch Notice, if a Launch Opportunity exists in the Launch Period
requested by ICO. If a Launch Opportunity does not exist in the requested
Launch Period, the Parties will negotiate in good faith and designate a
mutually acceptable Launch Period for the Replacement Launch within [*] after
Launch Provider’s receipt of the Replacement Launch Notice exercising its
option for the Replacement Launch; [*]


 


12.1.3      The Replacement Launch shall be provided in accordance with the terms
and conditions of the Contract, except the Replacement Launch Price, the
determination of the Launch Period for the Replacement Launch, the payment
schedule for the Replacement Launch and the Termination Schedule shall be as
set forth in this Article 12, REPLACEMENT LAUNCH.  Once the Parties have selected a Launch Period
for the Replacement Launch, the Parties shall prepare and sign an amendment to
this Contract that documents the terms and conditions of such Replacement
Launch.


 


12.1.4      Launch Provider shall in good
faith provide ICO a price for the Replacement Launch (“Replacement Launch
Price”) at least [*]. If ICO exercises a Replacement Launch, ICO shall pay
the Replacement Launch Price in accordance with Article 12.1.5.


 


12.1.5      ICO shall make payments for the Replacement Launch in accordance with
the following payment schedule, as such schedule may be amended or revised
pursuant to this Contract:


 


21

















 






 


[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


EXECUTION COPY


 


[*]


 


[*] In the event Launch Provider postpones the Launch Schedule for the Launch Service pursuant to Article 6.2, all payments under
this Article 12.1.5 which have not already been paid shall be suspended on
a day-for-day basis for the length of the postponement and then resumed with all remaining payments postponed by the length of the postponement.


 


12.1.6        ICO may select a Prior Spacecraft Type or New Spacecraft Type for the Replacement Launch.  The
Replacement Launch Price provided by Launch Provider in accordance with Article
12.1.4 shall include a price for
the re-launch of a spacecraft identical to the Spacecraft, as well as for the launch of a Prior Spacecraft Type that is different from the Spacecraft.  If requested by ICO in the Replacement Launch
Notice, Launch Provider will also provide an incremental price for the launch
of a New Spacecraft Type
specified by ICO.


 


12.1.7        The following Termination
Schedule shall apply to the Replacement Launch:


 


	
  Termination Schedule Dates

  	
   

  	
  Termination Amount

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  



 


With respect to the Termination
Schedule above, Termination Damages shall be calculated pursuant to the terms of Article 13.1.1, except the maximum recoverable Termination Damages
shall be [*]


 


22

















 






 


[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


ARTICLE 13 — TERMINATION


 


13.1              The rights of ICO to terminate the Launch
Service under the Contract, and the available remedies, are as follows:


 


13.1.1         Prior
in the Launch, ICO shall have the right to terminate the Launch Service
pursuant to this Article 13.1.1 for any reason by providing written notice to
Launch Provider. With respect to any termination pursuant to this Article
13.1.1, Launch Provider will be entitled to retain, as liquidated damages, an
amount calculated based on the Termination Schedule below, as adjusted by this
Article 13.1.1 (the “Termination Damages”). In the event ICO postpones
the Launch Schedule pursuant to Article 6.1. the L used in the Termination
Schedule shall be adjusted on a day-for-day basis for the aggregate length of
all such postponements by ICO.  For a
Termination Date between any two Termination Schedule Dates in the Termination
Schedule, the Termination Damages shall be linearly increased from the
preceding Termination Amount in the Termination Schedule for the percentage of
days that have passed between the preceding and succeeding Termination Schedule
Dates. Termination Damages shall never be greater than [*].  The Termination Schedule is as follows:


 


	
  Termination Schedule Dates

  	
   

  	
  Termination Amount

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  
	
  [*]

  	
   

  	
  [*]

  



 


Example:
If there have been no postponements by Launch Provider or ICO and the
Termination Date is at L-11, then the Termination Damages would be [*].


 


In
addition to the Termination Damages, Launch Provider shall also retain, as
liquidated damages, [*] of any Escalation Fees paid or due and payable by ICO
as of the Termination Date (the “Escalation Fee Damages”) and [*] of any
amounts paid by ICO pursuant to Article 3.4 prior to the Termination Date (the “Removal
Fee Damages”). If ICO has exercised the LRP Option, Launch Provider shall
promptly provide the insurer with notice of ICO’s termination, request
cancellation of the LRP Protection and refund to ICO any premiums, charges or
amounts paid by ICO and returned by the insurer to Launch Provider. Within
fifteen (15) days of the Termination Date, Launch Provider will provide ICO
with written notice that includes a detailed


 


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[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


accounting
of the Termination Damages, Escalation Fee Damages and Removal Fee Damages and
the amount to be refunded to ICO. Within thirty (30) days of the Termination
Date, Launch Provider will refund the balance of all payments is made by ICO in
excess of the Termination Damages, Escalation Fee Damages and Removal Fee
Damages, as applicable for the Launch Service. In addition, the Launch Provider
shall refund all fees paid (less the $[*] non-refundable amount, if applicable
in accordance with Article 11, LAUNCH RISK PROTECTION) by ICO for the LRP
Protection with in thirty (30) days or if not refunded by the insurer by that
date, within five (5) days of receipt by the Launch Provider of the refund from
the insurer.


 


13.1.2         Prior to the Launch, ICO shall have the right
to terminate the Launch Service pursuant to this Article 13.1.2 if:


 


13.1.2.1       The sum of all postponements for the Launch
Service which are attributable to Launch Provider under Article 6.2, including
any postponements under Article 7.1.2 caused by Launch Provider’s failure to
meet its obligations under ARTICLE 7, OBLIGATIONS BEFORE AND AFTER LAUNCH, have
or will equal or exceed [*] in the aggregate; provided, postponements
attributable to ICO under Article 6, LAUNCH POSTPONEMENTS, shall not be
considered when calculating the sum of postponements. ICO may exercise its
right to terminate under this Article 13.1.2.1 effective immediately upon
written notice to Launch Provider. ICO must terminate Launch Provider within [*]
of becoming aware that the sum of postponements by Launch Provider pursuant to
this Article 13.1.2.1 equal or exceed [*] or if ICO does not terminate Launch
Provider within such [*] period, ICO waives its right to terminate the Launch
Service pursuant to this Article 13.1.2.1 unless Launch Provider further
postpones the Launch Service.


 


13.1.2.2       Launch Provider materially breaches any of
its obligations under this Contract; provided, ICO’s right to terminate this
Contract for Launch Schedule postponements shall be governed by Article
13.1.2.1. Any termination of a Launch Service under this Article 13.1.2.2 must
be preceded by thirty (30) days written notification that specifies the default
or breach and the intent to terminate in the event that the default or breach
is not, or cannot be, cured within [*] after such notice to cure. If such
default or breach is not cured within such [*] period, then ICO shall have the
right to terminate the Launch Service immediately on written notice to Launch
Provider. ICO must terminate the Launch


 


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[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


Provider
within [*] after the expiration of such [*] or if ICO does not terminate Launch
Provider within such [*] period, ICO waives its right to terminate the Launch
Service pursuant to this Article 13.1.2.2 unless Launch Provider subsequently
materially breaches any of its obligations under this Contract.


 


13.1.2.3       Launch Provider becomes bankrupt or insolvent
or has a receiving order made against it, or seeks the protection of any law
relating to bankrupt or insolvent debtors, or if an order is made or resolution
passed for the winding up of Launch Provider. ICO may exercise its right to
terminate under this Article 13.1.2.3 effective immediately upon written notice
to Launch Provider.


 


13.1.3         With respect to any termination under Article 13.1.2, within thirty
(30) days of the Termination Date, Launch Provider shall refund all payments
made for the Launch Service (including, without limitation, all fees paid for
the LRP Option) and, if applicable, pay any Postponement Fees due under Article
6.4.


 


13.2              The rights of Launch Provider to terminate the
Launch Service under the Contract, and the available remedies, are as follows:


 


13.2.1         Prior to the Launch, Launch Provider shall have the right to terminate
the Launch Service pursuant to this Article 13.2.1 by providing written notice
to ICO:


 


13.2.1.1       If ICO fails to comply with the payment
obligations specified in Article 4, PAYMENTS. 
No right of termination shall exist with respect to any amount not paid
by ICO that is the subject of a bona fide dispute between ICO and Launch
Provider. Any termination of a Launch Service under this Article 13.2.1.1 must
be preceded by thirty (30) days written notification that specifies the payment
default and the intent to terminate in the event that such payment default is
not, or cannot be, cured within [*] after such notice to cure. If such payment
default is not cured within such [*] period, then Launch Provider shall have
the right to terminate the Launch Service immediately on written notice to ICO.
If the payment obligation is not cured within the [*] cure period, Launch
Provider must terminate the Launch Service within [*] after the expiration of
such [*] cure period or if Launch Provider does not terminate the Launch
Service within such [*] period, Launch Provider waives its right to terminate
the Launch Service pursuant to this


 


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[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


Article
13.2.1.1 unless ICO subsequently fails to comply with the payment obligations
specified in Article 4, PAYMENTS.


 


13.2.1.2       If the sum of all postponements of the Launch
Service attributable to ICO under Article 6.1, including postponements under
Article 7.1.2 caused by ICO’s failure to meet its obligations under ARTICLE 7,
OBLIGATIONS BEFORE AND AFTER LAUNCH, equal or exceed [*] in the aggregate;
provided, postponements attributable to Launch Provider under Article 6, LAUNCH
POSTPONEMENTS, shall not be considered when calculating the sum of
postponements. Launch Provider shall have the right to terminate the Launch
Service pursuant to this Article 13.2.1.2 immediately on written notice to ICO.
Launch Provider must terminate the Launch Service within [*] of becoming aware
that the sum of postponements by ICO pursuant to this Article 13.2.1.2 equal or
exceed [*] or if Launch Provider does not terminate the Launch Service within [*]
period, Launch Provider waives its right to terminate the Launch Service
pursuant to this Article 13.2.1.2 unless ICO further postpones the Launch
Service. Notwithstanding the foregoing, if ICO postpones the Launch Schedule
pursuant to Article 6.5, Launch Provider may only terminate the Launch Service
pursuant to this Article 13.2.1.2 if the sum of postponements by ICO under
Article 6.1, which includes postponements under Article 6.5, is equal to or
exceeds [*].


 


13.2.2         With respect to any termination of the Launch Service pursuant to
Article 13.2.1, Launch Provider shall retain the Termination Damages, the
Escalation Fee Damages and the Removal Fee Damages as calculated in Article
13.1.1. If ICO has exercised the LRP Option, Launch Provider shall promptly
provide the LRP Protection insurer with notice of Launch Provider’s termination
of the Launch Service, request cancellation of the LRP Protection and refund to
ICO any premiums, charges or amounts returned by insurer to Launch Provider.
Within fifteen (15) days of the Termination Date, Launch Provider will provide
ICO with written notice that includes a detailed calculation of the Termination
Damages, the Escalation Fee Damages, the Removal Fee Damages and any amount to
be refunded to ICO. Within thirty (30) days of the Termination Date, Launch
Provider will refund the balance of all payments made for the Launch Service
terminated in excess of the Termination Damages.


 


13.3             Both ICO and Launch Provider agree that the
Termination Damages specified in Article 13, TERMINATION, are liquidated
damages and not penalties, and represent (i) a knowing and considered
allocation of Launch Provider’s risks, (ii)


 


26

















 


Launch
Provider’s reasonable assessment of potential future actual damages and (iii)
fair compensation for Launch Provider relative to a potential termination
hereunder.


 


13.4              If an arbitrator determines in accordance with
Article 21, DISPUTE RESOLUTION, that ICO has wrongfully terminated the Launch
Service pursuant to Article 13.1.2, then such termination shall be deemed, as
of the original Termination Date, a termination of the Launch Service by ICO
pursuant to Article 13.1.1.


 


ARTICLE 14 — EXCLUSION OF WARRANTY, WAIVER OF
LIABILITY AND ALLOCATION OF CERTAIN RISKS


 


14.1             NO REPRESENTATIONS OR WARRANTIES


 


14.1.1         LAUNCH PROVIDER HAS NOT MADE NOR DOES IT MAKE
ANY REPRESENTATION OR WARRANTY, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF DESIGN, OPERATION, CONDITION,
QUALITY, SUITABILITY OR MERCHANTABILITY OR OF FITNESS FOR USE OR FOR A
PARTICULAR PURPOSE, ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE, WITH REGARD TO THE SUCCESS OF ANY LAUNCH OR OTHER PERFORMANCE OF
THE LAUNCH SERVICE HEREUNDER.


 


14.1.2         ICO HAS NOT MADE NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY,
WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF DESIGN, OPERATION, CONDITION, QUALITY, SUITABILITY OR MERCHANTABILITY
OR OF FITNESS FOR USE OR FOR A PARTICULAR PURPOSE, ABSENCE OF LATENT OR OTHER DEFECTS,
WHETHER OR NOT DISCOVERABLE, WITH REGARD TO THE SPACECRAFT OR ANY DATA,
HARDWARE OR SERVICES PROVIDED TO LAUNCH PROVIDER IN CONNECTION WITH THE LAUNCH
SERVICE.


 


14.1.3         WITHOUT LIMITING OR CREATING EXCEPTIONS TO THE RECIPROCAL WAIVER OF
LIABILITY SET FORTH IN THIS ARTICLE 14, EXCLUSION OF WARRANTY, WAIVER OF
LIABILITY AND ALLOCATION OF CERTAIN RISKS, WITH RESPECT TO THE LAUNCH SERVICE,
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO PERSONS CLAIMING BY
OR THROUGH SUCH PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY,
NEGLIGENCE OF ANY TYPE OR


 


27

















 


UNDER
ANY OTHER LEGAL OR EQUITABLE THEORY FOR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, COSTS OF EFFECTING COVER,
LOST PROFITS, LOST REVENUES OR COSTS OF RECOVERING THE SPACECRAFT, ARISING OUT
OF OR RELATING TO THIS CONTRACT.


 


14.2              Waiver of Liability


 


1 4.2.1        Launch Provider and ICO hereby agree to a reciprocal waiver of
liability pursuant to which each Party agrees not to bring a claim or sue the
other Party, the United States Government and its contractors and
subcontractors at every tier or Related Third Parties of the other Party for
any property loss or damage it sustains, including, but not limited to, in the
case of ICO, loss of or damage to the Spacecraft, or any other property loss or
damage, personal injury or bodily injury, including death, sustained by any of
its directors, officers, agents and employees, arising in any manner in
connection with the performance of or activities carried out pursuant to this
Contract, or other activities in or around the Launch Site, or the operation or
performance of the Launch Vehicle or the Spacecraft.  Such waiver of liability applies to all
damages of any sort or nature, including but not limited to any direct,
indirect, special, incidental or consequential damages or other loss of revenue
or business injury or loss such as costs of effecting cover, lost profits, lost
revenues, or costs of recovering the Spacecraft, from damages to the Spacecraft
before, during or after Launch or from the failure of the Spacecraft to reach
its planned orbit or operate properly.


 


14.2.2         Claims of liability are waived and released regardless of whether loss,
damage or injury arises from the acts or omissions, negligent or otherwise, of
either Party or its Related Third Parties.  This waiver of liability shall extend to all
theories of recovery, including in contract for property loss or damage, tort,
product liability and strict liability. In no event shall this waiver of
liability prevent or encumber enforcement of the Parties’ contractual rights
and obligations to each other as specifically provided in this Contract.


 


14.2.3         Launch Provider and ICO shall each extend the waiver and release of
claims of liability as provided in Article 14.2.1 and Article 14.2.2 to its
Related Third Parties (other than employees, directors and officers) by
requiring them to waive and release all claims of liability they may have
against the other Party and its Related Third Parties, and the United States
Government and its contractors and subcontractors at every tier and to agree to
be responsible for any property loss or damage, personal injury or bodily injury,
including death, sustained by them arising in any manner in connection with the
performance of or activities carried out pursuant to this


 


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[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


Contract,
or other related activities in or around the Launch Site, or the operation or
performance of the Launch Vehicle or the Spacecraft.


 


14.2.4         The waiver and release by each Party and its
Related Third Parties of claims of liability against the other Party and the
Related Third Parties of the other Party extends to the successors and assigns,
whether by subrogation or otherwise, of the Party and its Related Third Parties.
 Each Party shall obtain a waiver of
subrogation and release of any right of recovery against the other Party and
its Related Third Parties from any insurer providing coverage for the risks of
loss for which the Party hereby waives claims of liability against the other
Party and its Related Third Parties.


 


14.2.5         In the event of any inconsistency between the
provisions of this Article 14.2 and any other provisions of this Contract, the
provisions of this Article 14.2 shall take precedence.


 


14.3              Indemnification - Property Loss and Damage
and Bodily Injury


 


14.3.1         To the extent that claims of liability by
Related Third Parties are not covered by an insurance policy of either Launch
Provider or ICO, Launch Provider and ICO each agree to defend, hold harmless
and indemnify the other Party and its Related Third Parties, for any
liabilities, costs and expenses (including reasonable attorneys’ fees, costs
and expenses), arising as a result of claims brought by Related Third Parties
of the indemnifying Party, for property loss or damage, personal injury or
bodily injury, including death, sustained by such Related Third Parties,
arising in any manner in connection with the activities carried out pursuant to
this Contract, other activities in and around the Launch Site, or the operation
or performance of the Launch Vehicle or the Spacecraft. Such indemnification
applies to any claim for direct, indirect, special, incidental or consequential
damages or other loss of revenue or business injury or loss, including but not
limited to costs of effecting cover, lost profits or lost revenues, resulting
from any loss of or damage to the Spacecraft before, during, or after Launch or
from the failure of the Spacecraft to reach its planned orbit or operate
properly.


 


14.3.2         To the extent that claims of liability by
Third Parties are not covered by the third party liability insurance referred
to in Article 15.1 entitled “Third Party Liability Insurance,” or an insurance
policy of either Launch Provider or ICO, or are not eligible for payment by the
United States Government (as provided in Article 14.4), Launch Provider will
defend, hold harmless and indemnify ICO and its Related Third Parties from: [*]
any and all claims of Third Parties for property loss or damage, personal
injury or bodily injury, including death, [*]


 


29

















 






 


[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


arising
in any manner from the processing, operation, testing, or performance of the
Launch Vehicle.


 


14.3.3         To the extent that claims of liability by Third
Parties are not covered by the third party liability insurance referred to in
Article 15.1 entitled “Third Party Liability Insurance,” or an insurance policy
of either Launch Provider or ICO, or are not
eligible for payment by the United States Government (as provided in Article
14.4), ICO will defend, hold harmless and indemnify Launch Provider and its
Related Third Parties for any and all claims of Third Parties, for property
loss or damage, personal injury or bodily injury, including death, arising in
any manner from the processing, testing, operation or performance of the
Spacecraft or from any claim for indirect, special, incidental or consequential
damages or other loss of revenue or business injury or loss including, but not
limited to costs of effecting cover, lost profits or lost revenues resulting
from any loss of or damage to the Spacecraft before, during or after Launch or
from the failure of the Spacecraft to reach its planned orbit or operate
properly.


 


14.3.4         Notwithstanding Article 14.3.2 and Article
14.3.3 above and Article 14.3.5 below, Launch Provider shall not be obligated
to defend, hold harmless or indemnify ICO for any claim brought by a Third Party
against ICO resulting from any damage to or loss of the Spacecraft, whether
sustained before or after Launch and whether due to the operation, performance,
non-performance or failure of the Launch Vehicle or due to any other causes.  ICO shall defend, hold harmless and indemnify
Launch Provider for any claims brought by Third Parties against Launch Provider
for damage to or loss of the Spacecraft, whether sustained before or after
Launch or whether due to the operation, performance, non-performance or failure
of the Launch Vehicle or due to other causes.


 


14.3.5         The indemnification for property loss or
damage, personal injury or bodily injury provided by this Article 14.3 shall be
available regardless of whether such loss, damage or injury arises from the
acts or omissions, whether negligent or otherwise, of the Party entitled to
indemnification, or its Related Third Parties, as the case may be.


 


[*]


 


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[*]   CONFIDENTIAL TREATMENT REQUESTED BY ICO GLOBAL
COMMUNICATIONS (HOLDINGS) LIMITED


 


[*]


 


14.3.7         The right of either Party or Related Third
Parties to indemnification under this Article 14. EXCLUSION OF WARRANTY, WAIVER
OF LIABILITY AND ALLOCATION OF CERTAIN RISKS, is not subject to subrogation or
assignment and either Party’s obligation set forth herein to indemnify the
other Party or Related Third Parties extends only to that Party or those
Related Third Parties and not to others who may claim through them by
subrogation, assignment or otherwise.


 


14.4              Indemnification by United States Government


 


14.4.1         The Parties recognize that under the CSLA and subject thereto, the Secretary
of Transportation shall, to the extent provided in advance in appropriations
acts or to the extent there is enacted additional legislative authority to
provide for the payment of claims, provide for the payment by the United States
Government of successful claims (including reasonable expenses of litigation or
settlement) of a Third Party against Launch Provider or its subcontractors, or
ICO or its contractors or subcontractors, resulting from activities carried out
pursuant to a license issued or transferred under the CSLA for death, bodily
injury, or loss of or damage to property resulting from activities carried out
under the license, but only to the extent that the aggregate of such successful
claims arising out of the Launch: (i) is in excess of the amount of insurance
or demonstration of financial responsibility required of Launch Provider under
its license issued pursuant to the CSLA; and (ii) is not in excess of the level
that is $1,500,000,000 (plus any additional sums necessary to reflect inflation
occurring after January 1, 1989) above the required amount of insurance or demonstration
of financial responsibility required by the CSLA.


 


14.4.2         Launch Provider makes no representation or
warranty that any payment of claims by the United States Government will be
available pursuant to the CSLA.  Launch
Provider’s sole obligation is the good faith effort to obtain such payment as
may be available from the United States Government.


 


14.5              Indemnification - Intellectual Property
Infringement


 


14.5.1         Launch Provider agrees to defend, hold
harmless and indemnify ICO and its Related Third Parties from and against any
liabilities, costs, risks, losses, damages, or injury, or any consequences
thereof, resulting from an infringement or misappropriation or claim for
infringement or misappropriation of any patent right or any other intellectual
property or


 


31

















 


proprietary
right of a Third Party or a Related Third Party of Launch Provider which may
arise to the extent from (i) the provision of the Launch Services or
Post-Launch Services under this Contract by Launch Provider or its Related
Third Parties, or (ii) the design, manufacture or use of the Launch Vehicle.


 


14.5.2         ICO agrees to defend, hold harmless and
indemnify Launch Provider and its Related Third Parties from and against any
liabilities, costs, risks, losses, damages, or injury, or any consequences thereof,
resulting from an infringement or misappropriation or claim for infringement or
misappropriation of any patent right or any other intellectual property or
proprietary right of a Third Party or a Related Third Party of ICO which may
arise to the extent from the design, manufacture or operation of ICO’s
Spacecraft or a claim alleging that the Launch Provider aided or enabled
infringement in the design, manufacture, or operation of ICO’s Spacecraft by
the furnishing of the Launch Service.


 


14.6              Rights and Obligations. The rights and obligations specified in
Article 14.3, Article 14.4 and Article 14.5 shall be subject to the following
conditions:


 


14.6.1         The Party seeking indemnification shall promptly advise the other Party
in writing of the filing of any suit, or of any written or oral claim alleging
an infringement of any Related Third Party’s or any Third Party’s rights, upon receipt
thereof, and shall provide the Party required to indemnify, at such Party’s
request and expense, with copies of all relevant documentation.


 


14.6.2         The Party seeking indemnification shall not make any admission nor
shall it reach a compromise or settlement without the prior written approval of
the other Party, which approval shall not be unreasonably withheld or delayed.


 


14.6.3         The Party required to indemnify, defend and hold the other harmless
shall assist in and shall have the right to assume, when not contrary to the governing
rules of procedure, the defense of any claim or suit or settlement thereof, and
shall pay all reasonable litigation and administrative costs and expenses,
including reasonable attorneys’ fees, incurred in connection with the defense
of any such suit, shall satisfy any judgments rendered by a court of competent
jurisdiction in such suits, and shall make all settlement payments.


 


14.6.4         The Party seeking indemnification may participate in any defense at its
own expense, using counsel reasonably acceptable to the Party required to indemnify,
provided that there is no conflict of interest and that such participation does
not otherwise adversely affect the conduct of the proceedings in any material
respect.


 


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[*]   CONFIDENTIAL TREATMENT REQUESTED
BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


14.7              Inconsistency with Government Agreement. In the event of any inconsistency between any
provision of this Article 14, EXCLUSION OF WARRANTY, WAIVER OF LIABILITY AND
ALLOCATION OF CERTAIN RISKS, or Article 15, INSURANCE, and the Agreement for
Waiver of Claims and Assumption of Responsibility referred to in Article 9.1,
this Article 14, EXCLUSION OF WARRANTY, WAIVER OF LIABILITY AND ALLOCATION OF
CERTAIN RISKS, shall take precedence as between the Parties.


 


14.8              Survival of Obligations. All indemnities, obligations, liabilities
and payments provided for in this Article 14, EXCLUSION OF WARRANTY, WAIVER OF LIABILITY
AND ALLOCATION OF CERTAIN RISKS, shall survive, and remain in full force and
effect, after the expiration or other termination of this Contract and, subject
to the limitations set forth in this Article 14, EXCLUSION OF WARRANTY, WAIVER
OF LIABILITY AND ALLOCATION OF CERTAIN RISKS, notwithstanding any other
provision of this Contract to the contrary.


 


14.9              Authority to Destroy Launch Vehicle. The range safety officer or equivalent is hereby
authorized to destroy, without liability or indemnity to ICO or ICO’s Related
Third Parties, the Launch Vehicle and the Spacecraft in the event that such action
is determined in such range safety officer’s or equivalent’s sole discretion to
be necessary to avoid damage to persons or property. Any operation of the
Launch Vehicle automatic destruct system that causes the destruction of the
Launch Vehicle or Spacecraft shall also be without liability to ICO or ICO’s
Related Third Parties.


 


14.10           Limitation of Liability. (i) Except for the obligation to indemnify
provided in Article 14.3.1. Article 14.3.2, Article 14.3.5. Article 14.3.6 and
Article 14.5.1 with respect to the Launch Service and the obligation to pay ICO
any amounts owed to ICO under Article 11, LAUNCH RISK PROTECTION, Launch
Provider’s cumulative liability to ICO for any and all claims that have not
been waived or released pursuant to the terms of Article 14, EXCLUSION OF
WARRANTY, WAIVER OF LIABILITY AND ALLOCATION OF CERTAIN RISKS, with respect to
the Launch Service and any claim to which the remedies are not limited pursuant
to the terms of this Contract, including, without limitation, any claim for termination
(other than termination pursuant to Article 13, TERMINATION, in which case the
maximum liability shall be the reimbursement amounts set forth therein), shall
not, under any circumstances, exceed the amount of the Launch Price paid by ICO
for the Launch Service relating to such claim as of the date of such claim.  (ii) Except for the obligation to indemnify
provided in Article 14.3.1, Article 14.3.3, Article 14.3.4, Article 14.3.5 and
Article 14.5.2 with respect to the Launch Service, [*] that have not been
waived or released pursuant to the terms of Article 14, EXCLUSION OF WARRANTY,
WAIVER OF LIABILITY AND ALLOCATION OF CERTAIN RISKS, with respect to the Launch
Service and any claim to which the remedies are not limited pursuant to the
terms of this Contract, including, without limitation, any claim for
termination (other than termination


 


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[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


pursuant to Article 13, TERMINATION, in which case the maximum liability shall
be the reimbursement amounts
set forth therein), shall not, under any circumstances, [*] relating to such
claim as of the date of such claim.


 


14.11          Exclusion of [*] Willful Misconduct. Notwithstanding anything in this Article 14,
EXCLUSION OF WARRANTY, WAIVER OF LIABILITY AND ALLOCATION OF CERTAIN RISKS, or
this Contract to the contrary, nothing in this Article 14, EXCLUSION OF
WARRANTY, WAIVER OF LIABILITY AND ALLOCATION OF CERTAIN RISKS, will relieve
either Party from liability from damages of any kind in the event of such Party’s
[*] willful misconduct.


 


ARTICLE
15 — INSURANCE


 


15.1              Third Party Liability Insurance. Launch Provider shall procure and maintain
in effect insurance for third party liability to provide for the payment of
claims resulting from property loss or damage or bodily injury, including
death, sustained by Third Parties caused by an occurrence resulting from or
arising in connection Insured Launch Activities, The insurance shall have
limits in amounts required by the Office of the Associate Administrator for
Commercial Space Transportation by license issued to Launch Provider pursuant
to the CSLA and shall be subject to standard industry exclusions and/or
limitations, including, but not limited to, exclusions and/or limitations with
regard to terrorism. Coverage for damage, loss or injury sustained by Third
Parties arising in any manner in connection with Insured Launch Activities
shall attach upon arrival of the Spacecraft at the Launch Site, whichever
occurs first, and will terminate upon the earlier to occur of the return of all
parts of the Launch Vehicle to Earth or twelve (12) months following the date
of Launch, unless the Spacecraft is removed from the Spacecraft processing facility
other than for the purpose of transportation to the Launch Site or is removed from
the Launch Site other than by Launch, in which case, coverage shall extend only
until such removal. Such insurance shall not cover loss of or damage to the Spacecraft
even if such claim is brought by any Third Party or Related Third Parties. Such
insurance also shall not pay claims made by the United States Government for
loss of or damage to United Slates Government property in the care, custody and
control of ICO or Launch Provider.


 


15.2              Insurance Required by Launch License. Launch Provider shall provide such insurance
as is required by the launch license issued by the United States Department of
Transportation for loss of or damage to United States Government property.


 


15.3              Miscellaneous Requirements. The third party liability insurance shall
name as named insured Launch Provider and as additional insured ICO and the
respective Related Third Parties of the Parties identified by each Party, the
United States


 


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[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


Government
and any of its agencies and such other persons as Launch Provider may
determine. In addition, ICO may identify additional parties, no later than
ninety (90) days prior to Launch, to be designated as additional insured
parties under Launch Provider’s third party liability insurance, and Launch
Provider shall request that its underwriters add such parties as additional
insureds to Launch Provider’s third party liability insurance, Such insurance
shall provide that the insurers shall waive all rights of subrogation that may
arise by contract or at law against the named insured or any additional
insured. Launch Provider shall provide ICO with a certificate from its broker
evidencing the insurance required to be maintained by this Article 15,
INSURANCE.


 


ARTICLE
16 — CONFIDENTIAL INFORMATION


 


Confidential Information
required to be exchanged between the Parties in the performance of the
obligations under this Contract shall be handled in accordance with the NDA.


 


ARTICLE
17 — RIGHTS TO INVENTIONS AND DATA


 


Launch
Provider and ICO agree that neither Party shall by entry into the Contract or
by performance of the Contract, acquire any rights to or under the other Party’s
patents, proprietary data, or other intellectual or proprietary property or
technical information, unless the grant of any such right is expressly provided
for in a separate written agreement duly executed by the granting Party. For
the avoidance of doubt, the terms of this Article 17, RIGHTS TO INVENTIONS AND
DATA, shall not impair or diminish ICO’s right to receive and use the data and
reports provided by Launch Provider in connection with the Post-Launch Services.


 


ARTICLE
18 — CHANGES


 


18.1            ICO may change this Contract in accordance
with the following provisions:


 


18.1.1         ICO may, in accordance with the scope of the Contract, propose a change
to this Contract by providing Launch Provider with written notice that shall describe
the proposed change in reasonable detail (the “Change Request”). Notwithstanding
the delivery of the Change Request, Launch Provider shall continue to perform
strictly in accordance with the terms and conditions of this Contract if and
until ICO has agreed in writing to the Revision related to the Change Request [*]


 


18.1.2         Launch Provider shall provide a detailed response (the “Revision”) to
the Change Request that describes its feasibility and/or alternatives to the Change
Request, and if any Change Request increases or decreases the cost of
performance of any part of the Launch Service, Launch Provider shall prepare a
reasonably detailed invoice identifying the additional cost


 


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[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


resulting from the Change Request and propose an adjustment or adjustments to the Launch Price, Launch Schedule or other terms
of the Contract affected by the Change
Request.


 


18.1.3         If ICO agrees to the Revision,
the Parties shall execute an amendment to this Contract, and
Launch Provider shall proceed to
adjust the Launch Service in accordance with such amendment. If
ICO does not agree to the
Revision, the Parties shall then
negotiate in good faith for up to ten (10) Business Days regarding the
Revision.  If the Parties are unable to
agree on the Revision, [*] the
Parties shall promptly submit any
dispute regarding the cost of such Revision to arbitration in accordance with Article 21, DISPUTE SETTLEMENT. Upon receipt of a decision
from the arbitrator, the Parties shall execute an amendment to this Contract.


 


18.1.4         Any increase
or decrease in the amounts to be paid
by ICO as a result of the Revision shall be applied pro rata to the remaining payments for the Launch Price
specified in Article 4.1 and thereafter paid in accordance with Article 4, PAYMENTS.


 


18.2              Launch Provider may request changes to this Contract in accordance with the following procedures:


 


18.2.1         Launch Provider may request a change to this
Contract by providing ICO with written
notice that shall describe the proposed change in reasonable detail (the “LP Request”). Notwithstanding the
delivery of the LP Request, Launch Provider shall not adjust the Launch Service
in accordance with the LP
Request until ICO has accepted the change in accordance with Article 18.2.2 and
executed an amendment.


 


18.2.2         ICO may accept or reject any LP
Request in its sole discretion. If ICO accepts the LP Request, the Parties
shall execute an amendment to
this Contract, and Launch
Provider shall proceed to adjust
the Launch Service in accordance with such amendment.


 


18.2.3         Any increase or decrease in Launch Price related to
the LP Request accepted by ICO
shall be ratably allocated to
the remaining payments to the Launch
Price specified in Article 4.1 and thereafter paid in accordance with Article 4, PAYMENTS.


 


18.3              Article 18.1 and Article 18.2 shall not govern changes in the Launch Schedule as
a result of postponements. Any
changes in the Launch Schedule as a result of postponements by ICO or Launch Provider shall be resolved in accordance with


 


36

















 


Article 6.1,
Article 6.2, Article 6.5 and Article 13, TERMINATION, of this Contract, as
applicable.


 


ARTICLE 19 — ASSIGNMENT


 


19.1             Subject to the other provisions of this Article 19, ASSIGNMENT, the Parties agree not to assign
their respective rights or obligations
under the Contract without the prior
written consent of the other Party. Any such assignment shall be mutually agreed
to and consent to assign shall
not be unreasonably withheld by the other Party.


 


19.2              Notwithstanding
Article 19.1 and subject to all applicable laws and regulations, including
United States export laws,
regulations and licenses, including restrictions relating to dealing
with prohibited country entities under the International Traffic in Arms
Regulations, Launch Provider agrees that ICO may assign, pledge or otherwise
hypothecate its rights and obligations with respect to this Contract and the
Launch Service to any Affiliate, lender or representative of any lender or
group of lenders.


 


ARTICLE
20 — PUBLIC RELEASE OF INFORMATION


 


Except
as required by law or regulation (in which case the Party so required shall
give the other Party as much prior notice as is practicable) and as provided in
this Article 20, PUBLIC RELEASE OF INFORMATION, no news release, public
announcement, or advertising material concerned with this Contract shall be
issued by either Party without prior coordination and written consent of the
other Party, which consent shall not be unreasonably withheld or delayed.


 


ARTICLE
21 — DISPUTE SETTLEMENT


 


21.1             Notice of Arbitration. If any controversy or claim arising out of
or relating to this Contract or the breach thereof fails to be resolved through
negotiation or mediation within a period of thirty (30) days, then upon written
notice by any Party, such controversy or claim shall be settled by arbitration
in accordance with the terms and conditions of this Article 21, DISPUTE
SETTLEMENT.


 


21.2              Administration and Rules. Arbitration proceedings in connection with
this Contract shall he administered by the American Arbitration Association in
accordance with its then in effect Commercial Arbitration Rules, together with
any relevant supplemental rules including but not limited to its Supplementary
Procedures for Large, Complex Disputes and its Supplementary Procedures for
International Commercial Arbitration, as modified by the terms and conditions of
this Contract.


 


21.3              Language. Arbitration proceedings in connection with this Contract shall be conducted
in the English language, provided that at the request and expense of the


 


37

















 


requesting
Party, documents and testimony shall be translated into any language specified
by the requesting Party.


 


21.4              Selection of Arbitrators. Arbitration proceedings in connection with
this Contract shall be conducted before a panel of three (3) arbitrators.
Within fifteen (15) days after the commencement of arbitration, each Party
shall select a JAMS® neutral to serve as an arbitrator on the panel, and within
ten (10) days of their selection, the two arbitrators shall select another JAMS®
neutral to serve as the third arbitrator. If the two arbitrators selected by
the respective Parties are unable or fail to agree upon the third arbitrator in
the allotted time, then the third arbitrator shall be selected by the American
Arbitration Association from the list of JAMS® neutrals.


 


21.5              Locale of Meetings.  All
meetings for arbitration proceedings in connection with this Contract shall be
held in the Los Angeles area, in the State of California, in the United States
of America, or at such other place as may be selected by mutual agreement of
all Parties.


 


21.6              Injunctive Relief.  Any
Party to this Contract may make an application to the arbitrators seeking
injunctive relief until such time as the arbitration award is rendered or the
controversy or claim is otherwise resolved.


 


21.7              Discovery.  The arbitrators shall have the
discretion to order a pre-hearing exchange of information by the Parties,
including without limitation, production of requested documents, exchange of
summaries of testimony of proposed witnesses, and examination by deposition of
Parties.


 


21.8              Consolidation.  Arbitration
proceedings in connection with this Contract shall be consolidated with
arbitration proceedings pending between a Party and any subcontractor if the
arbitration proceedings arise out of the same transaction or relate to the same
subject matter and if such Party and subcontractor are bound by an arbitration
agreement which is substantially similar to that contained in this Contract. If
proceedings are consolidated, all references to Party in this Article 21, DISPUTE
SETTLEMENT, shall also mean subcontractor.


 


21.9              Award and Judgment.  The
arbitrators shall have no authority to award punitive damages or any other
damages not measured by the prevailing Party’s actual damages, and may not, in
any event, make any ruling, finding or award that does not conform to the terms
and conditions of this Contract. Subject to the foregoing, the Parties agree
that the judgment of the arbitrators shall be final and binding upon the
Parties, and that judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.


 


21.10           Confidentiality. No Party or arbitrator may disclose the
existence, content, or results of any arbitration proceedings in connection
with this Contract without prior written consent of all Parties to the
arbitration proceeding.


 


38

















 


21.11           Fees and Expenses. All fees and
expenses of any arbitration proceedings in connection with this Contract shall
be borne by the losing Party.  However,
each Party shall bear the expense of its own counsel, experts, witnesses, and
preparation and presentation of evidence.


 


21.12           Performance.  Launch Provider and ICO shall
continue with performance under this Contract during any disagreement,
negotiation, or arbitration. ICO shall continue to make payments due under this
Contract pending resolution of the dispute pursuant to this Article 21, DISPUTE
SETTLEMENT.


 


ARTICLE
22 — APPLICABLE LAW


 


The
Contract and any matter arising under the Contract, regardless of whether such
matter is addressed in the Contract, shall be governed by the laws of the State
of New York, USA, excluding its choice of law rules. The provisions of the
United Nations Convention for the International Sale of Goods shall not be
applicable to this Contract.


 


ARTICLE
23 — SEVERABILITY


 


In
the event any of the provisions of the Contract shall, for any reason
whatsoever, be held to be invalid or unenforceable, the remaining provisions
shall not be affected.


 


ARTICLE
24 — WAIVERS


 


No
waiver of any of the provisions of the Contract shall be binding on either
Party unless evidenced by a written notice signed by such Party to be bound.
Failure of either Party to insist upon performance of any of the terms or
conditions herein or to exercise any right or privilege shall not constitute a
waiver. A waiver by either Party of a breach of any provision of this Contract
does not constitute a waiver of any succeeding breach of the same or any other
provision, nor shall it constitute a waiver of the provision itself.


 


ARTICLE
25 — APPROVAL; INTERNAL AUTHORIZATION


 


Each
of ICO and Launch Provider represents that (i) it has all necessary power and
authority to enter into this Contract and to perform its obligations hereunder
and (ii) the execution, delivery and performance of this Contract by it have
been duly and validly authorized by all necessary action required by applicable
law and by the articles of incorporation, bylaws, partnership agreement,
limited liability company agreement or other applicable governance documents.


 


ARTICLE
26 — COOPERATION ON INSURANCE AND REGULATORY MATTERS


 


26.1              Launch Provider shall cooperate in good faith
with ICO’s efforts to obtain and maintain, and to file and settle any claims
under, the insurance for the Spacecraft


 


39

















 






 


[*]   CONFIDENTIAL TREATMENT
REQUESTED BY ICO GLOBAL COMMUNICATIONS (HOLDINGS) LIMITED


 


launched
under this Contract.  Subject to U. S.
Export Control laws and regulations, such cooperation shall include (i)
delivering information and data regarding the Launch Vehicle to ICO’s insurers
and brokers, (ii) conducting briefings for such insurers and brokers, (iii)
responding to inquiries from such insurers and brokers, and (iv) exercising
commercially reasonable efforts to obtain in a timely manner and thereafter
maintain any government licenses, approvals or other authorizations required
for such cooperation.


 


26.2              Launch Provider shall cooperate in good faith
with ICO’s efforts (to comply with the terms and conditions of its various
regulatory licenses. Such cooperation shall include (i) providing regulatory
bodies and personnel with information and data regarding the Launch Vehicle,
the Launch Schedule and other matters related to the provision of the Launch
Service (collectively, the “Launch Matters”), (ii) providing appropriate
personnel to attend regulatory briefings or other formal or informal regulatory
meetings or hearings in order to provide information regarding the Launch
Matters, and (iii) responding promptly to formal or informal inquiries or
requests from regulatory bodies or other governmental officials regarding the
Launch Matters.


 


ARTICLE
27 — RULES OF CONSTRUCTION


 


References
to articles or sub-articles shall be deemed to include all sub-articles thereof.
 The term “including” shall be deemed to
mean “including without limitation.”


 


ARTICLE
28 — ENTIRE UNDERSTANDING BETWEEN THE PARTIES


 


The contractual documents
referred to in Article 2, CONTRACTUAL DOCUMENTS, comprise the entire
understanding between the Parties with respect to the subject matter of the
Contract and shall supersede all prior and contemporaneous discussions between
the Parties. Neither Party shall be bound by any conditions, warranties,
definitions, statements, or documents previous to or contemporaneous with the
Contract unless the Contract makes express reference thereto.  This Contract may be executed in one or more
counterparts, each of which shall constitute an original, and all of which
together shall constitute hut one and the same instrument.


 


ARTICLE
29 — KEY PERSONNEL


 


Launch
Provider has designated [*] as the Launch Provider’s “Account Executive” and [*]
as the Launch Provider’s “Mission Manager.” The task of the Mission Manager
shall be to supervise and coordinate the Spacecraft integration and mission
analysis activities that are to be coordinated between the Parties. Neither the
Account Executive nor the Mission Manager is authorized to direct work contrary
to the requirements of the Contract or to make modifications to the Contract.
Launch Provider may not choose a replacement of the Account Executive or the
Mission Manager without


 


40

















 


obtaining ICO’s prior
written consent, which consent shall not be unreasonably withheld or delayed.


 


[SIGNATURE PAGE FOLLOWS ]


 


41

















 


IN
WITNESS WHEREOF, the Parties hereto have executed the Contract as of the day
and year stated:


 


 


	
  ICO Satellite Services GP

  	
  Lockheed Martin Commercial
  Launch Services, Inc.

  



 


 


	
  By:

  	
  /s/ Dennis Schmitt

  	
   

  	
  By:

  	
   /s/ Brian
  Simon

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Dennis Schmitt

  	
   

  	
  Name:

  	
  Brian Simon

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Sr.
  V.P. Finance, CFO

  	
   

  	
  Title:

  	
  MGR, Business
  Operations

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  10 March 2006

  	
   

  	
  Date:

  	
  10 March 2006

  
									



 


42

















 


EXHIBIT A: STATEMENT OF
WORK FOR ATLAS LAUNCH SERVICES              March
8, 2006


 


EXHIBIT A


 


STATEMENT
OF WORK


 


FOR


 


Atlas
Launch Services


 


March 8,
2006


 


Confidential Treatment of This
Entire Exhibit Has Been Requested, and The Text Has Been Submitted to the
Commission


 


1

















 


EXECUTION
COPY


 


Exhibit B


 


Interface
Control Document


 


[to be
created in the contract process]


 


 


ICO/LMCLS PROPRIETARY


 

















 


EXECUTION
COPY


 


Exhibit C


 


Mutual
Non-Disclosure Agreement


 


 


ICO/LMCLS PROPRIETARY


 

















 





MUTUAL
NON-DISCLOSURE AGREEMENT


 


This Mutual Non-Disclosure Agreement (“Agreement”) is entered into on November 9,
2005, by and between ICO Satellite Services General Partnership (“ICO”), and International
Launch Services, Inc. (“Company”) in connection with discussions relating
to the acquisition of launch vehicle services from Company (the “Discussions”).
ICO and Company each expect to furnish (in such capacity, a “Disclosing Party”)
to one another (in such capacity, a “Receiving Party”) certain oral and written
nonpublic, confidential information in connection with the Discussions. All
such Information furnished to the Receiving Party or any of its Representatives
(as defined below) by the Disclosing Party or its Representatives (Irrespective
of the form of communication and whether such information is so furnished
before, on or after the date hereof), and all analyses, compilations, data,
studies, notes, interpretations, memoranda or other documents prepared by the
Receiving Party or its Representatives containing or based in whole or in part on
any such furnished information are collectively referred to herein as the “Information.”
With respect to information furnished by Company, such information shall
include any information furnished by or on behalf of Company, Lockheed Martin
Corporation (“LMC”), Lockheed Martin Commercial Launch Services, Inc. (“LMCLS”)
or Lockheed Khrunichev Energia International, Inc. (“LKEI”). With respect
to information provided to Company, Company shall be authorised to disclose
such information to LMC, LMCLS and/or LKEI to the extent permitted and subject
to the terms and conditions contained in Section 1(b). All information
exchanged between ICO and Company shall, if in tangible form, be marked with a
legend of “Proprietary”, “Business Confidential” or similarly marked or labeled
by the Disclosing Party before being disclosed to the Receiving Party.


 


The term “Information” does not include any information which, as
evidenced by a written record, (i) at the time of disclosure or thereafter
is generally available to the public (other than as a result of a disclosure
directly or indirectly by the Receiving Party or its Representatives in
violation of this Agreement or any other obligation to maintain confidentiality
of said information), (ii) is or becomes available to the Receiving Party
on a non-confidential basis from a source other than the Disclosing Party or
its Representatives, provided that,
to the Receiving Party’s best knowledge, after reasonable inquiry, such source
was not prohibited from disclosing such information to the Receiving Party by a
legal, contractual or fiduciary obligation (iii) was in the Receiving
Party’s possession or knowledge prior to its being furnished by or on behalf of
the Disclosing Party, as can be reasonably demonstrated upon request and, provided that the source of such information was not, to the
best knowledge of the Receiving Party, after reasonable inquiry, prohibited
from disclosing such information to the Receiving Party by a legal, contractual
or fiduciary obligation; (iv) can be demonstrated by the Receiving Party
to have been developed by the Receiving Party independently of any disclosure
of such information by the Disclosing Party as can be reasonably demonstrated
upon request; and/or (v) was communicated by the Disclosing Party to an
unaffiliated third party free of any obligation of confidence.


 


1

















 


In consideration of such information being furnished, each Receiving
Party agrees to the following:


 


1.                                       Except
as otherwise provided herein, or as otherwise approved in writing by the
Disclosing Party, all information furnished by the Disclosing Party or its
Representatives will be kept strictly confidential by the Receiving Party in
accordance with the terms hereof, will not be used by the Receiving Party other
than in connection with the consideration or evaluation of the Discussions, and
will not be disclosed by the Receiving Party or any of its Representatives,
except (a) as required by applicable law, regulation, regulatory or legal
process, and only after compliance with Section 3 below, and (b) that
the Receiving Party may disclose the Information or portions thereof to
those of its directors, officers, affiliates, and employees and representatives
of its legal, accounting and technical and financial advisors and agents (the
persons to whom such disclosure is permissible being collectively referred to
herein as “Representatives”) who such party reasonably believes need to know such
information for the sole purpose of considering the Discussions and who are
authorized pursuant to applicable U.S. export control laws and licenses or
other approvals to receive such Information; provided,
that such party’s Representatives (i) are informed of this Agreement and
the confidential and proprietary nature of the Information; (ii) are
obligated in writing or by virtue of a fiduciary relationship, to treat such
Information confidentially. In a manner that is at least as restrictive as the
terms of this Agreement and not to use it other than in connection with the
consideration or evaluation of the Discussions to the extent provided in this
Agreement; and (iii) do not include competitors of the Disclosing Party. Notwithstanding
the above, under no circumstances will such Information be provided to a Party’s
third-party technical advisors include any key financial and pricing terms of
the Disclosing Party. The Receiving Party agrees to be responsible for any
breach of the confidentiality provisions of this Agreement by any of its
Representatives (it being understood, that such responsibility shall be in
addition to and not by way of limitation of any right or remedy a party may have
against the Receiving Party’s Representatives with respect to any such breach).
Each party shall immediately notify the other upon discovery of any loss or
unauthorized disclosure of the Information of the other party. Neither party
shall communicate any Information to the other in violation of the proprietary
rights of any third party.


 


2.                                       Without
the prior written consent of the Disclosing Party, neither the Receiving Party
nor any of its Representatives will disclose to any person (except to the
extent permitted by Section 1 or as otherwise required by applicable law,
regulation or regulatory or legal process, and only after compliance with Section 3
below), either the fact that any investigations, discussions or negotiations
are taking place, or that the Receiving Party has received Information or
Information has been made available to it, or any of the terms, conditions or
other facts with respect to any such possible Discussions, including the status
thereof.


 


3.                                       If
a Receiving Party or any of its affiliates or Representatives becomes legally
compelled or required by applicable law or regulation or regulatory or legal
process (including by deposition, interrogatory, request for documents,
subpoena, civil investigative demand or similar process) to disclose any of the
Information or the information referred to in Section 2 above, the


 


2

















 


Receiving Party shall provide the Disclosing Party with prompt prior
written notice of such requirement so that the Disclosing Party may seek a
protective order or other appropriate remedy and/or waive in writing compliance
with the provisions of this Agreement. If such protective order or other remedy
is not obtained or available and such a written waiver has not been received
from the Disclosing Party that would permit such compelled disclosure, the
Receiving Party (and its Representatives) agrees to disclose only that portion
of the Information or the information referred to in Section 2 above which
is legally required to be disclosed and to take all reasonable steps to
preserve the confidentiality of the Information and the information referred to
in Section 2 above (including, without limitation, by cooperating with the
Disclosing Party to obtain at the Disclosing Party’s cost an appropriate
protective order or other reliable assurance that confidential treatment will
be accorded the Information and the information referred to in Section 2
above). Nothing in this Agreement shall limit the Receiving Party from
complying with any legal request as set forth herein or shall require the Receiving
Party to obtain assurances that the Information disclosed in compliance with
such request will be maintained confidentially.


 


4.                                       Information
shall not be reproduced in any form except as required to accomplish the
intent of this Agreement. Any reproduction of any Information (in whole or in
part) of the other party by either party shall remain the property of the
Disclosing Party and shall contain any and all confidential or proprietary
notices or legends which appear on the original, unless otherwise authorized in
writing by the other party.


 


5.                                       If
either party decided, in its sole discretion, that it does not wish to proceed
or continue with the Discussions with the other party, the party so deciding
will promptly inform the other party of that decision. At any time upon
the written request of the Disclosing Party and for any reason, the Receiving
Party will, at the election of the Disclosing Party, either promptly deliver to
the Disclosing Party, as directed in such written request, or destroy all written
documents and other tangible materials representing the Information (including
all copies, extracts or other reproductions in whole or in part thereof)
furnished or it or its Representatives by or on behalf of the Disclosing Party.
All other Information shall be destroyed and no copy thereof shall be retained.
Such destruction shall be certified to in writing by an officer of the
Receiving Party upon the request of the Disclosing Party. Notwithstanding the
return or destruction of the Information, the Receiving Party and its
Representatives will continue to be bound by its obligations of confidentiality
and other obligations hereunder.


 


6.                                       The
Receiving Party understands and acknowledges that neither the Disclosing Party
nor any of its Representatives or affiliates is making any representation or
warranty, express or implied, as to the accuracy or completeness of the Information,
and neither the Disclosing Party nor any of its Representatives or affiliates
will have any liability to the Receiving Party or any other person resulting
from the use of the Information by it or its affiliates or Representatives. Only
those representations or warranties that are made in a definitive agreement
relating to the Discussions (a “Definitive Agreement”) when, as, and if it is
executed, and subject to such limitations and restrictions as may be
specified in such Definitive Agreement, will have any legal effect. The term “Definitive
Agreement” does not include a non-binding letter of intent or any


 


3

















 


other non-binding preliminary written agreement (whether or not
executed), nor does it include any written or oral acceptance of any offer or
bid.


 


7.                                       Each
party understands and agrees that no contract or agreement shall be deemed to
exist unless and until a Definitive Agreement has been executed and delivered
by all relevant parties thereto, and each party also agrees that unless and
until a Definitive Agreement between the parties or any of its subsidiaries or
affiliates has been executed and delivered, neither party nor any of its
respective stockholders, affiliates or Representatives has any legal obligation
of any kind whatsoever with respect to such transaction by virtue of this
Agreement or any other written or oral expression with respect to such
transaction except, in the case of this Agreement, for the matters specifically
agreed to herein. Subject to the terms of this Agreement and any other written
agreement between the parties, the parties and their respective Representatives
each will be free to conduct the process for any transaction as such parties in
their sole discretion determine. Each party hereby confirms that it is not
acting as a broker for or Representative of any person.


 


8.                                       Without
limiting the parties’ obligations under this Agreement, each party hereby
acknowledges that it is aware, and that it will advise its Representatives,
that the United States securities laws prohibit any person who has material,
non-public information concerning the matters which are the subject of this
Agreement from purchasing or selling securities of a company which may be
a party to a transaction of the type contemplated by this Agreement or from
communicating such information to any other person under circumstances in which
it is reasonably foreseeable that such person is likely to purchase or sell
such securities. The Receiving Party represents and warrants that no technical data
furnished or disclosed to it by the Disclosing Party shall be disclosed to any
foreign national, nation, firm, or country, including foreign nationals
employed by or associated with the Receiving Party, nor shall any technical
data be exported from the United States without first complying with all
requirements of the applicable U.S. export control laws and regulations,
including the International Traffic in Arms Regulations and the Export
Administration Regulations, including the requirement for obtaining any export
license or authorization if applicable. The Receiving Party shall first obtain
the written consent of the Disclosing Party prior to submitting any request for
authority to export any such technical data.


 


9.                                       Each
party agrees that money damages would not be a sufficient remedy for any breach
or threatened breach of this Agreement by it and that the other party or
parties shall be entitled to seek equitable relief, including injunction and
specific performance, in the event of any such breach or threatened breach, in
addition to all other remedies available at law or in equity without the necessity
of posting any bond or other security or proving that monetary damages would be
an inadequate remedy. Such remedies shall not be deemed to be the exclusive
remedies for a breach of this Agreement but shall be in addition to all other
remedies available at law or in equity.


 


4

















 


10.                                 If
any provision of this Agreement is found to violate any statute, regulation,
rule, order or decree of any governmental authority, court, agency or exchange,
such invalidity shall not be deemed to affect any other provision hereof or the
validity of the remainder of this Agreement, and such invalid provision shall
be changed and interpreted so as to best accomplish the objectives of such unenforceable
or invalid provision within the limits of applicable law or applicable court
decisions.


 


11.                                 Each
party agrees that all (a) contacts or communications by it or its
Representatives with the other party regarding the Information or the
Discussions, (b) requests for additional Information, (c) requests
for facility tours or management meetings and (d) discussions or questions
regarding procedures shall be made only through persons designated by the other
party as persons engaged as participants in, or having knowledge of, the
discussions relating to the Discussions.


 


12.                                 This
Agreement is for the benefit of each party and its respective directors,
officers, employees, representatives and agents and their respective successors
and permitted assigns and shall be governed by, and construed in accordance
with, the law of the State of New York, without giving effect to the principles
of conflicts of laws thereof. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned, by operation of law or otherwise,
by any party without the prior written consent of the other party, and any interrupted
assignment or transfer by any party not in accordance herewith shall be null
and void.


 


13.                                 This
Agreement represents the entire agreement between the parties with respect to
the subject matter contained herein and may be terminated only by a
writing signed by each of the parties. No provision in this Agreement may be
waived, amended or assigned except in a writing signed by both parties, which
writing shall specifically refer to such provision being affected.


 


14.                                 The
terms of this Agreement will survive for a period of three (3) years from
the date of this Agreement or may be terminated by either party at any
time upon thirty (30) days written notice to the other party. The Receiving
Party’s obligations under this Agreement shall survive termination of the
Agreement between the parties and shall be binding upon the Receiving Party’s
heirs, successors and assigns.


 


15.                                 Miscellaneous.


 


a.                                       For
purposes of this Agreement, the term “person” shall
mean an individual, corporation, partnership, limited liability company,
association, trust, governmental entity, the media and any media organization,
any other organization or entity or any group including any of the foregoing,
and the term “group” shall have the meanings
provided under the Exchange Act.


 


b.                                      This
Agreement may be executed in counterparts, each of which, including any
signature transmitted via facsimile, shall be deemed to be an original but all
of which together shall constitute one instrument for all purposes.


 


5

















 


	
  INTERNATIONAL LAUNCH SERVICES, INC.

  
	
   

  
	
  By:

  	
  /s/ Angeline G. Chen

  	
   

  
	
  Name:

  	
  Angeline G. Chen

  
	
  Title:

  	
  Associate General Counsel

  
	
  Address:

  	
  1660 International Drive

  
	
   

  	
  McLean, VA 22102

  
	
   

  	
  Fasimile: (571) 633-7541

  
	
   

  	
  Email: angeline.g.chen@Imco.com

  



 


c.                                       Each
party expressly acknowledges, represents and warrants that they have, with the
benefit of counsel, carefully read this Agreement, fully understood the terms,
conditions, and significance of this Agreement, had ample time to consider and negotiate
this Agreement, and executed this Agreement voluntarily and knowingly.


 


d.                                      All
notices or reports permitted or required under this Agreement shall be in
writing and shall be delivered by personal delivery, electronic mail, facsimile
transmission or by certified or registered mail, return receipt requested, and
shall be deemed given upon personal delivery, five (5) days after deposit
in the mail, or upon acknowledgment of receipt of electronic transmission.
Notices shall be sent to the addresses set forth at the end of this Agreement
or such other address as either party may specify in writing.


 


 


	
  ICO SATELLITE SERVICES GENERAL PARTNERSHIP

  
	
   

  
	
  By:

  	
  /s/ David Bagley

  	
   

  
	
  Name:

  	
  David Bagley

  
	
  Title:

  	
  Sr. VP Corporate Development

  
	
  Address:

  	
  3468 Mt. Diablo Blvd, Suite B-115

  
	
   

  	
  Lafayette, CA 94549, USA

  
	
   

  	
  Fasimile: (925) 961 9611

  
	
   

  	
  Email: david.bagley@ico.com

  
	
   

  
	
  With a copy to:

  
	
   

  
	
   

  	
  Davis Wright Tremaine, LLP

  
	
   

  	
  2600 Century Square

  
	
   

  	
  1501 Fourth Avenue

  
	
   

  	
  Seattle, Washington 98101-1685

  
	
   

  	
  Attention: Joe Weinstein

  
	
   

  	
  Facsimile: (208) 628-7699

  
	
   

  	
  Email: joeweinstein@dwt.com

  



 


6

















 


Exhibit D,
Launch Risk Protection


 


Confidential Treatment of This Entire Exhibit Has Been Requested,
and The Text Has Been Submitted to the Commission.