Asset Purchase Agreement Between The Registrant And Astrium GMBH

Exhibit 10.27


ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (the " Agreement" ) is made as of the 19 th day of December, 2000, by and between Astrium GmbH, a German corporation (" Purchaser" ), and Spacehab, Incorporated (" Seller" ), a Washington state corporation.


RECITALS


WHEREAS, Seller has developed and owns or is developing and will own certain commercial space hardware known as the integrated cargo carrier or ICC and related assets (the ICC that is integrated into the Shuttle cargo bay in a horizontal position and related assets are referred to hereafter as the " ICC System" and the ICC that is to be integrated into the Shuttle cargo bay in vertical position and related assets are referred to hereafter as the " ICC-V System" );

WHEREAS, Purchaser and Seller have entered into a (i) Collaboration Agreement and a Stock Purchase Agreement dated as of August 2, 1999 establishing a Strategic Alliance, (ii) a Joint Program Agreement for the purchase of the ICC System Assets and the ICC-V System Assets and a leaseback of said assets to Seller dated as of November 30, 2000 and (iii) an Agreement on Principles for Lease of the ICC System Assets and the ICC-V System Assets dated as of November 30, 2000; and

WHEREAS, on the terms and subject to the conditions contained in this Agreement, Seller desires to sell to Purchaser, and Purchaser desires to purchase from Seller, the ICC Systems Assets and the ICC-V Systems Assets.


NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows:

ARTICLE 1


Purchase and Sale of Assets


1.1 Agreement to Purchase and Sell . On the terms and subject to the conditions contained in this Agreement, Purchaser agrees to purchase from Seller, and Seller agrees to sell to Purchaser, all of Seller' s right, title and interest in and to the ICC System and the ICC-V System as set forth on Schedule I hereto (referred to hereafter as " ICC System Assets" and ICC-V System Assets, respectively) and the assets related thereto as set forth in paragraphs 1.3 (a), (b), (c) and (d) (the ICC System Assets, the ICC-V System Assets and the assets related thereto are collectively referred to as the " Purchased Assets" ).


The Purchased Assets shall be sold to Purchaser free and clear of any and all liens, claims and encumbrances of whatever kind or nature, including but not limited to security interests, mortgages, pledges, charges, suits, licenses, options, rights of recovery, judgments, rights of first refusal, orders and decrees of any court or foreign or domestic governmental entity, interest, tax, covenants, restrictions, indentures, instruments, leases, options, contracts, agreements, offsets, recoupments, claims for reimbursement, contribution, indemnity or

exoneration successor, product, environmental, taxes, labor, ERISA, CERCLA, alter ego and other liabilities (collectively, " Claims" ).


1.2 Transfer of title to Purchaser' s subsidiary. Unless otherwise notified by Purchaser prior to the First Closing or Second Closing respectively, Seller shall transfer all of Seller' s right, title and interest in and to the Purchased Assets to Purchaser' s subsidiary, Astrium North America, Inc., a Delaware corporation, in lieu of delivering said right, title and interest to Purchaser

1.3 Enumeration of Assets Purchased . In addition to the ICC System Assets and the ICC-V System Assets set forth on Schedule I hereto, the assets related thereto that are being purchased also shall include the following:


(a) all rights under warranties, representations and guarantees made by suppliers, manufacturers and contractors in connection with the ICC System Assets and the ICC-V System Assets related thereto;

(b) all U.S. and foreign trademarks, service marks, logos, designs, trade names, patents, registered designs, mask works, copyrights, computer software and databases, whether or not registered, and related items (and all intellectual property and proprietary rights incorporated therein) and all other trade secrets, research and development, formulae, know-how, and proprietary and intellectual property rights and information, including all grants, registrations, renewals, reissues and applications relating thereto, owned by Seller and related exclusively to the ICC System Assets or the ICC-V System Assets; and


(c) all processes, procedures and test data related to the handling and operation of the ICC System Assets and the ICC-V System Assets documented in whatever form, it being agreed that those items related to Generic ICC will only be transferred in the status and form available to Seller on 31 st December 2000; and

(d) any and all other assets and rights that are not of the type or character referenced in Section 1.2(a)-(c) and which are necessary for the continuation of the operation of the ICC System Assets or the ICC-V System Assets in at least the same manner as they are conducted as of the date hereof.


ARTICLE 2


No Liabilities Assumed; Indemnification


2.1 No Liabilities Assumed . Seller acknowledges and agrees that pursuant to the terms and provisions of this Agreement, Purchaser will not assume any obligation of Seller whatsoever. In furtherance and not in limitation of the foregoing, Purchaser shall not assume and shall not be deemed to have assumed, any debt, Claim, obligation or other liability of Seller whatsoever (the " Excluded Liabilities" ), including, but not limited to (i) any environmental costs and liabilities arising from environmental, health, or safety conditions, or the release of a contaminant into the environment, for any act, omission, condition, event or circumstance to the extent occurring or existing prior to the respective closing date for the assets involved, including


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without limitation all environmental costs and liabilities relating in any manner to Seller' s direct or indirect handling, transportation or disposal of any contaminants, (ii) any of Seller' s liabilities in respect of any taxes, (III) any taxes or any fees arising in connection with the consummation of the transactions contemplated hereby, including any tax or liability of any stockholder of Seller or its affiliates and any of Seller' s fees and expenses incurred in connection with the transfer of the Purchased Assets (other than as expressly provided in this Agreement), (iv) any brokers' or finders' fees, or other liability of Seller for costs and expenses (including legal fees and expenses) incurred in connection with this Agreement or the consummation of the transactions contemplated hereby, (v) any liability or obligation of Seller under this Agreement, (vi) any indebtedness of the Seller, (vii) any obligation or liability arising as a result of or whose existence is a breach of Seller' s representations, warranties, agreements or covenants, and (vii) any Excluded Assets.

2.2 Indemnification . Seller agrees to defend, indemnify, and hold harmless the Purchaser, its officers, directors, shareholders, employees, accountants, attorneys, agents, successors and assigns from and against any and all claims, damages, liabilities, costs and expenses (including reasonable attorneys' fees and court costs) arising out of or related to a debt, Claim, obligation or liability concerning the Excluded Liabilities. With respect to any claim which may form the basis for indemnification under this Section, the Purchaser shall give prompt notice of such claim to the Seller as well as the opportunity for Seller to defend, compromise, or settle such claim with counsel selected by Seller, and shall fully cooperate in the course thereof. The Seller shall not enter into any compromise or settlement that shall have the effect of creating any liability or obligation (whether legal or equitable) on the part of the Purchaser.

ARTICLE 3


Purchase Price, Manner of Payment and Closing

3.1 Consideration . The purchase price (the " Purchase Price" ) of the Purchased Assets shall be the sum of Fifteen Million Four Hundred Thousand Dollars ($15,400,000) of which Eleven Million Dollars ($11,000,000) shall be for Purchased Assets related to the ICC System Assets and Four Million Four Hundred Thousand Dollars ($4,400,000) shall be for Purchased Assets related to the ICC-V System Assets. The Purchase Price shall be paid in the manner described in Section 3.2 below.

3.2 Time and Place of the Closings . The closing of the transactions contemplated by this Agreement shall take place at two separate closings, respectively, the " First Closing" and the " Second Closing" , each to occur as hereinafter set forth.

(a) The First Closing shall occur at such place and on such date and at such time as the parties mutually agree, but in no event later than June 30, 2002. On or before the First Closing, the Purchaser shall: (i) pay the Seller Five Million Dollars ($5,000,000) in cash, (ii) pay Seller Three Million Dollars ($3,000,000), on or before March 9, 2001, and (iii) pay Seller Three Million Dollars ($3,000,000) on or before June 30, 2002. After fulfillment of Purchaser' s obligation under (i) above, the Seller shall execute and deliver to Purchaser (i) a Bill of Sale, and (ii) such other endorsements, assignments and such other instruments of transfer and conveyance, in form and


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substance reasonably satisfactory to Purchaser, as shall be effective to vest in Purchaser as of the date of the First Closing good title, free and clear of any Claims, to the ICC System Assets and all other assets set forth in paragraphs 1.3 (a), (b), (c) and (d) related to the ICC System Assets. In addition, both parties shall execute and deliver such other ancillary documents contemplated by, or arising under, this Agreement as are necessary in order to effect the transfers contemplated for the First Closing.

(b) The Second Closing shall occur at such place and on such date and at such time as the parties mutually agree after the ICC-V system has been qualified for flight onboard Space Shuttle in accordance with the requirements identified in Article 6.2 (e) of this Agreement. Upon the Second Closing, Purchaser shall pay Seller Four Million Four Hundred Thousand Dollars ($4,400,000). Upon the Second Closing, Seller shall execute and deliver to Purchaser (i) a Bill of Sale and (ii) such other endorsements, assignments and such other instruments of transfer and conveyance, in form and substance reasonably satisfactory to Purchaser, as shall be effective to vest in the Purchaser as of the date of the Second Closing good title, free and clear of any Claims, to the ICC-V System Assets and all other assets set forth in sections 1.3 (a), (b), (c) and (d) related to the ICC-V System Assets. In addition, both parties shall execute and deliver such other ancillary documents contemplated by, or arising under, this Agreement as are necessary in order to effect the transfers contemplated for the Second Closing.


3.3 Transfer Taxes . All taxes upon, related to or arising out of the transactions contemplated by this Agreement, including, without limitation, transfer, registration, stamp, documentary, sales, use, excises, duties and similar taxes and specifically including all applicable Seller income or gains taxes, any penalties, interest and additions to tax, and court, registration and filing fees incurred in connection with this Agreement shall be the responsibility of and be timely paid by Seller. Seller and Purchaser shall cooperate in the timely making of all filings, returns, reports and forms as may be required in connection therewith.


ARTICLE 4


Representations and Warranties


4.1 Purchaser' s Representations and Warranties . Purchaser represents and warrants to Seller that:


(a) Purchaser is a corporation existing and in good standing under the laws of Germany.

(b) Purchaser has full power and authority to enter into and perform this Agreement and all documents and instruments to be executed by Purchaser pursuant to or in connection with this Agreement. The execution and delivery of this Agreement by Purchaser, and the performance by Purchaser of all of its obligations hereunder, have been duly authorized and approved prior to the date hereof by all necessary corporate action. This Agreement has been duly executed and delivered by the Purchaser and constitutes its legal, valid and binding agreement, enforceable against it in accordance


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with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally.


(c) No consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person is required for the execution and delivery by Purchaser of this Agreement and the consummation by Purchaser of the transactions contemplated by this Agreement.


(d) Neither the execution and delivery of this Agreement by Purchaser, nor the consummation by Purchaser of the transactions contemplated hereby, will conflict with or result in a breach of any of the terms, conditions or provisions of the constituent organizational and governing documents of Purchaser, or of any agreement or instrument to which Purchaser is a party or any of its properties is subject or bound or any statute or administrative regulation, or of any order, writ, injunction, judgment or decree of any court or governmental authority or of any arbitration award that is binding upon Purchaser.

(e) Purchaser has not dealt with any person or entity who is or may be entitled to a broker' s commission, finders fee, investment bankers fee or similar payment from Seller for arranging the transaction contemplated hereby or introducing the parties to each other.

4.2 Seller' s Representations and Warranties . Seller represents and warrants to Purchaser that:

(a) Seller has full power and authority to enter into and perform this Agreement and all documents, agreements and instruments to be executed by Seller pursuant to or in connection with this Agreement. The execution and delivery by Seller of this Agreement, and the performance by Seller of all of its obligations hereunder and thereunder, have been duly authorized and approved prior to the date hereof by all necessary corporate action. This Agreement has been duly executed and delivered by Seller and constitutes its legal, valid and binding agreement, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditor' s rights and remedies generally.

(b) Except for technology transfer regulations (see paragraph c below), no consent, authorization, order or approval of, or filing or registration with, any governmental authority or other person or entity not furnished at or prior to Closing is required for the execution and delivery of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement. Except as noted above, neither the execution and delivery by Seller of this Agreement, nor the consummation by Seller of the transactions contemplated hereby and thereby, will conflict with or result in a breach of any of the terms, conditions or provisions of the constituent organizational and governing documents of Seller, or of any agreement or instrument to which Seller is a party or any of its properties is subject or bound or any statute or administrative regulation, or of any order, writ, injunction, judgment or decree of any court or any


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governmental authority or of any arbitration award, in each case to which Seller is subject or by which Seller is bound, which conflict or breach could have a material adverse effect on the Seller' s ability to complete the transactions contemplated by this Agreement.

(c) Seller has the power and authority to transfer title to the ICC System and ICC-V System hardware and operating documentation as set forth in section 1 of the present purchase agreement. Seller shall have full power and authority and will transfer title to the ICC System and ICC-V System technical design data upon (i) receipt of the approvals of the U.S. Department of State and/ or Department of Commerce, if required, or (ii) availability of personnel and processes within Astrium NA which allow such transfer without approval.

(d) Seller has the power to sell free and clear of any Claims all Purchased Assets. Seller has or will have good title to Purchased Assets at the time of the closing related to such assets. All ICC System Assets and ICC-V System Assets are in good operating condition and repair, ordinary wear and tear excepted, in accordance with industry standards. The ICC System Assets are physically located in or about Seller' s place of business. The ICC-V System Assets will be physically located in or about Seller' s place of business at the time of the Second Closing.


(e) Seller warrants that there is no litigation or proceeding, in law or in equity, pending against Seller with respect to the Purchased Assets and there are no proceedings or governmental investigations before any commission or other administrative authority pending against or, to the best of the Seller' s knowledge, threatened against Seller with respect to the Purchased Assets.


(f) Seller has not dealt with any person or entity who is or may be entitled to a broker' s commission, finders fee, investment bankers fee or similar payment from Purchaser for arranging the transaction contemplated hereby or introducing the parties to each other.


(g) Seller owns all intellectual property that are incorporated in, used by or related to the ICC System Assets or the ICC-V System Assets. Seller is not and will not be, as a result of the execution and delivery of this Agreement or the performance of its obligations under this Agreement, in breach of any license, sublicense or other agreement relating to intellectual property or the rights of third parties with regard to intellectual property. Purchaser' s use or lease to Seller or to third parties of the Purchased Assets will not infringe the intellectual property rights of any third party.


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ARTICLE 5

Conduct Prior to the Closings

5.1 Prohibitions . From the date hereof until the respective closing hereunder, without the prior written consent of Purchaser, Seller shall not:


(a) sell, transfer, or otherwise dispose of any of the Purchased Assets;


(b) take any action that would materially adversely affect the Purchased Assets.


5.2 Maintenance of Assets . From the date hereof until the respective closing hereunder, except as expressly contemplated or permitted by this Agreement or as otherwise consented to by Purchaser in writing, Seller shall:


(a) maintain the ICC System Assets and the ICC-V System Assets in good working repair, or ...