ANNEXSupplementary provisions
UNDERTAKING Subject to the following provisos and without prejudice to their rights under applicable laws and regulations, Dasa Dornier Raumfahrt Holding GmbH (DDRH) and Matra Marconi Space NV (MMS) (collectively, "the Parties") give the following undertaking (the undertaking) in respect of the Astrium transaction notified to the Commission on October 29, 1999 (the transaction). This undertaking shall become effective upon receipt of the Commission's decision approving the transaction (effective date). The Parties therefore undertake to procure that: 1. Unified propulsion systems (UPS) Astrium NV or any of its subsidiaries (Astrium) shall grant to a specialised subsystem/equipment manufacturer, [...]*, a non-exclusive long-term licence under all relevant DASA intellectual property rights (including technology, know-how, manufacturing processes, procedures and relevant patents), in accordance with the procedure set out in Annexes 1 and 4, to manufacture and sell UPS, as currently manufactured by DASA or its affiliated companies, for use on the Spacebus 3000 platform; as part of the licence, the Parties shall procure that Astrium provides at the licensee's request and at cost, during a sufficient period of time after the date on which the licence is granted, all the technical assistance reasonably necessary for the purpose of enabling the licensee to manufacture independently from Astrium the relevant product and/or provide integration services with its own personnel. 2. Chemical thrusters As a complement to the UPS licence or separately, Astrium shall grant to a specialised subsystem/equipment manufacturer, [...]*, a non-exclusive long-term licence under all relevant DASA intellectual property rights (including technology, know-how, manufacturing processes, procedures and relevant patents), in accordance with the procedure set out in Annexes 1 and 4, to manufacture and sell bi-propellant thrusters for the same purpose as provided in paragraph 1 hereof. As part of the licence, the Parties shall procure that Astrium provides at the licensee's request and at cost, during a sufficient period of time after the date on which the licence is granted, all the technical assistance reasonably necessary for the purpose of enabling the licensee to manufacture independently from Astrium the relevant product with its own personnel. 3. Mechanical wheels Astrium shall divest to a suitable purchaser the mechanical wheels business of MMS in the United Kingdom as described in Annex 2. The divestment will be carried out in accordance with the procedure set out in Annexes 3 and 4. Until such divestment, Astrium shall cause the mechanical wheels business of MMS to be conducted in the ordinary and normal course of business in accordance with past business practice and with the care of a prudent businessman and that all reasonable measures are taken to protect and preserve the value of the relevant assets. For a period of [...]* following the divestment, Astrium undertakes in respect of the mechanical wheels business not to compete with the purchaser of this business and not to solicit the purchaser's employees. 4. On-board management systems Astrium shall grant under relevant DASA intellectual property rights (including patents) a non-exclusive long-term licence, in accordance with the procedure set out in Annexes 1 and 4, to a specialised subsystem/equipment manufacturer, [...]*, to manufacture (on a "build-to-print" basis) and sell the DASA attitude and orbit control system (AOCS) used on the Spacebus 3000 platform, including the on-board computer system and the on-board system software used on the Spacebus 3000 platform. As part of the licence, the Parties shall procure that Astrium provides at the licensee's request and at cost, during a sufficient period of time after the date on which the licence is granted, all the technical assistance reasonably necessary for the purpose of enabling the licensee to manufacture independently from Astrium the relevant product with its own personnel. >PIC FILE= "L_2003314EN.002001.TIF"> ANNEX 1 LICENCES The Parties agree to grant the licences referred to in paragraphs 1, 2 and 4 of the undertaking (the licences) in accordance with the following procedure: The Parties shall procure that Astrium enters into the relevant licence, on a reasonable royalty-bearing basis, with a suitable licensee to be approved by the Commission (the licensee) within a period of [...]* from the effective date. 1. Such licensee shall have the capability of successfully and independently manufacturing the relevant product and/or provide the relevant integration services. In particular, the potential licensee shall have sufficient skills, production and testing facilities in the relevant business area. 2. To assist the Commission in determining whether any proposed licensee is suitable, the Parties shall submit a fully documented and reasoned proposal enabling the Commission to verify that (i) the Parties do not own a material interest (whether direct or indirect) in the licensee; (ii) the licence allows the licensee to operate as a viable competitive force on the market; and (iii) the licence is appropriate and sufficient, in particular with respect to its duration and the provision of technical assistance, to enable the licensee to manufacture successfully and independently the relevant product and/or provide the relevant integration services. 3. The Parties shall obtain the Commission's prior approval to the relevant final draft licence, such approval not to be unreasonably withheld. The request for approval shall be made at the same time as the request for approval of the licensee. 4. Within ten (10) days from the effective date, the Parties shall appoint an independent and experienced trustee (the interim trustee) to oversee and monitor the Parties' compliance with the terms of this undertaking. 5. If the relevant licence has not been granted by the Parties within [...]* from the effective date, the Parties shall grant to the interim trustee an irrevocable mandate, in accordance with the provisions of Annex 4, to grant the licence at the best conditions available within a period of [...]*. 6. As soon as is practically possible after it has been appointed, the Parties shall procure that the interim trustee shall obtain the Commission's prior approval of a list of potential licensees after preliminary discussions with the parties, based on the criteria specified above in paragraphs 1 and 2. The parties shall procure that the Interim Trustee will keep the Commission regularly appraised of any ongoing discussions with potential licensees. 7. The appointment of the interim trustee shall be made in accordance with the procedure set out in Annex 4. ANNEX 2 (Buisiness Secrets) DESCRIPTION OF MMS'S MECHANICAL WHEELS BUSINESS MMS's Mechanical wheels business comprises the following: 1. MMS's dedicated tangible fixed assets for the mechanical wheels business (the business), including: - [...]*. 2. All rights to relevant contracts for such business, and customers' and suppliers' contact details. 3. All intellectual property rights owned by MMS relating to mechanical wheel design and manufacturing design descriptions as well as manufacturing files and processes for the business. 4. [...]*. ANNEX 3 DIVESTITURE The Parties agree to implement the commitments referred to in paragraph 3 of the undertaking in accordance with the following procedure: 1. The Parties shall procure that Astrium divests to a suitable purchaser (the purchaser) to be approved by the Commission the mechanical wheels business of MMS (the business) within a period of [...]* from the effective date (period 1). 2. Such purchaser shall have the capability of successfully and independently manufacturing the relevant product. In particular, the potential purchaser shall have sufficient skills, production and testing facilities in the relevant business area. 3. To assist the Commission in determining whether any proposed purchaser is suitable, the Parties shall submit a fully documented and reasoned proposal enabling the Commission to verify that (i) the Parties do not own a material interest (whether direct or indirect) in the purchaser; (ii) the sale allows the purchaser to manufacture to successfully and independently the relevant product; and (iii) at the time of completion of the purchase agreement of the business, the purchaser has, or can reasonably be expected to obtain, all necessary approvals for the purchase from the relevant competition authorities in the European Community. 4. Within ten (10) days from the effective date, the Parties shall nominate an independent and experienced trustee (the interim Trustee) to oversee and monitor the Parties' compliance with the terms of this undertaking during period 1. 5. If a purchaser for the relevant business has not been approved by the Commission within [...]* from the effective date, the Parties shall grant to the interim trustee an irrevocable mandate, in accordance with the provisions of Annex 4, for the sale of such business. This mandate shall have a duration of [...]* from the end of period 1 (period 2). 6. As soon as is practically possible after it has been appointed, the interim trustee shall obtain the Commission's prior approval of a list of potential purchasers after preliminary discussions with the Parties. The interim trustee will keep the Commission regularly appraised of any ongoing discussions with potential purchasers. 7. The appointment of the interim trustee shall be made in accordance with the procedure set out in Annex 4. ANNEX 4 GENERAL PROVISIONS 1. The Parties shall propose to the Commission the name of an independent and experienced institution that they consider appropriate to be appointed as trustee. Such proposal shall be made within ten (10) working days after the date on which the obligation to appoint a trustee enters into force. The Commission shall have the discretion to approve or reject the proposed institution in accordance with paragraph 10 below. If the proposed institution is rejected, the Parties shall submit the names of at least two further institutions, within five (5) working days of being informed of the rejection. If more than one name is approved by the Commission, the Parties shall be free to choose the trustee to be appointed from among the names approved. If all further names are rejected by the Commission, the Commission shall nominate a trustee to be appointed by the Parties. 2. The trustee shall be appointed within five (5) working days after the Commission's explicit approval or its implicit approval, in accordance with paragraphs 1, 8 and 10 hereof. 3. Along with their request for the Commission's approval of a proposed trustee, the Parties shall submit a proposed draft mandate setting forth in detail the scope of the mandate (including an incentive on the trustee to use its best efforts in arranging a prompt value-maximising transaction) and the responsibilities to be performed by the institution under the mandate. At the Commission's reasonable request, the Parties shall modify the proposed mandate, in order to ensure that it is in accordance with the provisions of this undertaking. Once the mandate has been executed, the Parties shall not be entitled to make any changes to such mandate without the Commission's prior approval. 4. The trustee's mandate shall include the following responsibilities: (i) to monitor the satisfactory discharge by the Parties of the obligations entered into in this undertaking (in so far as they fall within the scope of the trustee's mandate); (ii) to provide written reports to the Commission on the progress of the discharge of its mandate, identifying any respects in which the trustee has been unable to discharge its mandate. Such reports shall be provided in English within ten (10) working days from the end of every two (2) month period following the trustee's appointment or at such other time(s) or time periods as the Commission may specify, and which shall cover the developments of the previous two-month period. The Parties shall receive simultaneously a non-confidential copy of such trustee reports; (iii) at any time, to provide to the Commission, at its request, a written or oral report on matters falling within the trustee's mandate. The Parties shall receive simultaneously a non-confidential copy of such additional written reports and shall be informed promptly of the non-confidential content of any oral reports. 5. If this undertaking requires the mandate of a trustee to include the responsibility to conduct negotiations, and propose a licensee or, as the case may be, a purchaser, the trustee shall: (i) notify the Commission as soon as practically possible concerning the identity of potential licensees or purchasers after prior discussions with the Parties and advise the Commission why it believes such licensees or purchasers are suitable, in view of the criteria specified above; (ii) end negotiations with any prospective purchaser, if the Commission determines that the negotiations are being conducted with an unsuitable purchaser; (iii) carry out the negotiations with the view to concluding a binding agreement (subject to the closing of the Transaction) that takes into account the financial interest of the Parties (i.e., to obtain the best price and terms possible within the context of the trustee's mandate). 6. The Parties shall provide the trustee with all such assistance and information, including copies of all relevant documents, as the trustee may reasonably require in carrying out its mandate; subject to any security restrictions, the trustee shall have full and complete access to Astrium's personnel, books, records, documents, facilities and technical information relating to the manufacture of the relevant products to be licensed hereunder, or to any other relevant information, as the trustee may reasonably request, subject always to such access being limited to the scope of the trustee's mandate. 7. As soon as the specific remedy with which the trustee has been entrusted has been implemented, the trustee's mandate in respect of that specific remedy shall be terminated subject to the prior approval of the Commission. However, the Commission may at any time require the reappointment of the trustee if it subsequently appears that the relevant remedy might not have been fully and properly implemented. 8. If the Commission has not within fifteen (15) working days following receipt of a fully documented and reasoned request rejected in writing any proposal submitted to it for approval pursuant to this undertaking, the proposal shall be deemed to be approved. 9. In the event that exceptional circumstances arise that make the compliance with the timetable provided herein impossible or very difficult, and the Parties provide to the Commission reasonable evidence of such exceptional circumstances, the time periods set forth in Annexes 1 and 3 for the implementation of the undertaking may be extended by mutual agreement of the Parties and the Commission. 10. Any requests or proposals requiring Commission approval shall be addressed to the Director of Directorate B of the Commission's Directorate-General for Competition, 150 Avenue de Cortenberg, 1000 Brussels. Any communications to the Parties shall be addressed to persons to be determined and communicated to the Commission before the effective date.