CONFIDENTIAL TREATMENT REQUESTED
Confidential Portions of This Agreement Which Have Been Redacted Are Marked
With Brackets ("[***]"). The Omitted Material Has Been Filed Separately With The
Securities and Exchange Commission.
PCS CDMA PRODUCT SUPPLY CONTRACT
This PCS CDMA Product Supply Contract (the "Contract") is made and is
effective as of December 8, 1999 (the "Effective Date"), by and between Horizon
Personal Communications, Inc., an Ohio corporation (the "Purchaser"), and
Motorola, Inc., a Delaware corporation, by and through its Cellular
Infrastructure Group (the "Vendor" and, together with the Purchaser, the
Parties").
RECITALS:
A. Vendor is a party to a certain Amended and Restated PCS CDMA Product
Supply Contract with SprintCom, Inc. ("Sprint"), effective as of April 9,
1999 (the "Sprint Contract");
B. Section 4.2 of the Sprint Contract provides, inter alia, for Sprint to
designate and for Vendor to approve, entities as Additional Affiliates of Sprint
within the meaning of the Sprint Contract, Sprint has so designated Purchaser;
and Vendor has approved;
C. The Purchaser is party to a certain agreement with Sprint, entitled
SPRINT PCS MANAGEMENT AGREEMENT between WIRELESSCO, L.P., SPRINT SPECTRUM L.P.,
SPRINTCOM, INC. and HORIZON PERSONAL COMMUNICATIONS, INC., dated June 8, 1998
(the "Additional Affiliate Agreement");
D. The Federal Communications Commission (the "FCC") granted to Sprint, and
by the Additional Affiliate Agreement Sprint has authorized Purchaser to use,
licenses (the "PCS FCC Licenses") to build and operate one or more systems to
provide personal communication services in specified geographic areas in the
United States;
E. Section 4.3 of the Sprint Contract provides, inter alia, for purchase
orders from Additional Affiliates to Vendor for certain Products
(Equipment and Software);
F. Section 4.4 of the Sprint Contract provides, inter alia, that Affiliates
shall not be deemed third party beneficiaries of the Sprint Contract, and
further provides that only the affiliate issuing the specific purchase order
will incur an obligation or liability to Vendor with respect to any claim which
may arise from or relate to that purchase;
G. The Parties now desire to enter into a contract for purchases of
Products and Services from Vendor by Purchaser as an Additional Affiliate of
Sprint.
Sprint Horizon PC - Additional Affiliate Agreement 12-03-99 MOTOROLA, INC.
Contract No. 11097-AA-001 PROPRIETARY INFORMATION
[***] Confidential Treatment Requested
SECTION 1. AGREEMENT FOR PURCHASE AND SALE
Purchaser agrees to purchase, take and pay for, and Vendor agrees to sell
and furnish, Products and Services in accordance with the terms of this
Contract. Purchaser shall evidence its requested purchase by sending a signed
Purchase Order, in accordance with Section 3 below, to Vendor, which Purchase
Order shall be subject to acceptance by Vendor.
The types of Products available under this Contract to Purchaser as an
Additional Affiliate of Sprint, and the prices and other terms and conditions
for purchases of those Products are set forth in Attachment I of this contract,
in accordance with Section 5 below.
SECTION 2. MINIMUM PURCHASES, PAYMENT, CREDIT
The minimum purchase commitments by Purchaser in this Section 2 are being
made in consideration of [***]. If, in the event, [***] within sixty (60) days
of execution of this Contract, this Section 2 shall be null and void.
Purchaser agrees to purchase, take and pay for, and Vendor agrees to sell
and provide, Products and Services totaling [***] (the "Minimum Purchases") on
or before the following dates:
(a) Purchaser shall make an Initial Purchase, on the date of execution of
this Contract, of the equipment and services specified in Attachment II.
(b) Purchaser shall make additional purchases, in a total amount equal to
the amount by which the Minimum Purchases exceeds the amount of the Initial
Purchase, on or before [***].
SECTION 3. PURCHASE ORDERS
Purchase Orders submitted under this Contract shall be signed by Purchaser
and include the following statement:
"This Purchase Order is governed solely by the terms and conditions in the
Purchase Order - PCS CDMA Product Supply Contract between Horizon Personal
Communications, Inc. and Motorola, Inc., Contract No. 11097-AA-001."
Any additional, conflicting or other terms of Purchaser's Purchase Order shall
not apply.
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Sprint Horizon PC - Additional Affiliate Agreement 12-03-99 MOTOROLA, INC.
Contract No. 11097-AA-001 PROPRIETARY INFORMATION
SECTION 4. TERM OF CONTRACT
The term of this Contract (the "Term") is from the Effective Date first
above written to September 25, 2003 ("Original Contract End Date"), subject to
the terms and conditions of this Contract.
SECTION 5. APPLICABILITY OF PROVISIONS OF ATTACHMENT I
Purchase Orders submitted to Vendor in accordance with Section 3 shall be
subject to the same price and other terms and conditions as Attachment I. To
avoid any possible doubt, Purchaser acknowledges and accepts the
responsibilities, limitations and requirements of Attachment I, Section 11,
entitled "Software; Confidential Information." (Without limitation, Section 11
contains the software license provisions of Attachment I.)
Attachment I contains many provisions applicable to Sprint as "Owner" that
do not apply to Purchaser, but Sections 19, 20, 21, 22, 23 and 24 of Attachment
I shall apply to Purchaser to the same extent they apply to "Owner" in
Attachment I.
SECTION 6. CONFIDENTIALITY
(a) All information including, without limitation, all oral and written
information, disclosed to the other Party is deemed to be confidential,
restricted and proprietary to the disclosing Party (hereinafter referred to as
"Proprietary Information"); provided that for the avoidance of doubt with
respect to the Vendor's desire to invoke the protections of this Section 6, the
Vendor shall, (i) identify any and all written Proprietary Information by
placing the word "CONFIDENTIAL" conspicuously on such material or otherwise mark
such material so as to clearly indicate such material is in fact confidential
and (ii) identify any and all oral Proprietary Information to a writing that
conforms to clause (i) immediately above within seventy-two (72) hours of such
disclosure by the Vendor. Each Party agrees to use the Proprietary Information
received from the other Party only for the purpose of this Contract. Except as
specified in this Contract, no other rights, and particularly licenses, to
trademarks, inventions, copyrights, patents, or any other intellectual property
rights are implied or granted under this Contract or by the conveying of
Proprietary Information between the Parties. Proprietary Information supplied is
not to be reproduced in any form except as required to accomplish the intent of,
and in accordance with the terms of, this Contract. The receiving Party must
provide the same care to avoid disclosure or unauthorized use of Proprietary
Information as it provides to protect its own similar proprietary information.
All Proprietary Information must be retained by the receiving Party in a secure
place with access limited to only such of the receiving Party's employees or
agents who need to know such information for purposes of this Contract and to
such third parties as the disclosing Party has consented to by prior written
approval. All Proprietary Information, including all copies of such information,
u nless otherwise specified in writing (x) remains the property of the
disclosing Party, (y) must be used by the receiving Party only for the purpose
3
Sprint Horizon PC - Additional Affiliate Agreement 12-03-99 MOTOROLA, INC.
Contract No. 11097-AA-001 PROPRIETARY INFORMATION
for which it was intended, and (z) must be returned to the disclosing Party or
destroyed after the receiving Party's need for it has expired or upon request of
the disclosing Party, and, in any event, upon termination of this Contract. At
the request of the disclosing Party, the receiving Party will furnish a
certificate of an officer of the receiving Party certifying that Proprietary
Information not returned to disclosing Party has been destroyed. For the
purposes hereof, Proprietary Information does not include information which:
(i) has been or may in the future be published or is now or may in the
future be otherwise in the public domain through no fault of the receiving
Party;
(ii) prior to disclosure pursuant to this Contract is properly within
the legitimate possession of the receiving Party;
(iii) subsequent to disclosure pursuant to this Contract is lawfully
received from a third party having rights in the information without
restriction of the third party's right to disseminate the information and
without notice of any restriction against its further disclosure;
(iv) is transmitted to the receiving Party after the disclosing Party
has received written notice from the receiving Party that it does not
desire to receive further Proprietary Information; or
(vi) is obligated to be produced under order of a court of competent
jurisdiction or other similar requirement of a Governmental Entity, so long
as the Party required to disclose the information provides the other Party
with prior notice of such order or requirement.
(b) Because damages may be difficult to ascertain, the Parties agree that
in the event of a breach or threatened breach of this Contract, without limiting
any other rights and remedies specified herein, an injunction may be sought
against the Party who has breached or threatened to breach this Section 6. Each
Party represents and warrants that it has the right to disclose all Proprietary
Information which it has disclosed to the other Party pursuant to this Contract,
and each Party agrees to indemnify and hold harmless the other from all claims
by a third party related to the wrongful disclosure of such third party's
Proprietary Information. Otherwise, neither Party makes any representation or
warranty, express or implied, with respect to any Proprietary Information.
SECTION 7. NOTICES
Any notice, request, consent, waiver or other communication required or
permitted hereunder will be effective only if it is in writing and personally
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Sprint Horizon PC - Additional Affiliate Agreement 12-03-99 MOTOROLA, INC.
Contract No. 11097-AA-001 PROPRIETARY INFORMATION
delivered by hand or by overnight courier or sent by certified or registered
mail, postage prepaid, return receipt requested, addressed as follows:
If to Purchaser:
Joseph E. Corbin
Horizon Personal Communications, Inc.
68 E. Main Street
P.O. Box 480
Chillicothe, Ohio 45601-0480
Fax: (740) 655-8417
With a copy to:
Joseph J. Watson
Horizon Personal Communications, Inc.
68 E. Main Street
P.O. Box 480
Chillicothe, Ohio 45601-0480
Fax: (740) 779-1945
and if so directed by the Purchaser, with an additional copy to:
_____________________________________
Horizon Personal Communications, Inc.
_____________________________________
_____________________________________
Fax: ________________________________
5
Sprint Horizon PC - Additional Affiliate Agreement 12-03-99 MOTOROLA, INC.
Contract No. 11097-AA-001 PROPRIETARY INFORMATION
If to the Vendor:
Motorola, Inc.
Cellular Infrastructure Group
1701 Golf Road, Tower 1, 9th Floor
Rolling Meadows, Illinois 60008
Attention: Vice President and General Manager
Customer Solutions Group
Network Solutions Sector
Fax: (847) 435-7411
Cellular Infrastructure Group
1701 Golf Road, Tower 1, 5th Floor
Rolling Meadows, Illinois 60008
With a copy to:
Motorola, Inc.
Attention: Senior Manager
Commercial Department
Fax: (847) 435-7230
Written notice given pursuant to this Section 7 will be delivered to recipients
authorized by the Purchaser and the Vendor, as the case may be, in writing and
when so delivered will be deemed to have been fully served and delivered.
THE PURCHASER AND THE VENDOR HAVE READ THIS CONTRACT INCLUDING ALL SCHEDULES AND
EXHIBITS HERETO AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS HEREOF AND
THEREOF.
6
Sprint Horizon PC - Additional Affiliate Agreement 12-03-99 MOTOROLA, INC.
Contract No. 11097-AA-001 PROPRIETARY INFORMATION
IN WITNESS WHEREOF, the Parties have executed this Contract as of the date
first above written.
MOTOROLA, INC.
By: /s/ Richard E. Leicht
----------------------------------------
Name: Richard E. Leicht
Date: December 10, 1999
HORIZON PERSONAL COMMUNICATIONS, INC.
By: /s/ William A. McKell
----------------------------------------
Name: William A. McKell
Date: December 10, 1999
7
Sprint Horizon PC - Additional Affiliate Agreement 12-03-99 MOTOROLA, INC.
Contract No. 11097-AA-001 PROPRIETARY INFORMATION
[***] Confidential Treatment Requested
Equipment Summary - Initial System Purchase
Horizon PCS
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- -------------------
[***]
[***] Confidential Treatment Requested
CUSTOMER NAME: Horizon PCS
MARKET: Chillicothe, Ohio
SITE NAME: UNO-MM and EMX Expansion Lists
FACTORY ORDER: [***]
PURCHASE ORDER:
[***]
UNIT EXTENDED
PRICE PRICE
ITEM QTY PART NUMBER DESCRIPTION (USD) (USD)
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CUSTOMER NAME: Horizon PCS
MARKET: Chillicothe, Ohio
SITE NAME: [***]
FACTORY ORDER:
PURCHASE ORDER:
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UNIT EXTENDED
PRICE PRICE
ITEM QTY PART NUMBER DESCRIPTION (USD) (USD)
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[***] Confidential Treatment Requested
CUSTOMER NAME: Horizon
MARKET: Tennessee
SITE NAME: [***]
FACTORY ORDER:
PURCHASE ORDER:
[***]
[***] Confidential Treatment Requested
CUSTOMER NAME: Horizon
MARKET: Tennessee
SITE NAME: [***]
FACTORY ORDER:
PURCHASE ORDER:
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PRICE PRICE
ITEM QTY PART NUMBER DESCRIPTION (USD) (USD)
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MARKET: Tennessee
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