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EXHIBIT 10.12
ORBCOMM SERVICE LICENSE AGREEMENT
FOR THE EUROPEAN REGION
This Service License Agreement (the "Agreement") is entered into this
15th day of October 1996, between ORBCOMM INTERNATIONAL PARTNERS, L.P.
("ORBCOMM"), whose principal place of business is 21700 Atlantic Boulevard,
Dulles, Virginia, 20166, USA, and EUROPEAN COMPANY FOR MOBILE COMMUNICATOR
SERVICES, B.V., ORBCOMM EUROPE ("Licensee"), whose principal place of business
is ___________________________________________________.
WHEREAS, Orbital Communications Corporation ("OCC") and Teleglobe
Mobile Partners ("Teleglobe Mobile"), through ORBCOMM Global, L.P. ("ORBCOMM
Global"), plan to design, develop, construct and operate a satellite-based,
low-Earth orbit message and data communications and position determination
system (the "ORBCOMM System") that is identified by the International
Telecommunications Union as "LEOTELCOM 1" and is further generally described in
Attachment A, which attachment shall not be deemed to be a representation or
warranty with respect to the ORBCOMM System;
WHEREAS, the initial two satellites for the ORBCOMM System were
launched in April 1995 and are currently commercially available in the United
States for the non real-time transmission of short messages and data;
WHEREAS, ORBCOMM Global has entered into a contract with Orbital
Sciences Corporation ("Orbital") for the construction and launch of an
additional 26 ORBCOMM System satellites, and the construction of an additional
eight satellites;
WHEREAS, OCC has been awarded United States Federal Communications
Commission ("FCC") authority, a copy of which is attached hereto as Attachment
K, to construct, launch and operate the ORBCOMM System in the United States;
WHEREAS, ORBCOMM Global plans to market satellite-based, two-way
message and data communication and position determination services using the
ORBCOMM System (the "ORBCOMM Services") in the United States through ORBCOMM
USA, L.P. ("ORBCOMM USA") and elsewhere in the world through ORBCOMM;
WHEREAS, ORBCOMM has been granted the authority to use the "ORBCOMM"
logo, trademark and service mark and other similar intellectual property in
connection with the marketing of ORBCOMM Services internationally; and
WHEREAS, ORBCOMM and Licensee wish to enter into an agreement pursuant
to which, subject to certain terms and conditions, ORBCOMM authorizes Licensee
to access and
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use the satellites in the ORBCOMM System and to have use of certain other
related assets for purposes of Licensee offering on an exclusive basis
communication services using the ORBCOMM System in the country or countries and
in any other locations listed in Attachment B (the "Territory").
NOW, THEREFORE, the parties agree as follows:
SECTION 1 - DEFINED TERMS
"AAA" shall have the meaning assigned thereto in Section 15(a).
"Access Fees" shall mean any monthly or other periodic fees or other
periodic payments associated with a Subscriber Communicator accessing or
otherwise making use of the Licensee System.
"Affiliate" shall mean, with respect to any person (a) any person that
directly, or indirectly through one or more intermediaries, controls such
person, (b) any person that is controlled by or is under common control with a
controlling person or (c) a shareholder of or other holder of an equity
interest in Licensee or an affiliate of any such shareholder or holder. As
used herein, the term "control" means possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise.
"CSC" shall have the meaning assigned thereto in Section 6.
"CSC Software License Agreement" shall have the meaning assigned
thereto in Section 6.
"Controlling Shareholders" shall mean Nuova Telespazio, S.p.A, SATCOM
International Group PLC, Swedish Space Corporation and OHB System GmbH,
provided that any of the foregoing entities shall be entitled to transfer its
interest in Licensee to an entity in which it or its direct parent has at least
a 51% interest and upon such transfer such transferee shall be deemed a
Controlling Shareholder for purposes of this Agreement; provided however, that
any such transferee shall not be entitled to further transfer its interest in
the Licensee except to an entity in which its original shareholder or such
original shareholder's direct parent has at least a 51% interest.
"Data Throughput Fee" shall have the meaning assigned thereto in
Section 5(a)(i).
"Data Throughput Fee Amount" shall have the meaning assigned thereto
in Section 5(a)(i).
"Effective Date" shall mean the date of execution of this Agreement.
"Gateway Acceptance Test" shall have the meaning assigned thereto in
the Ground
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Segment Procurement Contract.
"Gateway Facilities and Environmental Specifications" shall have the
meaning assigned thereto in the Ground Segment Procurement Contract.
"Gateway Implementation Plan" shall have the meaning assigned thereto
in the Ground Segment Procurement Contract.
"Governmental Authority" shall have the meaning assigned thereto in
Section 3(a)(ii).
"Ground Segment Hardware" shall have the meaning assigned thereto in
the Ground Segment Procurement Contract.
"Ground Segment Procurement Contract" shall have the meaning assigned
therein in Section 3(a)(i).
"Initial Purchase" shall have the meaning assigned thereto in the
Ground Segment Procurement Contract.
"Intermittent Service Problem" shall have the meaning assigned thereto
in Section 13(a).
"International Waters" shall mean the waters more than 12 statute
miles from the geographic territory of any country or other territory unless
such waters are within 12 statute miles of the geographic territory of another
ORBCOMM System service licensee.
[CONFIDENTIAL TREATMENT]
"License" shall have the meaning assigned thereto in Section 2(a).
"Licensee System" shall have the meaning assigned thereto in Section
3(a)(i).
"Licensee System Acceptance Specifications" shall have the meaning
assigned thereto in Section 3(a)(i).
"Licensee System Acceptance Test" shall have the meaning assigned
thereto in Section 3(a)(i).
"License Fee" shall have the meaning assigned thereto in Section 4.
"Operable Satellite" shall mean a Satellite that is being used by any
of ORBCOMM Global, ORBCOMM or ORBCOMM USA, directly or indirectly, for the
provision of revenued service using the ORBCOMM System [CONFIDENTIAL
TREATMENT].
"Option Exercise Notice" shall have the meaning assigned thereto in
Section 9(d)(i)(A).
"ORBCOMM Entities" shall mean OCC, Teleglobe Mobile, ORBCOMM Global,
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ORBCOMM USA and ORBCOMM.
"ORBCOMM Gateway" shall mean the facilities consisting of dual
antenna, redundant gateway Earth stations ("GESs"), computers, displays,
control consoles, communications equipment and other hardware that transport
and control the flow of data and message communications and other information
for the ORBCOMM System in the Territory. An ORBCOMM Gateway shall include one
GES and may be expanded through the addition of supplemental GESs.
"ORBCOMM Gateway Software License Agreement" shall have the meaning
assigned thereto in Section 2(a).
"ORBCOMM Identity Manual" shall have the meaning assigned thereto in
Section 3(a)(vi).
"ORBCOMM Licensed Gateway Software" shall have the meaning assigned
thereto in the ORBCOMM Gateway Software License Agreement.
"ORBCOMM System Address" shall mean the unique subscriber communicator
address or addresses assigned to a "Subscriber Communicator."
"ORBCOMM System Purchase Group" shall have the meaning assigned
thereto in Section 9(d)(i)(A).
"Permits" shall have the meaning assigned thereto in Section 3(a)(ii).
"Quality Inspection" shall have the meaning assigned thereto in
Section 8(a)(i).
"Registration Fees" shall mean any fees or other payments associated
with initial activation of a Subscriber Communicator that will access or make
use of the Licensee System.
"Reseller Agreement" shall have the meaning assigned thereto in
Section 2(d).
"Resellers" shall have the meaning assigned thereto in Section 2(d).
"Revenue Dependent Amount" shall have the meaning assigned thereto in
Section 5(a)(i).
"Revenue Dependent Fee Percentage" shall have the meaning assigned
thereto in Section 5(a)(i).
"Satellites" shall mean any of the low-Earth orbit satellites
comprising the constellation portion of the ORBCOMM System.
"Satellite Usage Fee" shall have the meaning assigned thereto in
Section 5.
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"Subscriber" shall mean a customer purchasing ORBCOMM Services from
Licensee or a Reseller (or agent or subagent thereof) of Licensee.
"Subscriber Communicator" shall mean the equipment used by a
Subscriber to provide access to the ORBCOMM System that has been "Type
Approved" by or on behalf of ORBCOMM Global.
"Subscriber Management and Customer Support Software" shall have the
meaning assigned thereto in Section 6.
"Successful Launch" shall mean the launch and insertion of Satellites
in the orbit described in Section 3.1.1 of Exhibit A, Part 2 of the ORBCOMM
System Procurement Agreement dated September 12, 1995 between ORBCOMM Global
and Orbital, as in effect on the date hereof.
"System Available Date" shall mean the day after the date hereof on
which ORBCOMM declares that the first plane of eight Satellites have completed
on-orbit testing.
"Termination for Convenience" shall have the meaning assigned thereto
in Section 9(b)(i).
"Territory" shall have the meaning assigned thereto in the whereas
clauses hereof.
"Transaction Agreements" shall mean this Agreement, the Ground Segment
Procurement Contract, the ORBCOMM Gateway Software License Agreement and the
CSC Software License Agreement,.
"Type Approved" shall mean the approval for use with the ORBCOMM
System granted by ORBCOMM Global for each model or type of subscriber
communicator based on ORBCOMM Global's determination that such type of
subscriber communicator meets the requirements of the specifications and
successfully meets the testing requirements specified in each applicable
subscriber communicator manufacturing agreement.
"Usage Fees" shall mean any payments or charges for the transmission
of data or messaging by a Subscriber Communicator when accessing or using the
Licensee System.
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SECTION 2 - GRANT OF LICENSE
(a) For purposes of Licensee offering ORBCOMM Services in the
Territory, subject to the terms and conditions set forth herein, ORBCOMM grants
to Licensee an exclusive license in the Territory (the "License") to (i) access
and/or use (but not operate or control) the Satellites while they are within
view of any of the Subscriber Communicators located in the Territory and any of
the GESs of the ORBCOMM Gateway located in the Territory or the GESs of an
ORBCOMM Gateway shared by Licensee to the extent permitted by the Ground
Segment Procurement Contract, (ii) use the ORBCOMM Licensed Gateway Software
pursuant to and in accordance with the ORBCOMM Gateway Software License
Agreement attached hereto as Attachment C (the "ORBCOMM Gateway Software
License Agreement"), (iii) use the applicable ORBCOMM System operating methods,
practices and procedures published from time to time by ORBCOMM and made
available in writing to Licensee, and (iv) if permitted by law, use the
"ORBCOMM" logo, trademark, service mark and name, in accordance with the terms
and conditions set forth in this Agreement; provided that Licensee shall not be
entitled to access the Satellites unless the Licensee System has successfully
passed a Licensee System Acceptance Test. Notwithstanding the grant of the
License, ORBCOMM reserves and shall have the right to access the ORBCOMM System
in the Territory, free of charge, for purposes of conducting maintenance,
testing, operational and other related ORBCOMM System functions, provided that
ORBCOMM shall use all good faith efforts to minimize its interference with the
operation of the Licensee System; and provided further that to the extent
practicable and as soon as possible shall provide Licensee with [CONFIDENTIAL
TREATMENT].
(b) (i) ORBCOMM reserves the right to grant to other licensees
the right to use the ORBCOMM System, the ORBCOMM Licensed Gateway Software, and
the ORBCOMM operating methods, logo, trademark and name in any area outside the
Territory.
(ii) To the extent permitted by applicable law, upon the receipt of
all necessary Permits from the applicable Governmental Authorities and without
the prior approval of ORBCOMM, Licensee may provide, on a non-exclusive basis,
ORBCOMM Services to Subscriber Communicators located in International Waters
and in connection therewith shall be entitled to access or use, as the case may
be, on a non-exclusive basis, the assets of ORBCOMM specified in Section 2(a).
(c) Notwithstanding the grant of the License, the ORBCOMM System,
design, software (including the ORBCOMM Licensed Gateway Software), operating
methods, logos, trademarks, service marks and name, all copyright, other
proprietary and intellectual property rights and all other tangible and
intangible property rights with respect thereto are and shall remain the sole
and exclusive property of OCC, ORBCOMM, ORBCOMM Global, ORBCOMM USA or its
developer, as the case may be.
(d) Subject to the terms of Section 18(b), Licensee may authorize
other entities ("Resellers") to market and sell ORBCOMM Services on a
value-added basis in the Territory, and, to the extent permitted by Section
2(b)(ii), in International Waters. Licensee shall execute an agreement (the
"Reseller Agreement") with each Reseller that shall contain, at a minimum,
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the terms and conditions shown in Attachment D.
(e) (i) Notwithstanding the provisions of Section 18(b), to the
extent necessary and subject to the conditions set forth in this Section 2(e),
Licensee may authorize other entities (In-Country Representatives") to act on
its behalf and to satisfy all of the applicable requirements of this Agreement
with respect to one or more of the countries included in the Territory;
provided that ORBCOMM shall be entitled to approve the selection of any
In-Country Representative, which approval shall not be unreasonably withheld;
and provided, further, that Licensee shall remain responsible for the
performance by any such In-Country Representative of all such applicable
requirements including the payment of any amounts to be paid to ORBCOMM
specified in this Agreement. Notwithstanding the foregoing, ORBCOMM agrees
that Nuova Telespazio, S.p.A. shall be entitled to be the In-Country
Representative in Italy, SATCOM International Group PLC shall be entitled to be
the In-Country Representative in the United Kingdom, Ireland and Switzerland,
Swedish Space Corporation shall be entitled to be the In-Country Representative
in Sweden and OHB System GmbH shall be entitled to be the In-Country
Representative in Germany and the shareholders or any of its Affiliates of
Licensee shall be entitled to be the In-Country Representative in up to 50
percent of the countries in the Territory.
(ii) Copies of all agreements or contracts with any In-Country
Representative and any modifications or amendments thereto shall be submitted
to ORBCOMM prior to their execution; provided that Licensee shall include in
any such agreement or contract language substantially similar to the language
contained in Section 14 as well as the applicable responsibilities set forth in
this Agreement with respect to such countries. Within [CONFIDENTIAL TREATMENT]
business days of receipt of such agreement, contract, modification or
amendment, ORBCOMM shall advise Licensee in writing of its approval or
disapproval thereof, provided that ORBCOMM shall not unreasonably withhold its
approval. Failure of ORBCOMM to respond within such [CONFIDENTIAL TREATMENT]
business day period shall be deemed to be approval thereof by ORBCOMM. If any
of the agreements, contracts, modifications or amendments are not written in
the English language, they must be accompanied by a certified translation into
English to be deemed received by ORBCOMM.
(iii) Licensee hereby represents and warrants that the Access Fees,
Registration Fees and Usage Fees charged by Licensee to any In-Country
Representative shall be no less than [CONFIDENTIAL TREATMENT] of the Access
Fees, Registration Fees and Usage Fees charged by such In-Country
Representative to the next distribution level including its value-added
resellers or to Subscribers in the event such In-Country Representative sells
or distributes ORBCOMM Services directly to Subscribers.
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SECTION 3 - SCOPE OF AGREEMENT
(a) Responsibilities of Licensee. Licensee shall:
(i) Procure and install in the Territory a ground segment
that shall consist of (A) the land, buildings, utilities and
facilities consistent with the Gateway Facilities and Environmental
Specifications, (B) one ORBCOMM Gateway incorporating a total of at
least two GESs, which shall be purchased pursuant to the Ground
Segment Procurement Contract attached hereto as Attachment E (the
"Ground Segment Procurement Contract"), (C) the telecommunication
facilities required to connect all elements of such ORBCOMM Gateway
(other than those to be furnished by ORBCOMM under the Ground Segment
Procurement Contract) and connect such ORBCOMM Gateway with public
and/or private data and telecommunications networks and (D) the
Subscriber Management and Customer Support Software and associated
hardware more specifically described in Section 6 (collectively, the
"Licensee System"). The Licensee System must be in conformity with
the acceptance criteria and specifications set forth in the Licensee
System Acceptance Specifications (the "Licensee System Acceptance
Specifications") before it is permitted to access the ORBCOMM System,
which criteria and specifications shall be tested by ORBCOMM in
accordance with the Licensee System Acceptance Test (the "Licensee
System Acceptance Test"); provided however, that if a Gateway
Acceptance Test has been performed within 30 days of such Licensee
System Acceptance Test, the Licensee System Acceptance Test shall not
include a Gateway Acceptance Test. The Licensee System Acceptance Test
shall be completed in accordance with the timetable set forth in the
Gateway Implementation Plan provided pursuant to the Ground Segment
Procurement Contract, and on successful completion thereof, ORBCOMM
shall deliver to Licensee a Licensee System Acceptance Test
certificate. The procurement and installation of the Licensee System
shall be at Licensee's sole expense;
(ii) Apply for and use all commercially reasonable and
good faith efforts to obtain promptly, and thereafter at all times
maintain, at its sole expense, all approvals, licenses, authorizations
and permits (the "Permits") from any applicable European, regional,
country, federal, state, local or other governmental agency or
authority ("Governmental Authority") necessary (A) to develop,
construct, implement and operate the Licensee System in the Territory,
including any necessary in-country environmental impact studies, (B)
to provide ORBCOMM Services in the Territory, and (C) to use or
operate Subscriber Communicators with the Licensee System in the
Territory. Within ten business days of the expiration of a calendar
quarter, Licensee shall provide ORBCOMM with a detailed description of
the steps, on a country-by-country or similar basis, that have been
taken by or on behalf of Licensee to obtain and maintain such Permits.
If Licensee is unable to obtain the Permits for any of the countries
in the Territory within [CONFIDENTIAL TREATMENT] years of the
commencement of the term of [CONFIDENTIAL TREATMENT].
(iii) Commence operation of the Licensee System in the
Territory no later than four months after the later of (A) completion
of the Licensee System Acceptance Test for
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the ORBCOMM Gateway incorporating one GES and (B) the date when
Licensee obtains all the Permits necessary from the Governmental
Authorities in at least one of Italy, France, Germany, Spain or the
United Kingdom;
(iv) Use all commercially reasonable efforts to advertise,
promote and market the Licensee System in the Territory, which
advertising, promotion and marketing shall occur, to the extent
permitted by applicable law, under the name "ORBCOMM Europe", provided
that the In-Country Representatives shall be entitled to operate under
the name of "ORBCOMM [followed by the name of their country]", in each
case in accordance with Section 3(a)(vi), and provide to ORBCOMM by
January 1 and June 1 of each year a copy of its current marketing
communications plan covering the next six months that includes a
general description of the advertising, promotional and marketing
efforts for such period;
(v) Operate the Licensee System in a manner so as not to
injure intentionally the reputation of any of the ORBCOMM Entities or
the ORBCOMM System or otherwise adversely impact the operations of the
ORBCOMM System or any other system that uses the ORBCOMM;
(vi) (A) To the extent permitted by applicable law,
during the term of this Agreement and only so long as such use is in
accordance with the terms and conditions set forth herein, use the
ORBCOMM logos and all ORBCOMM trademarks and service marks, where
appropriate, which Licensee acknowledges are currently owned by OCC or
ORBCOMM Global, as the case may be, in Licensee's marketing and
advertising for the Licensee System. All such marketing and
advertising that contains references to the ORBCOMM System, ORBCOMM
USA, ORBCOMM Global or ORBCOMM shall be in accordance with the ORBCOMM
Identity Manual, the current version of which is attached hereto as
Attachment F and which may be modified by ORBCOMM after giving
Licensee five business days prior written notice (the "ORBCOMM
Identity Manual"), provided that, for a period of six months from the
receipt of such notice, Licensee shall be entitled to continue to use
all existing marketing materials that previously complied with the
ORBCOMM Identify Manual. Licensee shall be required to obtain the
prior written consent of ORBCOMM for all such marketing or
advertising; provided that if Licensee complies with the ORBCOMM
Identity Manual, the advance written approval of ORBCOMM shall not be
required. Licensee shall obtain all Permits, if any, from all
applicable Governmental Authorities required for it to use any
ORBCOMM-registered ORBCOMM logos, trademarks and service marks in the
Territory. To the extent requested by ORBCOMM, Licensee shall provide
reasonable assistance to ORBCOMM or ORBCOMM Global in ORBCOMM Global's
efforts to register the ORBCOMM logos, trademarks and service marks in
ORBCOMM Global's name; provided that ORBCOMM shall reimburse Licensee
for any out-of-pocket costs incurred in providing such assistance.
Any use of the word "ORBCOMM" or the phrase "ORB" for a logo,
trademark, service mark or trade name shall require the prior written
approval of ORBCOMM, which approval shall not be unreasonably
withheld;
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(B) Cooperate with ORBCOMM in providing reasonable support
and any information that may be required in the defense in the
Territory of the ORBCOMM logo and all ORBCOMM trademarks and service
marks as a result of their use pursuant to this Agreement; and
(C) During the term of this Agreement and thereafter, not (x)
engage in any activities or commit any acts that may, directly or
indirectly, contest, dispute or otherwise impair OCC's or ORBCOMM
Global's, as the case may be, right, title and interest in such logos,
trademarks and service marks or (y) directly or indirectly, sublicense
use of the ORBCOMM logo or any ORBCOMM trademarks and service marks to
any other person, other than with respect to any In-Country
Representative, Reseller or its Agents or Subagents, without the
express written consent of ORBCOMM;
(vii) Pay to ORBCOMM the fees, costs and other payments set
forth in this Agreement;
(viii) Once a calendar quarter, give ORBCOMM and/or its
representatives reasonable access during normal business hours to all
information, whether contained in Licensee's books, accounts, records,
contracts and documents or otherwise, necessary for ORBCOMM to verify
compliance by Licensee with the terms and conditions set forth in this
Agreement;
(ix) In addition to ORBCOMM's access to the ORBCOMM System
in the Territory permitted by Section 2(a), permit ORBCOMM and/or
their representatives or Affiliates, at their sole expense, to
directly and electronically communicate with all elements of the
Licensee System, other than the Subscriber Management and Customer
Support Software and associated hardware, (A) for the purpose of and
to the extent necessary for examining subscriber provisioning
parameters, as well as network element configuration, use of the
ORBCOMM System, performance of the Licensee System and other data as
required to ensure the proper operation of the ORBCOMM System
including the Licensee System and (B) for the purpose of and to the
extent ORBCOMM is obligated to do so, assisting Licensee in the
maintenance and repair of the Licensee System; provided that, in
either event, ORBCOMM shall use all good faith efforts to minimize its
interference with the operation of the Licensee System and to the
extent practicable and as soon as possible shall provide Licensee with
(x) [CONFIDENTIAL TREATMENT].
(x) If it provides ORBCOMM Services directly to
Subscribers, include with any contract or agreement with each
Subscriber, to the extent required by ORBCOMM, a brochure or other
document prepared and issued by ORBCOMM that contains a provision
substantially identical to the following: To the fullest extent
permitted by applicable law, Subscriber hereby acknowledges and agrees
that none of the ORBCOMM Entities has made any warranties with respect
to the ORBCOMM System express or implied, arising by law or otherwise,
including, but not limited to, any implied warranty of merchantability
or fitness for a particular purpose.
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In addition, if Licensee provides ORBCOMM Services directly to
Subscribers, include provisions in its contracts or agreements with
each of its Subscribers for the Licensee System substantially
identical to the following:
(A) In no event shall any of ORBCOMM Entities have
any obligation or liability to such Subscriber and such
Subscriber shall have no claim or right against any of the
ORBCOMM Entities for loss of use, revenue or profit or for any
other indirect, incidental or consequential damages;
(B) In no event shall any of the ORBCOMM Entities
have any obligation or liability to such Subscriber and such
Subscriber shall have no claim or right against any of the
ORBCOMM Entities in an amount that exceeds in the aggregate
the actual amount of any [CONFIDENTIAL TREATMENT];
(xi) Use the ORBCOMM Licensed Gateway Software only in
accordance with the terms and conditions set forth in the ORBCOMM
Gateway Software License Agreement;
(xii) So long as such Subscriber Communicator complies with
all standards of the European Telecommunications Standards Institute,
if applicable, not discriminate against any Subscriber because such
Subscriber purchased or obtained its Subscriber Communicator from one
source versus another, and not offer service to Subscribers who buy or
lease their Subscriber Communicators from Licensee or an Affiliate of
Licensee at a price that is lower than that at which similar ORBCOMM
Services are offered to Subscribers who obtain their Subscriber
Communicators from another source;
(xiii) To the extent permitted by law and except as
permitted in Sections 2(b)(ii) and 7, (A) not register on the Licensee
System Subscriber Communicators the billing address for which is
outside the Territory and (B) not solicit any third party, establish
an office outside the Territory for the purpose of soliciting any
third party or accept unsolicited offers from any third party that
will use the Licensee System, if such use will occur primarily in the
territory of any one other ORBCOMM System service licensee. During
the term of this Agreement, on the anniversary date of the execution
of this Agreement, Licensee shall provide ORBCOMM with an officer's
certificate certifying its compliance with the terms of this Section
3(a)(xiii);
(xiv) In the event a reseller of another ORBCOMM service
licensee desires to be a reseller in the Territory, such reseller
shall apply to Licensee to become a Licensee-approved reseller in the
Territory; provided that such reseller meets the same standards and
requirements as other approved resellers in the Territory then
Licensee shall be required to offer to provide service to such
reseller, at substantially the same rates, terms and conditions (in
each case so long as such standards, requirements, terms and
conditions are not designed to specifically exclude a reseller of
another ORBCOMM service licensee) as it offers other, similar
resellers of the ORBCOMM Services in the same country in the
Territory, or if there are no similar resellers in such country, then
at rates, terms and conditions that are commercially reasonable. In
the event Licensee does not believe such reseller will meet the
standards or agree to abide by such rates, terms and
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conditions, Licensee shall notify ORBCOMM in writing of such
determination, specifying in detail the basis for its conclusion.
Thereafter, the parties shall discuss the reasons detailed by Licensee
in such notice; provided that if ORBCOMM and Licensee are unable to
mutually agree on the ability of such reseller to become a
Licensee-approved reseller in the Territory, [CONFIDENTIAL
TREATEMENT];
(xv) Offer to provide in the Territory the full range of
ORBCOMM Services that are described in the ORBCOMM Service Features
Description, as it may be amended from time to time, the current
version of which is set forth in Attachment A;
(xvi) Promptly advise ORBCOMM in writing if Licensee or any
of its Affiliates is a Reseller or acquires any direct or indirect
ownership or other economic interest in a Reseller and provide to
ORBCOMM for its approval, which approval shall not be unreasonably
withheld, all proposed or previously executed Reseller Agreements, and
any amendments or modifications thereto, with such Reseller, together
with an explanation and justification of the terms and conditions set
forth therein;
(xvii) Prior to the commencement of the provision of ORBCOMM
Services in the Territory and within 30 days after the end of each
calendar year thereafter, provide to ORBCOMM in writing a full
description of its prices and pricing strategy for the provision of
ORBCOMM Services in the Territory. Such description shall (A) address
the issues of competitive pricing in the Territory, (B) describe how
the pricing strategy and the prices serve the purpose of maximizing
revenues over the term of and consistent with or greater than the
financial returns reflected in the business plan dated [CONFIDENTIAL
TREATMENT] prepared by or on behalf of Licensee, a copy of which is
attached hereto as Attachment G, and of making efficient and
appropriate use of the Satellites, and (C) demonstrate that ORBCOMM
Services have been appropriately priced, when combined with other
services or hardware provided by Licensee or its Resellers, and
accounted for in calculating gross operating revenues pursuant to
Section 5(a). Such pricing policies and strategies are not subject to
[CONFIDENTIAL TREATMENT] and Licensee shall be obligated to disclose
to ORBCOMM the identity of its Resellers but shall not be obligated to
disclose to ORBCOMM the identity of its or its Reseller's Subscribers;
(xviii) Establish a mutually agreeable framework and
reporting scheme with ORBCOMM for the joint exchange of operational
statistics (such as statistical data on message lengths, message
frequencies, time of day, day of week and seasonal usage for each
service offering and market segment served by Licensee) that are
necessary for the Licensee, ORBCOMM and other ORBCOMM System service
licensees to appropriately manage their respective systems and provide
consistent quality services using the ORBCOMM System;
(xix) Participate with ORBCOMM in the preparation of
traffic forecasts;
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(xx) Send ORBCOMM written notice of when the Licensee
System commences operation;
(xxi) Pay all European, regional, country, federal, state,
local and other taxes, including but not limited to sales, use, gross
receipts, and excise taxes and withholding (other than withholding
taxes owed on behalf of ORBCOMM), that arise from the performance of
its duties under this Agreement, including the payment of all fees and
other amounts due and owing hereunder, provided that in no event shall
Licensee be responsible for the payment of any incomes taxes owed by
ORBCOMM on amounts due and payable by Licensee hereunder;
(xxii) From three months after the System Available Date,
provide to ORBCOMM the telephone and facsimile number for Licensee
operations personnel responsible for the Licensee System, who
collectively shall be available 24 hours a day, seven days a week;
(xxiii) Operate the ORBCOMM Gateway located in the Territory
using software, firmware and hardware in accordance with the
currently-approved ORBCOMM Global specified configuration therefor,
the first configuration of which shall be provided to Licensee at the
time the Licensee System Acceptance Test is performed and which may
change from time to time; provided, that to the extent practicable,
ORBCOMM shall provide Licensee with ten days advance written notice of
any such configuration change; and provided further that version
changes to the ORBCOMM Licensed Gateway Software shall occur in
accordance with the ORBCOMM Gateway Software License Agreement; and
(xxiv) Prior to or concurrently with the execution of this
Agreement, execute the Ground Segment Procurement Contract, the
ORBCOMM Gateway Software License Agreement and the CSC Software
License Agreement.
(b) Responsibilities of ORBCOMM. ORBCOMM shall:
(i) Cooperatively work with and encourage the
manufacturers and suppliers of Subscriber Communicators to offer such
Subscriber Communicators within one year of the Effective Date for
sale or lease in the Territory, either directly or through
distributors, one of which may be Licensee;
(ii) Provide no later than 60 days prior to the Licensee
System Acceptance Test (as set forth in the Gateway Implementation
Plan), the Licensee System Acceptance Specifications and written
acceptance test procedures for performing the Licensee System
Acceptance Test; provided that ORBCOMM shall provide Licensee with a
draft of such Specifications and procedures 90 days prior to the
Licensee System Acceptance Test. The Licensee System Acceptance
Specifications shall be sufficient to ensure that all the features and
functions of the Licensee System are operating properly and in a
manner compatible with the ORBCOMM System;
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(iii) Assist Licensee in providing data relating to the
ORBCOMM System required by any Governmental Authority in connection
with Licensee obtaining any of the Permits if ORBCOMM reasonably
determines that Licensee cannot reasonably provide such data itself;
provided that written data that exists or that ORBCOMM can readily
compile from existing data shall be provided at ORBCOMM's expense and
other written data or any data required to be presented in person or
orally shall be provided at Licensee's expense; and provided further
that ORBCOMM shall not be required to disclose any such data to the
extent prohibited by law and without reasonable assurances that such
data will be maintained by the receiving party on a confidential
basis;
(iv) Provide, free of charge except as provided below,
24-hour a day, seven days a week emergency technical advice concerning
the operation, maintenance and repair of the Licensee System.
Requests for emergency technical advice may be made by telephone or
facsimile or an ORBCOMM-approved secure email system and the advice
may be provided by ORBCOMM using such similar means, with all
communications conducted in the English language; provided that if, in
ORBCOMM's business discretion, the nature of these requests or their
frequency indicate that Licensee's operators or technicians are
technically inadequate for their tasks, ORBCOMM may require that these
employees be retrained (or, at Licensee's option, replaced) at
Licensee's cost, or ORBCOMM may charge for this advice in accordance
with Section 8(b) of the Ground Segment Procurement Contract; and
provided further that, until three months after the System Available
Date, ORBCOMM shall only be obligated to have available emergency
technical advice between the hours of 9:00 a.m. and 5:00 p.m. United
States Eastern Standard Time (or United States Eastern Daylight Time
as applicable) on regular business days;
(v) Implement its own advertising and other promotional
programs for the ORBCOMM System, the scope and timing of which shall
be in ORBCOMM's sole discretion;
(vi) To the fullest extent permitted by applicable law,
rule or regulation of any Governmental Authority, (A) cause ORBCOMM
USA to offer to any of Licensee's Resellers rights substantially
similar to those set forth in Section 3(a)(xiv) and (B) include the
substance of Section 3(a)(xiii) and Section 7 in each service license
agreement it executes after the date hereof;
(vii) Establish a mutually agreeable framework and
reporting scheme with Licensee for the joint exchange of operational
statistics (such as statistical data on message lengths, message
frequencies, time of day, day of week and seasonal usage for each
service offering and market segment served by Licensee) that are
necessary for the Licensee, ORBCOMM and other ORBCOMM System service
licensees to appropriately manage their respective systems and provide
consistent quality services using the ORBCOMM System;
(viii) Prior to or concurrently with the execution of this
Agreement, execute the
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Ground Segment Procurement Contract and the ORBCOMM Gateway Software
License Agreement;
(ix) To the fullest extent permitted by law, cause ORBCOMM
Global to apply to register the ORBCOMM service mark in all countries
and territories comprising the Territory;
(x) Not change the ORBCOMM System or the ORBCOMM Licensed
Gateway Software so as to render technically inoperable (A) any
Subscriber Communicators registered on the Licensee System or (B) any
[CONFIDENTIAL TREATMENT];
(xi) To the fullest extent permitted by applicable law,
rule or regulation of any Governmental Authority, include language
substantially similar to Section 3(a)(xiii) in each service license
agreement it executes after the date hereof and, [CONFIDENTIAL
TREATEMENT]. Except as specifically provided in this Section
3(b)(xii), ORBCOMM shall have no other obligations or liabilities to
Licensee for a violation of such provision by another ORBCOMM System
service licensee or for encroachment on the Territory by another
ORBCOMM System service licensee;
(xii) Make each of its Subscriber Communicator
manufacturers aware of the standards, as adopted, of the European
Telecommunications Standards Institute ("ETSI") regarding subscriber
communicators to be operated in the European Union and establish a
type approval testing standard designed to demonstrate compliance with
such ETSI standards so long as the ETSI standards are consistent with
the technical capabilities of the ORBCOMM System; and
(xiii) Provide Licensee with any and all amendments or
modifications to the FCC licenses received by Orbital Communications
Corporation, ORBCOMM Global or any of their Affiliates, as the case
may be, relating to the ORBCOMM System and give Licensee notice
promptly after filing of any amendment or modification application
filed with the FCC relating to the ORBCOMM System.
SECTION 4 - LICENSE FEE
(a) In addition to any other fees or payments specified herein,
Licensee shall pay to ORBCOMM the sum of U.S. [CONFIDENTIAL TREATMENT] (the
"License Fee"). The License Fee shall be payable by electronic fund transfer,
to a bank account of ORBCOMM specified in writing, in five installments as
follows:
(i) The first installment shall be in the amount of U.S.
[CONFIDENTIAL TREATMENT] and shall be payable in cash or immediately
available funds on [CONFIDENTIAL TREATMENT];
(ii) The second installment shall be in the amount of U.S.
[CONFIDENTIAL
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TREATMENT] and shall be payable in cash or immediately available funds
on [CONFIDENTIAL TREATMENT];
(iii) The third installment shall be in the amount of
[CONFIDENTIAL TREATMENT] and shall be payable in cash or immediately
available funds on [CONFIDENTIAL TREATMENT];
(iv) The fourth installment shall be in the amount of U.S.
[CONFIDENTIAL TREATMENT] and shall be payable in cash or immediately
available funds on [CONFIDENTIAL TREATMENT]; and
(v) The fifth installment shall be in the amount of U.S.
[CONFIDENTIAL TREATMENT] and shall be payable in cash or immediately
available funds on the later to occur of (A) [CONFIDENTIAL TREATMENT]
and (B) [CONFIDENTIAL TREATMENT].
The parties acknowledge that a non-refundable option fee in the amount
of U.S. [CONFIDENTIAL TREATMENT] has been fully paid to ORBCOMM Global
by Nuova Telespazio, a shareholder of Licensee, on behalf of Licensee
prior to the execution of this Agreement. Such amount was paid in
consideration of the extension, until August 1, 1996, of the exclusive
right of the founder of Licensee to be the Candidate Licensee for
ORBCOMM Services in Europe.
(b) On the occurrence of the event specified in
Section 5(b)(vi) of the Ground Segment Procurement Contract, Licensee
shall be entitled to be repaid and ORBCOMM shall promptly
[CONFIDENTIAL TREATMENT] previously paid to ORBCOMM up to a total of
[CONFIDENTIAL TREATMENT], in which event this Agreement shall
automatically terminate without further action on the payment of all
such amounts. The parties agree that the foregoing shall be the sole
and exclusive remedy of Licensee for any failure by ORBCOMM
[CONFIDENTIAL TREATMENT].
SECTION 5 - SATELLITE USAGE FEES
In addition to any other fees or payments specified herein, Licensee
shall pay to ORBCOMM a fee for the use of the Satellites (the "Satellite Usage
Fee") in accordance with the following terms and conditions:
(a) Amount of Fee. (i) The Satellite Usage Fee for a
calendar month shall be equal to the greater of (A) [CONFIDENTIAL
TREATMENT] percent (the "Revenue Dependent Fee Percentage") of
Licensee's gross operating revenues for such month (the "Revenue
Dependent Amount") and (B) U.S. [CONFIDENTIAL TREATMENT] (the "Data
Throughput Fee Amount") multiplied by the number of KBytes of data
originating from or terminating to Subscriber Communicators registered
on or provided roaming services by the Licensee System at any time
during such month and processed by Licensee's ORBCOMM Gateway (the
"Data Throughput Fee"), in either case excluding bytes added
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to the Subscriber's message by the ORBCOMM System and excluding the OR
address indicator.
(ii) For purposes of this Agreement, in calculating the
Revenue Dependent Amount gross operating revenues shall:
(A) be calculated using the amounts invoiced
during a calendar month by Licensee, whether these amounts are
collected or not;
(B) include only revenues derived from
[CONFIDENTIAL TREATMENT], [CONFIDENTIAL TREATMENT], and
[CONFIDENTIAL TREATMENT] for ORBCOMM Services, including all
[CONFIDENTIAL TREATMENT] and [CONFIDENTIAL TREATMENT] derived
as a provider of roaming or multinational account services and
all [CONFIDENTIAL TREATMENT], [CONFIDENTIAL TREATMENT] and
[CONFIDENTIAL TREATMENT] charged by Licensee to an In-Country
Representative;
(C) if such a long message surcharge has not been
charged Resellers and Subscribers, in the event Licensee
provides services directly to Subscribers, be calculated to
include a long message surcharge, equal to at least
U.S.[CONFIDENTIAL TREATMENT] (or its equivalent in the
applicable currency) for each message whose length is between
[CONFIDENTIAL TREATMENT] and [CONFIDENTIAL TREATMENT] bytes,
inclusive, or equal to at least U.S. [CONFIDENTIAL TREATMENT]
(or its equivalent in the applicable currency) for each
message whose length exceeds [CONFIDENTIAL TREATMENT] bytes;
(D) be calculated assuming that ORBCOMM Services
combined with other services or hardware provided by Licensee
or its Resellers were priced no less than similar ORBCOMM
Services provided on a stand alone basis;
(E) exclude those revenues derived from another
third party derived as a provider of roaming or multinational
account services and any surcharge due and owing to ORBCOMM in
connection with roaming or multinational account services; and
(F) exclude all value-added or similar taxes or
assessments that Licensee is required by applicable law to
collect from its customers and remit to Governmental
Authorities in the Territory.
(iii) In calculating the Revenue Dependent Amount or the
Data Throughput Fee any data throughput associated with a Subscriber
Communicator registered or used by any of ORBCOMM Global, ORBCOMM USA,
or ORBCOMM for purposes of maintenance and testing shall be excluded.
(iv) The Data Throughput Fee Amount shall be reviewed by
the parties on the [CONFIDENTIAL TREATMENT] anniversary of the
Licensee System Acceptance Test and
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annually thereafter for the purposes of determining whether, taking
into account competition and other market conditions, it should be
[CONFIDENTIAL TREATMENT]. In addition, Licensee may request that the
Data Throughput Fee Amount be reviewed by the parties more frequently
on an industry-by-industry basis in light of market specific
competition or other relevant considerations.
(b) [CONFIDENTIAL TREATMENT]. (i) If at no time prior to
[CONFIDENTIAL TREATMENT] were there at least [CONFIDENTIAL TREATMENT]
in orbit, commencing on [CONFIDENTIAL TREATMENT] or [CONFIDENTIAL
TREATMENT] ORBCOMM shall [CONFIDENTIAL TREATMENT] an amount equal to
[CONFIDENTIAL TREATMENT] per month, [CONFIDENTIAL TREATMENT] until the
earlier of (x) [CONFIDENTIAL TREATMENT] and (y) [CONFIDENTIAL
TREATMENT]. Such [CONFIDENTIAL TREATMENT] in each month in an amount
equal to the lesser of (A) [CONFIDENTIAL TREATMENT] and (B)
[CONFIDENTIAL TREATMENT].
(ii) [CONFIDENTIAL TREATMENT] ORBCOMM shall [CONFIDENTIAL
TREATMENT] an amount, equal to the lesser of (A) [CONFIDENTIAL
TREATMENT] a month and (B) [CONFIDENTIAL TREATMENT] for such month,
provided that the [CONFIDENTIAL TREATMENT] shall be [CONFIDENTIAL
TREATMENT]. In the event [CONFIDENTIAL TREATMENT] shall be
[CONFIDENTIAL TREATMENT] and thereafter, [CONFIDENTIAL TREATMENT].
(iii) WITHIN [CONFIDENTIAL TREATMENT] calendar days of the
end of each calendar month, ORBCOMM shall compute and invoice
Licensee for the actual Satellite Usage Fee payment for such month, in
U.S. dollars, using the official exchange rate in effect at Morgan
Guaranty Trust Company of New York at the close of business in New
York on the last business day of such calendar month. In calculating
the amount owed by Licensee hereunder, ORBCOMM shall take into account
any [CONFIDENTIAL TREATMENT]. In the event that Licensee does not
provide ORBCOMM with any of the foregoing information, ORBCOMM may
make its own estimate thereof, which estimate shall be conclusive and
binding on Licensee, and compute the amount to be invoiced using such
estimate.
(iv) Within [CONFIDENTIAL TREATMENT] days of the receipt
of the Satellite Usage Fee invoice, Licensee shall pay the Satellite
Usage Fee by electronic fund transfer to the bank account specified by
ORBCOMM. All Satellite Usage Fees remaining unpaid after such
[CONFIDENTIAL TREATMENT] day period shall bear interest until paid at
the rate equal to one and one-half times the prime rate or rates
announced by Morgan Guaranty Trust Company of New York during the
period of nonpayment.
(v) Subject to Section 9(b)(ii)(F), if payments due under
this Section 5 cannot be made as provided herein due to [CONFIDENTIAL
TREATMENT] or other [CONFIDENTIAL TREATMENT] in each and every country
or territory within the Territory, ORBCOMM shall permit Licensee to
[CONFIDENTIAL TREATMENT] for a period of [CONFIDENTIAL TREATMENT]
years.
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SECTION 6 - SUBSCRIBER MANAGEMENT AND CUSTOMER SUPPORT SYSTEM
To the fullest extent permitted by law, the parties to this Agreement
acknowledge and agree that it is critical that (a) in the universal
commissioning of new applications using the ORBCOMM System, Licensee and other
ORBCOMM System service licensees have a billing and customer support system
that can adequately and appropriately bill and manage Resellers and Subscribers
for such applications, as well as provide associated customer support
functions, and (b) Multinational Accounts be established. It is essential,
therefore, that Licensee obtain a license from CSC Intelicom, Inc. ("CSC") for
the subscriber management and customer support system software (the "Subscriber
Management and Customer Support Software") Licensee will use for ORBCOMM
Services using the Licensee System. Licensee hereby agrees to obtain a license
for the Subscriber Management and Customer Support Software and purchase
certain hardware from CSC on substantially the terms and conditions specified
in the Software License Agreement attached hereto as Attachment H (the "CSC
Software License Agreement"), as such agreement may be modified by mutual
agreement of CSC and Licensee.
SECTION 7 - ROAMING ARRANGEMENTS AND MULTINATIONAL ACCOUNTS
ORBCOMM shall establish an International Marketing Council, which
Council shall include all ORBCOMM System service licensees. The International
Marketing Council shall consider, among other things, the terms and conditions
on which roaming arrangements and multinational accounts shall be established
for ORBCOMM System service licensees. Licensee and ORBCOMM agree to be bound by
the determinations of the International Marketing Council with respect to
roaming arrangements and multinational accounts.
SECTION 8 - PROPER OPERATION OF THE LICENSEE SYSTEM
(a) Performance of Tests. (i) Once a calendar year, Licensee
shall permit ORBCOMM and/or its representatives access to the Licensee System,
other than the Subscriber Management and Customer Support Software and
associated hardware, for the purpose of performing and to the extent required
to perform a quality inspection (the "Quality Inspection"), which shall be
conducted to determine compliance with the provisions of this Agreement. The
Quality Inspection (A) may be conducted only after ORBCOMM has given the
Licensee fifteen days prior written notice thereof, (B) shall be conducted in a
way that minimizes the interference with Licensee's normal business operations,
and (C) may include a Licensee System Acceptance Test that requires some
assistance from Licensee's personnel. All costs of Quality Inspections, other
than the costs, including any out-of-pocket expenses, associated with the
assistance received by ORBCOMM from Licensee's personnel specified in clause
(C) above, shall be borne by ORBCOMM; provided, however that if the Quality
Inspection demonstrates that the Licensee System is not operating in accordance
with the Licensee System Acceptance Specifications, Licensee shall bear the
cost of such Quality Inspection which shall be at the rate for On-Site
Technical Assistance Services set forth in Section 8(a) of the Ground Segment
Procurement Contract.
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(ii) In addition to the foregoing, if, subsequent to the initial
Licensee System Acceptance Test, in ORBCOMM's reasonable opinion after
consulting with Licensee, there are grounds to believe that the Licensee System
is not operating in accordance with the Licensee System Acceptance
Specifications, ORBCOMM shall be entitled, at its option, (A) to require
Licensee to perform a Licensee System Acceptance Test or (B) to perform a
Licensee System Acceptance Test itself. If ORBCOMM elects to require Licensee
to take the action specified in (A) above, ORBCOMM shall advise Licensee in
writing of such election and Licensee must perform, or have performed, the test
within ten days thereafter. If ORBCOMM elects to perform the Licensee System
Acceptance Test itself, ORBCOMM shall advise Licensee in writing of such
election and Licensee shall provide ORBCOMM and its representatives access to
Licensee's facilities, including its equipment to the extent reasonably
necessary to perform the test. The cost to perform the Licensee System
Acceptance Test shall be borne solely by Licensee and, if performed by ORBCOMM,
shall be at the rate for On-Site Technical Assistance Services set forth in
Section 8(a) of the Ground Segment Procurement Contract; provided that, if
after completion of such test, ORBCOMM reasonably concludes that (x) the reason
the Licensee System was not operating in accordance with the Licensee System
Acceptance Specifications was the result of a defect in the ORBCOMM Gateway
covered by the warranty provisions set forth in Section 6 of the Ground Segment
Procurement Contract or (y) the Licensee System is operating in accordance with
the Licensee System Acceptance Specifications, the cost of the Licensee System
Acceptance Test including Licensee's out-of-pocket costs in connection
therewith, shall be borne by ORBCOMM.
(b) Corrective Action. If ORBCOMM determines from the Licensee
System Acceptance Test that the Licensee System is not operating in accordance
with the Licensee System Acceptance Specifications, or that the Licensee System
is operating in violation of any applicable law, rule or regulation of any
Governmental Authority and such law, rule or regulation requires immediate
cessation of operation, ORBCOMM shall be entitled to require Licensee
immediately to cease operation of the Licensee System and, if Licensee fails to
cease operation of the Licensee System, ORBCOMM shall be entitled to terminate
Licensee's access to the ORBCOMM System until ORBCOMM determines that all
necessary corrections have been made by Licensee; provided however, that, if
only a portion of the Licensee System is not operating in accordance with the
Licensee System Acceptance Specifications, or only a portion of the Licensee
System is operating in violation of any such law, rule or regulation, and
ORBCOMM determines that cessation of the non-conforming portion only of the
Licensee System will not injure the ORBCOMM System, is technically consistent
with the ORBCOMM System architecture and is operationally feasible, ORBCOMM
shall notify Licensee in writing of such determination and Licensee shall be
entitled to cease operating the non-conforming portion only of the Licensee
System. Notwithstanding the foregoing proviso, in the event the corrections
required by this Section 8 are not made within three months of receipt by
Licensee of written notice thereof, ORBCOMM shall be entitled to terminate this
Agreement.
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SECTION 9 - TERM OF AGREEMENT
(a) Term. Subject to the provisions set forth in this Section 9,
this Agreement shall have a term of ten years, commencing on the date on which
ORBCOMM provides Licensee with a Licensee System Acceptance Test certificate
certifying completion of the Licensee System Acceptance Test for the ORBCOMM
Gateway for the Territory that includes one GES. Within one year prior to the
expiration of the initial term of this Agreement, Licensee may request that
this Agreement be extended for a further period of up to ten years, which
request shall not be unreasonably denied by ORBCOMM. To the extent such
extension is granted, ORBCOMM shall not charge Licensee a license fee in any
form for such extension.
(b) Termination.
(i) Termination by Licensee. Subject to the provisions of Section
12, this Agreement may be terminated for convenience by Licensee one year after
providing to ORBCOMM written notice of termination (a "Termination for
Convenience"). In addition, this Agreement may be terminated by Licensee at
any time after the occurrence of any of the following events of default:
(A) Any representation or warranty made by ORBCOMM in
this Agreement or any other document delivered pursuant to this
Agreement including the Ground Segment Procurement Contract and the
ORBCOMM Gateway Software License Agreement shall be false or
misleading in any material respect;
(B) ORBCOMM shall fail to observe or perform any of its
obligations under this Agreement (other than breaches specified in
Section 9(b)(i)(E)), and such failure shall remain uncured for a
period of [CONFIDENTIAL TREATMENT] days after receipt by ORBCOMM of
written notice thereof;
(C) ORBCOMM shall (w) make an assignment for the benefit
of creditors, (x) file a petition in bankruptcy, (y) be adjudicated
insolvent or bankrupt, or (z) petition or apply to any tribunal for
any receiver or for any trustee for it under any domestic or foreign
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute or ORBCOMM shall have commenced against it
any such proceeding or an order for relief shall be entered that
remains undismissed for a period of [CONFIDENTIAL TREATMENT] days,
ORBCOMM by any act indicates its consent to, approval of, or
acquiescence in, any such proceeding, order for relief or the
appointment of any receiver of or any trustee for it or ORBCOMM
suffers any such receivership or trusteeship to continue undischarged
for a period of [CONFIDENTIAL TREATMENT] days;
(D) Licensee shall have exercised its rights set forth in
Section 13(a);
(E) ORBCOMM shall fail to comply in all material respects
with all applicable laws, rules and regulations of any Governmental
Authority in the performance of its obligations hereunder or under any
of the other Transaction Agreements and such failure shall remain
uncured for a period of [CONFIDENTIAL TREATMENT] days after receipt by
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ORBCOMM of written notice thereof, provided that if ORBCOMM diligently
and in good faith attempted to cure such failure during such
[CONFIDENTIAL TREATMENT] day period but was unable to resolve such
failure, ORBCOMM shall have an additional [CONFIDENTIAL TREATMENT]
days to cure such failure; or
(F) An event of default by ORBCOMM shall have occurred
under Section 9(a) of the Ground Segment Procurement Agreement or
under Section 7(a) of the ORBCOMM Gateway Software License Agreement.
(ii) Termination by ORBCOMM. This Agreement may be terminated by
ORBCOMM at any time after the occurrence of any of the following events of
default:
(A) Licensee shall fail to pay any amount due under this
Agreement, including the Satellite Usage Fee, within [CONFIDENTIAL
TREATMENT] days after receipt of notice from ORBCOMM that such amount
is due;
(B) Any representation or warranty made by Licensee in
this Agreement or any other document delivered pursuant to this
Agreement including the Ground Segment Procurement Contract and the
ORBCOMM Gateway Software License Agreement shall be false or
misleading in any material respect;
(C) Licensee shall fail to observe or perform any of its
obligations under Section 8(b);
(D) Licensee shall fail to observe or perform any of its
obligations under this Agreement (other than breaches specified in
Sections 9(b)(ii)(A), (C), (G), (H) or (I)), and such failure shall
remain uncured for a period of [CONFIDENTIAL TREATMENT] days after
receipt by Licensee of written notice thereof;
(E) Licensee shall (w) make an assignment for the benefit
of creditors, (x) file a petition in bankruptcy, (y) be adjudicated
insolvent or bankrupt, or (z) petition or apply to any tribunal for
any receiver or for any trustee for it under any domestic or foreign
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute or Licensee shall have commenced against it
any such proceeding or an order for relief shall be entered that
remains undismissed for a period of sixty (60) days, Licensee by any
act indicates its consent to, approval of, or acquiescence in, any
such proceeding, order for relief or the appointment of any receiver
of or any trustee for it or Licensee suffers any such receivership or
trusteeship to continue undischarged for a period of sixty (60) days;
(F) Licensee shall not have made any amounts due and
owing to ORBCOMM hereunder in U.S. Dollars for more than two years
because of currency exchange restrictions imposed by each Governmental
Authority in the Territory;
(G) Licensee shall take any action or fail to take any
action that results in
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ORBCOMM contravening or violating any law, rule or regulation of any
Governmental Authority, or Licensee shall fail to comply in all
material respects with all applicable laws, rules and regulations of
any Governmental Authority in the performance of its obligations
hereunder or under any of the other Transaction Agreements and such
contravention, violation or noncompliance shall remain uncured for a
period of 30 days after receipt by Licensee of written notice thereof,
provided that if Licensee diligently and in good faith attempted to
cure such contravention, violation or noncompliance during such
[CONFIDENTIAL TREATMENT] day period but was unable to resolve such
failure, Licensee shall have an additional [CONFIDENTIAL TREATMENT]
days to cure such failure;
(H) Licensee shall violate the provisions of Section
12(a) and Licensee shall fail to cure such violation within five
business days of receipt of written notice thereof;
(I) By four months after the System Available Date,
Licensee shall not have obtained, or shall thereafter fail to
maintain, the Permits required to operate the Licensee System in at
least one of [CONFIDENTIAL TREATMENT] or the [CONFIDENTIAL TREATMENT];
or
(J) An event of default by Licensee shall have occurred
under Section 9(b) of the Ground Segment Procurement Agreement,
Section 7(b) of the ORBCOMM Gateway Software License Agreement, or
under the CSC Software License Agreement.
(iii) Special Termination By Licensee. (A) Licensee shall be
entitled to terminate this Agreement in the event it determines by
[CONFIDENTIAL TREATMENT] that the standards expected to be adopted by ETSI
will, if adopted, preclude the technical operation of the ORBCOMM System in the
Territory. If Licensee desires to terminate this Agreement pursuant to this
Section 9(b)(iii) Licensee must give ORBCOMM written notice prior to
[CONFIDENTIAL TREATMENT] of Licensee's exercise of its right to terminate this
Agreement effective immediately. In the event of termination by Licensee
pursuant to this Section 9(b)(iii), neither party shall have any liability to
the other except as otherwise provided in this Section 9(b)(iii).
(B) In the event of the termination of this Agreement by Licensee
in accordance with Section 9(b)(iii)(A), Licensee shall be entitled to a refund
of any payments made pursuant to Section 3(b) of the Ground Segment Procurement
Contract prior to the date of termination, which refund shall be made by
ORBCOMM within five business days of termination of this Agreement as provided
in this Section 9(b)(iii)(B).
(c) Remedies on Termination. (i) On a Termination for
Convenience or a termination of this Agreement by ORBCOMM pursuant to Section
9(b)(ii), to the fullest extent permitted by law, ORBCOMM shall be entitled, in
its discretion, to become a sublicensee of Licensee and operate and manage the
Licensee System for a period of up to [CONFIDENTIAL TREATMENT] after
termination of this Agreement to ensure that there is as little interruption as
possible in the provision of ORBCOMM Services in the Territory and, during such
[CONFIDENTIAL TREATMENT] period, ORBCOMM shall use all commercially reasonable
efforts to locate a third party buyer for the Licensee System. Licensee agrees
to cooperate in a commercially reasonable manner and
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actively participate, including with respect to the transfer of the Permits in
the Territory and providing ORBCOMM information on its Resellers, in ensuring
continued operations until such time that a new entity has been granted the
necessary Permits for the Territory and is ready to start operations.
(ii) Subject to Section 14, termination of this Agreement by the
party not in default in accordance with the terms hereof shall be without
prejudice to any other rights or remedies such party shall have by law.
(d) Abandonment of ORBCOMM System. (i) Nothing contained in this
Agreement, including any attachments hereto, shall prevent the ORBCOMM Entities
from ceasing to develop, construct or operate the ORBCOMM System. In the event
ORBCOMM or any of the ORBCOMM Entities abandon the ORBCOMM System by ceasing to
develop, construct and operate all of the ORBCOMM System, ORBCOMM shall be
entitled to terminate this Agreement by giving Licensee 180 days written
notice. In such event, to the fullest extent permitted by applicable law,
Licensee shall have the right, together with all other persons who may have a
similar right and a desire to exercise such right, all of whom shall be
obligated to act as a group (the "ORBCOMM System Purchase Group"), to purchase
the tangible assets of the ORBCOMM System owned by ORBCOMM Global, ORBCOMM USA,
or ORBCOMM and to purchase a non-exclusive, perpetual license to use, solely in
connection with the operation of the tangible assets purchased pursuant to this
Section 9(d), the intangible assets of the ORBCOMM System, other than any
operating or regulatory licenses with respect to the ORBCOMM System, owned by
ORBCOMM Global, ORBCOMM USA, or ORBCOMM at their then fair market value, which
right shall be exercised, if at all, by the ORBCOMM System Purchase Group
within three months of receipt of written notice from ORBCOMM of abandonment
(the "Option Exercise Notice"). The fair market value of the tangible assets
and such license for the intangible assets of the ORBCOMM System shall be
determined as of the day of abandonment and on the basis of an arms' length
transaction between a willing buyer and a willing seller. Any determination of
fair market value pursuant to this Section 9(d) shall be final, binding and
conclusive on the parties. Fair market value shall be determined as follows:
(A) Promptly after delivery of the Option Exercise
Notice, ORBCOMM and the ORBCOMM System Purchase Group shall attempt in
good faith to agree on the fair market value. If ORBCOMM and the
ORBCOMM System Purchase Group agree on a value (regardless of when
such agreement is reached, and notwithstanding the pendency of
appraisal efforts pursuant to this Section), such value shall be the
fair market value;
(B) If ORBCOMM and the ORBCOMM System Purchase Group fail
to reach such an agreement within one month after the delivery of the
Option Exercise Notice, they shall each select an independent
appraiser who is one of the "Big Six" United States accounting firms.
If either ORBCOMM or the ORBCOMM System Purchase Group shall fail to
select an appraiser within twenty (20) days after the expiration of
the one-month period referred to in the preceding sentence, the fair
market value shall be determined by the appraiser selected by the
other. Following such selection, each such appraiser shall determine
the value of the tangible and intangible assets of the ORBCOMM System
to
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be purchased pursuant to this Section 9(d) as quickly as practicable,
and in any event within forty-five (45) days after the last appraiser
has been selected, and give notice of such determination to ORBCOMM
and the ORBCOMM System Purchase Group. If either appraiser shall fail
to make such a determination of value within forty-five days after the
last appraiser has been selected, the fair market value shall be the
value determined by the other appraiser. If the greater of the two
values determined by such two appraisers is within 10% of the lesser
of such two values, the fair market value shall be the average of such
two values.
(C) If the greater of the two values determined by such
two appraisers is not within 10% of the lesser of such two values,
such two appraisers shall select a third independent appraiser who
shall be one of the "Big Six" United States accounting firms and who
shall as quickly as practicable, but in no event later than forty-five
days after appointment, select one of the values determined by the
first two appraisers as the value that more closely approximates the
correct fair market value, and such value selected by the third
appraiser shall be fair market value.
(D) ORBCOMM and the ORBCOMM System Purchase Group agree
to cooperate with one another and with the appraisers in determining
fair market value. ORBCOMM and the ORBCOMM System Purchase Group shall
each bear its own out-of-pocket expenses incurred in connection with
the determination of fair market value, including without limitation
the fees and expenses of the appraiser selected by each, and one-half
of the fees and expenses of the third appraiser, if any.
(E) The consummation of the purchase and sale of the
assets specified herein shall occur within 45 days of the
determination of the fair market value therefor.
In the event ORBCOMM ceases to develop, construct or operate the
ORBCOMM System as specified in this Section 9(d)(i), ORBCOMM shall use
all commercially reasonable efforts to cooperate with the ORBCOMM
System Purchase Group in the transfer of the ORBCOMM System; provided
that ORBCOMM shall be reimbursed by the ORBCOMM System Purchase Group
for all of its expenses incurred in providing such cooperation. In
addition, ORBCOMM shall continue to operate the ORBCOMM System until
the expiration of any rights to purchase by the ORBCOMM System
Purchase Group if the ORBCOMM System Purchase Group does not exercise
such rights or, if the ORBCOMM System Purchase Group exercises such
rights, until consummation of the purchase and sale of the assets as
specified herein.
[CONFIDENTIAL TREATMENT].
(e) Use of ORBCOMM System After Termination or Expiration. Except
as otherwise provided in Section 9(d), on the effective date of termination or
expiration of this Agreement, Licensee shall cease using the ORBCOMM System,
the ORBCOMM Licensed Gateway Software, the ORBCOMM operating methods and the
"ORBCOMM" logos, trademarks, service marks and name, and shall return all
manuals and related materials to ORBCOMM.
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(f) Obligations After Termination. The obligations set forth in
Sections 3(a)(vi), 11(a)(ii), 11(b)(ii), 12(b), 14, 15 and 18(d), (j), (k) and
(n) and those obligations that relate to any amounts due and owing for any
periods prior to termination or expiration of this Agreement shall survive such
termination or expiration.
SECTION 10 - CHANGE OF CONTROL
In the event a change in control occurs with respect to Licensee,
ORBCOMM must consent in writing to an assignment of this Agreement, which
consent shall not be unreasonably withheld. For purposes of this Agreement, a
"change of control" with respect to Licensee shall be deemed to have occurred
if the Controlling Shareholders in the aggregate shall (a) cease to own,
directly or indirectly, at least 51 percent of the issued and outstanding
shares of capital stock or other interests of Licensee entitled to vote
generally for the election of directors or persons performing similar functions
or (b) not have the ability to elect a majority of the directors or persons
performing similar functions of Licensee.
SECTION 11 - REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties of Licensee. (i) Licensee
represents and warrants to ORBCOMM that (A) Licensee is a corporation duly
organized and validly existing under the laws of the Netherlands, (B) a true
and accurate list of Licensee's shareholders, with their percentage ownership
interest in Licensee, is set forth on Attachment I, (C) Licensee has the power,
corporate or otherwise, to enter into the Transaction Agreements and perform
its obligations thereunder and the execution, delivery and performance of the
Transaction Agreements by Licensee has been duly authorized by all necessary
action on the part of Licensee, (D) the Transaction Agreements have been duly
executed and delivered by Licensee and each constitutes a legally valid and
binding obligation of Licensee, enforceable against Licensee in accordance with
its terms, (E) Licensee's trademarks, service marks or trade names or any
hardware or software developed by or on behalf of it (other than any hardware
or software provided by ORBCOMM pursuant to any of the Transaction Agreements)
will not violate any copyright, trade secret, trademark, patent, invention,
proprietary information, privacy, non-disclosure or any other statutory or
common law rights of any third party in effect in or applicable to the
Territory or, if found to violate, shall promptly remedy such violation by
modifying any infringing item or by entering into an appropriate license
arrangement with such third party, and (F) Licensee's operation of the Licensee
System will not contravene any applicable European, regional, country, federal,
state, local or foreign rules, regulations, laws or treaties.
(ii) Licensee agrees to indemnify and hold harmless ORBCOMM and its
Affiliates, officers, directors, employees, agents, and representatives,
including any of the other ORBCOMM Entities, against all claims, demands or
liabilities (including reasonable attorneys' fees) of third parties arising out
of or in connection with Licensee's misuse of the ORBCOMM logos, trademarks and
service marks or any other intellectual property rights of ORBCOMM or any third
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parties incorporated into the ORBCOMM System, or Licensee's breach of any
representations, warranties, covenants or agreements contained herein. This
indemnification obligation shall survive the expiration or termination of this
Agreement.
(b) Representations and Warranties of ORBCOMM. (i) ORBCOMM
represents and warrants to Licensee that (A) ORBCOMM is a limited partnership
duly formed and validly existing under the laws of the State of Delaware, (B)
ORBCOMM has the partnership power to enter into the Transaction Agreements to
which it is a party and perform its obligations thereunder and the execution,
delivery and performance by ORBCOMM of the Transaction Agreements to which it
is a party has been duly authorized by all necessary action on the part of
ORBCOMM, (C) the Transaction Agreements to which it is a party have been duly
executed and delivered by ORBCOMM and each constitutes a legally valid and
binding obligation of ORBCOMM, enforceable against ORBCOMM in accordance with
its terms, (D) the ORBCOMM Entities' operation of the ORBCOMM System will not
violate any registered copyright, trade secret, trademark or patent rights of
any third party in effect in the Territory or, if found to violate, shall
promptly remedy such violation by modifying any infringing item or by entering
into an appropriate license arrangement with such third party, (E) the ORBCOMM
Entities' use of the ORBCOMM System will not contravene any United States
federal, state or local rules, regulations, laws or treaties, including, but
not limited, to licensing requirements, (F) the initial two satellites for the
ORBCOMM System were launched in April 1995 and are currently commercially
available in the United States for the non real-time transmission of short
messages and data, (G) ORBCOMM Global has entered into the ORBCOMM System
Procurement Agreement dated as of September 12, 1995 between Orbital and
ORBCOMM Global, and (H) OCC has been awarded United States Federal
Communications Commission authority to construct, launch and operate the
ORBCOMM System in the United States; and
(ii) ORBCOMM agrees to indemnify and hold harmless Licensee and its
Affiliates, officers, directors, employees, agents, and representatives against
all claims, demands or liabilities (including reasonable attorneys' fees) of
third parties arising out of or in connection with ORBCOMM's breach of any
representations, warranties, covenants or agreements contained herein. This
indemnification obligation shall survive the expiration or termination of this
Agreement.
SECTION 12 - NON-COMPETITION
(a) During Term. As long as this Agreement is in effect, Licensee
hereby agrees that it, its shareholders or the equivalent thereof and its
Affiliates shall not engage or participate in, assist or have an interest in,
directly or indirectly, the operation, management or conduct of any business or
enterprise, other than the Licensee System, that provides or intends to provide
satellite-based, two-way data communications or position determination services
using radio frequencies below 1 GHz for communications directly between
satellite(s) and subscriber communicators.
(b) After Term. In the event of a Termination for Convenience, or
if ORBCOMM
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terminates this Agreement pursuant to Section 9(b)(ii), Licensee hereby agrees
that, for a period of two years from the date of such termination, it, its
shareholders or the equivalent thereof and its Affiliates shall not engage or
participate in, assist or have an interest in, directly or indirectly, the
operation, management or conduct of any business or enterprise that provides or
intends to provide satellite-based, two-way data communications or position
determination services using radio frequencies below 1 GHz for communications
directly between satellite(s) and subscriber communicators.
(c) Notwithstanding the foregoing, (i) OHB System GmbH shall be
entitled to continue to operate the SAFIR system, consisting of two operating
satellites and any replacements thereto and provided that in the event the
Successful Launch of 24 Satellites has not occurred by December 31, 1998, OHB
System shall be entitled to increase the SAFIR constellation to a total of six
satellites and (ii) each Controlling Shareholder of Licensee shall be entitled
to sell either directly or through any Affiliate satellite and ground equipment
to any entity.
SECTION 13 - SYSTEM OUTAGES AND FAILURE
(a) In the event ORBCOMM is unable to provide Licensee with access
to the ORBCOMM System due to temporary or intermittent problems (not including
planned periods of satellite unavailability) with the ORBCOMM System other than
those temporary or intermittent problems caused by Licensee, any of its
Subscribers or the Licensee System (an "Intermittent Service Problem") for an
aggregate of more than ten days where no service was available for a 24
consecutive hour period during any one year period commencing on the later to
occur of (i) the System Available Date and (ii) the date the Licensee System
commenced operations, and any anniversary of such date, Licensee's sole and
exclusive remedy shall be to extend the term of this Agreement [CONFIDENTIAL
TREATMENT] for each day, in excess of such ten days where no service was
available for a 24 consecutive hour period, that ORBCOMM is unable to provide
Licensee with access to the ORBCOMM System; provided, however that if the
ORBCOMM System has Intermittent Service Problems aggregating 180 days where no
service was available for a 24 consecutive hour period in each of three
consecutive years, Licensee shall be entitled to terminate this Agreement upon
written notice to ORBCOMM and in such event ORBCOMM shall be deemed to have
abandoned the ORBCOMM System pursuant to the terms of Section 9(d).
(b) If ORBCOMM determines in its sole discretion that the ORBCOMM
System has permanently and irrevocably failed such that Licensee cannot access
the ORBCOMM System, ORBCOMM shall be entitled to terminate this Agreement as
described in Section 9(d).
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SECTION 14 - DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
(a) Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN
THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NONE OF THE
ORBCOMM ENTITIES HAVE MADE AND NONE OF THEM SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE ORBCOMM SYSTEM OR
ANY SERVICES AND/OR PRODUCTS TO BE PROVIDED UNDER THIS AGREEMENT. EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE ORBCOMM ENTITIES EXPRESSLY DISCLAIMS, AND LICENSEE
HEREBY EXPRESSLY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES OF EACH OF
THE ORBCOMM ENTITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH
RESPECT TO, INCLUDING, BUT NOT LIMITED TO, (i) ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) ANY IMPLIED WARRANTY
ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (iii)
ANY WARRANTIES AS TO THE ACCURACY, AVAILABILITY OR CONTENT OF THE ORBCOMM
SYSTEM OR ANY SERVICES AND/OR PRODUCTS PROVIDED BY OR THROUGH ANY OF THE
ORBCOMM ENTITIES UNDER THIS AGREEMENT; AND (iv) ANY WARRANTY UNDER ANY THEORY
OF LAW, INCLUDING ANY TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT OR OTHER
LEGAL OR EQUITABLE THEORY. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT,
INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR
USE, THAT IS NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY
BY ANY OF THE ORBCOMM ENTITIES.
(b) Limitation of Liability. (i) Each of the parties
acknowledges and understands that the ORBCOMM System is a new, untested system
that entails a high degree of risk of (A) delay in or cancellation of
deployment and (B) launch vehicle, satellite and other equipment or software
failure or impaired performance, and that there can be no assurance that the
ORBCOMM System will be an economically viable system even if successfully
deployed. Each party shall bear all responsibility, risk and cost associated
with developing and maintaining its respective business, and none of the
ORBCOMM Entities shall be liable to Licensee for costs or damages caused by any
schedule delays or failure of the ORBCOMM System or any component thereof,
except as specifically provided in this Agreement.
(ii) Licensee acknowledges that ORBCOMM shall supply the service
that is the subject of this Agreement on a good faith efforts basis and that
service failures and interruptions may occur and are difficult to assess as to
cause or resulting damages. In such event and except as otherwise provided in
Section 13, the parties agree that the ORBCOMM Entities shall not be liable to
Licensee for any losses or damages arising out of any failure of performance,
error, omission, interruption, deletion, defect, delay in operation or
transmission, communications line failure, theft or destruction or unauthorized
access to, alteration of or use of records, associated with the ORBCOMM System
or ORBCOMM Services whether for breach of contract, tortious behavior,
negligence, or under any other cause of action.
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(iii) NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN
NO EVENT SHALL EITHER PARTY HAVE ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR
REMEDY TO THE OTHER UNDER THIS AGREEMENT FOR LOSS OF USE, REVENUE OR PROFIT OR
FOR ANY OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. In addition,
except as otherwise specified in Sections 5(b) and 9(d)(ii), in no event shall
any liability of ORBCOMM or any of the other ORBCOMM Entities under the
Transaction Agreements in the aggregate exceed an amount equal to [CONFIDENTIAL
TREATMENT] ([CONFIDENTIAL TREATMENT]) and U.S. [CONFIDENTIAL TREATMENT] minus
(A) [CONFIDENTIAL TREATMENT] and (B) [CONFIDENTIAL TREATMENT].
SECTION 15 - DISPUTE RESOLUTION
(a) Subject to the provisions of Section 18(n), in the event of a
claim or controversy regarding any matter covered by this Agreement, ORBCOMM
and Licensee shall use all reasonable efforts to resolve such claim or
controversy within 60 calendar days (5 calendar days in the case of a claim or
controversy arising under Section 3(a)(xiv)) of receipt by either party of
notice of the existence of any such claim or controversy. In the event the
parties are unable to agree on the resolution of such claim or controversy
within such period of time, either party may remove the claim or controversy
for settlement by final and binding arbitration in New York, NY, in accordance
with the then existing United States domestic rules of the American Arbitration
Association ("AAA") (to the extent not modified by this Section). In the event
that more than one claim or controversy arises under this Agreement, such claim
or controversy may be consolidated in a single arbitral proceeding. The
arbitral tribunal shall be composed of three arbitrators. Each of ORBCOMM and
Licensee shall appoint one arbitrator. If any party shall fail to appoint an
arbitrator within 30 calendar days (15 calendar days in the case of a claim or
controversy arising under Section 3(a)(xiv)) from the date on which the other
party's request for arbitration has been communicated to the first party, such
appointment shall be made by the AAA. The two arbitrators so appointed shall
agree upon the third arbitrator who shall act as chairman of the arbitral
tribunal and, other than with respect to a claim or controversy arising under
Section 3(a)(xiv), who shall have significant operational expertise in
geographically distributed data communications networks. If the two appointed
arbitrators fail to nominate a chairman within ten calendar days (5 calendar
days in the case of a claim or controversy arising under Section 3(a)(xiv))
from the date as of which both arbitrators shall have been appointed, such
chairman shall be selected by the AAA. With respect to a claim or controversy
arising under Section 3(a)(xiv), the arbitrators shall be obligated to render a
decision with respect thereto within 30 days of the date of the selection of
the chairman. In all cases, the arbitrators shall be fluent in English.
Judgment upon any award rendered by the arbitrators may be entered in any court
having jurisdiction or application may be made for judicial acceptance of the
award and an order of enforcement, as the case may be. The parties agree that
if it becomes necessary for any party to enforce an arbitral award by a legal
action or additional arbitration or judicial methods, the party against whom
enforcement is sought shall pay all reasonable costs and attorney's fees
incurred by the party seeking to enforce the award.
(b) Pending a final determination by the arbitrators, if the claim
or controversy
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concerns the payment by Licensee of any fees or amounts due hereunder
(including the right to conduct an audit of such fees or amounts), ORBCOMM
shall have the right to terminate Licensee's access to the ORBCOMM System
unless Licensee posts a bond from a reputable bonding company covering in full
the amount of the disputed payment. In the event ORBCOMM elects to exercise
such right and notwithstanding any determination by the arbitrators, Licensee's
sole remedies for such termination by ORBCOMM shall be an extension of the term
of this Agreement equal to the period during which Licensee was denied access
to the ORBCOMM System and in the event the arbitrators determine that Licensee
did not owe ORBCOMM any fees or amounts and Licensee posted a bond as specified
herein, ORBCOMM [CONFIDENTIAL TREATMENT].
(c) Except with respect to the application of Section 18(n)
hereof, the rights of the parties under this Section 15 shall be the exclusive
method of dispute resolution with respect to any claim or controversy regarding
any matter covered by this Agreement.
SECTION 16 - COMPLIANCE WITH LAWS
Each of the parties shall comply in all material respects with all
applicable laws, rules and regulations of any Governmental Authority in the
performance of its obligations hereunder. In particular, Licensee agrees to
comply with all applicable laws of the United States regarding export controls,
international traffic in arms regulations and foreign corrupt practices. In
addition, but not in limitation of the foregoing, summaries of the current
provisions of the United States Federal International Traffic in Arms
Regulations and of the Prohibited Foreign Trade Practices Act are set forth in
Attachment J.
SECTION 17 -FRANCHISE FEES
In the event Licensee shall receive franchise or any other similar
fees from a In-Country Representative that exceed in total the sum of U.S.
[CONFIDENTIAL TREATMENT] Licensee shall pay to ORBCOMM [CONFIDENTIAL TREATMENT]
of all such fees in excess of such amount. Such payments shall be made to
ORBCOMM in U.S. dollars within [CONFIDENTIAL TREATMENT] month of [CONFIDENTIAL
TREATMENT]. If the franchise or other similar fee is received by Licensee in a
currency other than U.S. dollars, the amount due to ORBCOMM shall be calculated
using the exchange rate for such currency in effect at Morgan Guaranty Trust
Company of New York at the close of business in New York on the last business
day of the month when the franchise or other similar fee is received by
Licensee.
SECTION 18 - MISCELLANEOUS
(a) Notices. All notices given under this Agreement must be in
writing and sent by hand delivery, by overnight courier, by facsimile
transmission (answer back received) or by international registered mail, return
receipt requested and postage prepaid, to:
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ORBCOMM:
ORBCOMM International Partners, L.P.
21700 Atlantic Boulevard
Dulles, VA 20166, USA.
Telecopy: +1.703.406.3508
Attention: President
with a copy to:
ORBCOMM Global, L.P.
21700 Atlantic Boulevard
Dulles, VA 20166, USA
Telecopy: +1.703.404.8012
Attention: Vice President and General Counsel
Licensee:
European Company for Mobile
Communicator Services, B.V., ORBCOMM Europe
-----------------------------------
-----------------------------------
-----------------------------------
or to such other persons or addresses as either party may designate by written
notice to the other. All such notices sent to either Licensee or ORBCOMM shall
be effective the earlier of (i) ten business days after the date of mailing by
sender, or (ii) the date of actual receipt.
(b) Successors and Assigns. This Agreement shall be binding upon
the parties, their successors and permitted assigns. Subject to Section 10,
neither this Agreement nor any interests or duties of Licensee hereunder may be
assigned in whole or in part (by operation of law or otherwise) by Licensee
without the express written consent of ORBCOMM, which consent shall not be
unreasonably withheld.
(c) Entire Agreement. This Agreement and all attachments (which
are hereby made part of this Agreement) contain the entire understanding
between Licensee and ORBCOMM and supersede all prior written and oral
understandings relating to the subject hereof. No representations, agreements,
modifications or understandings not contained herein shall be valid or
effective unless agreed to in writing and signed by both parties. Any
modification or amendment of this Agreement must be in writing and signed by
both parties.
(d) Governing Law and Jurisdiction. (i) The construction,
interpretation and
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performance of this Agreement, as well as the legal relations of the parties
arising hereunder, shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflict or choice
of law provisions thereof. The United Nations Convention on Contracts for the
International Sale of Goods (1980) shall not apply to any provisions of this
Agreement. Neither party may bring any action for a claim under this Agreement
later than one year after the termination of this Agreement; provided that
claims under any provision of this Agreement that survives termination of this
Agreement may be brought within one year of the later of the occurrence of the
event giving rise to the claim and actual knowledge thereof by the party
asserting such claim.
(ii) For purposes of Section 18(n), each of the parties by its
execution hereof (A) hereby irrevocably submits to the nonexclusive
jurisdiction of the state courts of the State of New York and to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York, for the purpose of any suit, action or other proceeding
arising out of or based on this Agreement or the subject matter hereof brought
by ORBCOMM and (B) hereby waives to the extent not prohibited by law, and
agrees not to assert, by way of motion, as a defense or otherwise, in any such
proceeding, any claims that it is not subject personally to the jurisdiction of
the above-named courts, that its property is exempt or immune from attachment
or execution, that any such proceeding brought in one of the above-named courts
is improper, or that this Agreement or the subject matter hereof may not be
enforced in or by such court. Each of the parties hereby consents to service
of process in any such proceeding in any manner permitted by the laws of the
State of New York and agrees that service of process by international
registered mail, return receipt requested, at the address specified in or
pursuant to Section 18(a) hereof is reasonably calculated to give actual
notice. Each party agrees that at the other party's request it will appoint an
agent for service of process within the State of New York.
(e) Force Majeure. Neither party shall be held responsible for
failure or delay in performance or delivery if such failure or delay is the
result of an act of God, the public enemy, embargo, governmental act, fire,
accident, war, riot, strikes, inclement weather or other cause of a similar
nature that is beyond the control of the parties. In the event of such
occurrence, this Agreement shall be amended by mutual agreement to reflect an
extension in the period of performance and/or time of delivery. Failure to
agree on an equitable extension shall be considered a claim or controversy and
resolved in accordance with Section 15.
(f) Waiver. It is understood and agreed that no failure or delay
by either ORBCOMM or Licensee in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof, or the
exercise of any other right, power or privilege hereunder. No waiver of any
terms or conditions of this Agreement shall be deemed to be a waiver of any
subsequent breach of any term or condition. All waivers must be in writing and
signed by the party sought to be bound.
(g) Severability. If any part of this Agreement shall be held
unenforceable, the remainder of this Agreement will nevertheless remain in full
force and effect.
(h) Headings. Headings in this Agreement are included for
convenience of reference
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only and shall not constitute a part of this Agreement for any other purpose.
(i) Independent Contractors. Licensee and ORBCOMM are independent
contractors to one another, neither party has the authority to bind the other
in any way or to any third party, and nothing in this Agreement shall be
construed as granting either party the right or authority to act as a
representative, agent, employee or joint venturer of the other.
(j) Non-Disclosure. Each of the parties to this Agreement
acknowledge the execution of the Mutual Non-Disclosure Agreement dated as of
October 15, 1996 and each agrees to observe the provisions thereof.
(k) English Language; Communication in English. The parties
recognize and agree that while this Agreement may be translated into other
languages, the English language version of this Agreement shall be the official
version of this Agreement and shall prevail if any dispute in the
interpretation of this Agreement between such languages arises between the
parties. The parties agree that all communications, notices or any written
material to be provided by ORBCOMM to Licensee or by Licensee to ORBCOMM under
this Agreement shall be in the English language or accompanied by an accurate
and complete translation into English.
(l) Calendar. The Gregorian calendar shall be used in
calculating, invoicing and paying all amounts due under this Agreement.
(m) Payments. All payments due and payable to ORBCOMM hereunder
shall be paid in U.S. Dollars in immediately available funds to the bank
account specified by ORBCOMM in writing.
(n) Equitable Relief. Each of the parties acknowledges that the
ORBCOMM System and the ORBCOMM Services provided pursuant to this Agreement are
unique and recognizes and affirms that in the event of any breach of this
Agreement by it, money damages may not be adequate and the other party may have
no adequate remedy at law. Accordingly, each of the parties agrees that the
other party shall have the right, in addition to any other rights and remedies
existing in its favor, to enforce its rights and the other party's obligations
hereunder not only by an action or actions for damages but also an action or
actions for specific performance, injunctive relief and/or other equitable
relief.
Page 34
35
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the day and year first above written.
ORBCOMM INTERNATIONAL PARTNERS, L.P.
By:
----------------------------------------------
Name: Andre Halley
Title: Vice President, Market Development
EUROPEAN COMPANY FOR MOBILE
COMMUNICATOR SERVICES, B.V.,
ORBCOMM EUROPE
By:
-----------------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Page 35
36
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the day and year first above written.
ORBCOMM INTERNATIONAL PARTNERS, L.P.
By:
-----------------------------------------------
Name: Andre Halley
Title: Vice President, Market Development
EUROPEAN COMPANY FOR
MOBILE COMMUNICATOR SERVICES,
B.V.
By:
-----------------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
Page 36