SPECTRUM AGREEMENT
CONFIDENTIAL TREATMENT REQUESTED UNDER
C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406.
[*****] INDICATES OMITTED MATERIAL THAT IS THE
SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST
FILED SEPARATELY WITH THE COMMISSION.
THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE COMMISSION.
C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406.
[*****] INDICATES OMITTED MATERIAL THAT IS THE
SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST
FILED SEPARATELY WITH THE COMMISSION.
THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE COMMISSION.
Exhibit 10.62
Confidential Information
Subject to Nondisclosure Obligations
Subject to Nondisclosure Obligations
This Spectrum Agreement, (the “Agreement”), is entered into by and between Google Inc. (“Google”)
and NEWCO LLC, a limited liability company formed under the laws of Delaware (“Customer”), and is
effective as of ___, 2008 (“Effective Date”).
1. Generally.
1.1. As described in this Agreement, Customer and Google have agreed to pursue certain
opportunities relating to alternative uses of Customer’s excess 2.5GHz spectrum in the United
States as set forth below. The parties have entered into this Agreement to set forth their mutual
understanding of the relationship between Google and Customer with respect to alternative uses of
Customer’s excess 2.5GHz spectrum in the United States.
2. Nature of spectrum collaboration.
2.1. The parties agree that Customer (and any successor, assignee, acquirer or transferee of
Newco’s spectrum) intends to use its 2.5 GHz spectrum in the U.S. for managed, facilities-based
communications services, utilizing mobile WiMax technology and otherwise. All such use is defined
in this Agreement as “Primary Use.” Any use of Newco’s U.S. 2.5 GHz spectrum that is other than
for Primary Use will be defined in this Term Sheet as “Secondary Use.”
2.2. Customer will make available to Google certain of its excess 2.5GHz spectrum in one or more
markets as mutually agreed, for the experimental purposes described in Sections 2.5, 3 and 4 of
this Agreement. Pursuant to Section 4, following successful completion of the trials described in
Section 2.5, Customer will make its excess spectrum available across the United States for the
purposes of developing Secondary Uses consistent with the uses described in this agreement.
2.3. All Secondary Use of spectrum will occur under the direction of a joint Customer/Google
technology team, to be established pursuant to Section 8 of this Agreement. All Secondary Use will
be subject to Customer’s approval, in accordance with all the provisions of this Agreement, and
will not violate any of Customer’s contractual obligations, including spectrum leases and debt
covenants, and will comply at all times with all applicable FCC rules.
2.4. At no time will Google undertake any Secondary Use of spectrum in a manner that would
interfere with Customer’s Primary Use of its spectrum.
2.5. The parties agree to pursue in good faith a trial of methods whereby Customer’s excess
spectrum will be made available to third parties for Secondary Uses through Google-developed or
Google-sponsored technology. Such Secondary Use is to be in compliance with Section 2.4 of this
Agreement and is to be technologically feasible, from Customer’s reasonable perspective. The trial
will take place as set forth in Section 4 of this Agreement.
2.6. The actual availability of excess spectrum for Secondary Uses will be reasonably determined by
NewCo based on Newco’s actual or planned use of its spectrum which will vary from time to time.
2.7. Both Parties agree that metrics will be put in place to provide for technical testing of the
spectrum and the technology to be used. The joint Customer/Google technology team established
under Section 8
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of this Agreement will develop these metrics prior to the review of technical feasibility called
for in Section 2.5.
3. Use of Spectrum.
3.1. Google will undertake experimental tests of different Secondary Uses of spectrum, including,
but not limited to, [*****] (as discussed below in Section 4). Such tests will be at the
discretion of Google and may involve varying amounts of spectrum, including [*****].
3.2. During the term of the Spectrum Agreement, Google and Customer will engage in experimental
collaborations for new services, using excess spectrum available for Secondary Use.
3.3. Customer will make reasonable efforts to support Google’s experiments to find successful ways
of implementing Secondary Uses.
4. [*****].
4.1. Google will use the spectrum provided by Customer, in part, to test the concept of [*****].
4.2. [*****].
4.3. [*****].
4.4. The trial provided for in this Section 4 may begin as soon as [*****] described in Section 4.3
has been determined and approved. The parties contemplate that the trial will be undertaken over a
period of [*****].
4.5. Upon successful completion of the trial contemplated by this Section 4, showing that [*****]
is functioning successfully, the parties agree that Customer will work with Google to allow for
Secondary Use of spectrum nationwide, using Google technology. Successful completion of the trial
will include Customer’s determination that the Secondary Use results in no interference with
Customer’s Primary Use and is technologically feasible.
5. Revenue.
5.1. The parties anticipate that all of the Secondary Uses to be implemented by Google will
generate revenue.
5.2. The parties will share such revenue. They agree to negotiate the terms of such revenue
sharing, on an equitable basis, with respect to each Secondary Use that is mutually agreed to be
implemented.
5.3. In all circumstances, the parties agree that Secondary Uses of spectrum will be intended to
provide Customer with an economic return that takes into account the fair value of the spectrum.
6. Term.
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6.1. The initial term for this Agreement will be [*****] from the execution of the Agreement.
6.2. No later than one hundred (180) days prior to the end of the initial term, the joint
Customer/Google technology team will revisit the terms of Secondary Use and the results of all
technology trials or implementations that have occurred.
6.3. During the last one hundred (180) days of the initial term, the parties will determine whether
to extend the term of this Agreement and, if so, on what terms and conditions. Customer’s
evaluation will include a consideration as to whether Google’s Secondary Uses generate an
acceptable return on Customer’s investment in spectrum as compared to alternative opportunities to
generate a return.
6.4. In the event of a breach of this Agreement by either party, the non-breaching party may
provide written notice to the breaching party of such breach. In the event that the breaching
party does not cure such breach within thirty (30) days of receiving the notice of breach, the
non-breaching party may terminate this Agreement; provided, however that if such breach relates to
an action that causes or is reasonably likely to cause material interference to Customer’s Primary
Use or the loss of spectrum, this Agreement will terminate immediately if the action or inaction
causing the breach continues more than 24 hours follow receipt of written notice.
7. Regulatory issues.
7.1. The parties will cooperate to ensure that all Secondary Use of spectrum comply with all
applicable laws and all applicable FCC rules and regulations, as well as all leases or other
agreements affecting the use of Customer’s spectrum.
7.2. The parties will cooperate and execute all documents necessary to ensure such compliance,
including the preparation and filing of any required FCC applications to permit the Secondary Uses
of spectrum described in this Agreement.
8. Joint Customer/Google technology team.
8.1. The parties agree to form a joint technology team, comprised of three (3) representatives from
each party, to manage the activities called for in this Agreement. Each party will designate
individuals to serve on this team, and each party has the right to substitute new individuals as
members upon written notice to the other party.
8.2. The joint technology team will be formed within sixty (60) days of the execution of the
Agreement.
8.3. The members of the joint technology team will work cooperatively to implement the terms of
this Agreement. They will serve as the first point of discussion between the parties for all
issues related to the spectrum sharing provided for in this Agreement.
8.4. The parties, through the joint technology team, will devise a methodology for identifying
spectrum available for Secondary Use. The methodology may include, among other things:
(a) dynamic detection of available spectrum;
(b) a process whereby Customer will provide written notification to Google of availability
of spectrum for Secondary Use; and/or
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(c) a reasonable period of time, to the extent feasible, within which, after Customer has
either begun or stopped using certain spectrum for Primary Use in a specific area, Customer
will provide notice concerning the availability of this spectrum.
9. Confidentiality; Publicity.
9.1. Confidentiality. “Confidential Information” is information disclosed by one party
(“disclosing party”) to the other party (“receiving party”) under this Agreement that is marked as
confidential or would normally under the circumstances be considered confidential information of
the disclosing party. This Agreement imposes no obligation upon a receiving party with respect to
Confidential Information that: (i) is known at the time of the disclosing party’s disclosure
thereof to the receiving party; (ii) is, or becomes, publicly known, through no fault of the
receiving party subsequent to the time of the disclosing party’s disclosure thereof to the
receiving party; (iii) is developed by the receiving party independently of, and without use of,
the Confidential Information; (iv) is rightfully obtained by the receiving party from third parties
authorized to make such disclosure without restriction; (v) is identified in writing by the
disclosing party as no longer proprietary or confidential; or (vi) is required to be disclosed by
law, regulation, or court order after giving reasonable notice to the disclosing party.
9.2. Duty of Confidentiality. The receiving party shall not disclose the disclosing
party’s Confidential Information to any third party other than: (i) to the receiving party’s
employees, agents, professional services advisors, and affiliates who need to know it and who have
agreed in writing to keep it confidential. Those people and entities may use Confidential
Information only to exercise rights and fulfill obligations under this Agreement. A receiving
party will use the same degree of care, but no less than a reasonable degree of care, as the
receiving party uses with respect to its own information of a similar nature to protect the
Confidential Information and to prevent: (a) any use of Confidential Information in violation of
this Agreement and (b) communication of Confidential Information to any unauthorized third parties.
9.3. Publicity. Neither party will issue any public announcement regarding the existence
or content of this Agreement without the other party’s prior written approval.
10. Representations, Warranties and Disclaimer.
10.1. Each party represents and warrants that it has full power and authority to enter into the
Agreement and that the execution and delivery of this Agreement, and the performance of its
obligations hereunder, shall not constitute a breach or default of or otherwise violate any
agreements to which either party is a party on the Effective Date. Except as expressly provided
for herein, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
USE AND NONINFRINGEMENT.
11. Indemnification.
11.1. Google Indemnity. (a) Google will indemnify, defend, and hold harmless Customer and
its respective directors, officers, agents, and employees (collectively, “Customer Indemnitees”)
from any third party lawsuit or proceeding brought against a Customer Indemnity based upon or
otherwise arising out of a claim alleging facts that would constitute a breach of Google’s
representations and warranties made in Section 10.
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11.2. Customer Indemnity. (a) Customer will indemnify, defend, and hold harmless Google
and its respective directors, officers, agents and employees (collectively “Google Indemnitees”)
from any third party lawsuit or proceeding brought against a Google Indemnitee based upon or
otherwise arising out of a claim alleging facts that would constitute a breach of Customer’s
representations and warranties made in Section
11.3. General. (a) Indemnification provided under Sections 11.1 and11.2 shall be limited
to (i) payment by the indemnifying party (“Indemnitor”) of all damages and costs finally awarded
for such claim, (ii) all interim damages and costs that a court may require an Indemnitee to pay
for such claim, (iii) settlement costs approved in writing by the Indemnitor, and (iv) costs
incurred by the Indemnitee, if any, (including without limitation attorney fees) in the defense of
the claim (b) The foregoing obligations shall exist only to the extent not prejudiced by any
failure of the party seeking indemnification (“Indemnitee”) to: (i) promptly notify the Indemnitor
of such claim, (ii) provide the Indemnitor with reasonable information, assistance and cooperation
in defending the lawsuit or proceeding, and (iii) give the Indemnitor full control and sole
authority over the defense and settlement of such claim; provided, however, that the Indemnitor may
not settle any claim to the extent there is any acknowledgement of fault of the Indemnitee without
the Indemnitee’s written consent, such written consent not to be unreasonably withheld or delayed.
(c) As part of providing the reasonable information, assistance and cooperation described in (ii),
the Indemnitee shall not be required to incur out of pocket costs, unless the Indemnitor agrees to
reimburse the Indemnitee for such costs. The Indemnitee may join in defense with counsel of its
choice at its own expense. The Indemnitor shall only reimburse the Indemnitee for expenses
incurred by the Indemnitee with the Indemnitor’s prior written approval. Notwithstanding the
foregoing, if the Indemnitor declines to assume full control of the defense and settlement of such
claim, then the Indemnitor shall also be responsible for reasonable attorney fees incurred by the
Indemnitee in the defense and settlement of the claim.
12. Limitation of Liability.
12.1. Limitation. SUBJECT TO SECTION 12.2, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO
DAMAGES FOR LOST PROFITS, LOST REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT
(INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY WAS
OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. SUBJECT TO SECTION 12.2, IN NO
EVENT SHALL EITHER PARTY’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT (WHEN AGGREGATED
WITH THAT PARTY’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF THIS AGREEMENT) EXCEED $20,000,000.
12.2. Exclusions from Limitations. Unless and then only to the extent this Agreement
expressly states otherwise, nothing in this Agreement shall exclude or limit either party’s
liability for breaches of any confidentiality obligations contained in this Agreement or any
amounts payable to third parties pursuant to the parties’ indemnification obligations hereunder.
12.3. Allocation of Risk. The parties agree that the mutual agreements made in this
Section 12 reflect a reasonable allocation of risk, and that neither party would enter into the
Agreement without these limitations on liability.
13. Miscellaneous.
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13.1. Compliance with Laws. Each party shall comply with all laws, rules and regulations,
if any, applicable to it in connection with the performance of its obligations under the Agreement.
13.2. Notices. All notices shall be in English and in writing and (a) if sent to Customer
to the address of Customer’s corporate headquarters at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 or
as otherwise provided in writing for such notice purposes; provided, however, that all invoices and
payments shall be sent to the attention of the Customer’s Finance department, all legal notices
shall be sent to the attention of the Customer’s Legal department, and all other correspondence
shall be sent to the attention of the manager specified in writing by Customer, and (b) if sent to
Google at 0000 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxx Xxxx, XX 00000 or as otherwise provided in writing
for such notice purposes; provided, however, that all invoices and payments shall be sent to the
attention of Google Finance, all legal notices shall be sent to the attention of the Google Legal
Department, and all other correspondence shall be sent to the attention of the account manager
specified in writing by Google. Notice shall be deemed given (i) upon receipt when delivered
personally, or (ii) upon written verification of receipt from overnight courier, (iii) upon
verification of receipt of registered or certified mail.
13.3. Assignment.
(a) Generally. Neither party shall assign or otherwise transfer its rights or delegate
its obligations under the Agreement, in whole or in part without the written consent of the
other party. Any attempted assignment, delegation or transfer in derogation hereof shall be
null and void. For purposes of this sentence, an assignment shall be deemed to include,
without limitation, any transaction or series of transactions in which another party or parties
acquire the direct or indirect power to direct the management and policies of a party or its
assets, whether by way of merger, consolidation, change of control, sale of all or
substantially all of a party’s securities or assets, contract, management agreement or
otherwise.
(b) Google Permitted Assignment. Notwithstanding Section 13.3(a), Google may
assign its rights or delegate its obligations under this Agreement, in whole or in part,
without the consent of Customer, to a wholly owned subsidiary of Google. Following an
assignment by Google to a wholly-owned subsidiary of Google, Google shall not be relieved of
and shall continue to be liable for all the obligations applicable to it hereunder, unless
Customer provides written approval for the release of Google’s obligations.
(c) Customer Permitted Assignment. Notwithstanding Section 13.3(a), Customer may
assign this Agreement (in whole, but not in part) as part of a change of control (including by
way of merger, reverse-triangular merger, consolidation, sale of stock, or sale of all or
substantially all of its assets) without the consent of Google; provided, if the assignment
does not occur by operation of law, the assignee must deliver to Google a written instrument
agreeing to be bound by all of the terms and conditions applicable to Customer; provided
further, that if (i) the change of control involves a competitor of Google (as reasonably
determined by Google), (ii) Google has a reasonable belief that the assignee is not
sufficiently capitalized, or (iii) Google has a reasonable good faith belief that the assignee
does not have sufficient operational resources to fulfill its financial, indemnification and
other obligations under this Agreement, then Google may elect to terminate this Agreement upon
90 days written notice without recourse or liability therefor.
13.4. Consultations. Before a party initiates legal action against the other arising from
the Agreement, the matter in controversy shall first be referred to an officer of each party, who
shall make good faith and reasonable efforts to resolve the matter.
13.5. Governing Law. The laws of New York, excluding New York’s choice of law rules, and
applicable federal U.S. laws shall govern the Agreement. Each party agrees to submit to the
personal and exclusive jurisdiction of the state and federal courts located in the Southern
District of New York. The parties
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specifically exclude from application to the Agreement the United Nations Convention on Contracts
for the International Sale of Goods and the Uniform Computer Information Transactions Act.
13.6. Equitable Relief. Either party may seek equitable relief, including temporary
restraining orders or injunctions, in addition to all other remedies, available at law or under
this Agreement.
13.7. Entire Agreement. The Agreement supersedes any other prior or collateral agreements,
whether oral or written, with respect to the subject matter hereof. This Agreement, together with
the other Agreements and Riders between the parties as of the date even herewith, constitutes the
entire agreement between the parties with respect to the subject matter hereof.
13.8. Amendments. Any amendments or modifications to the Agreement must be in writing,
refer to the Agreement, and be executed by an authorized representative of each party.
13.9. No Waiver. The failure to require performance of any provision shall not affect a
party’s right to require performance at any time thereafter; nor shall waiver of a breach of any
provision constitute a waiver of the provision itself.
13.10. Severability. If any provision is adjudged by a court of competent jurisdiction to
be unenforceable, invalid or otherwise contrary to law, such provision shall be interpreted so as
to best accomplish its intended objectives and the remaining provisions shall remain in full force
and effect.
13.11. Survival. The following sections of this Agreement shall survive any expiration or
termination of this Agreement: Sections 9 (Confidentiality), 10 (Representations, Warranties and
Disclaimer), 11 (Indemnification), and 12 (Limitation of Liability).
13.12. Independent Contractors. The parties hereto are and shall remain independent
contractors and nothing herein shall be deemed to create any agency, partnership, or joint venture
relationship between the parties. Neither party shall be deemed to be an employee or legal
representative of the other nor shall either party have any right or authority to create any
obligation on behalf of the other party.
13.13. No Third Party Beneficiaries. The Agreement is not intended to benefit, nor shall
it be deemed to give rise to, any rights in any third party.
13.14. Force Majeure; Transmissions. Neither party shall be liable for failing or delaying
performance of its obligations (except for the payment of money) resulting from any condition
beyond its reasonable control, including but not limited to, governmental action, acts of
terrorism, earthquake, fire, flood or other acts of God, power failures, and Internet
disturbances; provided that such excusal from performance shall last only so long as such condition
exists or so long as the excused party has had a reasonable opportunity to mitigate and/or
eliminate the effect of such condition, whichever is shorter.
13.15. Successors; Counterparts; Drafting; General. The Agreement (a) shall be binding on
and inure to the benefit of each of the parties and their respective successors and assigns; (b)
may be executed in counterparts, including facsimile counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one and the same instrument; and (c)
shall be construed as if both parties jointly wrote it.
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| NEWCO LLC | GOOGLE INC. | |||||
By:
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By: | |||||
Name:
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Name: | |||||
Title:
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Title: | |||||
Date:
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Date: | |||||
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