Exhibit 10.35
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TECHNOLOGY LICENSE AGREEMENT
TECHNOLOGY LICENSE AGREEMENT (this "Technology License Agreement"), dated
as of January 1, 2002, by and among AirGate PCS, Inc., a Delaware corporation
("Parent"), AirGate Service Company, Inc., a Delaware corporation ("ASC"), AGW
Leasing Company, Inc., a Delaware corporation ("AGWL"), AirGate Network
Services, LLC, a Delaware limited liability company ("ANS"), iPCS Inc., a
Delaware corporation ("iPCS Hold Co"), iPCS Wireless, Inc., a Delaware
corporation ("iPCS Operating Co") and iPCS Equipment, Inc., a Delaware
corporation ("iPCS Equipment Co").
W I T N E S S E T H
WHEREAS, Parent acquired iPCS Hold Co in a reorganization in which iPCS
Hold Co merged with a wholly-owned subsidiary of Parent with iPCS Hold Co being
the survivor of such merger;
WHEREAS, the indenture evidencing Parent's 13 1/2% Senior Subordinated
Discount Notes require that iPCS be operated as an "unrestricted subsidiary";
WHEREAS, iPCS and AirGate each possess, or may possess, Technology and
Intellectual Property; and
WHEREAS, to facilitate the continued operation of each others' business,
the parties desire to provide for a license to the others under its Technology
and Intellectual Property for use in conducting its business;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
and covenants hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Each capitalized term used herein shall be defined as follows:
"AirGate" shall mean Parent, ASC, AGWL, ANS and any other Person at the
time it becomes a Subsidiary of Parent (other than iPCS Hold Co and its existing
or future Subsidiaries).
"Affiliate(s)" shall mean, with respect to any Person, any other Person
that, directly or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, such first Person. A Person
shall be deemed to control another Person if such first Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise.
"Date of This Technology License Agreement" shall mean January 1, 2002.
"Intellectual Property" shall mean all patents, and patent applications,
disclosures of inventions, trademarks, trademark applications, copyrights,
copyright applications to the extent
owned by, or licensed to (with a right to transfer such license royalty-free)
AirGate or iPCS, as of the Date of this Technology License Agreement or
invented, discovered or otherwise acquired during the term of this Technology
License Agreement.
"iPCS" shall mean iPCS Hold Co, iPCS Operating Co, iPCS Equipment Co and
any other Person at the time it becomes a Subsidiary of iPCS Hold Co.
"Person" shall mean an individual, corporation, partnership, limited
liability company, trust of unincorporated organization, a government or any
agency or political subdivision thereof.
"Subsidiary(ies)" of any Person shall mean any corporation, partnership or
other Person of which a majority of all the outstanding capital stock (including
directors' qualifying shares) or other securities or ownership interests having
ordinary voting power to elect a majority of the board of directors or other
Persons performing similar functions is, at the time as of which any such
determination is being made, directly or indirectly owned by such Person, or by
one or more of the Subsidiaries of such Person, and which Person is consolidated
with such Person for financial reporting purposes.
"Technology" shall mean trade secrets, research and development
information, research and technology reports and files, formulations,
manufacturing and environmental procedures and drawings of plants, equipment and
apparatus, analytical methods and laboratory procedures, raw material and
product specifications, operating manuals, pilot plant information, library
materials, software, databases and computer programs, financial, accounting,
management, information technology, human resources, and other business systems
and practices, improvements, formulae, practices, processes, methods and other
know-how, whether or not patentable, to the extent owned by, or licensed to
(with a right to transfer such license royalty-free) AirGate or iPCS, as of the
Date of this Technology License Agreement or invented, discovered or otherwise
acquired during the term of this Technology License Agreement.
ARTICLE II
LICENSE GRANT
2.1 Each party hereby grants to each other party a royalty-free,
fully paid-up, worldwide, non-exclusive license (i) to make, use,
and sell any product, (ii) to use any process or method,
including but not limited to databases and software, (iii) to
practice any invention, whether or not patentable, and (iv) to
use any trademark or copyrighted material for any business
purpose, such rights and license being with respect to any
Technology and Intellectual Property owned by the licensing party
as of the Date of This Technology License Agreement and/or
invented, discovered or otherwise acquired during the term of
this Technology License Agreement.
2.2 No party shall have the right to sublicense and/or otherwise
transfer any rights granted herein to any Person.
2.3 In the event that any party makes any improvement to the
Technology and/or Intellectual Property, the other parties are
granted hereby a royalty-free, fully paid-up, worldwide,
non-exclusive license (i) to make, use, and sell any product,
(ii) to use any process or method, including but not limited to
databases and software, (iii) to practice any invention, whether
or not patentable, and (iv) to
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use any trademark or copyrighted material for any business
purpose, such rights and license being with respect such
improvement.
2.4 All the rights and licenses granted hereunder by each party are
free from any royalty or payment of any kind.
2.5 Except as noted otherwise herein, no party is obligated hereunder
to provide any personnel to aid in the use of the Technology and
Intellectual Property licensed herein.
2.6 The parties hereto acknowledge and agree that any Technology
and/or Intellectual Property or any improvements to the
Technology and/or Intellectual Property licensed herein and
developed by ASC using leased employees of iPCS or AirGate shall
be owned by the party providing the leased employees.
ARTICLE III
CONFIDENTIALITY
3.1 Except as set forth in Section 3.2 hereof or as the parties
hereto may otherwise agree in writing, each party shall maintain
the confidentiality of all information disclosed to it which is
included within Technology and/or Intellectual Property, and
shall not disclose, make available, disseminate, or communicate
such information to any Person, except on a like confidential
basis and except as needed to properly conduct its business
purposes.
3.2 The obligations set out in this Article III shall not apply to
the extent that disclosure of such information is compelled by
judicial or administrative process or, in the opinion of such
party's counsel, by other requirements of law.
3.3 The obligations set out in this Article III shall continue to
apply for as long as the information to be held in confidence
remains confidential without breach of the obligations hereof.
ARTICLE IV
EXPORT REGULATIONS
4.1 Notwithstanding any other provisions of this Technology License
Agreement, each party agrees, and shall cause its Subsidiaries to
agree, to make no disclosure of or use any of the other party's
Technology and Intellectual Property provided or made known to it
pursuant to this Technology License Agreement, except in
compliance with the laws and regulations of the United States of
America, including the Bureau of Export Administration,
International Trade Commission, U.S. Department of Commerce, U.S.
Department of the Treasury, and U.S. Department of State.
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ARTICLE V
AGREEMENT CONTROLLING
5.1 In the event of any conflict between this Technology License
Agreement and any other prior agreements or agreements dated the
same day as this Technology License Agreement between the
parties, this Technology License Agreement shall control.
ARTICLE VI
NOTICES
6.1 All notices, requests, claims, demands and other communications
(collectively, "Notices") to be served by one party on the other
party in connection with this Technology License Agreement shall
be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by prepaid
overnight delivery service, by confirmed facsimile transmission,
or by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to iPCS: AirGate PCS, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxx Tower, Suite 1700
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
If to AirGate: AirGate PCS, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxx Tower, Suite 1700
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
or to such other address as any party hereto may have furnished to the
other party by a notice in writing in accordance with this Section 6.1.
ARTICLE VII
ASSIGNABILITY
7.1 This Technology License Agreement is entered into for the benefit
of, and shall be binding upon iPCS and AirGate.
7.2 This Technology License Agreement may not be assigned or
otherwise transferred by either party to any other parties,
including Affiliates, without the express written consent of the
other parties.
ARTICLE VIII
GOVERNING LAW
8.1 With the exception of those subjects or disputes which are within
the exclusive jurisdiction of statutes of the United States or
other countries, including their
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respective patent laws, this Technology License Agreement shall
be governed by and construed in accordance with the laws of the
State of Delaware (other than the laws regarding choice of laws
and conflicts of laws) as to all matters, including matters of
validity, construction, effect, performance, and remedies.
ARTICLE IX
TERM
9.1 Each party's rights, licenses and obligations under this
Technology License Agreement shall continue in perpetuity unless
terminated by any other parties by providing the other party with
written notice of its intent to terminate no later than three
months in advance of the termination date.
ARTICLE X
INDEMNITIES
10.1 No party hereto shall be liable to the other parties for any
loss, liability, claim, damage or expense of whatever kind
arising out of or as a consequence of, as the case may be, the
use of any Technology and/or Intellectual Property, information
and/or technical improvements, including advice, consultation,
review, or assistance furnished or licensed to such other party
pursuant to this Technology License Agreement, nor shall the
furnishing or licensing party be liable to the receiving party
for any such loss, liability, claim, damage or expense arising
out of the use, manufacture, possession, transportation,
handling, sale or resale of any products produced by Technology
or Intellectual Property provided under this Technology License
Agreement.
10.2 In the event of any lawsuit involving any of the Technology
and/or Intellectual Property licensed herein, the party owning
the Technology and/or Intellectual Property shall be responsible
for choosing counsel, controlling the defense of the lawsuit, and
negotiating and entering into any settlement of the lawsuit. Said
party shall also have the right to decide whether to initiate any
lawsuit regarding any Technology and/or Intellectual Property
licensed herein. All costs of such lawsuits shall be borne by
said party and said party shall be entitled to any funds received
as a result of such lawsuits, such as damages and/or royalty
payments.
ARTICLE XI
MISCELLANEOUS
11.1 Each party undertakes and agrees, and agrees to cause their
respective Subsidiaries to agree, to assist each other, to the
extent such cooperation is needed, in the registration or
recordation of any transfer made or license granted in accordance
with this Technology License Agreement, in the manner provided
for under the laws and regulations of the countries involved,
including but not limited to the execution of any additional
patent or know-how license agreements that may be required for
such registration or recordation purposes. The cost of providing
any and all such agreements and for effecting recordation thereof
in all
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countries shall be borne by the parties equally and accomplished
as promptly as is reasonable.
11.2 Any provision of this Technology License Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof. Any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
11.3 Each party acknowledges that money damages would be an inadequate
remedy for any breach of the provisions of this Technology
License Agreement and agrees that the obligations of the parties
hereunder shall be specifically enforceable.
11.4 The Article headings contained in this Technology License
Agreement are solely for the purpose of reference, are not part
of the agreement of the parties hereto, and shall not in any way
affect the meaning or interpretation of this Technology License
Agreement.
11.5 This Technology License Agreement may be executed in two or more
counterparts each of which shall be deemed to be an original, but
all of which shall constitute one and the same agreement. Each
party undertakes and agrees to cause any entity which becomes a
Subsidiary of such party to sign a counterpart of this Technology
License Agreement thereby becoming a party hereto subject to the
obligations, and entitled to the benefit of the rights conferred
hereunder.
[Signatures appear on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Technology License
Agreement to be duly executed as of the date first written above.
AIRGATE PCS, INC.
By: ____________________________________________
Xxxxxx X. Xxxxxxxxx, President and Chief
Executive Officer
AIRGATE SERVICE COMPANY, INC.
By: ____________________________________________
Xxxxxx X. Xxxxxxxxx, President and Chief
Executive Officer
AGW LEASING COMPANY, INC.
By: ____________________________________________
Xxxxxx X. Xxxxxxxxx, President and Chief
Executive Officer
AIRGATE NETWORK SERVICES, LLC
By: ____________________________________________
Xxxxxx X. Xxxxxxxxx, President and Chief
Executive Officer
iPCS, INC.
By: ____________________________________________
Xxxx X. Xxxxxxxxx, Vice President
iPCS WIRELESS, INC.
By: ____________________________________________
Xxxx X. Xxxxxxxxx, Vice President
iPCS EQUIPMENT, INC.
By: ____________________________________________
Xxxx X. Xxxxxxxxx, Vice President
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