1
Exhibit 10.8
FRAME AGREEMENT
between
▇▇▇▇▇ Corporation, with head offices in Santa ▇▇▇▇▇ (California), ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (hereinafter referred to as "▇▇▇▇▇")
and
Italtel s.p.a., with head offices in Milano (Italy), ▇.▇▇ ▇▇▇▇▇▇▇▇▇ n. 12
(hereinafter referred to as "Italtel")
(▇▇▇▇▇ and Italtel are also hereinafter referred to jointly as "Parties" and
severally as "Party")
WITNESSETH
WHEREAS, Italtel is an integrated manufacturer with significant presence
transmission, wireless and other markets; and telecommunication in switching,
transmission, wireless and other markets; and
WHEREAS, ▇▇▇▇▇ offers the AirStar point-to-multipoint wireless broadband
access product family, together with associated network management software, for
voice, data and video applications; and
WHEREAS, the Parties, intending to undertake a cooperation to develop,
manufacture, market and sell the Products as hereinbelow defined, with each
Party contributing, according to its respective role, the appropriate
technologies, resources and effort, signed on September 1st 1997 a Memorandum of
Understanding indicating the headlines of the above cooperation; and
-1-
2
WHEREAS, by signing this Agreement the Parties intend to better define
the terms and conditions of their cooperation with respect to the Products.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS.
ARTICLE 1 - - DEFINITIONS
The terms defined in this Article 1 and used in this Agreement shall have the
following meanings:
1.01 The term "Agreement" shall mean this Frame Agreement as well as any
Supplemental Agreements ("SAS") and the Annexes thereto entered into pursuant
hereto.
1.02 The term "Products" shall mean the Existing ▇▇▇▇▇ Products as
defined in 1.03. below, the Feeder Product as defined in 1.04 below and the "New
Products" as defined in 1.06. below.
1.03 The term "Existing ▇▇▇▇▇ Products" shall mean the following
existing Products of ▇▇▇▇▇ made available by it during the term of this
Agreement: AIRSTAR\AIRVIEW\ and any natural evolutions and modifications thereof
such as software updates, additional frequencies, etc. other than modifications
made on an exclusive basis for third parties. Substantially new products or
major changes in application or functionality of Existing ▇▇▇▇▇ Products will be
added to the Agreement from time to time at the discretion of ▇▇▇▇▇ with the
consent of ITALTEL.
1.04 The term "Feeder Product" shall mean the PMP Product to be jointly
developed by the Parties for the Feeder Market.
-2-
3
1.05 The term "Feeder Market" is defined to include all connections
between network infrastructure elements both for fixed and mobile applications.
An example is interconnection of GSM or DECT base stations with fractional E-1
interfaces. The "Feeder Market", as defined, does not include access
applications connecting end customers or their customer premises equipment (CPE)
to the network.
1.06 The term "New Products" shall mean any Product the Parties decide
to jointly develop during the term of their cooperation other than the Feeder
Product defined in Article 1.04.
1.07 The term "Supplemental Agreement" or "SA" shall mean any contract
which will be entered into pursuant to this Frame Agreement under which the
Parties will agree to activate their co-operation with respect to a specific
Product.
1.08 The term "Reference Market Price" shall mean the FOB successful
price (i.e. excluding duties and freight) in the majority of competitive bids
having comparable configuration and volume.
1.09 The term "Existing Information" shall mean any information
developed solely by either Party during any program undertaken by the Parties to
jointly develop a Product as well as any information contributed by such Party
to the joint development program of the Feeder Product. Each Party shall
designate in writing what constitutes its Existing Information from time to
time.
1.10 The term "Affiliate" means a company which is under common control
with, controls or is controlled by either one of the two Parties to this
Agreement as long as such control exists,
-3-
4
as well as any company belonging to the same group to which belongs the Party.
ARTICLE 2 - - SCOPE
2.01 The Parties undertake to cooperate in order to develop,
manufacture, market and sell the Products, with each Party contributing,
according to its respective role, the appropriate technologies, resources and
effort, as better specified herein and in any SA possibly entered between the
Parties.
2.02 At ▇▇▇▇▇'▇ request Italtel either directly or through third parties
will use its best efforts in order to render to ▇▇▇▇▇ on a non exclusive basis
installation support and commissioning services of the Products sold by ▇▇▇▇▇ to
its customers at reasonable and fair terms and conditions to be agreed upon by
the Parties, which should be comparable with similar terms and conditions
proposed by Italtel for similar projects in the same country.
ARTICLE 3 - - MODES OF CO-OPERATION
3.01 With respect to Existing ▇▇▇▇▇ Products the Parties shall enter
into a non-exclusive OEM relationship pursuant to which ▇▇▇▇▇ shall supply to
Italtel the Existing ▇▇▇▇▇ Products for world-wide resale by it to any third
party.
Both Italtel and the Siemens group of companies shall have the right to
include the Existing ▇▇▇▇▇ Products in their respective product catalogues for
world-wide sales with their own labels and logo; Italtel will use reasonable
efforts for marketing and selling the AirStar product.
-4-
5
3.02 As far as the Feeder Product is concerned, the Parties shall
jointly develop such Product on a non exclusive basis for the Feeder Market,
including any evolutions and modifications reasonably necessary from time to
time to meet market requirements.
The joint development activities of the Parties shall be carried out
pursuant to the development schedule and allocation of tasks to be agreed by the
Parties in the relevant Supplemental Agreement.
The resulting Feeder Product will be supplied by ▇▇▇▇▇ to Italtel on a non
exclusive basis for world-wide resale by it to any third party.
The interface cards necessary for the integration with the Network Management
Systems used by Italtel will be exclusive ownership of Italtel and manufactured
by Italtel for its own exclusive use in the market.
3.03 With respect to the New Products, the Parties will consider from
time to time entering into possible new projects to jointly develop products,
other than the Feeder Product. In the event the Parties decide on the basis of a
business plan to pursue such joint development, they will negotiate and agree
the relevant terms and conditions.
3.04 Most Favored Customer. ▇▇▇▇▇ undertakes that during the validity
period of this Agreement, the transfer prices, and other terms and conditions
granted to Italtel shall be no less favorable than those given by ▇▇▇▇▇ to any
other customer purchasing the same items under similar terms and conditions.
ARTICLE 4 - - SUPPLEMENTAL AGREEMENTS
4.01 The Parties shall implement this Agreement by means of specific
Supplemental Agreements. Each SA shall be deemed to incorporate the provisions
of this Agreement and shall
-5-
6
constitute an integral part hereof. In the event specific provisions contained
in a SA conflict with or alter the provisions of this Agreement, the provisions
of the SA shall prevail.
ARTICLE 5 - - ORGANIZATIONAL STRUCTURE
5.01 The co-operation between the Parties set forth under this Agreement
shall be coordinated through the activity of a joint committee (hereinafter
referred to as "the Committee"), composed by an equal number of representative
for each Party. The Committee will be formed within 1 week from the signature of
this Agreement
5.02 In addition to any other applicable provisions of this Agreement,
the mission of the Committee is to stimulate and coordinate the activities of
the Parties as to:
(a) define and submit for the approval of the Parties the schedule and
allocation of tasks and expenses for the joint development of the Feeder Product
and New Products;
(b) monitor progress of the development activities of the Parties;
(c) monitor the market price evolution and define the Reference Market
Price applicable to the supplies from ▇▇▇▇▇ to Italtel;
(d) stimulate and coordinate the market activities of the Parties for
all Products falling within their co-operation;
(e) prepare detailed products and business plans;
(f) harmonize manufacturing activities relevant to the Feeder Product;
(g) authorize sublicencing activities for the Feeder Product to non
Affiliates. It is understood and agreed that
-6-
7
contract manufacturing activities of ▇▇▇▇▇ and Italtel are not subject to the
authorization of the Committee
ARTICLE 6 - - CONFIDENTIALITY
6.01 During the term of this Agreement and for a period of five (5)
years thereafter, each Party agrees to maintain in confidence all information
which is indicated to be proprietary received from the other Party under this
Agreement, not to disclose the same to third parties and to instruct and oblige
all of its personnel and third parties having access to such information to
adhere to this obligation of confidentiality. The duty to hold information in
confidence shall not extend, however, to information that:
a) is known to the receiving Party at the time of disclosure;
b) is in the public domain at the time of disclosure or enters the
public domain through no acts attributable to the receiving Party;
c) becomes available to the receiving Party from a third party under no
obligation to any Party thereunder to keep that information in confidence;
d) is published by the disclosing Party;
e) is transferred to third parties who have reason to use such
information in order to fulfill the purpose of this Agreement and who are in
turn subject to an equivalent obligation of confidentiality; or
f) is required by applicable law limited to the extension of such
requirement.
The duty to hold such information in confidence shall require each Party
to exercise the same degree of care with respect to the other Party's
information that it exercises with
-7-
8
respect to its own proprietary information and in any event no less than
reasonable care. Each Party will use the other Party's information only for the
purposes of this Agreement. Each Party will not reverse engineer the information
or products of the other Party, except as expressly authorized by this Agreement
or an SA.
Each Party recognizes that the information furnished under this
Agreement shall remain the property of the furnishing Party; the receiving Party
shall not use, reproduce or copy such proprietary information, in whole or in
part, except to the extent necessary to pursue the purposes of this Agreement
and shall return or destroy such information and any copies thereof or notes
relating thereto upon the expiration or termination of this Agreement.
For the purposes of this clause, Italtel agrees to establish procedures
reasonably satisfactory to ▇▇▇▇▇ so that Italtel technical employees assigned to
the Feeder Product project during the term of such project will not work on any
Italtel project competitive to AIRSTAR or Feeder Product.
6.02 The Parties agree to keep confidential and not to disclose to third
parties the contents of this Agreement.
All media releases, public announcements and public disclosures relating to this
Agreement shall be previously agreed in writing by the Parties.
ARTICLE 7 - - EXISTING INFORMATION
7.01 Each Party grants to the other Party (hereinafter "Licensed Party")
a personal, irrevocable except if terminated under Article 13.02 non
transferable and non-exclusive right to use its Existing Information solely for
sale of the Existing ▇▇▇▇▇ Product and manufacture and sale of the Feeder
Product. The aforesaid right to use Existing Information for the manufacture
-8-
9
of the Feeder Product includes the right to communicate portions of the Existing
Information to suppliers solely for the procurement by the Licensed Party of
Products, materials, manufacturing facilities, parts and components, described
in such Existing Information, for use in manufacture in accordance with each
Supplemental Agreement, provided that such suppliers agree in writing to fully
comply with all Existing Information confidentiality obligations and
restrictions hereunder.
Other terms and conditions of the license may be indicated in each
relevant SA.
7.02 No ownership interest in the Existing Information or any portion
thereof is transferred or conveyed to the Licensed Party hereunder.
7.03 Each Party undertakes to comply with the applicable laws and
regulations of the other Party's country, including the U.S. Foreign Corrupt
Practices Act. In particular, the Licensed Party hereby assures the other Party
that it does not intend to and will not knowingly without the prior written
consent, if required, of the Office of Export Licensing of the U.S. Department
of Commerce, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America,
transmit directly or indirectly:
(i) any information obtained from the other Party pursuant to this
Agreement; or
(ii) any Product (including processes and services) produced directly by
the use of such Existing Information; or
to (1) the countries specified in Supplemental No. 1 to Part 770 of the Export
Administration Regulations issued by the U.S.
-9-
10
Department of Commerce or (2) any national or resident of the foregoing
countries.
7.04 Promptly upon completion of the validation of the Feeder Product
Release 1 or immediately in the event of termination by Italtel pursuant to
Article 13.02 (a) or (b) all Existing Information as well as any other
information necessary for manufacturing, the Feeder Product shall be lodged by
▇▇▇▇▇ in an Escrow Account by an Escrow Bank, to be jointly indicated by the
Parties.
Such information will be updated in a timely manner with information related to
any subsequent modification to the Feeder Product.
Upon reaching a cumulative amount of purchase of Products of [***]
[***] from ▇▇▇▇▇ or in the event of termination by Italtel under clause 13.04
(a) and (c) Italtel, in order to exploit its right to manufacture the Feeder
Product, pursuant to Article 4.03 of the relevant SA, will have the right to
obtain on first demand such Existing Information as well as all the other the
information put in the Escrow Account. Following expiration/termination of this
Agreement each Party shall be entitled to use the Existing Information of the
other Party only in accordance with the provisions of Article 13.04.
hereof.
Italtel shall bear the fees of establishing and maintaining this Escrow Account.
ARTICLE 8 - - ASSIGNMENT
This Agreement may not be assigned or otherwise disposed of, nor may any
of the rights or obligations hereunder be delegated, by either Party, without
the prior written consent of the other Party, unless otherwise provided for in
this Agreement.
---------
[***] Confidential Treatment Requested.
-10-
11
The above provision shall not be applicable in cases of assignment to
Affiliates of each Party.
ARTICLE 9 - - INDEPENDENT CONTRACTOR
Each Party to this Agreement shall have the status of an independent
contractor and shall not for any reason hold itself out or represent itself as
being an employee, agent or representative of the other Party.
ARTICLE 10 - - SEVERABILITY
In the event that any provision or provisions of this Agreement which
materially affects the rights or obligations of the Parties under this Agreement
are ruled illegal or unenforceable by a court or regulatory authority, the
remainder of this Agreement shall nevertheless remain valid and enforceable,
provided that an equitable revision is negotiated and agreed by the Parties with
a view to maintaining a balance between their respective rights and obligations
ARTICLE 11 - - ENTIRE AGREEMENT
This Agreement, together with any SAs and Annexes hereto sets forth the
entire Agreement between the Parties and replaces and makes void any other oral
or written Agreement which may have been previously entered into.
Other terms modifying or making exception to the present Agreement shall be
considered valid only if established in writing and signed by both Parties.
-11-
12
ARTICLE 12 - - NOTIFICATION
Any notification connected with this Agreement shall be valid if
addressed by registered letter or by telefax or by confirmed telex to:
ITALTEL s.p.a.
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Centro Direzionale ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇' ▇▇▇▇▇▇
▇▇▇▇▇▇ (▇▇▇▇▇)
fax nr.▇▇▇.▇.▇▇▇▇.▇▇▇▇ phone nr.▇▇▇.▇.▇▇▇▇.▇▇▇▇
E-Mail: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.▇▇
and to
▇▇▇▇▇ Corporation
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - ▇.▇.▇.
fax nr.+l.▇▇▇.▇▇▇.▇▇▇▇
Telephone nr. ▇▇.▇▇▇.▇▇▇.▇▇▇▇
E-Mail: ▇▇▇▇▇@▇▇▇▇▇-▇▇▇▇.▇▇▇
ARTICLE 13 - - TERM AND TERMINATION
13.01 This Agreement shall be valid and operative for a term of 5 (five)
years starting from its signature, unless extended by written agreement of the
Parties.
13.02 This Agreement may be terminated under the following conditions:
-12-
13
(a) at the end of 60 days following written notice by the non-breaching
Party of a material breach by the other Party, provided that such breach is not
cured within the same 60 days period.
(b) at the end of twenty-four (24) hours following written notice by
either Party, if the other Party files a petition in bankruptcy, or under a
general assignment for the benefit of creditors, or becomes insolvent, or is
otherwise unable to generally meet its business obligations for a period of
three (3) months;
13.03 Upon the expiry or termination of this Agreement, those terms and
conditions, which by their nature would continue beyond such expiry or
termination, that is Confidentiality, Government Restrictions, Conciliation and
Arbitration shall remain in full force and effect.
Upon expiry or termination of this Agreement, each Party shall complete
all existing contractual commitments to third parties.
The Parties also shall comply with all existing contractual commitments
between them, which were the basis of corresponding, agreed upon contractual
commitments to third parties, to the extent that the completion of the Parties'
commitments is necessary to complete their commitments to third parties. Nothing
herein shall require a Party to continue its performance under a Supplemental
Agreement which was the subject of a material breach by the other Party, or to
transfer additional Existing Information following such expiry or termination.
-13-
14
13.04 CONTINUED USE OF EXISTING INFORMATION
Upon any expiry or termination of this Agreement, both Parties shall
cease using the other Party's Existing Information, and shall return same,
except as provided herein:
(a) in the event of expiry of this Agreement as per Article 13.01 each
Party shall be authorized to continue using, on a non-exclusive basis, all
Existing Information licensed to it pursuant to Article 7.01. of this Frame
Agreement as of the date of such expiry, to comply with all existing contractual
commitments and binding offers to third parties as well as with new orders
acquired during the 12 months subsequent to such expiry and to the same extent
as authorized during the Agreement, for a period of 3 (three ) years.
Italtel will continue to source at least 50% of its manufacturing requirements
from ▇▇▇▇▇ during such extended period, as long as ▇▇▇▇▇ continues to
manufacture the Product.
In addition, Italtel shall be authorized to sell Product manufactured
utilizing such Existing Information in accordance with all terms and conditions
of this Section 13.04(a). Neither Party shall be under any obligations to
provide updates or improvements to Existing Information following such expiry.
(b) in the event of termination by ▇▇▇▇▇ under clause 13.02 (a) or (b),
or due to an Italtel material breach of a Supplemental Agreement, and provided
that any possible misuse of Existing Information under said Supplemental
Agreement has been cured, Italtel (the breaching Party) shall be entitled to
continue utilizing on a non-exclusive basis ▇▇▇▇▇ Existing Information to the
same extent as during the Agreement, for a period of eighteen (18) months solely
for the purpose of selling Products to comply with all the existing contractual
commitments and binding offers, thereby excluding any manufacturing right.
-14-
15
▇▇▇▇▇ (the non breaching Party) shall have the right to use Italtel Existing
Information to the same extent as during the Agreement for a period of 5 (five)
years.
(c) in the event of termination by Italtel pursuant to Article 13.02 (a)
or (b) or due to a ▇▇▇▇▇ material breach of a Supplemental Agreement, and
provided that any possible misuse of Existing Information under said
Supplemental Agreement has been cured, ▇▇▇▇▇ (the breaching Party) shall be
entitled to continue utilizing on a non-exclusive basis and at the same terms
and conditions provided for by the relevant SA Italtel Existing Information for
a period of eighteen (18) months solely for the purpose of selling Products to
comply with all the existing contractual commitments and binding offers.
Italtel (the non breaching Party) shall have the right to use ▇▇▇▇▇
Existing Information to the same extent as during the Agreement for a period of
5 (five) years.
ARTICLE 14 - - CONCILIATION AND ARBITRATION
14.01 The Parties shall try to amicably settle any dispute arising out
of this Agreement. In the event an amicable settlement is not reached, the
dispute shall be finally settled under the Rules of Conciliation and Arbitration
of International Chamber of Commerce, by three arbitrators appointed in
accordance with said Rules.
The Arbitral Tribunal shall sit in London (UK) and the proceeding shall
be conducted in the English language.
14.02 The Arbitrators shall render their decision in accordance with the
substantive laws of United Kingdom.
-15-
16
The award shall be final and legally binding on the Parties and shall be
subject to enforcement in any courts having jurisdiction over the Parties
The Parties agree to exclude the right of appeal to any court which
would otherwise have jurisdiction in connection with any question of law arising
in the course of the arbitration or out of the award.
The arbitration shall be the sole recourse of the Parties, to the
exclusion of the courts of law. Remedies indicated by the Arbitration may, under
appropriate circumstances, include injunctive relief as well as monetary awards.
ARTICLE 15 - - GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
substantive laws of United Kingdom.
ARTICLE 16 - - LIMITATION OF LIABILITY
In no event shall either Party be liable towards the other Party for any
incidental or consequential damages, including -without limitation - loss of
profits.
ARTICLE 17 - - LOGISTIC SERVICES
▇▇▇▇▇ shall render logistic services for Italtel employees to be
assigned to a site near ▇▇▇▇▇'▇ premises, upon request of Italtel and at fair
terms and conditions, reflecting ▇▇▇▇▇'▇ fully loaded costs.
-16-
17
This Agreement is made in two originals, one for each Party.
▇▇▇▇▇ Corporation Italtel s.p.a.
/s/ ▇▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇ /s/ Italtel s.p.a.
-------------------------------------- ----------------------------------
Place Munich Place Milano
Date 11/19/97 Date Nov. 28, 1997
-17-
