Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment to Form S-1 HTML 115K
2: EX-4.6 Investor Rights Agreement 14 77K
3: EX-9.1 Voting Agreement 10 44K
4: EX-10.10 Agreement 9 47K
5: EX-10.11 Amendment to Agreement 31 128K
6: EX-10.12 Agreement and Undertaking 2 14K
7: EX-10.25 Form of Subscription Agreement 45 169K
8: EX-10.26 Market Operation, Spectrum Lease and Sublicense 190 679K
Agreement
9: EX-10.29 Subscription Agreement 21 97K
10: EX-10.30 Master Supply Agreement 105 316K
11: EX-10.31 Side Agreement 17 77K
12: EX-10.39 Vendor Agreement 12± 50K
13: EX-10.40 Subscription Service Addendum to Vendor Agreement 39 100K
14: EX-10.41 Co-Marketing Agreement 22 86K
15: EX-10.42 Purchase and Sale Agreement 48 166K
16: EX-10.45 Bundled Wireless Broadband Services Agreement 32 83K
17: EX-10.46 Subscription Agreement 29 113K
18: EX-10.47 Side Agreement 3 21K
19: EX-10.48 Amended and Restated Limited Liability Company 58 207K
Agreement
20: EX-10.51 Common Stock Purchase Agreement 51 217K
21: EX-10.52 Mobile Wimax Network Collaboration Agreement 36 112K
22: EX-10.53 Stock Purchase Agreement 81 340K
23: EX-10.55 Wireless Broadband System Services Agreement 20 48K
24: EX-10.56 Wireless Broadband System Infrastructure Agreement 146 358K
25: EX-10.57 Wireless Broadband Cpe Supply Agreement 40 94K
26: EX-10.58 Side Letter Agreement 9 51K
27: EX-10.59 Master Royalty and Use Agreement 196 648K
28: EX-10.60 Master Royalty and Use Agreement 103 325K
29: EX-10.61 Membership Interest Purchase Agreement 51 181K
30: EX-10.62 Purchase Agreement 64 201K
31: EX-10.63 Educational Broadband Service Long Term De Facto 84 276K
Transfer Lease Agreement
32: EX-21.1 List of Subsidiaries 2± 13K
EX-10.52 — Mobile Wimax Network Collaboration Agreement
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EXHIBIT 10.52
CONFIDENTIAL
MOBILE WIMAX NETWORK COLLABORATION AGREEMENT
THIS MOBILE WIMAX NETWORK COLLABORATION AGREEMENT (this "Agreement") is
made and entered into as of this 28th day of June, 2006 ("Execution Date") by
and between Intel Corporation, a Delaware corporation ("Intel"), and Clearwire
Corporation ("Clearwire"). Each of Clearwire and Intel is referred to herein
individually as a "Party" and collectively as the "Parties".
RECITALS
A. The Parties desire to establish a strategic relationship through which
Clearwire will develop and deploy a Mobile WiMAX Network in the United States,
and Intel will develop and market certain integrated circuits, modules and other
platforms as more clearly defined below to enable OEMs to further develop and
sell end user devices for use on the Clearwire Mobile WiMAX Network. Through the
strategic relationship, the Parties also plan to enable the delivery of
broadband access and additional value added services targeted at Mobile
Computing Devices, on the terms and conditions hereinafter set forth.
B. The Parties are entering into this Agreement with the objective of
accelerating deployment and adoption of WiMAX products and networking services
in the United States by proactively building a Mobile WiMAX Network that will
provide leading edge wireless broadband access for customers using WiMAX
products, transitioning existing Expedience based networks to Mobile WiMAX
Networks and providing appropriate incentives to OEMs that manufacturer Mobile
Computing Devices to incorporate WiMAX technology as soon as it is appropriate
to do so as more clearly described below.
C. The Parties are entering into this Agreement with the understanding that
the respective commitments of the Parties regarding Mobile WiMAX Network
deployment, product development, intellectual property framework, co-marketing
efforts and other collaborative activities envisioned herein are predicated on
the other Party meeting its commitments hereunder for such Mobile WiMAX Network
deployment, product development, intellectual property framework and marketing
efforts.
D. Intel Pacific Inc., an affiliate of Intel, and Clearwire have entered
into that certain Stock Purchase Agreement dated June 27, 2006 (the "Investment
Agreement") pursuant to which Intel is making a significant investment in
Clearwire Corporation, subject to certain conditions to Closing (as that term is
defined in the Investment Agreement) which investment is integral to the
relationship established pursuant to the terms hereinafter set forth.
1. DEFINITIONS.
1.1 "ACCESS" means the establishment of wireless internet connectivity
between a client device and the Clearwire Network over licensed spectrum.
1.2 "ACCESS FEE" shall have meaning set forth in Section 5.2.3.
1.3 "ACCESS REVENUES" means end user access revenue [***]
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[***]
1.4 "ACTIVATION FEE" shall have the meaning set forth in Section 5.2.1.
1.5 [***]
1.6 [***]
1.7 "BACKGROUND IP" means all Intellectual Property and Patents belonging
to or controlled by either Party, (i) developed, conceived, obtained or acquired
prior to the Effective Date of this Agreement or (ii) developed, conceived,
obtained or acquired independently of this Agreement or not in furtherance of
any work pursuant to the Prior Agreement or this Agreement.
1.8 "BASE SUBSCRIBER LEVEL" means the number of Subscribers using Intel
Mobile Computing Devices in a given period as shown in the table in Part 3 of
Exhibit A.
1.9 "CLEARWIRE DEVELOPMENTAL SOFTWARE" means Clearwire's developmental
software comprised of appropriate modules required by Intel to support the
development, test and validation of Clearwire systems based on Intel Silicon.
1.10 "CLEARWIRE FIELD OF USE" means the deployment of broadband wireless
access systems and the marketing, sale and distribution of Clearwire Products.
1.11 "CLEARWIRE INVENTIONS" means those Inventions that are either (i) made
solely by employees of Clearwire while engaged in work pursuant to this
Agreement, (ii) Derivatives of copyrights or Patents owned or licensed by
Clearwire, or (iii) developed jointly by employees of Clearwire and Intel while
engaged in work pursuant to this Agreement and are physically integrated into a
Clearwire Product.
1.12 "CLEARWIRE NETWORK" means Clearwire's implementation of a Mobile WiMAX
Network that is owned, controlled or managed by Clearwire. For the avoidance of
doubt the term "Clearwire Network" shall not include roaming arrangements.
1.13 "CLEARWIRE PRODUCTS" means the following products manufactured by or
for Clearwire: Base station equipment and customer premise equipment based on
Intel Silicon operating in the 2.5GHz, 3.5GHz and 5.8GHz frequency bands or
other frequency bands, and that comply with the Solution Specifications of the
IEEE 802.16e Standard.
1.14 "CLEARWIRE RESELLER" means any third party re-seller of the Clearwire
Network services.
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1.15 "CMA" means cellular market area as that term is customarily defined
in the industry.
1.16 "CO-BRANDED SERVICE OFFERING" means a Mobile WiMAX Network service
[***]. For the avoidance of doubt,Co-Branded service offering does not include a
service offering that is marketed with a standard Intel technology brand or
Intel platform brand such as Intel(R) Centrino.
1.17 "DERIVATIVE" means (i) for material subject to copyright protection,
any work that is based upon one or more pre-existing works, such as a revision,
modification, translation, abridgment, condensation, expansion, collection,
compilation or any other form in which such pre-existing works may be recast,
transformed or adapted, or (ii) for patentable or patented materials, any
adaptation, subset, addition, improvement or combination.
1.18 "DUAL MODE DEVICE(S)" means broadband wireless residential gateway
modems designed to operate on a Mobile WiMAX Network and on a broadband wireless
network based on Expedience technology and that will primarily operate in the
2.5 GHz and 3.5 GHz spectrum bands, or such other bands as dictated by business
needs.
1.19 "EFFECTIVE DATE" means the date of Closing (as that term is defined in
the Investment Agreement).
1.20 "EXPEDIENCE" means the NextNet proprietary non-line of sight broadband
wireless technology.
1.21 "INTEL ARCHITECTURE" means microprocessors developed and sold by Intel
based on the X86 instruction set or its successors.
1.22 "INTEL DEVELOPMENTAL SOFTWARE" means Intel's developmental software
comprised of appropriate modules used by Clearwire to support the operation of
Intel Silicon based Clearwire systems.
1.23 "INTEL FIELD OF USE" means the marketing, sales and distribution of
Intel Silicon and related technologies to be utilized in connection with WiMAX.
1.24 "INTEL INVENTIONS" means those Inventions that are either (i) made
solely by employees of Intel while engaged in work pursuant to this Agreement,
or (ii) Derivatives of copyrights or Patents owned or licensed by Intel or (iii)
developed jointly by employees of Clearwire and Intel while engaged in work
pursuant to this Agreement or the Prior Agreement and are physically integrated
into Intel Silicon.
1.25 "INTEL SILICON" means Intel IEEE 802.16e-2005 standards based
integrated circuits including medium access control/baseband and transceivers.
1.26 "INTEL MOBILE COMPUTING DEVICE" means a battery operated mobile or
portable computing device containing Intel Architecture.
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1.27 "GOVERNMENTAL AUTHORITY" means any foreign, federal, national,
supranational, international, state, provincial, municipal, local, or similar
government, governmental, regulatory or administrative authority, agency, board,
commission, entity or instrumentality or any court, tribunal, or judicial or
arbitral body.
1.28 "GOVERNMENTAL ORDER" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
1.29 "GSA" means geographic service area.
1.30 "INITIAL SERVICE LAUNCH" means that period of time when there are
[***] POPs Covered and the Integrated Service is commercially available in
conjunction with the availability of a WiMAX-enabled Intel Mobile Computing
Device.
1.31 "INTEGRATED SERVICE" means the Intel and Clearwire Co-Branded Service
Offering as developed by the Parties as contemplated in this Agreement.
1.32 "INTELLECTUAL PROPERTY" means any and all intellectual property rights
related to the Technology and Inventions, including all of the following and all
rights in, arising out of, or associated therewith: (i) procedures, designs,
inventions, and discoveries; (ii) works of authorship, copyrights and other
rights in works of authorship; (iii) mask work rights; and (iv) know-how,
show-how and trade secrets on a world wide basis, but excluding all Patents
issued or issuable thereon, and all trademarks, trade names, or other forms of
corporate or product identification.
1.33 "INVENTIONS" means any software, hardware, systems, material, works,
information, discoveries, inventions, processes, data or products, including
Derivatives, that are (i) copyrightable, patentable or subject to trade secret
protection, and (ii) created by Intel or Clearwire in the performance of this
Agreement or the Prior Agreement. Inventions are Clearwire Inventions, Intel
Inventions or Joint Inventions.
1.34 "INVESTMENT AGREEMENT" means the Stock Purchase Agreement between
Intel Pacific Inc. and Clearwire Corporation, dated as of the Execution Date.
1.35 "IOT" means interoperability testing.
1.36 "JOINT INVENTIONS" means those inventions that were Joint Inventions
under the Prior Agreement or made with joint inventive contributions by
employees of Clearwire and Intel while performing work pursuant to this
Agreement that are not Intel Inventions and not Clearwire Inventions.
1.37 "LAW" means any foreign, federal, national, supranational,
international, state, provincial, municipal, local or similar statute, law,
ordinance, regulation, rule, code, order, requirement or rule of law.
1.38 "MOBILE WIMAX NETWORK" means a broadband wireless network based on the
IEEE 802.16e-2005 standard.
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1.39 "NATIONWIDE SERVICE LAUNCH" occurs when there are [***] POPS Covered
and commercial services are available to Subscribers on the Clearwire Network.
1.40 "NETWORK DEPLOYMENT SCHEDULE" means the Network Deployment Plan and
Schedule set forth in Part 1 of Exhibit A attached hereto.
1.41 "NEXTNET" means NextNet Wireless, Inc.
1.42 "OEMS" means original equipment manufacturers.
1.43 "PARTIES" means Intel and Clearwire.
1.44 "PATENTS" means all classes or types of patents (including, without
limitation, originals, divisions, continuations, continuations-in-part,
extensions or reissues), and applications for these classes or types of patent
rights in all countries of the world.
1.45 "PERFORMANCE NOTEBOOK" means a Intel Mobile Computing Device that has
WiFi capability and is branded or marketed by Intel as high performance (i.e.
Intel(R) Centrino(R), Centrino-Duo(R), or any equivalent or successor brands),
and is part of the general industry defined notebook personal computer market
segment.
1.46 "POPS" means population in a particular geographic area.
1.47 "POPS COVERED" means natural persons who reside within the geographic
area in which Clearwire Network services are available and who can access the
Clearwire Network for a standard level of service, based on census data.
1.48 "PRIOR AGREEMENT" means the Joint Development Agreement between Intel
and Clearwire Corporation, dated October 23,2004.
1.49 "SUBSCRIBER" means a subscriber to the mobile services offering made
available through the Clearwire Network.
1.50 "SUBSIDIARY" means any corporation, partnership or other entity, now
or hereafter existing, (i) more than percent (50%) of whose outstanding shares
or securities entitled to vote for the election of directors or similar managing
authority is directly or indirectly owned or controlled by a Party hereto, or
(ii) that does not have outstanding shares or securities but more than fifty
percent (50%) of whose ownership interest representing the right to make the
decisions for such entity is directly or indirectly owned or controlled by a
Party hereto.
1.51 "TECHNICAL PERFORMANCE CRITERIA DOCUMENT" is the document that is
attached as Exhibit B.
1.52 "TECHNOLOGY" means all information other than Inventions relating to
or developed while performing the functions described in any statement of work
into which the Parties enter in connection with this Agreement and during
distribution of semiconductor silicon products and technologies to be utilized
in systems deployed in IEEE802.16e-2005 / WiMAX networks.
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1.53 "TIER 1 DEPLOYMENT" means a deployment by Clearwire of any broadband
wireless network in any of the largest 50 CMAs by population.
1.54 "VALUE ADDED SERVICES" means those services provided by Clearwire as
part of the Clearwire Service other than Access or those services offered as
part of the Integrated Service
1.55 "WIMAX FORUM WAVE 1 CERTIFIED" means the definition as used by the
WiMAX Forum.
1.56 "WIMAX FORUM WAVE 2 CERTIFIED" means the definition as used by the
WiMAX Forum.
2. DEVELOPMENT COLLABORATION.
2.1 [***] Clearwire and Intel will work together to determine the [***].
Clearwire will develop or have developed a [***]. If Clearwire decides to
develop a [***] Clearwire and Intel will work together, and will use
commercially reasonable efforts to obtain NextNet's participation, to develop
[***]
2.2 EQUIPMENT AND DEVICES FOR MOBILE SERVICES.
2.2.1 Promptly after the Effective Date, Clearwire will begin a
process to select infrastructure equipment vendor(s) to support the deployment
of the Clearwire Networks in accordance with the Network Deployment Schedule.
2.2.2 Intel will develop and offer to OEMs WiMAX enabled Intel Mobile
Computing Devices. Beginning in the [***] Intel will conduct IOT on a Clearwire
Network with the infrastructure vendors chosen by Clearwire to ensure client
device and infrastructure equipment interoperability.
2.2.3 Intel will work with OEMs and original design manufacturers to
help ensure the availability of client devices (including Intel Mobile Computing
Devices) for Mobile WiMAX Networks from multiple vendors.
2.2.4 The Parties will collaborate on [***]. The objective of these
collaborations is to
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help improve Mobile WiMAX Network performance, drive network and subscriber
device interoperability and enable worldwide roaming.
2.2.5 The Parties will meet on an as needed basis to review and manage
the multiple areas of collaboration outlined herein.
3. MOBILE WIMAX NETWORK AND EQUIPMENT DEPLOYMENT.
3.1 MOBILE WIMAX NETWORK DEPLOYMENT. In consideration for the significant
efforts and expenditures anticipated to enable customers to use a leading edge
Mobile WiMAX Network on which they will use WiMAX enabled products and related
services, and subject to applicable Law, Clearwire agrees to perform the
following activities:
3.1.1 Clearwire will use commercially reasonable efforts to deploy the
Clearwire Network and offer the Integrated Services as contemplated herein
pursuant to the Network Deployment Schedule specified in Exhibit A hereto. After
the time that the performance criteria specified in the Technical Performance
Criteria Document specified in Exhibit B hereto have all been met, and until
such time as Clearwire has achieved [***] million POPs Covered in the United
States, Clearwire will not commercially deploy any wireless broadband or data
networks other than a Mobile WiMAX Network [***]. The Parties understand and
agree that once the [***] million POPs Coverage has been met, Clearwire is free
to deploy other networks.
3.1.2 Clearwire agrees that any new Tier 1 Deployment by Clearwire
(other than those listed in Exhibit C attached hereto - which Exhibit may be
modified by Clearwire with Intel's prior written approval) will be Mobile WiMAX
Networks, provided that Clearwire may deploy Expedience-based networks as
follows (A) [***] within the [***] and (B) [***] in [***]. The foregoing
limitations with respect to Expedience based networks will be modified by
mutual agreement of the Parties in the event that the performance criteria
specified in the Technical Performance Criteria Document attached hereto as
Exhibit B are not achieved by the milestone completion date specified in the
Network Deployment Schedule, and each Party agrees to act in a commercially
reasonable manner in negotiating such modification.
3.1.3 Clearwire will use commercially reasonable efforts to [***]
3.1.4 Clearwire will use commercially reasonable efforts to transition
existing Expedience-based networks to Clearwire Networks in accordance with the
Technical Performance Criteria Document.
3.2 [***]:
3.2.1 for a period of [***] years from the Effective Date for Intel
Mobile Computing Devices, but only so long as (a) Intel Mobile Computing Devices
are commercially available from Clearwire's primary, vendor and at least one
additional OEM from the following list:
[***]
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[***] and (b) the solutions are cost competitive as compared to similar
solutions available for Mobile WiMAX Networks; and
3.2.2 for the [***] of residential gateway modems that operate solely
in 802.16e-2005 mode [***] deployed by Clearwire (it being understood that, for
the purposes of this paragraph, a product generation includes all devices
designed for a given wave of the certification as defined by the WiMAX Forum),
but only if (a) such solutions are commercially available from Clearwire's
primary vendor or an alternative vendor in the event Clearwire's primary vendor
does not have a commercially available solution available at the time of device
design selection, and (b) the solutions are cost competitive as compared to
similar solutions available for Mobile WiMAX Networks. [***]
3.2.3 In the event that [***] Clearwire will provide Intel with a
written explanation as to the specific issues which precluded [***], in such a
way that does not breach confidentiality terms (if any) between Clearwire and
any potential vendor, and will give Intel a reasonable time period to address
such issues prior to [***].
3.3 NETWORK DEPLOYMENTS OUTSIDE OF THE UNITED STATES. Clearwire will use
commercially reasonable efforts to deploy Mobile WiMAX Networks for all new
wireless broadband network deployments outside of the United States on or after
[***], provided that the key milestones for deployments in the United States, as
defined in the Network Deployment Schedule, have been met. Notwithstanding the
foregoing, from and after the time that the performance criteria specified in
the Technical Performance Criteria Document have all been met, Clearwire will
use commercially reasonable efforts to deploy Mobile WiMAX Networks for all new
wireless broadband network deployments outside the United States.
3.4 QUARTERLY MEETINGS. Senior management of the Parties will agree to
meet, beginning Q4'06, and continuing on at least a quarterly basis for the
duration of this Agreement, to review the current information regarding spectrum
acquisition, Clearwire Network deployment status and milestones, client device
availability, [***] and POPs Covered data. The prior quarter's [***] and POPs
Coved data will be provided in writing to the other Party prior to the quarterly
meeting or within (60) days from the end of each fiscal quarter. Such data will
be certified by an officer of the disclosing Party prior to the disclosure of
such data to the other Party as specified in this Section. The information
disclosed shall be considered the confidential information of the disclosing
Party.
3.5 LIQUIDATED DAMAGES. The Parties agree that it is difficult to estimate
the amount of damages that Intel may suffer by reason of a failure by Clearwire
to deploy Mobile WiMAX Networks in accordance with its obligations under Section
3.1 and the other terms of this
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Agreement and that Parties have agreed that, in the event of such failure by
Clearwire, Intel shall be entitled to receive from Clearwire as liquidated
damages, and not as a penalty, the sum of [***] U.S. dollars [***].
4. MARKETING FOR MOBILE SERVICES.
4.1 COMMITMENT OF MARKETING DOLLARS.
4.1.1 Subject to the provisions of this Section 4; Intel expects to
spend a total of [***] for marketing [***] for WiMAX enabled devices enabled to
work on the Clearwire Network ("Marketing Funds"). Intel commits to spend (i)
$[***] of the Marketing Funds upon successful completion of Milestone #6 in
Section 1 of Exhibit A (Network Deployment Plan) and (ii) an additional $[***];
provided Clearwire has successfully achieved [***] million POPs Covered. Upon
successful completion of both (i) and (ii) of the foregoing sentence and unless
otherwise agreed to by the Parties, Intel will spend the entirety of such
Marketing Funds within [***] after Clearwire reaches [***] million POPs Covered.
4.1.2 The purpose of these Marketing Funds is to increase Subscribers
to the Integrated Service Offering, increase demand for Intel Mobile Computing
Devices enabled to work on the Clearwire Network and to reduce Clearwire's
expenses associated with acquiring Subscribers. As the Clearwire Mobile Network
is deployed per the Network Deployment Schedule specified in Exhibit A hereto
and as the Integrated Service Offering is made available to prospective
Subscribers, Intel will spend the committed Marketing Funds, or portion thereof,
pursuant to Section 4.1.1 above in a manner and on a schedule that it reasonably
believes is likely to accomplish the foregoing purposes, taking into account the
need to balance the importance of creating early brand awareness and customer
growth with the greater effectiveness of marketing when the Clearwire Network is
more fully developed.
4.1.3 The marketing activities to be funded by Intel using such
Marketing Funds may include, but not be limited to, [***] Intel will retain sole
discretion over how the marketing funds are used for specific activities
identified herein.
4.2 INTENTIONALLY BLANK
4.3 MARKETING PLAN. In addition to the marketing activities specified in
Section 4.1 above, Intel and Clearwire will develop a mutually agreed upon
multi-year co-marketing plan to promote the adoption of Clearwire Network based
mobile services using Intel Architecture based devices, including but not
limited to: [***]. Each Party will make in kind resource contributions and
equally share in any external costs related to the co-marketing efforts.
4.4 CONTROL OVER BRANDING AND MARKS. Except as otherwise expressly agreed
to in writing by the Parties in connection with the branding or co-branding
arrangements contemplated
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under this Agreement, (a) each Party will retain sole discretion over the use of
their respective brands, trade names, trademarks and service marks, and (b)
neither Party will use the other Party's brands, trade names, trademarks or
service marks.
5. MOBILE SERVICES COLLABORATION.
5.1 COLLABORATION ON INTEGRATED SERVICE. Subject to applicable Law, the
Parties will collaborate on the definition and roadmap for the Integrated
Service for Intel Mobile Computing Devices to be delivered over the Clearwire
Network. The structure of this joint, Integrated Service offering is as follows.
5.1.1 Except for the obligations of Intel as expressly stated in this
Agreement, Clearwire will be responsible for all service and support
requirements necessary to provide the Integrated Service offering.
5.1.2 The scope and terms of the Integrated Service offering will be
mutually agreed upon by the Parties.
5.1.3 [***].
5.1.4 Clearwire will make themselves available to discuss Integrated
Services and the plans for the Clearwire Network with the OEMs that manufacture
Intel Mobile Computing Devices beginning [***].
5.2 FEES. Clearwire will pay Intel the following fees:
5.2.1 Clearwire will pay Intel [***] for each new subscriber addition
using a Intel Mobile Computing Device that is activated on the Clearwire Network
after Clearwire has successfully achieved Nationwide Service Launch, [***]
Clearwire's obligation to pay Intel the Activation Fee will commence upon
Clearwire successfully achieving the Nationwide Service Launch and will continue
for a period of time equal to [***].
5.2.2 Subject to applicable Law, Clearwire agrees to pay the
distribution channel, including OEMs and retailers, marketing fees sufficient to
incentivize them to promote activation of the Integrated Services at a level
such that such fees, in the aggregate, are equal to the lesser of [***] or an
amount equal to [***].
5.2.3 Clearwire will pay to Intel [***] of the Access Revenue
hereafter received by Clearwire, its Subsidiaries or affiliates ("Access Fee").
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5.2.4 The Activation Fee and the Access Fee will be payable on a
quarterly basis within fifteen (15) days after completion of Clearwire's
financial statements for the applicable quarter. Clearwire shall wire transfer
the full amount of the Activation Fees and the Access Fees due with respect to
such quarter to an account specified by Intel. Simultaneously with paying the
Activation Fees and the Access Fees each quarter, Clearwire shall submit a
report, in a form reasonably acceptable to Intel, which shall be certified by an
authorized representative of Clearwire and which will state the number of new
Subscriber additions using a Intel Mobile Computing Device activated on the
Clearwire Network during such quarter, the Access Revenue earned by Clearwire or
its affiliates during such quarter and set forth therein a calculation of the
Activation Fees and the Access Fees payable to Clearwire with respect thereto.
In all cases, the Access Revenues employed in the computation of Access Fees
shall be genuine and accurate. Clearwire covenants not to engage in manipulative
transfer pricing or any other means to avoid the intended application of this
Section. Reports shall be sent to the following: Intel Post Contract Management
- M/S JF3-149,2111 N.E. 25th Avenue, Hillsboro, Oregon 97124.
5.2.5 [***]
5.2.6 Intel will retain the rights to work with other service
providers to offer similar services.
5.3 [***]
5.4 [***]
5.4.1 For a period of [***] from Nationwide Service Launch, [***]
provided (a) that this obligation shall not apply to [***]; and (b) an
appropriate feasible technical solution is identified to support the obligations
of this provision. The Parties will define an appropriate feasible technical
solution and Clearwire will not unreasonably withhold its consent and
implementation to the solution proposed.
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5.4.2 For the Integrated Services as mutually defined and developed by
the Parties as contemplated herein, [***]. This section survives any termination
of the Agreement for so long as such Integrated Service is being offered by the
Parties.
5.4.3 For a period of [***] from Nationwide Service Launch, Clearwire
agrees to [***]
5.5 VALUE ADDED SERVICES. The Parties will investigate the development and
deployment of Value Added Services over the Clearwire Network that utilizes
current and future features of Intel Mobile Computing Devices. The Parties
acknowledge that third parties may become involved in these development efforts.
For each new Value Added Service offered by Clearwire on the Clearwire Network,
Clearwire shall provide Intel with the option to include such Value Added
Service as part of the Integrated Service on terms and conditions no less
favorable than Clearwire offers to any third party.
5.6 PRIOR AGREEMENT. Except as set forth in this Agreement, the Joint
Development and Collaboration Agreement between the Parties dated October 13,
2004 (the "Prior Agreement") is terminated as of the Effective Date of this
Agreement. Each Party releases the other Party and its Affiliates from any
liability or obligations arising under such Agreement, and each Party waives all
claims relating to, the Prior Agreement.
5.7 AUDIT RIGHTS.
5.7.1 Clearwire agrees to make and to maintain until the expiration of
[***] after the last payment under this Agreement is due, sufficient books,
records and accounts regarding activation of Subscribers on the Clearwire
Network, activation of any Intel Mobile Computing Devices, Access Revenue,
Clearwire's compliance with the WiMAX spending commitment contained in the "Use
of Proceeds" section of the Investment Agreement or other information that is
relevant to Clearwire's payment and revenue share obligations hereunder and the
WiMAX spending commitment contained in the "Use of Proceeds" section of the
Investment Agreement. Intel shall have the right not more than once every [***]
to, directly or through an agent reasonably acceptable to Clearwire, examine
such books, records and accounts, upon reasonable notice and during Clearwire's
normal business hours, to verify Clearwire's reports on the amount of payments
made to Intel under this Agreement, Clearwire's compliance with the terms and
conditions of this Agreement and Clearwire's compliance with the terms and
conditions of the "Use of Proceeds" section of the Investment Agreement.
5.7.2 If any such examination discloses a shortfall or overpayment in
the amounts due to Intel hereunder, the appropriate Party shall reimburse the
other Party for the full amount of such shortfall or overpayment. Should the
audit discover any errors or omissions by Clearwire which result in Clearwire
underpaying Intel by more than [***] of the amounts due with respect to any
particular month being audited, Clearwire shall reimburse Intel for the costs of
such audit.
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5.7.3 Should such examination disclose that Clearwire has materially
failed to meet the conditions of the "Use of Proceeds" section contained in the
Investment Agreement, Intel may terminate this Agreement for material breach and
may exercise any other remedies available to Intel under this Agreement, the
Investment Agreement or otherwise.
5.8 CURRENCY. All Activation Fees, Access Fees and other payments to Intel
hereunder shall be in United States Dollars. Payments based on transaction in
currencies other than U.S. Dollars shall be converted to dollars according to
the official rate of exchange for that currency, as published in the Wall Street
Journal (Western Edition), on the last banking day of the calendar month in
which the royalties accrued.
5.9 WITHHOLDING TAX. All payments shall be made free and clear without
deduction for any and all present and future taxes imposed by any taxing
authority. In the event that Clearwire is prohibited by Law from making such
payments unless such deductions are made or withheld therefrom, then Clearwire
shall pay such additional amounts as are necessary in order that the net amounts
received by Intel, after such deduction or withholding, equal the amounts which
would have been received if such deduction or withholding had not occurred;
provided, however, that no such additional amount shall be required to be paid
if (i) Intel is entitled to claim a foreign or other tax credit with respect to
such tax, (ii) such tax is an income, gross receipts or property tax that is the
liability of Intel under the laws of the jurisdiction imposing such tax or (iii)
such tax may be avoided by Intel or Clearwire, as applicable, providing the
other with a resale or other certificate. In the event any tax or deduction is
withheld from any payment, Clearwire shall promptly furnish Intel with a copy of
an official tax receipt or other appropriate evidence of such taxes, including
any taxes on any additional amounts paid pursuant to this Section 5.9. Anything
in this Section 5.9 to the contrary notwithstanding, Intel shall be solely
responsible for all income and franchise taxes imposed on it for payments
received by it under this Agreement, as well as for sales and property taxes
imposed upon it in connection with such payments. In the event that any tax or
duty for which Clearwire is responsible for paying under this Section 5.9 is
legally imposed initially on Intel or Intel is later assessed by any taxing
authority, then Intel will be promptly reimbursed by Clearwire for such tax or
duty plus any interest and penalties suffered by Intel with respect to such tax.
Intel and Clearwire agree to cooperate in good faith to resolve any disagreement
between them as to the applicability of any sales, use, stamp or value added tax
to any payment and further agree to consult with each other and to work in good
faith toward a joint resolution of any audit or similar proceeding in which any
taxing authority seeks to impose any such tax on a payment called for under this
Agreement. Clearwire agrees to pay all reasonable out-of-pocket expenses
incurred by Intel in contesting the imposition by any taxing authority of any
sales, use, stamp or value added tax on a payment called for by this Agreement.
This clause shall survive the termination of this Agreement.
5.10 LATE PAYMENT. Clearwire agrees that any payments required under the
terms of this Agreement which are not paid when due will accrue interest at the
prime lending rate established by Citibank, New York, commencing thirty (30)
days after the due date as established by this Agreement. The right to collect
interest on such late payments shall be in addition to any other rights that
Intel may have.
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5.11 FULFILLMENT OF RESPONSIBILITIES. The commercial relationships
described in this Section 5 are contingent upon each Party's satisfaction of its
other responsibilities identified in this Agreement.
5.12 INTERNATIONAL COLLABORATION. Subject to applicable Law, the Parties
may agree to develop [***] consistent with the terms and conditions of this
Agreement.
6. INTELLECTUAL PROPERTY.
6.1 OWNERSHIP.
6.1.1 BACKGROUND IP. Intel shall have exclusive ownership of Intel's
Background IP, and Clearwire shall have exclusive ownership of Clearwire's
Background IP.
6.1.2 INTEL INVENTIONS AND CLEARWIRE INVENTIONS. Intel shall have
exclusive ownership of Intel Inventions, and Clearwire shall have exclusive
ownership of Clearwire Inventions.
6.1.3 COLLABORATIVE DEVELOPMENT. The Parties acknowledge that they do
not currently envision collaborative generation of inventions under this
Agreement that will constitute Joint Inventions. In the event the Parties
undertake collaborative development of such inventions, the Parties will
establish an IP Review Board to determine ownership as between the Parties. In
the event any disputes regarding ownership of such inventions cannot be resolved
by the IP Review Board, the Parties will follow the procedure specified in
Section 13.2 below. [***], the Parties will define and mutually agree upon terms
related to intellectual property rights related to that specific area of
development.
6.2 FILING OF PATENT APPLICATIONS. Intel, with respect to Intel Inventions,
and Clearwire, with respect to Clearwire Inventions, shall have the exclusive
right to file any patent applications arising from such Inventions anywhere in
the world at its own sole expense, and shall thereafter own all such
applications and any continuations, continuations-in-part, divisions,
extensions, reissues and reexaminations of any such applications, as well as any
patents resulting from such applications.
6.3 COPYRIGHTS. Intel shall have copyright ownership of any Intel
Inventions and any other software and documents it writes by itself or through
its designated contractors during the term of this Agreement. Clearwire shall
have copyright ownership of any Clearwire Inventions and any other software and
documents it writes by itself or through its designated contractors during the
term of this Agreement. Information generated jointly by the Parties that is
copyrighted or copyrightable information and that is not an Intel Invention or
Clearwire Invention shall be jointly owned copyright property of both Parties.
Subject to the terms of Section 10 (Confidentiality) of this Agreement, such
jointly owned copyright property may be reproduced, distributed, displayed,
performed and made into derivatives or modified by either of the Parties without
the consent of the
[*** Confidential Treatment Requested]
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other Party, but shall not be transferred, sold, or publicly distributed without
the prior written consent of the other Party.
6.4 TRADE SECRETS. To the extent that any information generated jointly by
the Parties hereunder is not subject to a license to any Background IP held by
the Parties provided in this Section 6, such information will be treated as the
confidential, jointly owned trade secrets of both Parties and shall not be
transferred, sold, or publicly disclosed or released without the prior written
consent of the other Party.
6.5 RECIPROCAL SOFTWARE LICENSE. Subject to the terms and conditions of
this Agreement, Clearwire grants to Intel a world-wide, non-transferable,
royalty free, fully paid up, copyright license (without the right to sublicense)
to reproduce and create derivative works of Clearwire Developmental Software,
solely within Intel for its internal use and solely for the purpose of
performing its obligations under this Agreement. Subject to the terms and
conditions of this Agreement, Intel grants to Clearwire a world-wide,
non-transferable, royalty free, fully paid up, copyright license (without the
right to sublicense) to reproduce and create derivative works of Intel
Developmental Software, solely within Clearwire for its internal use and solely
for the purpose of performing its obligations under this Agreement.
6.6 RECIPROCAL LICENSE TO JOINT INVENTIONS. Clearwire grants to Intel a
world-wide, irrevocable, transferable, royalty-free, fully-paid perpetual
license (with the right to sublicense) under Clearwire's copyrights and trade
secrets (which have been disclosed to Intel in the performance of this
Agreement), to reproduce, have reproduced, prepare and have prepared Derivatives
of, translate, display, distribute and perform Joint Inventions, but only within
the Intel Field of Use. Intel grants to Clearwire a world-wide, irrevocable,
transferable, royalty-free, fully-paid perpetual license (with the right to
sublicense) under Intel's copyrights and trade secrets (which have been
disclosed to Clearwire in the performance of this Agreement), to reproduce, have
reproduced, prepare and have prepared Derivatives of, translate, display and
distribute Joint Inventions, but only within the Clearwire Field of Use.
6.7 NO OTHER LICENSES. Except as provided herein, no license or other right
is granted, by either Party to the other, by implication, estoppel or otherwise,
under any patents, trade secrets, copyrights, or other Intellectual Property
rights now or hereafter owned or controlled by such Party except for the
licenses and rights expressly granted in this Agreement. Nothing contained in
this Agreement shall be construed as:
6.7.1 a warranty or representation by either Party as to the validity,
enforceability, and/or scope of any Intellectual Property or Patent;
6.7.2 a license or any other rights under any of Intel's Patent Rights
or Intellectual Property rights or technical information related to any
microprocessor (including, without limitation, coprocessors and embedded
controllers), associated core logic device (including without limitation
chipsets), flash memory or semiconductor process and manufacturing technology;
6.7.3 imposing upon either Party any obligation to institute any suit
or action for infringement of any Intellectual Property or Patent, or to defend
any suit or action brought by a third
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Party which challenges or concerns the validity, enforceability, or scope of any
Intellectual Property or Patent;
6.7.4 imposing on either Party any obligation to file any patent
application or other Intellectual Property right application or registration or
to secure or maintain in force any Patent or other Intellectual Property;
6.7.5 a license to any of Intel's Background IP, Clearwire's
Background IP, Intel Inventions or Clearwire Inventions;
6.7.6 an obligation to furnish any technical information or know-how
except as otherwise might be expressly required hereunder;
6.7.7 conferring any right to use in advertising, publicity, or
otherwise, any trademark, trade name or names, or any contraction, abbreviation
or simulation thereof, of either Party; or
6.7.8 conferring by implication, estoppel or otherwise, upon any Party
licensed hereunder, any license or other right under any Intellectual Property
right or Patent Right except the licenses and rights expressly granted
hereunder.
6.8 LICENSING FREEDOM. Except as set forth in Section 6.3 above, each Party
shall have the right to license independently to any third party any
Intellectual Property rights arising from any Joint Inventions, any of its own
Inventions and confidential information, whether or not made or created during
the Collaboration. All royalties resulting from such licensing may be retained
solely by the licensor, and there shall be no requirement for accounting to the
other Party to this Agreement.
6.9 FURTHER ASSURANCES.
6.9.1 INSTRUMENTS AND DOCUMENTS. At any time or from time to time on
and after the Effective Date, each Party shall, at the request of the other
Party: (a) deliver to the requesting Party such records, data or other documents
consistent with this Agreement, (b) execute, and deliver or cause to be
delivered, all such assignments or further instruments of transfer or license,
and (c) take or cause to be taken all such other actions, as the other Party may
reasonably deem necessary or desirable in order for the requesting Party to
obtain the full benefits of this Agreement and the transactions contemplated
hereby. Specifically, at the request of a Party and at such Party's expense, the
other Party shall execute, and deliver or cause to be delivered, all such
instruments of transfer, and shall take or cause to be taken all such other
actions as the other Party may reasonably deem necessary or desirable in order
to carry out any assignment hereunder or perfect any rights in any Inventions or
Joint Inventions. Any assigning Party further agrees that its obligation under
this section, when it is in its power to do so, shall continue after the
termination of this Agreement.
6.9.2 ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS. Each Party shall
take commercially reasonable and good faith measures to ensure that any
Intellectual Property rights and Patent Rights of its employees as inventors of
any Joint Invention will be explicitly assigned to that Party. This obligation
includes an obligation to make commercially reasonable payments to its
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employees who invent any Joint Invention in order to acquire all Intellectual
Property rights and Patent Rights of such employees in such Joint Invention.
7. WIMAX PATENT ALLIANCE, CLAIMS OF THIRD PARTY PATENT RIGHTS AND INJUNCTION
7.1 WIMAX PATENT ALLIANCE. Intel will endeavor to create a patent alliance
among holders of essential patents related to IEEE 802.16 based broadband
wireless networks. Clearwire understands that this patent alliance is in the
formative stage. In the event this formation of the patent alliance is
successful, Clearwire will: (a) join the patent alliance under commercially
reasonable terms and conditions; (b) contribute any essential patents to the
patent alliance; (c) participate in the patent alliance as a licensee; (d)
participate in the defensive mechanism and contribute applicable patents to the
patent alliance; and (e) work with Intel to encourage its Mobile WiMAX Network
vendors and suppliers to participate and adhere to patent alliance terms to
obtain the benefits there under.
7.2 CLAIMS OF THIRD PARTY PATENT RIGHTS.
7.2.1 During the period of time that Intel receives Activation Fees as
specified in Section 5.2.1 above, should Clearwire become subject to court
ordered royalty obligations or a monetary judgment due to third party patent
rights in the United States that are necessarily infringed by [***]
7.2.2 [***]
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[***]
7.3 INJUNCTION. In the event that Clearwire becomes subject to an
injunction associated with its deployment or operation of the Clearwire Network
and related services contemplated under this Agreement due to infringement of
third party intellectual property rights, the specific obligations under this
Agreement that are the subject of such injunction will be suspended to the
minimum extent necessary for Clearwire to comply with such court ordered
injunction but only after Clearwire has used its commercially reasonable efforts
to meet the obligations under this Agreement and exhausted every reasonable
legal option to oppose such injunction. Intel may participate in the defense of
such action at its option, and at its expense. Clearwire will still be obligated
to fully perform the other obligations contained in this Agreement, including
those related to the deployment or operation of the Clearwire Network services
that are not expressly the subject of any such injunction. Clearwire also agrees
to work with Intel to explore other commercially reasonable alternatives in the
event of any such injunction, such as licensing arrangements or modifying the
network in such a way as to be non-infringing.
8. REPRESENTATIONS AND WARRANTIES
8.1 CLEARWIRE REPRESENTATIONS AND WARRANTIES. Clearwire hereby represents
and warrants to Intel as follows:
8.1.1 It is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and has all
necessary power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery by Clearwire of this Agreement, and the performance
by Clearwire of its obligations hereunder have been duly authorized by all
requisite action on the part of Clearwire. This Agreement has been duly executed
and delivered by Clearwire, and (assuming due authorization, execution and
delivery by Intel) this Agreement constitutes a legal, valid and binding
obligation of Clearwire, enforceable against Clearwire in accordance with its
terms.
8.1.2 The execution, delivery and performance by Clearwire of this
Agreement does not and will not (i) violate, conflict with or result in the
breach of any provision of its organizational documents, (ii) conflict with or
violate any Law or Governmental Order applicable to it or any of its assets,
properties or business or (iii) conflict with, result in any breach of,
constitute a default (or event which with the giving of notice of a lapse of
time, or both, will become a default) under any agreement with a third party.
8.1.3 Clearwire will comply in all material respects with all Laws,
judgments and other directions or orders imposed by any Governmental Authority
to which its activities under this Agreement are subject and will obtain and
maintain all necessary licenses and certifications required for the performance
of its obligations hereunder.
8.2 INTEL REPRESENTATIONS AND WARRANTIES. Intel hereby represents and
warrants to Clearwire as follows:
[* * * Confidential Treatment Requested]
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8.2.1 It is a company duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization and
has all necessary power and authority to enter into this Agreement, to carry out
its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution and delivery by Intel of this
Agreement, and the performance by Intel of its respective obligations hereunder
have been duly authorized by all requisite action on the part of Intel. This
Agreement has been duly executed and delivered by Intel, and (assuming, due
authorization, execution and delivery by Clearwire) this Agreement constitutes a
legal, valid and binding obligation of Intel, enforceable against Intel in
accordance with their respective terms.
8.2.2 The execution, delivery and performance by Intel of this
Agreement does not and will not (i) violate, conflict with or result in the
breach of any provision of its organizational documents, (ii) conflict with or
violate any Law or Governmental Order applicable to it or any of its assets,
properties or business, or (iii) conflict with, result in any breach of,
constitute a default (or event which with the giving of notice of a lapse of
time, or both, will become a default) under, any agreement with a third party.
8.2.3 Intel will comply in all material respects with all Laws,
judgments and other directions or orders imposed by any Governmental Authority
to which its activities under this Agreement are subject, and will obtain and
maintain all necessary licenses and certifications required for the performance
of its obligations hereunder.
8.3 DISCLAIMER. EXCEPT AS EXPLICITLY PROVIDED IN THIS ARTICLE, THE PARTIES
MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, AND SPECIFICALLY DISCLAIM, ANY WARRANTIES AS TO THE USEFULNESS,
ACCURACY, RELIABILITY OR EFFECTIVENESS OF ANY SERVICES, OR THAT SUCH SERVICES
WILL MEET THE NEEDS OF ANY PARTY. WITHOUT LIMITING THE FOREGOING, EACH PARTY
DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY.
EXCEPT AS EXPRESSLY PROVIDED FOR IN THE LIQUIDATED DAMAGES SECTION 3.5
ABOVE [***] IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE
OF ACTION OR THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE.
10. CONFIDENTIALITY AND PUBLICITY.
All confidential or proprietary information and materials disclosed to the
other Party hereunder shall be disclosed in accordance with the requirements of
the Corporate Non-Disclosure Agreement ("CNDA"), No. 6061146, entered into
between the Parties. Each Party agrees to maintain such confidential information
in accordance with the terms of this Agreement and the CNDA and any other
applicable, separate non-disclosure agreement between the Parties. At a
[*** Confidential Treatment Requested]
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minimum, each Party agrees to maintain such information in confidence and limit
disclosure on a need to know basis, to take reasonable precautions to prevent
unauthorized disclosure, and to treat such information as it treats its own
information of a similar nature, until the information becomes rightfully
available to the public through no fault of the non-disclosing Party. Except as
otherwise set forth in this Agreement, neither Party shall publish or use any
advertising, sales promotion, press releases or publicity matters relating to
this Agreement without the prior written approval of the other Party. Except as
otherwise set forth in this Section and the Side Letter Agreement (dated as of
the date herewith) between Clearwire Corporation and Intel Pacific Inc., neither
Party shall publish or use any advertising, sales promotion, press releases or
publicity matters relating to this Agreement without the prior written approval
of the other Party.
11. EXPORT LAWS.
The disclosure and transfer of technical information by either Party under
this Agreement shall be subject to the then-existing United States export
control Laws and regulations, as may be applicable. Neither Party shall
disclose, transmit, or export, directly or indirectly, any of such information
disclosed to it by the other, or any direct product of such information, to or
for use in any foreign country unless such disclosure, transmittal, or
exportation is permitted by applicable law or shall have been authorized
previously in an export license granted pursuant to any of such laws or
regulations. As a condition to the export or re-export of any products derived
from or containing Inventions, the exporting or re-exporting Party shall insure
that the distribution and export/re-export of such product is in compliance with
all Laws, regulations, orders, or other restrictions of the U.S. Export
Administration Regulations.
12. TERM, TERMINATION, AND SURVIVAL.
12.1 TERM. This Agreement shall be effective on the Effective Date and
shall continue until the seventh anniversary of the Effective Date unless
otherwise terminated or extended by written agreement of the Parties.
Notwithstanding anything to the contrary herein, should the Investment Agreement
terminate pursuant to Section 8 thereof, the Parties acknowledge that this
Agreement is immediately null and void.
12.2 TERMINATION FOR BREACH. Subject to the Parties exhaustion of the
dispute resolution process as set forth in Section 13.2, either Party may
thereafter terminate this Agreement if:
12.2.1 the other Party breaches any material provision of this
Agreement (for purposes of this Agreement, a failure to pay any material amounts
owing shall be considered a material breach) and fails to remedy such breach
within thirty (30) days of the non-breaching Party's written notice of such
breach (or, if such breach cannot be remedied in that time, failure to commence
remedial procedures reasonably satisfactory to the non-breaching Party); or
12.2.2 the other Party dissolves, becomes insolvent or makes a general
assignment for the benefit of its creditors; or
12.2.3 a voluntary or involuntary petition or proceeding is commenced
by or against the other Party under the Federal Bankruptcy Act or any other
statute of any state or country relating to insolvency or the protection of the
rights of creditors, or any other insolvency or
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bankruptcy proceeding or other similar proceeding for the settlement of the
other Party's debt is instituted; or a receiver of all or substantially all of
the property of the other Party is appointed.
12.2.4 Except as expressly limited by this Agreement, termination of
this Agreement under this Section 12.2 will be without prejudice to any other
remedy that may be available to a Party under applicable law.
12.3 TERMINATION FOR CONVENIENCE. In the event that the net Subscriber
activations do not meet 100% of the Base Subscriber Level beginning in 2011 as
specified in the attached Exhibit A hereto, then Intel shall have the right, in
its sole discretion, to terminate this Agreement for convenience upon three
months advance written notice. In the event that there is no commercially
available Mobile WiMAX Network infrastructure equipment on a timely basis to
enable Clearwire to meet the schedule specified herein, then the time for
termination for convenience will be adjusted by a time period equal to such
availability of such infrastructure equipment.
12.4 SURVIVAL. Except as otherwise stated in this Agreement, this Section
12.4 and Sections 1., 5.2.1, 5.2.3, 5.4.2, 5.7, 5.8, 5.9, 5.10, 6, 8, 9, 10, 11
and 13, and any other legal obligation created hereby which by its terms would
survive termination, shall survive the expiration or termination of this
Agreement by either Party for any reason. Notwithstanding the foregoing,
Sections 5.2.1 and 5.2.3 survive any expiration or termination of this Agreement
except in the event of a termination of this Agreement by Intel for its
convenience pursuant to Section 12.3 above or a termination of this Agreement by
Clearwire in the event of an uncured material breach by Intel hereunder.
13. GENERAL.
13.1 GOVERNING LAW. Any claim arising under or relating to this Agreement
shall be governed by the internal substantive laws of the State of Delaware or
federal courts or state courts located in Delaware, without regard to principles
of conflict of laws.
13.2 DISPUTE RESOLUTION. All disputes arising directly under the express
terms of this Agreement or the grounds for termination thereof shall be resolved
as follows: The senior management of both Parties shall meet to attempt to
resolve such disputes. If the disputes cannot be resolved by the senior
management, either Party may make a written demand for formal dispute resolution
and specify therein the scope of the dispute. Within thirty days after such
written notification, the Parties agree to meet for one day with an impartial
mediator and consider dispute resolution alternatives other than litigation,
including referral to the National Patent Board. If an alternative method of
dispute resolution is not agreed upon within thirty days after the one day
mediation, either Party may begin litigation proceedings.
13.3 ASSIGNMENT AND CHANGE OF CONTROL.
13.3.1 ASSIGNMENT. Neither Party may sell, transfer, assign,
subcontract or delegate (collectively, "Transfer") in whole or in part this
Agreement (whether by operation of law or otherwise), or any rights, duties,
obligations or liabilities under this Agreement, without the prior written
consent of the other Party, which consent may be withheld in such Party's sole
and absolute discretion. Subject to the foregoing, this Agreement will inure to
the benefit of and be binding upon each Party's permitted successors and
permitted assigns. Any Transfer in contravention of this
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Section 13.3 will be null and void. For purposes of this Agreement, any Change
of Control (as defined below) involving a Party, including without limitation, a
Change of Control pursuant to which the contracting Parties to this Agreement
remain unchanged, shall be deemed a Transfer by such Party.
13.3.2 CHANGE OF CONTROL.
13.3.2.1 ASSIGNMENT UPON CHANGE OF CONTROL. Notwithstanding the
provisions of Section 13.3.1, a Party may Transfer this Agreement, and all of
the rights, duties, obligations and liabilities hereunder, in a Change of
Control (as defined below) provided that:
(i) the Party undergoing the Change of Control (the "Change of Control
Party") must comply with the provisions of Section 13.3.2.2 below; and
(ii) with respect to a Change of Control of Clearwire, the prior
written consent of Intel (which consent may be withheld in Intel's sole and
absolute discretion) to such Transfer is required if the other party to the
Change of Control (the "Acquiror") is (1) [***] or any Affiliate (as defined
below) of [***] or any entity that has acquired substantially all of the assets
or business of [***] or (2) [***] or any Affiliate of such a third party; and
(iii) subject to Section 13.3.2.1(iv) and Section 13.3.2.3, with
respect to a Change of Control of Clearwire, the contracting party to this
Agreement following such Change of Control expressly agrees in writing to assume
this Agreement and all of the rights, duties, obligations and liabilities
hereunder, including without limitation, the obligations under Section 5.2; and
(iv) if the Acquiror or any affiliate of the Acquiror [***], then
Intel shall have the right, at its sole and absolute discretion, but not the
obligation, to either [***] Intel may exercise this right, if at all, by
providing written notice, to Clearwire within thirty (30) days following receipt
of the Notice (as defined below) and prior to the Transfer upon the Change of
Control, [***] which notice by Intel [***]. Clearwire, [***], and Intel shall
execute and deliver any documentation as may be reasonably necessary or
requested to reflect or effect any election that Intel may make pursuant to the
terms of this Section 13.3.2.1(iv).
13.3.2.2 NOTICE. Prior to entering into, effecting, permitting or
approving any transaction that would result in a Change of Control, the Change
of Control Party shall give the other Party written notice of such event (the
"Notice"). The Notice shall describe in reasonable detail the proposed terms of
the transaction or transactions that would constitute a Change of Control and
shall identify each "person" or "group" (as such terms are used in Sections
13(d) and
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14(d) of the Exchange Act) that is a party to such transaction or transactions
and each "person" or "group" that is, or is proposed to become, the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) of the Change of
Control Party or of any such person or group, directly or indirectly. The Notice
shall be delivered as soon as practicable but no later than [***] after the date
the Change of Control Party first approves or agrees to such offer or proposed
Change of Control and in any case at least [***] before the closing of such
Change of Control. The Change of Control Party also shall notify the other Party
of (1) any material changes relating to the Change of Control prior to the
consummation of such Change of Control, and (2) the consummation of any Change
of Control. If the Change of Control Party enters into an exclusivity or
"no-shop" arrangement or agreement or confidentiality agreement in connection
with a proposed Change of Control, such exclusivity or "no-shop" arrangement or
agreement or confidentiality agreement shall contain an exception permitting the
Change of Control Party to provide the Notice and other information required
pursuant to this Section 13.3. The Change of Control Party shall provide to the
other Party any and all information reasonably requested by such other Party
relating to such Change of Control or any person or group that is a party
thereto or that is a beneficial owner, directly or indirectly, of any such
person or group. The Party receiving the notice or information hereunder agrees
to keep strictly confidential any such notice or other information received
pursuant to this Section 13.4.
13.3.2.3 LIMITATIONS. Subject to the provisions of this Section 13.3,
if Intel expressly agrees in writing to any Transfer in whole or in part of this
Agreement (whether by operation of law or otherwise), or any rights, duties,
obligations or liabilities under this Agreement, or upon any permitted Transfer
as a result of any Change of Control of Clearwire under and subject to Section
13.3.2:
(i) the following provisions of this Agreement shall terminate (unless
otherwise agreed to in writing by Intel) effective as of the consummation of a
Change of Control of Clearwire, and such provisions shall have no further force
or effect: [***] and
(ii) this Agreement shall be automatically amended, without any
further action required on the part of any Party or any third party, to add the
following provision as Section 13.14 of this Agreement:
"13.14 SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. Each Party
acknowledges (1) that it will be impossible to measure in money the
damage to Intel if Clearwire and/or its successors or assigns
(collectively, the "Breaching Party") or any legal representative of
the Breaching Party breaches or otherwise fails to comply with any of
the provisions of this Agreement, and (2) that in the event of any
such breach or failure, Intel will suffer irreparable harm and will
not have an adequate remedy at law or in damages. Accordingly, the
Parties agree that in the event of a breach or threatened breach by
the Breaching Party or other failure of the Breaching Party to comply
with any of the provisions of this Agreement, Intel shall be entitled
to specific performance of each of the terms of this Agreement and to
preliminary and permanent injunctive relief (without the requirement
of the posting of a bond or other security), from any court of
competent jurisdiction, to enforce the terms of this Agreement and
restrain the Breaching Party from violating the provisions of this
Agreement, and the Breaching Party hereby waives any defense thereto,
including,
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without limitation, the defenses of availability of relief in damages.
Nothing herein contained shall be construed as prohibiting Intel from
pursuing any other remedies available to it for such breach or
threatened breach, including without limitation, the recovery of
damages from Breaching Party. In the event of any breach of this
Agreement, Intel shall have the right and remedy, in addition to any
other rights and remedies it may have, to require Breaching Party to
account for and pay to Intel all consideration, profits, monies,
accruals, increments or other benefits (collectively, the "BENEFITS")
derived or received by Breaching Party as the result of any
transactions constituting a breach of any of the provisions of this
Agreement, and Breaching Party hereby agrees to account for and pay
over such Benefits to Intel. In the event that it is necessary to make
a determination of any damages resulting from a breach of this
Agreement, the amount of such damages shall not be determined based
upon any cash payment made by Intel to Breaching Party, and the
parties hereby acknowledge that damages resulting from a breach of
this Agreement may, under certain circumstances, be higher than any
cash amounts paid by Intel to Breaching Party."
Unless otherwise expressly agreed to in writing by Intel, and except as
expressly provided in this Section 13.3, all other provisions of this Agreement,
other than the provisions enumerated in the immediately preceding sentence,
shall remain in full force and effect following any such Transfer with respect
to which Intel has affirmatively agreed in writing to assign this Agreement or
as otherwise permitted upon a Change of Control of Clearwire pursuant to Section
13.3.2.
13.3.2.3 [***]
13.3.3 NO CIRCUMVENTION. Neither of the Parties shall enter into,
effect, consent to or approve of any transaction designed to circumvent the
provisions of this Section 13.3, and any attempt to do so shall be deemed a
breach of this Agreement by such Party.
13.3.4 DEFINITIONS.
(i) "Affiliate" shall mean any Party that directly, or indirectly
through one of more intermediaries, controls, or is controlled by, or is under
common control with another Party.
(ii) "Change of Control" of a Party shall mean the occurrence or
existence of any of the following events or circumstances, whether accomplished
directly or indirectly, or in one or a series of related transactions:
(A) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of more than [***] of
the
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total voting power of the outstanding capital stock of such
Party; provided, that, this provision shall not be
applicable to the beneficial ownership or acquisition by
Eagle River Holdings, LLC and/or Intel (or their respective
Affiliates) of capital stock of Clearwire;
(B) such Party merges with or into, or consolidates with, or
consummates any reorganization or similar transaction with,
another person and, immediately after giving effect to such
transaction, less than [***] of the total voting power of
the outstanding capital stock of the surviving or resulting
person is "beneficially owned" (within the meaning of Rule
13d-3 under the Exchange Act) in the aggregate by the
stockholders of such Party immediately prior to such
transaction;
(C) in one transaction or a series of related transactions, such
Party, directly or indirectly (including through one or more
of its subsidiaries) sells, assigns, conveys, transfers,
leases or otherwise disposes of, all or substantially all of
the assets or properties (including capital stock of
subsidiaries) of such Party, but excluding sales,
assignments, conveyances, transfers, leases or other
dispositions of assets or properties (including capital
stock of subsidiaries) by such Party or any of its
subsidiaries to any direct or indirect wholly-owned
subsidiary of such Party (an "Asset Acquisition");
(D) solely with respect to Clearwire, in one transaction or a
series of related transactions, Clearwire, directly or
indirectly (including through one or more of its
subsidiaries and including through any liquidation or
dissolution) sells, assigns, conveys, transfers, leases or
otherwise disposes of, a majority of Clearwire's assets or
properties (including capital stock of subsidiaries)
relating to Clearwire's WiMAX business, but excluding sales,
assignments, conveyances, transfers, leases or other
dispositions of assets or properties (including capital
stock of subsidiaries) by Clearwire or any of its
subsidiaries to any direct or indirect wholly-owned
subsidiary of Clearwire (a "WiMAX Asset Acquisition");
(E) during [***] individuals who at the beginning of such period
constituted the Board of Directors of such Party (together
with any new directors whose election by such Board of
Directors or whose nomination for election by the
stockholders of such Party was approved by a vote of a
majority of the directors then still in office who were
directors at the beginning of such period, other than in
connection with a transaction described in (A),
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(B), (C) or (D) above cease for any reason to constitute a
majority of the Board of Directors of such Party then in
office;
(F) the adoption of any plan for the liquidation or dissolution
of such Party, other than in connection with a
reorganization or similar transaction in which the holders
of the voting stock of such Party immediately prior to such
transaction continue to represent more than [***] of the
combined voting power of the surviving entity immediately
after giving effect to such transaction (a "Liquidation");
(G) solely with respect to Clearwire, any Change of Control of
Eagle River Holdings, LLC or any entity that directly or
indirectly controls Eagle River Holdings, LLC; provided,
however, that a change in ownership of Eagle River Holdings,
LLC or any entity that directly or indirectly controls Eagle
River Holdings, LLC resulting solely and directly as a
result of the death or incapacity of Craig McCaw (but not
any subsequent change in ownership) shall not be deemed a
Change of Control hereunder; or
(H) solely with respect to Clearwire, (x) the beneficial
ownership, directly or indirectly, by Eagle River Holdings,
LLC and Intel, together with their respective Affiliates, of
Clearwire decreases to a level such that a "person" or
"group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act) of a
higher percentage of the total voting power of the
outstanding capital stock of Clearwire than the percentage
of the combined voting power of the outstanding capital
stock beneficially owned by (I) McCaw and his Affiliates and
(II) Intel and its Affiliates.
(iii) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
13.4 RELATIONSHIP OF PARTIES. The Parties are independent contractors. No
Party has any express or implied right or authority to assume or create any
obligations on behalf of the other or to bind the other to any contract,
agreement or undertaking with any third party. Nothing in this Agreement shall
be construed to create a partnership, joint venture, employment or agency
relationship between the Parties. Each Party may have similar agreements with
others provided such agreements do not conflict with this Agreement. Except as
otherwise expressly provided for in this Agreement, each Party may design,
develop, manufacture, acquire or market competitive products and services, and
conduct its business in whatever way it chooses. Neither Party is obligated to
announce or market any products or services or commercialize any Technology or
Inventions. Unless specifically indicated otherwise in this Agreement, each
Party will independently establish prices for its products and services.
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13.5 ENTIRE AGREEMENT. The terms and conditions of this Agreement,
including its Exhibits, together with the CNDA, constitutes the entire agreement
between the Parties with respect to the subject matter hereof, and merges and
supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions. No amendments or modifications shall be effective
unless in a writing signed by authorized representatives of each Party.
13.6 NOTICES. All notices required or permitted to be given hereunder shall
be in writing, shall make reference to this Agreement, and shall be delivered by
hand, or dispatched by prepaid air courier or by registered or certified
airmail, postage prepaid, to the address specified below. Such notices shall be
deemed served when received by addressee or, if delivery is not accomplished by
reason of some fault of the addressee, when tendered for delivery. Any Party may
give written notice of a change of address and, after notice of such change has
been received, any notice or request shall thereafter be given to such Party at
such changed address.
If to Clearwire: If to Intel:
Clearwire Corporation Intel Corporation
5808 Lake Washington Blvd. NE Attn: General Counsel
Suite 300 2200 Mission College Blvd.
Kirkland, WA 98033 Santa Clara, CA 95052
Attn.: General Counsel United States of America
with a copy to: with a copy to:
Davis Wright Tremaine LLP Intel Post Contract Management
2600 Century Square 2111 N.E 25th Ave.
1501 Fourth Avenue Hillsboro, OR 97124
Seattle, WA 98101 United States of America
Attn: Julie Weston
13.7 WAIVER. Failure by any Party to enforce any term of this Agreement
shall not be deemed a waiver of future enforcement of that or any other term in
this Agreement or any other agreement that may be in place between the Parties.
13.8 SEVERABILITY. If any provision of this Agreement is determined by a
court to be unenforceable, the Parties will deem the provision to be modified to
the extent necessary to allow it to be enforced to the extent permitted by Law,
or if it cannot be modified, the provision will be severed and deleted from this
Agreement, and the remainder of the Agreement will continue in effect.
13.9 RIGHTS AND REMEDIES. The rights and remedies of the Parties herein are
in addition to any other rights and remedies provided by law or in equity.
13.10 TAXES. Each Party shall be responsible for the payment of its own tax
liability arising from this transaction.
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13.11 CONFIDENTIALITY OF TERMS. The Parties hereto shall keep the terms of
this Agreement confidential and shall not now or hereafter divulge these terms
to any third party except with prior written notice to the other Party in the
following limited circumstances:
13.11.1 with the prior written consent of the other Party;
13.11.2 to any governmental body having jurisdiction to call
therefore;
13.11.3 subject to Section 13.11.4 below, as otherwise may be required
by law or legal process, including to legal and financial advisors in their
capacity of advising a Party in such matters;
13.11.4 during the course of litigation so long as the disclosure of
such terms and conditions are restricted in the same manner as is the
confidential information of other litigating Parties and so long as (i) the
restrictions are embodied in a court-entered protective order and (ii) the
disclosing Party informs the other Party in writing at least ten (10) days in
advance of the disclosure; or
13.11.5 in confidence to legal counsel, accountants, banks and
financing sources and their advisors solely in connection with complying with
financial transactions.
13.12 COMPLIANCE WITH LAWS. Anything contained in this Agreement to the
contrary notwithstanding, the obligations of the Parties hereto shall be subject
to all laws, present and future, of any Governmental Authority having
jurisdiction over the Parties, and to orders, regulations, directions or
requests of any such Governmental Authority.
13.13 FORCE MAJEURE. The Parties shall be excused from any failure to
perform any obligation hereunder to the extent such failure is caused by war,
acts of public enemies, fires, floods, acts of God, or any causes of like or
different kind beyond the control of the Parties.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed on the date below written.
INTEL CORPORATION CLEARWIRE CORPORATION
/s/ Arvind Sodhani /s/ Benjamin G. Wolff
------------------------------------- ----------------------------------------
Signature Signature
Arvind Sodhani Benjamin G. Wolff
Printed Name Printed Name
Senior Vice President Co-Chief Executive Officer
Title Title
June 28, 2006 June 28, 2006
Date Date
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EXHIBIT A
1. NETWORK DEPLOYMENT SCHEDULE
This table is subject to the Technical Performance Criteria defined in Exhibit B
A more detailed plan to achieve the POPs Covered will be provided by Clearwire
to add as attachment to this Exhibit.
[Download Table]
MILESTONE # DATE MILESTONE
----------- ---- ---------
[***] [***] [***]
a) Contingencies for Intel Milestones
(i) Milestone 2: The Parties will conduct a [***]
- [***]
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(ii) Milestone 6: [***]
- [***]
2. PERFORMANCE NOTEBOOK PERSONAL COMPUTER [***]
The [***] are show in the table below and will be contingent on the Clearwire
Network deployment and [***] as described below.
[***]
a) [***]
b) [***]
Notes:
1. [***]
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3. [***]
[Download Table]
Milestone: POPs Covered with
Mobile WiMAX Network Timing
---------------------------- ------
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
4. BASE SUBSCRIBER LEVEL
[Download Table]
END OF YEAR (BASED ON [***]
INTEGRATED SERVICES LAUNCH) 2008 2009 2010 2011 2012
--------------------------- ---- ---- ---- ---- ----
[***] [***] [***] [***] [***] [***]
[Download Table]
END OF YEAR (BASED ON [***]
INTEGRATED SERVICES LAUNCH) 2013 2014 2015 2016 2017
--------------------------- ---- ---- ---- ---- ----
[***] [***] [***] [***] [***] [***]
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EXHIBIT B
TECHNICAL PERFORMANCE CRITERIA DOCUMENT
This inserts at a Milestone that has sometimes been labeled "Joint Review of
Technology Trial Results. [***]
TECHNOLOGY TRIAL
- [***]
- [***]
- [***]
- [***]
EXIT CRITERIA
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
This inserts at a Milestone that has sometimes been labeled "Joint Review of
Field Trial and Systems Performance Testing Results. [***]"
SYSTEM PERFORMANCE TEST
[***]
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[***]
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[***]
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[***]
[***]
Tests will be conducted by first performing the test on the Expedience then
turning off the Expedience infrastructure and activating the Mobile WiMax
Network infrastructure and performing the test then performing the next test on
Mobile WiMax Network then turning off the Mobile WiMax Network infrastructure
and repeating the test and so on until all tests are done.
No later than [***] after successful completion of the first Wave 2 tests as
defined above, the overall spectral efficiency of the network will deliver [***]
given a mix of traffic, devices and services on a loaded network.
Clearwire and Intel will jointly develop a detailed test plan to cover
technology and field test based on the scope of the tests outlined in the above
paragraphs. Both companies will jointly conduct the tests, along with
Clearwire's infrastructure vendor. Failed tests will be repeated until
performance objectives are met. Remediation of Mobile WiMax failures is the
responsibility of Clearwire's infrastructure vendor. Once all tests are passed,
commercial system rollout may begin.
Tests will be defined at stages prior to this final set of tests so that system
performance issues may be detected and remediated as early as possible in the
schedule.
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Exhibit C
Existing Tier 1 Deployments of Clearwire
[***]
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Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/8/07 | | | | | | | None on these Dates |
| | 6/28/06 | | 28 |
| | 6/27/06 | | 1 |
| | 10/13/04 | | 12 |
| List all Filings |
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