<PAGE>
As filed with the Securities and Exchange Commission on August 30, 1999
Registration No. 333-85515
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Amendment No. 1
to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
Wireless Facilities, Inc.
(Exact name of Registrant as specified in its charter)
<TABLE>
<CAPTION>
Delaware 7380 13-3818604
<S> <C> <C>
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification Number)
incorporation or
organization)
</TABLE>
---------------
9805 Scranton Road, Suite 100
San Diego, CA 92121
(858) 824-2929
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------
Massih Tayebi, Ph.D.
Chief Executive Officer
Wireless Facilities, Inc.
9805 Scranton Road, Suite 100
San Diego, CA 92121
(858) 824-2929
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies To:
<TABLE>
<S> <C>
Frederick T. Muto, Esq. Bruce M. McNamara, Esq.
Lance W. Bridges, Esq. Virginia W. Wei, Esq.
Nancy D. Krueger, Esq. Robert C. Atherton, Esq.
Cooley Godward LLP Wilson Sonsini Goodrich & Rosati
4365 Executive Drive, Suite 1100 650 Page Mill Road
San Diego, CA 92121 Palo Alto, CA 94304
(858) 550-6000 (650) 493-9300
</TABLE>
---------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration
Statement.
---------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act") check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) of the Securities Act, please check the following box
and list the Securities Act registration serial number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
Registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the registration statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits And Financial Statement Schedules
(a) Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
1.1 Form of Underwriting Agreement. (1)
3.1 Amended and Restated Certificate of Incorporation, as currently in
effect.*
3.2 Form of Restated Certificate of Incorporation, to be filed and become
effective prior to the closing of this offering.*
3.3 Form of Restated Certificate of Incorporation, to be filed and become
effective upon the closing of this offering.*
3.4 Bylaws, as currently in effect.
3.5 Form of Bylaws, as amended to become effective upon the closing of
this offering.*
4.1 Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4 and 3.5.
4.2 Specimen Stock Certificate.*
5.1 Opinion of Cooley Godward LLP. (1)
10.1 1997 Stock Option Plan.
10.2 Form of Stock Option Agreement pursuant to the 1997 Stock Option Plan
and related terms and conditions. (1)
10.3 1999 Equity Incentive Plan.*
10.4 Form of Stock Option Agreement pursuant to the 1999 Equity Incentive
Plan. (1)
10.5 1999 Employee Stock Purchase Plan and related offering documents.*
10.6 R&D Building Lease by and between the Company and Sorrento Tech
Associates as amended.*
10.7 Credit Agreement by and among the Company, various banks and Imperial
Bank dated as of August 18, 1999.*
10.8 Amended and Restated Investor Rights Agreement by and among the
Company and certain stockholders of the Company dated as of February
26, 1999.*
10.9 Employment Offer Letter by and between the Company and Scott Fox dated
as of April 9, 1999.*
10.10 Form of Indemnity Agreement by and between the Company and certain
officers and directors of the Company.*
10.11 Amended Promissory Note from Masood K. Tayebi to the Company dated as
of August 2, 1999.*
10.12 Amended Promissory Note from Massih Tayebi to the Company dated as of
August 2, 1999.*
10.13 Amended Promissory Note from Sean Tayebi to the Company dated as of
August 2, 1999.*
10.14 Form of Warrant Agreement by and between the Company and each of Scott
Anderson and Scot Jarvis dated as of February 28, 1997.*
10.15 Form of Subscription and Representation Agreement by and between the
Company and each of Scott Anderson and Scot Jarvis dated as of
February 28, 1997.*
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
10.16 Form of Warrant Agreement by and between the Company and each of Scott
Anderson and Scot Jarvis dated as of February 1, 1998.*
10.17 Form of Bill of Sale and Assignment Agreement by and between the
Company and each of Massih Tayebi and Masood K. Tayebi dated as of
June 30, 1999.*
10.18 Assignment of Note by and among the Company, Masood K. Tayebi and
Massih Tayebi dated as of June 30, 1999.*
10.19 Form of Promissory Note from each of Masood K. Tayebi and Massih
Tayebi to the Company dated as of June 30, 1999.*
10.20 Form of Promissory Note from each of Masood K. Tayebi and Massih
Tayebi to the Company dated as of June 30, 1999.*
10.21 Services Agreement by and between WFI de Mexico S. de R.L. de C.V. and
Ericsson Telecom, S.A. de C.V. dated as of August 4, 1999.+(1)
10.22 Master Services Agreement by and between Entel Technologies, Inc. and
TeleCorp Holding Corp., Inc. dated as of February 27, 1998, as
amended.+
10.23 Master Services Agreement by and between the Company and Nextel
Partners Operating Corp. dated as of January 18, 1999.+
10.24 Agreement by and between the Company and Siemens Aktiengesellschaft,
Berlin and Munchen, Federal Republic of Germany, represented by the
Business Unit Mobile Networks.+
10.25 Master Services Agreement by and between the Company and Triton PCS,
Operating Company, L.L.C. dated as of January 19, 1998, as amended.+
10.26 Microwave Relocation Services Agreement by and between Entel
Technologies, Inc. and Triton PCS Operating Company, L.L.C. dated as
of February 11, 1998.+(1)
10.27 Site Development Services Agreement by and between Entel Technologies,
Inc. and Triton PCS, Inc. dated as of December 10, 1997.+
10.28 Sales Agreement for Products and Services by and between the Company
and Integrated Ventures, LLC dated as of April 19, 1999.+(1)
21.1 List of subsidiaries.*
23.1 Consent of KPMG LLP, Independent Public Accountants.*
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1. (1)
23.3 Consent of M.R. Weiser LLP, Independent Public Accountants.*
24.1 Power of Attorney. Reference is made to page II-6 of the Registration
Statement filed on August 18, 1999.
27 Financial Data Schedule.*
</TABLE>
- --------
+ Confidential treatment has been requested with respect to certain portions
of this exhibit. Omitted portions have been filed separately with the
Securities and Exchange Commission.
(1) To be filed by amendment.
* Previously filed.
(b) Financial Statement Schedules.
Schedule II--Valuation and Qualifying Accounts.
All other schedules are omitted because they are not required, are not
applicable or the information is included in our financial statements or notes
thereto.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San Diego,
County of San Diego, State of California, on August 30, 1999.
By: *
----------------------------------
Massih Tayebi
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chief Executive Officer and August 30, 1999
____________________________________ Director
Massih Tayebi (Principal Executive
Officer)
* President and Director August 30, 1999
____________________________________
Masood K. Tayebi
/s/ Thomas A. Munro Chief Financial Officer August 30, 1999
____________________________________ (Principal Financial and
Thomas A. Munro Accounting Officer)
* Director August 30, 1999
____________________________________
Scott Anderson
* Director August 30, 1999
____________________________________
Bandel Carano
* Director August 30, 1999
____________________________________
</TABLE> Scot Jarvis
/s/ Thomas A. Munro
*By: __________________________
Thomas A. Munro
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
1.1 Form of Underwriting Agreement. (1)
3.1 Amended and Restated Certificate of Incorporation, as currently in
effect.*
3.2 Form of Restated Certificate of Incorporation, to be filed and become
effective prior to the closing of this offering.*
3.3 Form of Restated Certificate of Incorporation, to be filed and become
effective upon the closing of this offering.*
3.4 Bylaws, as currently in effect.
3.5 Form of Bylaws, as amended to become effective upon the closing of
this offering.*
4.1 Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4 and 3.5.
4.2 Specimen Stock Certificate.*
5.1 Opinion of Cooley Godward LLP. (1)
10.1 1997 Stock Option Plan.
10.2 Form of Stock Option Agreement pursuant to the 1997 Stock Option Plan
and related terms and conditions. (1)
10.3 1999 Equity Incentive Plan.*
10.4 Form of Stock Option Agreement pursuant to the 1999 Equity Incentive
Plan. (1)
10.5 1999 Employee Stock Purchase Plan and related offering documents.*
10.6 R&D Building Lease by and between the Company and Sorrento Tech
Associates as amended.*
10.7 Credit Agreement by and among the Company, various banks and Imperial
Bank dated as of August 18, 1999.*
10.8 Amended and Restated Investor Rights Agreement by and among the
Company and certain stockholders of the Company dated as of February
26, 1999.*
10.9 Employment Offer Letter by and between the Company and Scott Fox dated
as of April 9, 1999.*
10.10 Form of Indemnity Agreement by and between the Company and certain
officers and directors of the Company.*
10.11 Amended Promissory Note from Masood K. Tayebi to the Company dated as
of August 2, 1999.*
10.12 Amended Promissory Note from Massih Tayebi to the Company dated as of
August 2, 1999.*
10.13 Amended Promissory Note from Sean Tayebi to the Company dated as of
August 2, 1999.*
10.14 Form of Warrant Agreement by and between the Company and each of Scott
Anderson and Scot Jarvis dated as of February 28, 1997.*
10.15 Form of Subscription and Representation Agreement by and between the
Company and each of Scott Anderson and Scot Jarvis dated as of
February 28, 1997.*
10.16 Form of Warrant Agreement by and between the Company and each of Scott
Anderson and Scot Jarvis dated as of February 1, 1998.*
10.17 Form of Bill of Sale and Assignment Agreement by and between the
Company and each of Massih Tayebi and Masood K. Tayebi dated as of
June 30, 1999.*
10.18 Assignment of Note by and among the Company, Masood K. Tayebi and
Massih Tayebi dated as of June 30, 1999.*
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
10.19 Form of Promissory Note from each of Masood K. Tayebi and Massih
Tayebi to the Company dated as of June 30, 1999.*
10.20 Form of Promissory Note from each of Masood K. Tayebi and Massih
Tayebi to the Company dated as of June 30, 1999.*
10.21 Services Agreement by and between WFI de Mexico S. de R.L. de C.V. and
Ericsson Telecom, S.A. de C.V. dated as of August 4, 1999.+(1)
10.22 Master Services Agreement by and between Entel Technologies, Inc. and
TeleCorp Holding Corp., Inc. dated as of February 27, 1998, as
amended.+
10.23 Master Services Agreement by and between the Company and Nextel
Partners Operating Corp. dated as of January 18, 1999.+
10.24 Agreement by and between the Company and Siemens Aktiengesellschaft,
Berlin and Munchen, Federal Republic of Germany, represented by the
Business Unit Mobile Networks.+
10.25 Master Services Agreement by and between the Company and Triton PCS,
Operating Company, L.L.C. dated as of January 19, 1998, as amended.+
10.26 Microwave Relocation Services Agreement by and between Entel
Technologies, Inc. and Triton PCS Operating Company, L.L.C. dated as
of February 11, 1998.+(1)
10.27 Site Development Services Agreement by and between Entel Technologies,
Inc. and Triton PCS, Inc. dated as of December 10, 1997.+
10.28 Sales Agreement for Products and Services by and between the Company
and Integrated Ventures, LLC dated as of April 19, 1999.+(1)
21.1 List of subsidiaries.*
23.1 Consent of KPMG LLP, Independent Public Accountants.*
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1. (1)
23.3 Consent of M.R. Weiser LLP, Independent Public Accountants.*
24.1 Power of Attorney. Reference is made to page II-6 of the Registration
Statement filed on August 18, 1999.
27 Financial Data Schedule.*
</TABLE>
- --------
+ Confidential treatment has been requested with respect to certain portions
of this exhibit. Omitted portions have been filed separately with the
Securities and Exchange Commission.
(1) To be filed by amendment.
* Previously filed.
<PAGE>
EXHIBIT 3.4
BYLAWS
OF
WIRELESS FACILITIES, INC.,
A Delaware Corporation
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. OFFICES......................................................... 1
Section 1. - Registered Office.......................................... 1
Section 2. - Principal Offices.......................................... 1
Section 3. - Other Offices.............................................. 1
ARTICLE II. MEETINGS OF STOCKHOLDERS........................................ 1
Section 1. - Place of Meetings.......................................... 1
Section 2. - Annual Meeting............................................. 1
Section 3. - Special Meeting............................................ 1
Section 4. - Notice of Stockholders' Meetings........................... 2
Section 5. - Quorum..................................................... 2
Section 6. - Adjourned Meeting; Notice.................................. 2
Section 7. - Voting; Proxies............................................ 3
Section 8. - Record Date for Stockholder Notice, Voting and
Giving Consents............................................ 3
Section 9. - List of Stockholders Entitled to Vote...................... 3
Section 10. - Telephonic Meetings........................................ 3
Section 11. - Stockholder Action by Written Consent Without a Meeting.... 4
Section 12. - Inspectors of Election..................................... 4
ARTICLE III. DIRECTORS....................................................... 4
Section 1. - Powers..................................................... 4
Section 2. - Number of Directors........................................ 4
Section 3. - Vacancies.................................................. 5
Section 4. - Regular and Special Meetings; Place of Meetings; Notice;
Meetings by Telephone...................................... 5
Section 5. - Quorum; Vote Required for Action........................... 6
Section 6. - Action Without Meeting..................................... 6
Section 7. - Adjournment; Notice........................................ 6
Section 8. - Fees and Compensation of Directors......................... 6
Section 9. - Indemnification............................................ 6
ARTICLE IV. COMMITTEES...................................................... 8
Section 1. - Committees of Directors.................................... 8
Section 2. - Meetings and Action of Committees.......................... 9
</TABLE>
1
<PAGE>
<TABLE>
<S> <C>
ARTICLE V. OFFICERS........................................................ 9
Section 1. - Officers................................................... 9
Section 2. - Election of Officers....................................... 9
Section 3. - Subordinate Officers....................................... 9
Section 4. - Removal and Resignation of Officers........................ 9
Section 5. - Vacancies in Offices....................................... 10
Section 6. - Chairman of the Board...................................... 10
Section 7. - President.................................................. 10
Section 8. - CEO, Vice Presidents....................................... 10
Section 9. - Secretary.................................................. 10
Section 10. - Chief Financial Officer (Treasurer)........................ 11
Section 11. - Excessive Compensation..................................... 11
ARTICLE VI. RECORDS AND REPORTS............................................ 11
Section 1. - Inspection of Books and Records............................. 11
ARTICLE VII. GENERAL CORPORATE MATTERS....................................... 12
Section 1. - Record Date for Purposes Other Than Notice and Voting...... 12
Section 2. - Checks, Drafts, Evidences of Indebtedness.................. 12
Section 3. - Certificate for Shares..................................... 12
Section 4. - Lost Certificates.......................................... 13
Section 5. - Construction and Definitions............................... 13
Section 6. - Transfers of Stock......................................... 13
Section 7. - Registered Stockholders.................................... 13
Section 8. - Dividends.................................................. 13
Section 9. - Fiscal Year................................................ 14
Section 10. - Notices.................................................... 14
Section 11. - Annual Statement........................................... 14
Section 12. - S Election................................................. 14
ARTICLE VIII. RIGHT OF FIRST REFUSAL......................................... 14
Section 1. - Right of First Refusal..................................... 14
ARTICLE IX. AMENDMENTS...................................................... 17
Section 1. - Amendment of Bylaws........................................ 17
</TABLE>
2
<PAGE>
BYLAWS
OF
WIRELESS FACILITIES, INC.
A Delaware Corporation
ARTICLE I.
OFFICES
Section 1. - Registered Office. The registered office of the corporation
--------------------------------
within the State of Delaware shall be in the City of Dover, County of Kent,
State of Delaware.
Section 2. - Principal Offices. The Board of Directors shall fix the
--------------------------------
location of the principal executive office of the corporation at any place
within or outside the State of Delaware.
Section 3. - Other Offices. The Board of Directors may at any time
----------------------------
establish branch or subordinate offices at any place or places where the
corporation is qualified to do business.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 1. - Place of Meetings. Meetings of stockholders shall be held
--------------------------------
at any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the corporation.
Section 2. - Annual Meeting. The annual meeting of the stockholders
-----------------------------
shall be held each year within six (6) months of the end of the corporation's
fiscal year on a date and at a time designated by the Board of Directors. If
this day shall be a legal holiday, then the meeting shall be held on the next
succeeding business day, at the same hour. At the annual meeting, the
stockholders shall elect a Board of Directors, consider reports of the affairs
of the corporation and transact such other business as may be properly brought
before the meeting.
Section 3. - Special Meeting. Special meetings of the stockholders, for
------------------------------
any purpose or purposes, unless otherwise prescribed by statute or the
Certificate of Incorporation, may be called at any time by the President, and
shall be called by the President or Secretary at the request in writing of a
majority of the Board of Directors or one or more stockholders owning a majority
in amount of the entire capital stock of the corporation issued and outstanding
and entitled to vote. The written request shall state the purpose or purposes
of the special meeting. Business transacted at any special meeting shall be
limited to the purposes stated in the notice.
Section 4. - Notice of Stockholders' Meetings. Whenever stockholders are
-----------------------------------------------
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which notice shall state the place, date and hour of the
meeting, and, in the case of a special meeting,
1
<PAGE>
the purpose or purposes for which the meeting is called. The written notice of
any meeting shall be given to each stockholder entitled to vote at such meeting
not less than 10 nor more than 60 days before the date of the meeting. If
mailed, notice is given when deposited in the United States mail postage
prepaid, directed to the stockholder at his address as it appears on the records
of the corporation. An affidavit of the mailing or other means of giving any
notice of any stockholders' meeting shall be executed by the Secretary,
Assistant Secretary or any transfer agent of the corporation giving the notice,
and shall be filed and maintained in the minute book of the corporation and
shall, in the absence of fraud, be prima facie evidence of facts stated herein.
Section 5. - Quorum. The presence in person or by proxy of the holders
---------------------
of a majority of the stock issued and outstanding and entitled to vote at any
meeting of stockholders shall constitute a quorum for the transaction of
business.
Section 6. - Adjourned Meeting; Notice. Any stockholders' meeting,
----------------------------------------
annual or special, whether or not a quorum is present, may be adjourned from
time to time by the vote of the majority of the shares represented at that
meeting, either in person or by proxy, but in the absence of a quorum, no other
business may be transacted at that meeting. When any meeting of stockholders,
either annual or special, is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place are announced at a
meeting at which the adjournment is taken, unless the adjournment is for more
than 30 days from the date set for the original meeting, or if after adjournment
a new record date is fixed for the adjourned meeting. Notice of any such
adjourned meeting shall be given to each stockholder of record entitled to vote
at the adjourned meeting in accordance with Section 4 of this Article II. At
any adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting.
Section 7. - Voting; Proxies. The stockholders entitled to vote at any
------------------------------
meeting of stockholders shall be determined in accordance with the provisions of
Section 11 of this Article II, subject to the provisions of Section 217 of the
Delaware General Corporation Law (relating to voting shares held by a fiduciary
or in joint ownership). Except as otherwise provided by the Certificate of
Incorporation, each stockholder entitled to vote at any meeting of stockholders
shall be entitled to one vote for each share of stock held by him which has
voting power upon the matter in question. Each stockholder entitled to vote at
a meeting of stockholders may authorize another person or persons to act for him
by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. All proxies must be
filed with the Secretary of the corporation at the beginning of each meeting in
order to be counted. A duly executed proxy shall be irrevocable if it states
that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by filing an instrument in writing revoking the proxy or another duly
executed proxy bearing a later date with the Secretary of the corporation.
Unless otherwise required under these bylaws or the Delaware General Corporation
Law, voting at meetings of stockholders need not be by written ballot and need
not be conducted by inspectors of election unless so determined by the holders
of shares of stock owning a majority in amount of the entire capital stock of
the corporation issued and outstanding and entitled to vote which are present in
person or by proxy at such meeting. At any stockholder meeting at which a
quorum is present, the affirmative vote
2
<PAGE>
of a majority of the stock issued and outstanding and entitled to vote at any
meeting of stockholders shall be the act of the stockholders, unless the vote of
a greater number or voting by classes is required by the Delaware General
Corporation Law or by the Certificate of Incorporation. There shall be no
cumulative voting.
Section 8. - Record Date for Stockholder Notice, Voting and Giving
--------------------------------------------------------------------
Consents. For purposes of determining the stockholders entitled to notice of
- --------
any meeting or to vote or entitled to give consent to corporate action without a
meeting, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors and which record date shall not be more than 60 days
nor less than 10 days before the date of any such meeting nor more than 10 days
before any such action without a meeting.
If the Board of Directors does not so fix a record date:
(a) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
business day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the business day next preceding the day on
which the meeting is held.
(b) The record date for determining stockholders entitled to give
consent to corporate action in writing without a meeting (i) when no prior
action by the Board has been taken, shall be the day on which the first written
consent is given, or (ii) when prior action of the Board has been taken, shall
be at the close of business on the day on which the Board adopts the resolution
relating to that action.
Section 9. - List of Stockholders Entitled to Vote. The officer who has
----------------------------------------------------
charge of the stock ledger of the corporation shall prepare and make, at least
10 days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least 10 days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified in the notice of the
meeting or if no notice is given, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 10. - Telephonic Meetings. At any meeting held pursuant to these
-----------------------------------
Bylaws, shareholders may participate by means of a telephone conference or
similar method of communication by which all persons participating in the
meeting can hear each other. Participation in such a meeting constitutes
presence in person at the meeting.
Section 11. - Stockholder Action by Written Consent Without a Meeting.
-----------------------------------------------------------------------
Any action which may be taken at any annual or special meeting of stockholders
may be taken without a meeting and without prior notice, if a consent in
writing, setting forth the action so taken, is signed by the holders of
outstanding shares having not less than the minimum number of votes
3
<PAGE>
that would be necessary to authorize or take that action at a meeting at which
all shares entitled to vote on that action were present and voted. Prompt notice
of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing.
Section 12. - Inspectors of Election. Before any meeting of
--------------------------------------
stockholders, the corporation shall appoint one or more inspectors of election
to act at the meeting if so required under Section 7 of this Article II and make
a written report thereon. If no inspectors of election are able to act at a
meeting of the stockholders, the Chairman of the meeting shall appoint one or
more inspectors of election to act at the meeting. If inspectors are appointed
at a meeting, the holders of a majority of shares or their proxies present at
the meeting shall determine how many inspectors are to be appointed. If any
person appointed as inspector fails to appear or fails or refuses to act, the
Chairman of the meeting shall appoint a person to fill that vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum and the
authenticity, validity and effect of proxies;
(b) Hear, determine and retain for a reasonable period a record of the
disposition of all challenges and questions in any way arising in connection
with the right to vote;
(c) Count and tabulate all votes or consents;
(d) Determine when the polls shall close;
(e) Determine the result.
ARTICLE III.
DIRECTORS
Section 1. - Powers. Subject to the provisions of the Delaware General
---------------------
Corporation law and any limitations in the Certificate of Incorporation and
these Bylaws relating to action required to be approved by the stockholders or
by the outstanding shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction of
the Board of Directors.
Section 2. - Number of Directors. The number of directors of the
----------------------------------
corporation shall not be less than three (3) nor more than seven (7). The exact
number of directors shall be four (4) until changed, within the limits specified
above, by a bylaw amending this Section 2, duly adopted by the board of
directors or by the shareholders. The indefinite number of directors may be
changed, or a definite number fixed without provision for an indefinite number,
by a duly adopted amendment to the articles of incorporation or by an amendment
to this bylaw duly adopted by the vote or written consent of holders of a
majority of the outstanding shares entitled to vote.
4
<PAGE>
Section 3. - Vacancies. Vacancies in the Board of Directors may be
------------------------
filled by a majority of the remaining directors, though less than a quorum, or
by a sole remaining director. Each director so elected shall hold office until
the next annual meeting of the stockholders and until a successor has been
elected and qualified. A vacancy or vacancies in the Board of Directors shall
be deemed to exist in the event of the death, resignation, disqualification or
removal of any director, or otherwise. Any director may resign effective on
giving written notice to the corporation. If no directors are in office, then
an election of directors may be held in the manner provided in statute. If, at
the time of filling any vacancy or newly created directorship, the directors
then in office shall constitute less than a majority of the whole Board (as
constituted immediately prior to any such increase), the Court of Chancery of
the State of Delaware may, upon application of any stockholder or stockholders
holding at least ten percent (10%) of the total number of the shares of stock at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
Any director may resign effective on giving written notice to the Chairman
of the Board, the President, the Secretary or the Board of Directors, unless the
notice specifies a later time for that resignation to become effective. If the
resignation of a director is effective at a future time, the Board of Directors
may elect a successor to take office when the resignation becomes effective.
No reduction of the authorized number of directors shall have the effect of
removing any director before that director's term of office expires.
Section 4. - Regular and Special Meetings; Place of Meetings; Notice;
-----------------------------------------------------------------------
Meetings by Telephone. Regular meetings of the Board of Directors may be held
- ---------------------
without call and at any place within or outside the State of Delaware that has
been designated from time to time by resolution of the Board. Such meetings may
be held without notice. In the absence of such a designation, regular meetings
shall be held at the principal executive office of the corporation. Special
meetings of the Board may be called by the President, any Vice President, the
Secretary or any member of the Board of Directors and shall be held at any place
within or outside the State of Delaware that has been designated in the notice
of the meeting or, if not stated in the notice or if no notice is given, at the
principal executive office of the corporation. Notice of a special meeting
shall be given by the person or persons calling the meeting at least 24 hours
before the special meeting. Any meeting, regular or special, may be held by
conference telephone or similar communication equipment, so long as all
directors participating in the meeting can hear one another, and all such
directors shall be deemed to be present in person at the meeting. The Board of
Directors may keep the books of the corporation outside the State of Delaware.
Section 5. - Quorum; Vote Required for Action. A majority of the
-----------------------------------------------
authorized number of directors shall constitute a quorum for the transaction of
business, except to adjourn as provided in Section 7 of this Article III. Every
act or decision done or made by a majority of the directors present at a meeting
duly held at which a quorum is present shall be regarded as the act of the Board
of Directors, except as may be otherwise specifically provided by statute, the
Certificate of Incorporation or these Bylaws.
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Section 6. - Action Without Meeting. Any action required or permitted to
-------------------------------------
be taken by the Board of Directors may be taken without a meeting, if all
members of the Board shall individually or collectively consent in writing to
that action. Such action by written consent shall have the same force and
effect as a unanimous vote of the Board of Directors. Such written consent or
consents shall be filed with the minutes of the proceedings of the Board.
Section 7. - Adjournment; Notice. If a quorum shall not be present at
----------------------------------
any meeting of the Board of Directors the directors present thereat may adjourn
the meeting from time to time. Notice of the time and place of holding an
adjourned meeting need not be given, unless the meeting is adjourned for more
than 24 hours, in which case notice of the time and place shall be given at
least 24 hours before the time of the adjourned meeting to the directors who
were not present at the time of the adjournment.
Section 8. - Fees and Compensation of Directors. Directors and members
-------------------------------------------------
of committees may receive such compensation, if any, for their services, and
such reimbursement of expenses, as may be fixed or determined by resolution of
the Board of Directors. No such payment shall preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor.
Section 9. - Indemnification.
------------------------------
(a) The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no such indemnification shall
be made in respect of
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any claim, issue or matter as to which such person shall have been adjudged to
be liable for negligence or misconduct in the performance of his duty to the
corporation unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
corporation shall be successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraphs (a) and (b), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under paragraphs (a) and (b) (unless ordered
by a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by the stockholders.
(e) Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors in the
manner provided in paragraph (d) upon receipt of an undertaking by or on behalf
of the director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this Section 9.
(f) The indemnification provided by this Section 9 shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
(g) The Board of Directors may authorize the corporation to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under the provisions of this
Section 9.
(h) For the purposes of this Section 9, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate
7
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existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Section 9 with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include service
as a director, officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the corporation" as referred to in this Section 9.
ARTICLE IV.
COMMITTEES
Section 1. - Committees of Directors. The Board of Directors may
--------------------------------------
designate one or more committees, each consisting of one or more directors, to
serve at the pleasure of the Board. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Any committee, to the extent provided in the resolution of the Board,
shall have all the authority of the Board, except with respect to:
(a) the amendment of these Bylaws;
(b) a distribution to the stockholders of the corporation;
(c) the amendment of the Certificate of Incorporation (except that a
committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of Directors
as provided in Section 151(a) of the Delaware General Corporation Law, fix the
designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the corporation or fix the number of shares of any series
of stock or authorize the increase or decrease of the shares of any series);
8
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(d) adopting an agreement of merger or consolidation under Sections
251 or 252 of the Delaware General Corporation Law;
(e) recommend to the stockholders the sale, lease or exchange of all
or substantially all of the corporation's property and assets; or
(f) recommend to the stockholders a dissolution of the corporation or
a revocation of a dissolution.
Section 2. - Meetings and Action of Committees. Committees shall conduct
------------------------------------------------
their business and meetings in the same manner as the Board of Directors
conducts its business pursuant to these Bylaws.
ARTICLE V.
OFFICERS
Section 1. - Officers. The officers of the corporation shall be a
-----------------------
President, a Secretary and a Chief Financial Officer. The corporation may also
have, at the discretion of the Board of Directors, a Chairman of the Board, a
Chief Executive Officer, one or more Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers and such other officers as may be
appointed in accordance with the provisions of Section 3 of this Article V. Any
number of offices may be held by the same person.
Section 2. - Election of Officers. The officers of the corporation,
-----------------------------------
except such officers as may be appointed in accordance with the provisions of
Section 3 or Section 5 of this Article V, shall be chosen by the Board of
Directors, and each shall serve at the pleasure of the Board, subject to the
rights, if any, of an officer under any contract of employment.
Section 3. - Subordinate Officers. The Board of Directors may appoint,
-----------------------------------
and may empower the President to appoint, such other officers as the business of
the corporation may require, each of whom shall hold office for such period,
have such authority and perform such duties as are provided in the Bylaws or as
the Board of Directors may from time to time determine.
Section 4. - Removal and Resignation of Officers. Subject to the rights,
--------------------------------------------------
if any, of an officer under any contract of employment, any officer may be
removed, either with or without cause, by the Board of Directors, at any regular
or special meeting of the Board, or, except in case of an officer chosen by the
Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors. Any officer may resign at any time by
giving written notice to the corporation.
Section 5. - Vacancies in Offices. A vacancy in any office because of
-----------------------------------
death, resignation, removal, disqualification or any other cause shall be filled
in the manner prescribed in these Bylaws for regular appointments to that
office.
Section 6. - Chairman of the Board. The Chairman of the Board, if such
------------------------------------
an officer be elected, shall, if present, preside at meetings of the
stockholders and the Board of Directors, and
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exercise and perform such other powers and duties as may be from time to time
assigned to him by the Board of Directors or prescribed by the Bylaws. If there
is no President, the Chairman of the Board shall in addition be the Chief
Executive Officer of the corporation and shall have the powers and duties
prescribed in Section 7 of this Article V.
Section 7. - President. Subject to such supervisory powers, if any, as
------------------------
may be given by the Board of Directors to the Chairman of the Board, if there be
such an officer, the President shall be the Chief Executive Officer of the
corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and the officers of
the corporation. In the absence of the Chairman of the Board, or if there be
none, the president shall preside at all meetings of the stockholders and the
Board of Directors. He shall have the general powers and duties of management
usually vested in the office of President of a corporation, and shall have such
other powers and duties as may be prescribed by the Board of Directors or the
Bylaws.
Section 8. - CEO, Vice Presidents. In the absence or disability of the
-----------------------------------
President, the CEO and the Vice Presidents, if any, in order of their rank as
fixed by the Board of Directors or, if not ranked, the CEO, shall perform all
the duties of the President, and when so acting shall have all the powers of,
and be subject to all the restrictions upon, the President. The CEO, and the
Vice Presidents shall have such other powers and perform such other duties as
from time to time may be prescribed for each of them, respectively, by the Board
of Directors or the Bylaws, and the President or the Chairman of the Board.
Section 9. - Secretary. The Secretary shall keep or cause to be kept, at
------------------------
the principal executive office or such other place as the Board of Directors may
direct, a book of minutes of all meetings and actions of directors, committees
of directors and stockholders, with the time and place of holding, whether
regular or special, and, if special, how authorized, the notice given, the names
of those present at directors' meetings or committee meetings, the number of
shares present or represented at stockholders' meetings, and the proceedings.
The Secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the corporation's transfer agent or registrar, as
determined by resolution of the Board of Directors, a share register, or a
duplicate share register, showing the names of all stockholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates issued for the same, and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and of the Board of Directors required by the Bylaws or by law
to be given, and shall keep the seal of the corporation, if one be adopted, in
safe custody, and shall have such other powers and perform such other duties as
may be prescribed by the Board of Directors or by the Bylaws.
Section 10. - Chief Financial Officer (Treasurer). The Chief Financial
---------------------------------------------------
Officer shall keep and maintain, or cause to be kept and maintained, adequate
and correct books and records of accounts of the properties and business
transactions of the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained earnings and shares.
The books of account shall at all reasonable times be open to inspection by any
directors.
10
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The Chief Financial Officer shall deposit all moneys and other valuables in
the name and to the credit of the corporation with such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
corporation as may be ordered by the Board of Directors, shall render to the
President and directors, whenever they request it, an account of all of his
transactions as Chief Financial Officer and of the financial condition of the
corporation, and shall have the powers and perform such other duties as may be
prescribed by the Board of Directors or the Bylaws.
Section 11. - Excessive Compensation. If the Internal Revenue Service
--------------------------------------
disallows as a business deduction to the corporation any part of the salary or
other compensation paid by it to any officer, director or employee, as being
excessive compensation, that part disallowed shall be repaid to the corporation
by the officer, director or employee.
ARTICLE VI.
RECORDS AND REPORTS
Section 1. - Inspection of Books and Records.
----------------------------------------------
(a) Any stockholder, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records, and to make copies or extracts therefrom. A proper purpose shall mean
a purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent shall be the person who seeks
the right to inspection, the demand under oath shall be accompanied by a power
of attorney or such other writing which authorizes the attorney or other agent
to so act on behalf of the stockholder. The demand under oath shall be directed
to the corporation at its registered office in the State of Delaware or at its
principal place of business.
(b) If the corporation, or an officer or agent thereof, refuses to
permit an inspection sought by a stockholder or attorney or other agent acting
for the stockholder pursuant to (a) above or does not reply to the demand within
five business days after the demand has been made, the stockholder may apply to
the Court of Chancery in the State of Delaware for an order to compel such
inspection in accordance with Section 220(c) of the Delaware General Corporation
Law.
(c) Any director shall have the right to examine the corporation's
stock ledger, a list of its stockholders and its other books and records for a
purpose reasonably related to his position as a director.
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ARTICLE VII.
GENERAL CORPORATE MATTERS
Section 1. - Record Date for Purposes Other Than Notice and Voting. For
--------------------------------------------------------------------
purposes of determining the stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any other lawful action (other than action by
stockholders by written consent without a meeting), the Board of Directors may
fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted and which record date shall not be
more than 60 days before any such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
Section 2. - Checks, Drafts, Evidences of Indebtedness. All checks,
--------------------------------------------------------
drafts or other orders for payment of money, notes or other evidences of
indebtedness, issued in the name of or payable to the corporation, shall be
signed or endorsed by such person or persons and in such manner as from time to
time determined by resolution of the Board of Directors.
Section 3. - Certificate for Shares.
-------------------------------------
(a) A certificate or certificates for shares of the capital stock of
the corporation shall be issued to each stockholder when any of these shares are
fully paid, and the Board of Directors may authorize the issuance of
certificates or shares as partly paid provided that these certificates shall
state the amount of consideration to be paid for them and the amount paid. All
certificates shall be signed in the name of the corporation by the Chairman of
the Board or the President or the CEO or a Vice President and by the Chief
Financial Officer or an Assistant Treasurer or the Secretary or any Assistant
Secretary, certifying the number of shares and the class or series of shares
owned by the stockholder. Any or all of the signatures on the certificate may
be facsimile. In the event that any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed on a certificate shall
have ceased to be that officer, transfer agent or registrar before that
certificate is issued, it may be issued by the corporation with the same effect
as if that person were an officer, transfer agent or registrar at the date of
issue.
(b) If the corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the Delaware General Corporation Law, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
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Section 4. - Lost Certificates. Except as provided in this Section 4, no
--------------------------------
new certificates for shares shall be issued to replace an old certificate unless
the latter is surrendered to the corporation and cancelled at the same time.
The Board of Directors may, in case any share certificate or certificate for any
other security is lost, stolen or destroyed, authorize the issuance of a
replacement certificate on such terms and conditions as the Board may require,
including provision for indemnification of the corporation secured by a bond or
other adequate security sufficient to protect the corporation against any claim
that may be made against it, including any expense or liability on account of
the alleged loss, theft or destruction of the certificate or the issuance of the
replacement certificate.
Section 5. - Construction and Definitions. Unless the context requires
-------------------------------------------
otherwise, the general provisions, rules of construction and definitions in the
Delaware General Corporation law shall govern the construction of these Bylaws.
Without limiting the generality of this provision, the singular number includes
the plural, the plural number includes the singular and the term "person"
includes both a corporation and a natural person.
Section 6. - Transfers of Stock. Upon the surrender to the corporation,
---------------------------------
or the transfer agent of the corporation, of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation to issue new
certificates to the persons entitled thereto, cancel the old certificates and
record the transaction upon its books.
Section 7. - Registered Stockholders. The corporation shall be entitled
--------------------------------------
to treat the holder of record of any share or shares of stock as the holder in
fact thereof and accordingly shall not be bound to recognize any equitable or
other claim or interest in such share on the part of any other person, whether
or not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Delaware.
Section 8. - Dividends.
------------------------
(a) Dividends upon the capital stock of the corporation, subject to
the provisions of the Certificate of Incorporation, in any, may be declared by
the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of capital stock,
subject to the provisions of the Certificate of Incorporation.
(b) Before payment of any dividend the directors may set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interests of the
corporation, and the directors may abolish such reserve.
Section 9. - Fiscal Year. The fiscal year of the corporation shall be
--------------------------
fixed by resolution of the Board of Directors.
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Section 10. - Notices.
-----------------------
(a) Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these Bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
Corporation, with postage prepaid, and such notice shall be deemed to be given
at the time when the same shall be deposited in the United States mail. Notice
to directors may also be given by telephone or telegram.
(b) Whenever any notice is required to be given under the provisions
of the statutes or of the Certificate of Incorporation or of these Bylaws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed to be
equivalent. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting for the express
purpose of objecting at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
Section 11. - Annual Statement. The Board of Directors shall present at
--------------------------------
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
Section 12. - S Election. If at any time the corporation elects to be
--------------------------
treated for federal or state tax purposes as an S Corporation, unless such S
election has been revoked by the affirmative action of the majority of the
shares entitled to vote on such action, the corporation will not, nor be
compelled to recognize, for so long as the Corporation's status as an S
Corporation continues, any transfer to whom or to which in the opinion of
counsel to the corporation could disqualify the corporation as an S Corporation.
ARTICLE VIII.
RIGHT OF FIRST REFUSAL
Section 1. - Right of First Refusal. No stockholder shall sell, assign,
-------------------------------------
pledge, or in any manner transfer any of the shares of stock of the corporation
or any right or interest therein, whether voluntarily or by operation of law, or
by gift or otherwise, except by a transfer which meets the requirements
hereinafter set forth in this bylaw:
(a) If the stockholder desires to sell or otherwise transfer any of
his shares of stock, then the stockholder shall first give written notice
thereof to the corporation. The notice shall name the proposed transferee and
state the number of shares to be transferred, the proposed consideration, and
all other terms and conditions of the proposed transfer.
(b) For thirty (30) days following receipt of such notice, the
corporation shall have the option to purchase all (but not less than all) of the
shares specified in the notice at the price and upon the terms set forth in such
notice; provided, however, that, with the consent of the stockholder, the
corporation shall have the option to purchase a lesser portion of the shares
specified in said notice at the price and upon the terms set forth therein. In
the event of a gift, property settlement or other transfer in which the proposed
transferee is not paying the full price
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for the shares, and that is not otherwise exempted from the provisions of this
Section 1, the price shall be determined in accordance with the Delaware General
Corporation Law. In the event the corporation elects to purchase all of the
shares or, with consent of the stockholder, a lesser portion of the shares, it
shall give written notice to the transferring stockholder of its election and
settlement for said shares shall be made as provided below in paragraph (d).
(c) The corporation may assign its rights hereunder.
(d) In the event the corporation and/or its assignee(s) elect to
acquire any of the shares of the transferring stockholder as specified in said
transferring stockholder notice, the Secretary of the corporation shall so
notify the transferring stockholder and settlement thereof shall be made in cash
within thirty (30) days after the Secretary of the corporation receives said
transferring stockholder's notice; provided that if the terms of payment set
forth in said transferring stockholder's notice were other than cash against
delivery, the corporation and/or its assignee(s) shall pay for said shares on
the same terms and conditions set forth in said transferring stockholder's
notice.
(e) In the event the corporation and/or its assignee(s) do not elect
to acquire all of the shares specified in the transferring stockholder's
notice, said transferring stockholder may, within the sixty-day period following
the expiration of the option rights granted to the corporation and/or its
assignee(s) herein, transfer the shares specified in said transferring
stockholder's notice which were not acquired by the corporation and/or its
assignee(s) as specified in said transferring stockholder's notice. All shares
so sold by said transferring stockholder shall continue to be subject to the
provisions of this bylaw in the same manner as before said transfer.
(f) Anything to the contrary contained herein notwithstanding, the
following transactions shall be exempt from the provisions of this bylaw if
counsel for the corporation determines that any S-corporation election of the
corporation will not be disturbed:
i) A stockholder's transfer of any or all shares held either
during such stockholder's lifetime or on death by will or intestacy to such
stockholder's immediate family or to any custodian or trustee for the account of
such stockholder or such stockholder's immediate family. "Immediate family" as
used herein shall mean spouse, lineal descendant, father, mother, brother, or
sister of the stockholder making such transfer.
ii) A stockholder's bona fide pledge or mortgage of any shares
with a commercial lending institution, provided that any subsequent transfer of
said shares by said institution shall be conducted in the manner set forth in
this bylaw.
iii) A stockholder's transfer of any or all of such
stockholder's shares to the corporation or to any other stockholder of the
corporation.
iv) A stockholder's transfer of any or all of such stockholder's
shares to a person who, at the time of such transfer, is an officer or director
of the corporation.
v) A corporate stockholder's transfer of any or all of its
shares pursuant to and in accordance with the terms of any merger,
consolidation, reclassification of
15
<PAGE>
shares or capital reorganization of the corporate stockholder, or pursuant to a
sale of all or substantially all of the stock or assets of a corporate
stockholder.
vi) A corporate stockholder's transfer of any or all of its
shares to any or all of its stockholders.
vii) A transfer by a stockholder that is a limited or general
partnership to any or all of its partners or former partners.
In any such case, the transferee, assignee, or other recipient shall
receive and hold such stock subject to the provisions of this bylaw, and there
shall be no further transfer of such stock except in accord with this bylaw.
(g) The provisions of this bylaw may be waived with respect to any
transfer either by the corporation, upon duly authorized action of its Board of
Directors, or by the stockholders, upon the express written consent of the
owners of a majority of the voting power of the corporation (excluding the votes
represented by those shares to be transferred by the transferring stockholder).
This bylaw may be amended or repealed either by a duly authorized action of the
Board of Directors or by the stockholders, upon the express written consent of
the owners of a majority of the voting power of the corporation.
(h) Any sale or transfer, or purported sale or transfer, of securities
of the corporation shall be null and void unless the terms, conditions, and
provisions of this bylaw are strictly observed and followed.
(i) The foregoing right of first refusal shall terminate on either of
the following dates, whichever shall first occur:
i) On December 4, 2004; or
ii) One hundred eighty days after the date securities of the
corporation are first offered to the public pursuant to a registration statement
filed with, and declared effective by, the United States Securities and Exchange
Commission under the Securities Act of 1933, as amended.
(j) The certificates representing shares of stock of the corporation
shall bear on their face the following legend so long as the foregoing right of
first refusal remains in effect:
The shares represented by this Certificate are subject to a right of first
refusal option in favor of the Corporation and/or its Assignee(s), as provided
in the Bylaws of the Corporation.
16
<PAGE>
ARTICLE IX.
AMENDMENTS
Section 1. - Amendment of Bylaws. New Bylaws may be adopted or these
----------------------------------
Bylaws may be amended or repealed by the vote or written consent of stockholders
or the Board of Directors, when such power is conferred upon the Board by the
Certificate of Incorporation, at any regular meeting of the stockholders or
Board, or any special meeting of the stockholders or Board if notice of such
alteration, amendment, repeal or adoption of new Bylaws was contained in the
notice of such meeting.
CERTIFICATE OF ADOPTION OF BYLAWS OF
WIRELESS FACILITIES, INC.
A Delaware Corporation
I hereby certify as follows:
I am the duly elected, qualified and acting Secretary of Wireless
Facilities, Inc., a Delaware corporation; and
The foregoing Bylaws were adopted as the Bylaws of said corporation
effective as of July 7, 1997, by the Board of Directors of said corporation.
I have executed this certificate effective as of July 7, 1997.
By:
-------------------------------
Massih Tayebi, Ph.D., Secretary
17
<PAGE>
EXHIBIT 10.1
===============================================================================
1997
STOCK OPTION PLAN
OF
WIRELESS FACILITIES, INC.
Adopted Effective as of July 24, 1997
As Amended by the Board of Directors Effective January 7, 1999
===============================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
-----
<S> <C> <C>
1. PURPOSES................................ 1
2. DEFINITIONS............................. 1
3. ADMINISTRATION.......................... 4
4. SHARES SUBJECT TO THE PLAN.............. 5
5. ELIGIBILITY............................. 5
6. OPTION AGREEMENT PROVISIONS............. 6
7. COVENANTS OF THE COMPANY................ 8
8. USE OF PROCEEDS......................... 9
9. ADJUSTMENTS UPON CHANGES IN COMMON STOCK 9
10. MISCELLANEOUS........................... 9
11. AMENDMENT OF THE PLAN................... 10
12. TERMINATION OR SUSPENSION OF THE PLAN... 11
13. EFFECTIVE DATE OF PLAN.................. 11
</TABLE>
<PAGE>
WIRELESS FACILITIES, INC.
1997 STOCK OPTION PLAN
Adopted effective as of July 24, 1997
As amended by the Board of Directors effective January 7, 1999
1. PURPOSES.
--------
The purposes of the Plan are as follows:
(a) To provide additional incentive for selected Employees, Directors
and Consultants to further the growth, development and financial success of the
Company by providing a means by which such persons can personally benefit
through the ownership of capital stock of the Company; and
(b) To enable the Company to secure and retain key Employees,
Directors and Consultants considered important to the long-range success of the
Company by offering such persons an opportunity to own capital stock of the
Company.
2. DEFINITIONS.
-----------
(a) "Affiliate" means any parent corporation or subsidiary corporation,
-----------
whether now or hereafter existing, as those terms are defined in Sections 424(e)
and (f), respectively, of the Code.
(b) "Board" means the Board of Directors of the Company.
-------
(c) "Cause" means an Optionee's personal dishonesty, misconduct,
-------
breach of fiduciary duty, incompetence, intentional failure to perform stated
obligations, willful violation of any law, rule, regulation or final cease and
desist order, or any material breach of any provision of the Plan, any Option
Agreement or any employment or consulting agreement.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
------
(e) "Committee" means a committee appointed by the Board in accordance
-----------
with Section 3(c).
(f) "Common Stock" means the common stock, $.01 par value, of the
--------------
Company; provided, however, that if the Company's certificate of incorporation
authorizes the issuance of only one class of stock, "Common Stock" shall mean
such class of stock.
(g) "Company" means Wireless Facilities, Inc., a Delaware corporation.
---------
<PAGE>
(h) "Consultant" means any person, including an advisor, engaged by
------------
the Company or an Affiliate to render services and who is compensated for such
services, provided that the term "Consultant" shall not include Directors who
are paid only a director's fee by the Company and/or who are not otherwise
compensated by the Company for their services as Directors except pursuant to
the Plan.
(i) "Director" means a member of the Board.
----------
(j) "Disability" means total and permanent disability as defined in
------------
Section 22(e)(3) of the Code and as interpreted by the Board in each case.
(k) "Disinterested Person" means a Director who (i) was not, during
---------------------
the one year prior to service as an administrator of the Plan, granted or
awarded equity securities pursuant to the Plan or any other plan of the Company
or any of its affiliates entitling the participants therein to acquire equity
securities of the Company or any of its affiliates except as permitted by
subsection (c)(2)(i) of Rule 16b-3, or (ii) is otherwise considered to be a
"disinterested person, in accordance with subsection (c)(2)(i) of Rule 16b-3, or
any other applicable rules, regulations or interpretations of the Securities and
Exchange Commission.
(l) "Employee" means any person, including officers and Directors,
----------
employed by the Company or any Affiliate of the Company; provided, however, that
neither service as a Director nor payment of a director's fee by the Company
shall be sufficient to constitute "employment" by the Company.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
--------------
amended.
(n) "Fair Market Value" means, as of any date, the value of the Common
-------------------
Stock of the Company determined as follows:
(i) If the Common Stock is listed on any established stock exchange
or a national market system, including without limitation the National Market
System of the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") System, the Fair Market Value of a share of Common Stock
shall be the closing sales price for such stock (or the closing bid, if no sales
were reported) as quoted on such system or exchange (or the exchange with the
greatest volume of trading in common stock) on the last market trading day prior
to the date of determination, as reported in the Wall Street Journal or such
-------------------
other source as the Board deems reliable;
(ii) If the Common Stock is quoted on the NASDAQ System (but not on
the National Market System thereof) or is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value of
a share of Common Stock shall be the mean between the high bid and high asked
prices for the Common Stock on the last market trading day prior to the date of
determination, as reported in the Wall Street Journal or such other source as
-------------------
the Board deems reliable; or
-2-
<PAGE>
(iii) In the absence of an established market for the Common Stock,
the Fair Market Value shall be determined in good faith by the Board after
giving due consideration to the factors set forth in Section 260.140.50 of Title
10 of the California Code of Regulations (exclusive of any reference to an
initial public offering price).
(o) "Incentive Stock Option" means an Option intended to qualify as an
------------------------
incentive stock option within the meaning of Section 422 of the Code and the
regulations promulgated thereunder.
(p) "Nonstatutory Stock Option" means an Option not intended to
---------------------------
qualify as an Incentive Stock Option.
(q) "Option" means a stock option granted pursuant to the Plan.
--------
(r) "Option Agreement" means a written agreement between the Company
------------------
and an Optionee evidencing the terms and conditions of an individual Option
grant. Each Option Agreement shall be subject to the terms and conditions of
the Plan and any rules and regulations adopted by the Board and incorporated
therein.
(s) "Option Shares" means the shares of Common Stock of the Company
---------------
issued or issuable pursuant to the exercise of an Option.
(t) "Optionee" means an Employee, Director or Consultant who holds an
----------
outstanding Option.
(u) "Plan" means this 1997 Stock Option Plan.
------
(v) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any successor
------------
to Rule 16b-3, as in effect when discretion is being exercised with respect to
the Plan.
(w) "Securities Act" means the Securities Act of 1933, as amended.
----------------
-3-
<PAGE>
(x) "Termination of Employment or Consulting Relationship" means:
------------------------------------------------------
(i) With respect to Options granted to an Optionee in his capacity
as an Employee, the time when the employer-employee relationship between the
Optionee and the Company (or an Affiliate) is terminated for any reason,
including without limitation a termination by resignation, discharge, death or
retirement. The Board, in its sole discretion, may determine whether a
Termination of Employment or Consulting Relationship has occurred in the case of
any leave of absence approved by the Board, including sick leave, personal leave
and military leave; provided, however, that any such leave for purposes of an
Incentive Stock Option shall not exceed ninety (90) days unless (A) the Board
determines to extend such period upon the acknowledgment of the Optionee that
such an Option would become a Nonstatutory Stock Option, or (B) re-employment
upon the expiration of such leave is guaranteed by contract (including by
Company policy) or statute;
(ii) With respect to Options granted to an Optionee in his capacity
as a Director, the time when the Optionee ceases to be a Director for any
reason, including without limitation a cessation by resignation, removal,
failure to be reelected, death or retirement, but excluding cessations where
there is a simultaneous or continuing employment of the former Director by the
Company (or an Affiliate) and the Board expressly deems such cessation not to be
a Termination of Employment or Consulting Relationship; and
(iii) With respect to Options granted to an Optionee in his capacity
as a Consultant, the time when the contractual relationship between the Optionee
and the Company (or an Affiliate) is terminated for any reason.
The Board, in its absolute discretion, shall determine the effect of
all other matters and questions relating to a Termination of Employment or
Consulting Relationship.
3. ADMINISTRATION.
--------------
(a) The Plan shall be administered by the Board unless and until the Board
delegates administration to a Committee, as provided in Section 3(c) below.
(b) The Board shall have the power, except as otherwise provided in the
Plan:
(i) To determine from time to time (A) which of the persons
eligible under the Plan shall be granted Options, (B) when and how the Options
shall be granted, (C) whether an Option will be an Incentive Stock Option or a
Nonstatutory Stock Option, (D) the provisions of each Option granted (which need
not be identical), including the time or times such Option may be exercised in
whole or in part, and (E) the number of shares for which an Option shall be
granted to each such person.
-4-
<PAGE>
(ii) To construe and interpret the Plan and Options granted under
it, and to establish, amend and revoke rules and regulations for the Plan's
administration. The Board, in the exercise of its power, may correct any defect,
omission or inconsistency in the Plan or in any Option Agreement in a manner and
to the extent it shall deem necessary or expedient to make the Plan fully
effective.
(iii) To amend the Plan as provided in Section 11.
(iv) To place such restrictions on the sale or other disposition of
Option Shares as may be deemed appropriate by the Board.
(v) Generally, to exercise such powers and to perform such acts as
the Board deems necessary or expedient to promote the best interests of the
Company.
(c) The Board may delegate administration of the Plan to a committee of
the Board composed of not fewer than two (2) members (the "Committee"), all of
the members of which Committee shall be Disinterested Persons. If administration
is delegated to a Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the Board (and
references in the Plan to the Board shall thereafter be deemed to be references
to the Committee), subject, however, to such resolutions, not inconsistent with
the provisions of the Plan, as may be adopted from time to time by the Board.
The Board may abolish the Committee at any time and revest in the Board the
administration of the Plan.
(d) Notwithstanding the foregoing Section 3(c), the requirement that an
administrator of the Plan be a Disinterested Person shall not apply if the Board
or the Committee expressly declares that such requirement shall not apply. Any
Disinterested Person shall otherwise comply with the requirements of Rule 16b-3.
4. SHARES SUBJECT TO THE PLAN.
--------------------------
Subject to the provisions of Section 9 relating to adjustments upon changes
in stock, the stock that may be sold pursuant to the exercise of Options shall
not exceed in the aggregate two million five hundred thousand (2,500,000) shares
of the Company's Common Stock. If any Option shall for any reason expire or
otherwise terminate without having been exercised in full, the stock not
purchased pursuant to such Option shall again become available under the Plan.
5. ELIGIBILITY.
------------
(a) Incentive Stock Options may be granted only to Employees. Nonstatutory
Stock Options may be granted only to Employees, Directors or Consultants. In the
event an Optionee is both an Employee and a Director, or an Optionee is both a
Director and a Consultant, the Option Agreement shall specify the capacity in
which the Optionee is granted the Option.
-5-
<PAGE>
(b) Notwithstanding subsection (a) above, a Director shall in no event be
eligible for the benefits of the Plan unless, at the time discretion is
exercised in the selection of the Director as a person to whom Options may be
granted or in the determination of the number of shares which may be covered by
Options granted to the Director, (i) the Board has delegated its discretionary
authority under the Plan to a Committee which consists solely of Disinterested
Persons, or (ii) the Plan otherwise complies with the requirements of Rule 16b-
3. The Board shall otherwise comply with the requirements of Rule 16b-3.
However, this Section 5(b) shall not apply for so long as the Board or Committee
expressly declares that it shall not apply.
6. OPTION AGREEMENT PROVISIONS.
---------------------------
Each Option shall be granted pursuant to a written Option Agreement which
shall be in such form and shall contain such terms and conditions as the Board
shall deem appropriate. The provisions of separate Option Agreements need not
be identical, but each Option Agreement shall include (through incorporation of
the provisions hereof by reference in the Option Agreement or otherwise) the
substance of each of the following provisions:
(a) Term. No Option shall be exercisable after the expiration of ten (10)
----
years from the date it was granted.
(b) Price. The exercise price of each Option shall be set forth in the
-----
applicable Option Agreement; provided, however, that (i) the exercise price of
each Incentive Stock Option shall be not less than one hundred percent (100%) of
the Fair Market Value of the Common Stock subject to the Option on the date such
Option is granted, (ii) the exercise price of each Nonstatutory Stock Option
shall be not less than eighty-five percent (85%) of the Fair Market Value of the
Common Stock subject to the Option on the date such Option is granted, and (iii)
if the Optionee owns (or is deemed to own pursuant to Section 424(d) of the
Code) stock possessing more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company (or any of its Affiliates), the
exercise price of the Option shall be not less than one hundred ten percent
(110%) of the Fair Market Value of the Common Stock subject to the Option on the
date the Option is granted.
(c) Consideration. The purchase price of Common Stock acquired pursuant
-------------
to an Option shall be paid in cash at the time the Option, or portion thereof,
is exercised; provided, however, at the discretion of the Board, the Option
Agreement may allow (i) a delay in payment up to thirty (30) days from the date
the Option, or portion thereof, is exercised, (ii) payment, in whole or in part,
through the delivery of shares of Common Stock owned by the Optionee; (iii)
payment, in whole or in part, through the surrender of Option Shares then
issuable upon exercise of the Option; (iv) payment, in whole or in part, through
the delivery of property of any kind which constitutes good and valuable
consideration; or (v) any other method of "cashless exercise" permitted by the
Board.
-6-
<PAGE>
(d) Transferability. An Option shall not be transferable except by will
----------------
or by the laws of descent and distribution, and shall be exercisable during the
lifetime of the person to whom the Option is granted only by such person.
(e) Vesting. The total number of Option Shares subject to an Option may,
-------
but need not, be allotted in periodic installments (which may, but need not, be
equal). The Option Agreement may provide that, from time to time during each of
such installment periods, the Option may become exercisable ("vest") with
respect to some or all of the Option Shares allotted to any period, and may be
exercised with respect to some or all of the Option Shares allotted to such
period and/or any prior period as to which the Option became vested but was not
fully exercised. During the remainder of the term of the Option (if its term
extends beyond the end of the installment periods), the Option may be exercised
from time to time with respect to any Option Shares then remaining subject to
the Option. Notwithstanding the foregoing, however, each Option granted to an
Optionee who is not an officer, Director or Consultant shall vest at an annual
rate which is not less than twenty percent (20%) of the total Option Shares
subject to the Option over the five (5) year period commencing with the date of
the grant of the Option.
(f) Securities Law Compliance. The Company may require any Optionee, or
-------------------------
any person to whom an Option is transferred under Section 6(d), as a condition
of exercising any such Option, (i) to give written assurances satisfactory to
the Company as to the Optionee's knowledge and experience in financial and
business matters and/or to employ a purchaser representative reasonably
satisfactory to the Company who is knowledgeable and experienced in financial
and business matters, and that he or she is capable of evaluating, alone or
together with the purchaser representative, the merits and risks of exercising
the Option, and (ii) to give written assurances satisfactory to the Company
stating that such person is acquiring the Option Shares subject to the Option
for such person's own account and not with any present intention of selling or
otherwise distributing the Option Shares. These requirements, and any
assurances given pursuant to such requirements, shall be inoperative if the
issuance of the Option Shares upon the exercise of the Option has been
registered under a then currently effective registration statement under the
Securities Act or, as to any particular requirement, a determination is made by
counsel for the Company that such requirement need not be met in the
circumstances under the then applicable securities laws.
(g) Termination of Employment or Consulting Relationship. In the event of
----------------------------------------------------
the Termination of Employment or Consulting Relationship of an Optionee for any
reason (other than for Cause or upon the Optionee's death or Disability), the
Optionee may exercise his or her Option, but only within such period of time as
is set forth in the Option Agreement, and only to the extent that the Optionee
was entitled to exercise the Option at the date of such termination (but in no
event later than the expiration of the term of such Option as set forth in the
Option Agreement). In the case of an Incentive Stock Option, such period shall
not exceed ninety (90) days from the date of termination. In the event of the
Termination of Employment or Consulting Relationship of an Optionee for Cause,
all Options granted hereunder to such Optionee shall expire as of the date of
the occurrence giving rise to such termination or upon the date such Options
expire by their terms, whichever is earlier, and such Optionee shall have no
rights with respect to any unexercised Options.
-7-
<PAGE>
If, at the date of a Termination of Employment or Consulting Relationship, the
Optionee is not entitled to exercise his or her entire Option, the Option Shares
covered by the unexercisable portion of the Option shall revert to the Plan. If,
after a Termination of Employment or Consulting Relationship, the Optionee does
not exercise his or her Option within the period specified in the Option
Agreement, the Option shall terminate, and the Option Shares covered by such
Option shall revert to the Plan.
(h) Disability of Optionee. In the event of a Termination of Employment or
----------------------
Consulting Relationship of an Optionee as a result of the Optionee's Disability,
the Optionee may exercise his or her Option within the period specified in the
Option Agreement (in no event be less than six (6) months from the date of such
termination and, in the case of an Incentive Stock Option, in no event to exceed
twelve (12) months from the date of such termination), and only to the extent
that the Optionee was entitled to exercise the Option at the date of such
termination (but in no event later than the expiration of the term of such
Option as set forth in the Option Agreement). If, at the date of a Termination
of Employment or Consulting Relationship, the Optionee is not entitled to
exercise his or her entire Option, the Option Shares covered by the
unexercisable portion of the Option shall revert to the Plan. If, after a
Termination of Employment or Consulting Relationship, the Optionee does not
exercise his or her Option within the period specified in the Option Agreement,
the Option shall terminate, and the Option Shares covered by such Option shall
revert to the Plan.
(i) Death of Optionee. In the event of the death of an Optionee, the
-----------------
Option may be exercised within the period specified in the Option Agreement (in
no event to be less than six (6) months from the date of such termination) by
the Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent the Optionee was
entitled to exercise the Option at the date of death. If, at the time of death,
the Optionee was not entitled to exercise his or her entire Option, the Option
Shares covered by the unexercisable portion of the Option shall revert to the
Plan. If, after death, the Optionee's estate or a person who acquired the right
to exercise the Option by bequest or inheritance does not exercise the Option
within the time specified in the Option Agreement, the Option shall terminate,
and the Option Shares covered by such Option shall revert to the Plan.
7. COVENANTS OF THE COMPANY.
------------------------
(a) During the terms of the Options, the Company shall keep available at
all times the number of shares of Common Stock required to satisfy such Options.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell Option Shares upon exercise of the Options; provided, however,
that this undertaking shall not require the Company to register under the
Securities Act either the Plan, any Option or any Option Shares. If, after
reasonable efforts or without unreasonable expense, the Company is unable to
obtain from any such regulatory commission or agency the authority which counsel
for the Company deems necessary for the lawful issuance and sale of Option
Shares under the Plan, the Company shall be
-8-
<PAGE>
relieved from any liability for failure to issue and sell Option Shares upon
exercise of such Options unless and until such authority is obtained.
8. USE OF PROCEEDS.
---------------
Proceeds from the sale of Option Shares shall be used for general operating
capital of the Company.
9. ADJUSTMENTS UPON CHANGES IN COMMON STOCK.
----------------------------------------
(a) If any change is made in the Common Stock subject to the Plan or
subject to any Option (through reorganization, recapitalization, stock dividend,
dividend in property other than cash, stock split, liquidating dividend,
combination of shares, exchange of shares, change in corporate structure or
otherwise), the Plan and all outstanding Options will be appropriately adjusted
in the class and maximum number of shares subject to the Plan and the class and
number of shares and price per share of Common Stock subject to outstanding
Options.
(b) In the event the Company is merged or consolidated with another
corporation and the Company is the surviving corporation, each outstanding
Option, whether or not then exercisable, shall pertain to and apply to the
securities or other property to which a holder of the number the Option Shares
subject to such Option would have been entitled upon such transaction.
(c) In the event the Company is merged or consolidated with another
corporation and the Company is not the surviving corporation, or in the event
substantially all of the property or stock of the Company is acquired by another
corporation, or in case of a separation, reorganization, or liquidation of the
Company, the Board shall, in its sole discretion as to each outstanding Option,
either (i) make appropriate provision for protection of such Option by the
substitution on an equitable basis of appropriate stock of the Company, or of
the merged, consolidated or otherwise reorganized corporation which will be
issuable in respect of the stock of the Company, or (ii) upon written notice to
the holder of such Option, provide that such Option must be exercised within a
specified period not exceeding sixty (60) days of the date of such notice to the
extent such Option is exercisable on the last day of such specified period or it
will be terminated. Any portion of such Option which is not exercisable on the
last day of such specified period will be terminated and any portion of such
Option which is not exercised on or before said last day shall terminate on said
last day.
10. MISCELLANEOUS.
-------------
(a) Neither an Optionee nor any person to whom an Option is transferred
under Section 6(d) shall be deemed to be the holder of, or to have any of the
rights of a holder with respect to, any Option Shares unless and until such
person has satisfied all requirements for exercise of the Option pursuant to its
terms and the Company has duly issued a stock certificate for such Option
Shares.
-9-
<PAGE>
(b) Nothing in the Plan or any instrument executed or Option granted
pursuant thereto shall confer upon any Employee or Consultant or Optionee any
right to continue in the employ of the Company or any Affiliate (or to continue
acting as a Consultant) or shall restrict the right of the Company or any
Affiliate to terminate the employment or consulting relationship of any Employee
or Consultant or Optionee with or without cause.
(c) To the extent that the aggregate Fair Market Value (determined at the
time of grant) of Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by any Optionee during any calendar year under
all plans of the Company and its Affiliates exceeds One Hundred Thousand Dollars
($100,000), the Options or portions thereof which exceed such limit (according
to the order in which they were granted) shall be treated as Nonstatutory Stock
Options.
(d) The Company and the members of the Board shall be relieved from any
liability for the non-issuance or non-transfer, or any delay of issuance or
transfer, of any Option Shares which results from the inability of the Company
to comply with, or to obtain, or from any delay in obtaining from any regulatory
body having jurisdiction, all requisite authority to issue or transfer Option
Shares if counsel for the Company deems such authority reasonably necessary for
lawful issuance or transfer of any such shares. Appropriate legends may be
placed on the stock certificates evidencing Option Shares to reflect such
transfer restrictions.
11. AMENDMENT OF THE PLAN.
---------------------
(a) The Board at any time, and from time to time, may amend the Plan.
However, no amendment shall be effective unless approved by the shareholders of
the Company within twelve (12) months before or after the adoption of the
amendment where the amendment will:
(i) Increase the number of shares reserved for Options under the
Plan, except as provided in Section 9 relating to adjustments upon changes in
Common Stock;
(ii) Modify the requirements as to eligibility for participation in
the Plan (to the extent such modification requires shareholder approval in order
for the Plan to satisfy the requirements of Section 422 of the Code); or
(iii) Modify the Plan in any other way if such modification requires
shareholder approval in order for the Plan to satisfy the requirements of
Section 422 of the Code or to comply with the requirements of Rule 16b-3.
(b) It is expressly contemplated that the Board may amend the Plan in any
respect the Board deems necessary or advisable to provide Optionees with the
maximum benefits provided or to be provided under the provisions of the Code and
the regulations promulgated thereunder relating to Incentive Stock Options
and/or to bring the Plan and/or Incentive Stock Options granted under the Plan
into compliance therewith.
-10-
<PAGE>
(c) The rights and obligations under any Option granted before any
amendment of the Plan shall not be altered or impaired by such amendment unless
the Company requests the consent of the person to whom the Option was granted
and such person consents in writing.
12. TERMINATION OR SUSPENSION OF THE PLAN.
-------------------------------------
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate on June 30, 2007 (which shall be
within ten (10) years from the date the Plan is adopted by the Board or approved
by the shareholders of the Company, whichever is earlier.) No Options may be
granted under the Plan while the Plan is suspended or after it is terminated.
(b) Rights and obligations under any Option granted while the Plan is in
effect shall not be altered or impaired by suspension or termination of the
Plan, except with the consent of the person to whom the Option was granted.
13. EFFECTIVE DATE OF PLAN.
----------------------
The Plan shall become effective on such date as the Plan is adopted by the
Board, provided that the shareholders of the Company approve or have approved
the Plan within twelve (12) months of such date. No Options granted under the
Plan shall be exercised unless and until the Plan has been approved by the
shareholders of the Company.
-11-
<PAGE>
<TABLE>
<S> <C>
EXHIBIT 10.22
---------------------------------
Confidential Treatment Requested
under 17 C.F.R(S)(S)200.80(b)(4)
200.83 and 230.406
--------------------------------
</TABLE>
MASTER SERVICES AGREEMENT
-------------------------
THIS MASTER SERVICES AGREEMENT ("Agreement"), dated as of the 27th day of
February, 1998 ("Effective Date"), is made by and between TeleCorp Holding
Corp., Inc, a Delaware corporation ("TeleCorp") and Entel Technologies, Inc., a
Delaware corporation ("Entel").
EXPLANATORY STATEMENT
TeleCorp desires to engage Entel ("General Contractor") to perform numerous
different types of services related to TeleCorp's planned personal communication
services ("PCS") system (the "System"). These services consist of site
acquisition, construction management, program management, microwave relocation
and engineering services (each a "Service", collectively the "Services"), all of
which are more specifically set forth below. TeleCorp and Entel therefore, in
consideration of the mutual promises and covenants contained herein, agree as
follows:
1. TRADING AREAS AFFECTED; COMMITMENT; TELECORP'S
ACQUISITION OF LICENSES
AT&T Wireless PCS, Inc. ("AT&T") is the license-holder for the FCC "A", "B"
and "D" Block licenses for the Major Trading Areas listed on Schedule C attached
----------
hereto, and TeleCorp is the license-holder for FCC "F" Block licenses for the
Basic Trading Areas listed on Schedule C attached hereto, (all such areas are
----------
hereinafter referred to as the "Service Area"). TeleCorp is a presently in
negotiations with AT&T for the transfer of AT&T's license rights to TeleCorp
PCS, Inc.
11. RELATIONSHIP OF PARTIES
A. Independent Contractor Relationship.
The parties intend by this Agreement to establish an independent
contractor relationship. Neither party nor their employees shall be agents or
legal representatives of the other party for any purpose. Neither party shall
have the authority to act for, bind, or commit the other party. Entel and
TeleCorp agree that this Agreement does not establish or create a relationship
of employer-employee, principal-agent, or a franchise, joint venture, or
partnership for any purpose whatsoever.
B. Employees
During the term of this Agreement, neither party shall solicit nor
accept for employment any senior management employees of the other party without
first obtaining the express written consent of the other party. TeleCorp shall
have the first right to select which of Entel's project managers shall provide
Services hereunder and over any employee of Entel currently rendering services
for TeleCorp. TeleCorp shall have the right to request, in writing and upon five
(5) days' notice to Entel, that a particular employee of Entel perform no
further work in connection
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with this Agreement. Entel agrees that it will immediately honor any
such request made by TeleCorp.
C. Independent Contractors
Entel shall act as a manager in its capacity as a general contractor.
Without relieving Entel of any of its obligations hereunder, Entel may engage
independent contractors to perform any of the construction Services. Entel shall
be responsible, but subject to TeleCorp's approval, for selecting the non-Entel
persons, contractors, subcontractors, and agents to perform the construction
Services to be performed or managed by Entel hereunder. In the event that Entel
does retain independent contractors to perform Services, Entel shall be
responsible for selecting, contracting, and paying such independent contractors,
and Entel shall not bind TeleCorp or cause TeleCorp to be bound to any such
independent contractor contract (or agreement of any kind whatsoever), without
TeleCorp's written consent at its sole discretion. TeleCorp shall have the right
to approve any such non-Entel persons and to approve the terms and conditions of
any contract therewith entered into by Entel. All such independent contractors
shall provide, to TeleCorp's satisfaction, appropriate licenses and insurance.
D. Contracts With Affiliates
Entel may contract with any affiliate of Entel to provide goods or
services beyond those which its employees would perform, it if deems the same to
be necessary or advisable for construction of the Sites. All such contracts
shall be subject to prior written approval by TeleCorp in its sole discretion.
111. REQUIRED SERVICES
A. Site Acquisition Services and Program Management Services
In the course of building out the System, TeleCorp shall, based on its
System network grid, establish small geographic areas within which a cell site
or transmission tower shall be located, based on the network grid's RF design (a
"Search Ring"). TeleCorp will provide to Entel its System network grid, with the
established Search Rings overlaid thereon. TeleCorp will assign to Entel no less
than [***] Search Rings, via Schedule A attached hereto which shall be amended
----------
from time to time. At no time will the number of Search Rings assigned to Entel
on Schedule A drop below [***]. Entel shall provide the following services (all
----------
of which shall be hereinafter referred to collectively as the "Site Acquisition
Services") within the Search Rings for TeleCorp, but Entel shall not be the
exclusive provider thereof. With respect to each Search Ring, Entel shall
perform the following services:
1. Search Ring Background Workup. Entel shall prepare a zoning,
construction, and land use analysis of the geographic area
covered by each Search Ring, which will include, at a minimum:
a. Listing of all state and local jurisdictions;
b. Zoning process descriptions;
c. Zoning maps in both hardcopy and softcopy formats, to the
extent possible;
* Confidential Treatment Requested
2
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d. Zoning application forms, and estimates of necessary fees;
e. Zoning meeting schedules;
f. Sample construction and land use permit applications, forms,
estimates of necessary fees, identity of permitting authorities
and their various meeting schedules;
g. Contact information (name, address, affiliation, phone, e-mail
and fax) for key zoning, construction, and land use permitting
personnel;
h. Background report on community awareness, issues, and concerns
related to PCS infrastructure deployment;
i. Identified Federal Aviation Administration (FAA) restrictions;
j. Identified environmental restrictions.
2. Site Identification, Acquisition, Zoning and Permitting
a. Entel shall identify at least two possible locations on which a
cell site or transmission tower could be located (a "Site")
within each Search Ring. Each candidate Site shall be submitted
to TeleCorp, which will certify in writing to Entel whether each
such Site meets TeleCorp's requirements for cost, availability,
ability to be zoned, ability to be permitted, ability to be
constructed and suitability to RF engineering. Submission of the
Site shall be made to the person designated by TeleCorp from time
to time. Prior to the closing with AT&T under that certain
Securities Purchase Agreement dated January 23, 1998, among
TeleCorp PCS, Inc., AT&T and certain other parties (the
"Closing"), TeleCorp shall not be obligated to make such
certification within a particular time frame, or at all. After
the Closing, TeleCorp shall make such certification within five
(5) business days of the Site's Submission.
b. Entel shall negotiate the purchase or lease of at least one (1)
certified Site within each Search Ring. Purchase or lease terms
shall, upon completion of their negotiation by Entel, be
submitted to TeleCorp in writing, and TeleCorp shall accept or
reject same, in writing (acceptance may be by execution of
documents presented, if appropriate). Prior to the Closing,
TeleCorp shall not be obligated to accept or reject such terms
within a particular time frame, or at all, but after the Closing,
TeleCorp shall accept or reject such terms within thirty (30)
business days of submission to TeleCorp by Entel.
c. As part of its Site identification efforts in a, above, Entel
shall make available to TeleCorp any Sites which it can offer on
a bulk basis or which have been screened as "friendly" Sites.
Entel shall
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<PAGE>
present to TeleCorp a comprehensive database of such Sites, and shall indicate
the availability and lease rate of each site. Friendly Sites are collection
structures such as buildings, towers, water tanks, billboards, signs, rooftops,
etc. that meet TeleCorp's minimum required height and for which leases can be
secured, zoning can be obtained and construction of PCS Equipment may be
installed.
d. At the express written direction of TeleCorp, Entel shall order
title abstracts, coordinate a full title search, and/or obtain
title insurance for approved and accepted Sites.
e. At the express written direction of TeleCorp, Entel shall
coordinate a "Phase 1" or other environmental surveys for
approved and accepted Sites.
f. Entel shall obtain all land use permits and/or zoning variances
required for each approved and accepted site, if any, are
necessary. If no approvals or variances are required, Entel shall
provide proof thereof. In connection with obtaining these
approvals and variances, Entel shall:
i. Submit complete zoning applications with all necessary
exhibits;
ii. At TeleCorp's request, attend necessary meetings,
including zoning hearings, planning meetings, and
community meetings, as a representative of TeleCorp;
iii. At TeleCorp's request, coordinate community outreach
programs, expert witness testimony, and other measures
which may be required to assure the zoning, construction,
and land use of approved and accepted Sites.
iv. Secure all required construction permits on behalf of
TeleCorp.
3. Documentation of Site Acquisition Services.
Entel shall maintain a comprehensive record (both hardcopy and
electronic copy, when possible) indexed by Site, which shall include
the following elements, at a minimum:
a. Site Survey Report for each of the Sites presented to TeleCorp
for approval in Section III.A.2.a. above, consisting of property
name, address, latitude, longitude, photos, site owner or
property manager contact information, and proposed lease rate or
purchase price;
b. For each of the approved and accepted sites, the fully executed
lease agreement or purchase document with all exhibits;
4
<PAGE>
c. For each of the approved and accepted Sites, the copy of zoning,
construction, and land use applications and zoning variance
requests, if any, with all exhibits;
d. For each of the approved and accepted Sites, the copy of the land
use permits;
e. For each of the approved and accepted Sites, the Landlord
approval of construction plans, and other indicia of compliance
with lease terms;
f. For each of the approved and accepted Sites, copy of the
construction permits.
4. Organizational Interfaces
a. Entel shall work at the explicit direction of TeleCorp at all
times. Entel shall designate one or more points of contact, as it
deems efficient, in order to communicate effectively with
TeleCorp. Entel shall obtain TeleCorp's explicit approval before
obligating TeleCorp financially, contractually, or otherwise.
b. Entel shall coordinate the activities of the Architectural and
Engineering (A&E) firms during the site acquisition phase, to
include the development of site-specific drawings for landlord
approval and for zoning purposes.
c. Entel shall coordinate all site visits during the site
acquisition phase, to include at a minimum: site surveys,
technical team visits, drive tests, construction surveys, A&E
surveys, geotechnical surveys, and environmental surveys.
d. Entel shall work to ensure a smooth transition of site-related
activities from Site Acquisition to Construction Management.
e. Entel shall procure on behalf of TeleCorp required discretionary
' (zoning, construction, and land use) entitlements and other
permits, including building permits required for completion of
Sites from state and local government authorities and from
agencies of the United States Government, other than the Federal
Communications Commission ("FCC").
f. Entel will work with the TeleCorp finance department to set up a
cost tracking and reporting system that meets the General Ledger
and Asset Management needs of TeleCorp. Entel will ensure that
they coordinate their accounting policies and procedures as they
relate to activity under this contract to ensure compliance and
compatibility (including, but not limited to, a seamless
electronic interface of data) with TeleCorp's finance department.
B. Construction Management and Program Management Services
Entel shall perform the following services (all of which shall be
hereinafter referred to collectively as the "Construction Management Services")
for TeleCorp, for each site chosen within each of the Search Rings assigned via
Schedule A, (a "Schedule A Site") and for other sites for which Entel has not
provided Site Acquisition Services. The sites for which Entel shall provide the
Construction Management Services which are not the Sites within the Search Rings
listed on Schedule A shall be assigned to Entel via written addenda issued from
time to time by
5
<PAGE>
TeleCorp in the form of Schedule B (a "Schedule B Site") to this Agreement. All
----------
sites for which Entel will perform Construction Management Services, whether
Schedule A sites or Schedule B sites, shall hereinafter be referred to as the
"CMS Sites." The Construction Management Services to be performed by Entel are
as follows:
1. Sites for which Entel provided Site Acquisition Services.
For all approved and accepted sites for which Entel's Site
Acquisition Services have been performed, Entel shall, as
required by TeleCorp, continue its work on such Sites by
acting as the construction manager in the capacity of
general contractor to TeleCorp.
2. Sites for which Entel did not provide Site Acquisition
Services. For all Sites which are not Sites for which Entel
has performed Site Acquisition Services, and provided that
such sites are presented to Entel via Schedule B for
--------------
Construction Management Services with all of the work
completed which Entel would have performed had it been
engaged by TeleCorp to perform Site Acquisition Services,
then Entel shall act as the construction manager in the
capacity of general contractor to TeleCorp for such sites.
TeleCorp covenants that it will make available the records
and files of all previously performed site acquisition work
to Entel as Entel may reasonably request.
3. The Minimum Construction Management Services which Entel
shall perform include:
a. Awarding, via a bid process resulting in not less than
[***] bids per contract, contracts for the performance
of soil tests, geotechnical, plat and topographical
surveys, investigation of flood and water drainage
issues, tower construction, foundations, tenant
improvement, grounds and landscaping, and thereafter
negotiating the terms of all such contracts, all of
which shall be entered into by Entel and the other
contract party directly;
b. Upon completion of the foregoing negotiations,
submitting these contracts to TeleCorp in writing,
which after the Closing shall accept or reject same, in
writing (acceptance may be by execution of documents
presented, if appropriate, within [***] of submission
to TeleCorp by Entel.
c. Ordering and permitting access and delivery for the
installation of commercial electrical power.
d. Permitting access to, arranging for, scheduling
accepting delivery of telephone service as ordered to
be installed by Entel.
* Confidential Treatment Requested
6
<PAGE>
e. Management and supervision of day-to-day construction
activities, including
i. Site access preparation;
ii. Site preparation;
iii. Site excavation and leveling;
iv. Foundation construction;
v. Electrical connection, power, and grounding;
vi. Tower construction;
vii. Wind-load testing;
viii. Structural reinforcement;
ix. Antenna mounting and coaxial routing and
mounting;
x. Placement of OEM equipment;
xi. Safety and OSHA compliance.
4. Entel Operating Standards.
a. All construction activities shall fully comply with
TeleCorp's standards for quality, as well as with all
local, state, and national codes and laws.
b. Entel shall coordinate the performance of geotechnical,
plat and topographical surveys. Entel shall coordinate
the investigation of flood and drainage issues.
c. Entel shall present and fully implement a comprehensive
safety program. Entel shall demonstrate its corporate
safety record. Entel shall document and report safety
hazards, environmental concerns, and other abnormal
situations immediately.
5. Subcontractor and Supplier Management.
a. Entel shall select all subcontractors and suppliers.
Entel shall develop subcontractor and supplier
selection standards. Entel shall implement a
subcontractor and
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<PAGE>
supplier election process that reflects the best interests
of TeleCorp at all times.
b. Entel shall maintain full responsibility to TeleCorp
for quality, cost, delivery, and performance of all
subcontractor and supplier goods and services.
6. Materials Management. Entel shall provide all construction
materials with the exception of PCS equipment. Entel shall
identify all long-lead parts and materials to take
appropriate action to ensure that these items are obtained
without adverse impact to TeleCorp's cost or schedule
objectives. Entel shall select, order, and track all
material purchases.
7. Final Deliverables. As the final deliverable of its
Construction Management Services, Entel shall deliver to
TeleCorp a written Close-out Report for each CMS site within
[***] days of completion, which shall include a thorough and
fully approved close out package of all Sites. Close out
activities shall include, but are not limited to final
inspection, punch list development and resolution, and final
walk-through and inspection with TeleCorp. Entel shall not
have completed close out until it has received notice from
TeleCorp of completed close out following final walk-through
and inspection, which notice shall not be unreasonably
withheld, but in any event shall be within [***] days of
final walkthrough and inspection.
8. Documentation of Construction Management Service. Entel
shall maintain comprehensive records for each site for which
it performs Construction Management Services, indexed by CMS
Site, which shall include the following, at a minimum:
a. land use permit,
b. construction and related permit,
c. current construction status,
d. detailed financial accounting records, including but
not limited to, approved purchase orders price
quotations and selections criteria; and verification of
goods or services received.
9. Organizational Interfaces.
a. Entel shall work at the explicit direction of TeleCorp
at all times. Entel shall designate one or more points
of contact, as it deems efficient, in order to
communicate effectively with TeleCorp. Entel shall
obtain TeleCorp's explicit prior written approval
before obligating TeleCorp financially, contractually,
or otherwise.
* Confidential Treatment Requested
8
<PAGE>
b. Entel shall coordinate the activities of the
Architectural and Engineering (A&E) firms during the
construction phase, to include ensuring that basic site
drawings provided by TeleCorp are tailored to the
specific requirements of individual Sites.
c. Entel shall coordinate all site visits during the
construction phase, to include at a minimum: site
surveys, technical team visits, drive tests,
construction surveys, architectural and engineering
surveys, geotechnical surveys, and environmental
surveys.
d. Entel will work with the TeleCorp finance department to
set up a cost tracking and reporting system that meets
the General Ledger and Asset Management needs of
TeleCorp. Entel will ensure that they coordinate their
accounting policies and procedures as they relate to
activity under this contract to ensure compliance and
compatibility (including, but not limited to, a
seamless electronic interface of data) with TeleCorp's
finance department.
e. Entel shall coordinate its Construction Management
Services with TeleCorp to insure that each Site
delivered by Entel pursuant to the terms of this
Agreement shall be ready for delivery and installation
of equipment in accordance with TeleCorp's equipment
vendor contracts, and that all conditions to such
equipment vendor's installation of equipment and
performance of services on a Site, attributed to Entel
on the responsibility Matrix set forth on Schedule E
hereto, shall have been fulfilled. No Site shall be
deemed completed unless it has been delivered to
TeleCorp in accordance with the terms of this Section
B.9.e.
C. Program Management Services
In connection with, and as a tracking and indexing mechanism for its
provision of Site Acquisition and Construction Management Services pursuant to
this Agreement, Entel shall develop, implement and maintain a deployment plan
(the "Deployment Plan") which tracks all activities and costs associated with
the performance of Site Acquisition Services and Construction Management
Services for each Site. The Deployment Plan is:
1. Entel shall develop and implement a quality assurance program,
which ensures that all activities are performed to the highest
quality standards.
2. Entel shall develop and implement a comprehensive cost accounting
system compatible with TeleCorp's financial systems
9
<PAGE>
that includes, at a minimum: procedures for conducting financial
transactions; financial tracking and management; and
comprehensive financial reporting.
3. Entel shall develop and implement comprehensive reporting
mechanisms so that detailed site progress is tracked on a daily
basis, and complete reports are provided when required by
TeleCorp, not less frequently than [***].
4. Entel shall develop and implement a comprehensive filing system
that ensures that all relevant site information is organized and
available. Entel shall seek to use electronic means whenever
possible. Entel shall ensure the physical security of the filing
system.
5. Entel shall manage and coordinate interaction among site
acquisition, construction, management, and the A&E firm. Entel
shall ensure that both formal and informal communications among
these disciplines are effective and in the best interests of
TeleCorp.
6. Entel shall manage and coordinate interactions between the
infrastructure development staff (site acquisition and
construction management) and other disciplines involved in the
system deployment (e.g., RF engineering, network engineering,
marketing). Entel shall ensure that both formal and informal
communications among these disciplines are effective and in the
best of interests of TeleCorp.
D. Microwave Relocation Services
Entel, utilizing the Comsearch IQ Clear spectrum sharing tool,
procured and provided by Entel, will supply to TeleCorp labor, services,
resources, and consultation necessary to perform microwave relocation and
spectrum clearing services ("Microwave Services"). The Microwave Services
include Spectrum Sharing Engineering Study and Analysis and Initial Market
Assessment, Drive test Frequency Selection, and Prior Coordination Notices. The
Microwave Services also include Negotiations and Program Management for the
relocation of interfering paths.
1. Spectrum Sharing Engineering Study and Analysis and Initial
Market Assessment
Entel will perform spectrum sharing studies, as required, for
selected frequency(ies), in each assigned BTA and frequency,
based on either a generic RF design or the design information
provided by TeleCorp. Entel will utilize the results of the
analysis in performing the following steps as required to
complete assessment of interfering paths/incumbents identified in
the spectrum sharing study including status and initial budgetary
analysis for each path.
* Confidential Treatment Requested
10
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2. Service Description
a. Spectrum Sharing Analysis
Entel will perform spectrum sharing studies, as required,
for each assigned BTA and frequency. The reiterative studies
will be based on RF design information provided by TeleCorp,
and will identify all microwave paths that could affect or
be affected by TeleCorp's proposed PCS systems, based on FCC
guidelines on interference avoidance.
b. Review and Catalog Path Data
Review information from the spectrum sharing analysis on a
per market and per incumbent basis for both co-channel and
adjacent channel paths. Information such as number of links,
equipment and modulation type, capacity, site names and
locations for each path will be logged for use during
negotiations and relocation program management.
c. Path Prioritization
Entel will develop technical parameters for the interfering
co and adjacent channel paths to establish negotiation and
relocation strategies and path priorities.
d. Review of Incumbent Data
Entel will review incumbent system data on a per link basis
and compare the information against FCC database information
to determine whether the incumbent is operating on a primary
status with a current license.
e. Path Status Verification and Initial Incumbent Assessment
Entel will contact each incumbent to confirm database
information, verify path status, i.e. active, negotiated, or
decommissioned. If the incumbent has not entered into an
agreement with another PCS licensee, then Entel will assess
the incumbent's willingness to negotiate, identify strategic
information, and discuss preliminary relocation options.
f. Assessment Of Previously Negotiated Paths
Entel will attempt to obtain the terms and status of each
relocation agreement entered into between an incumbent and
other PCS licensee(s). Entel will attempt to obtain a copy
of the agreement, provided that it is not protected by a
non-disclosure agreement. Entel will determine whether the
dates agreed upon in the relocation agreement meet
TeleCorp's requirements.
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g. Estimate Comparable Relocation Costs
Estimate relocation costs on a per incumbent and per market
basis for paths that are determined to be active or
co-channel paths that have been negotiated and/or relocated.
Information such as system type and architecture, number of
links required to be relocated, tower heights and typical
system usage will be used to develop the cost estimates.
h. Route Mapping
Develop route maps on a per incumbent and per market basis
delineating co-channel and adjacent channel active paths.
i. Drive Test Frequency Selection
Entel will complete the spectrum analysis and provide
TeleCorp with the require drive test frequencies for the
assigned BTS locations (if a non-interfering frequency is
available).
j. Prior Coordination Notices
Entel will prepare Prior Coordination Notices (PCN(s)), mail
PCNs to incumbents and clearinghouses, and coordinate
responses and objections to PCNs, as required.
k. Deliverables
Entel will provide TeleCorp with periodic reports containing
the following information:
i. Copies of FCC licenses for each identified path;
ii. Comparable cost documentation for each active path or
for each co-channel paths which have been negotiated
and/or relocated;
iii. Detailed budgetary cost analysis on a per BTA and.
frequency basis;
iv. Route maps;
v. Frequency relocation contract templates;
vi. Upon clearing of each region or market, Entel shall
provide;
vii. Drive Test Frequencies as required; and
viii. Copies of Filed PCNs.
12
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3. Negotiations and Program Management
a. Introductory Mailing.
Entel will identify the proper technical and negotiation
contact for each incumbent and send and introductory mailing
packet containing general information on microwave
relocation and specific information about TeleCorp and its
proposed course of action.
b. Negotiation Parameters.
Entel will work with TeleCorp to develop negotiation
parameters acceptable to TeleCorp. These parameters should
be established prior to the commencement of negotiations so
that settlements may be negotiated expeditiously.
c. Development of Negotiation Strategies.
Entel will work with TeleCorp to develop optimal negotiation
strategies for each incumbent and market. These strategies
will be based upon the size and location of each incumbent's
network, considering whether the incumbent is present in
multiple TeleCorp markets, TeleCorp's priorities and its
willingness to provide various relocation alternatives.
d. Initiate Negotiations.
Entel will negotiate with incumbent to reach an agreement
that conforms to TeleCorp's relocation schedule and cost
parameters.
e. Additional Negotiation and Finalization of Agreement for
Amended Relocation Dates.
If a path has been negotiated by another PCS licensee, but
the relocation date(s) are unacceptable to TeleCorp, then
Entel will initiate negotiations with the incumbent, other
PCS licensee(s) or both to alter the unacceptable relocation
dates and bring them into conformity with TeleCorp's
relocation priorities.
f. Negotiation Strategy.
Entel will re-assess negotiation parameters and strategies
as required based on discussions with incumbents, additional
information obtained from incumbent meeting, and any
modifications to TeleCorp's deployment schedule.
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g. Contract Templates.
TeleCorp's inside counsel shall review and modify, as
required, the contract templates that Entel provides to
TeleCorp. The parties agree that these pre-approved contract
templates are essential for enabling Entel to conclude
negotiations in an efficient and expedient manner.
h. Finalize Relocation Terms.
Entel will provide the proposed business terms to TeleCorp
for approval.
i. Finalize Relocation Agreement.
Once TeleCorp has approved the business terms, Entel, shall
work with TeleCorp's counsel to facilitate the negotiation
and execution of the final relocation agreement between
TeleCorp and the incumbent.
j. Frequency Coordination.
Entel will order frequency coordination. If required, Entel
will prepare the required FCC license applications for
incumbent's signature and submit such applications to the
FCC.
k. Detailed Relocation System Design.
Entel will order engineering services required to design and
engineer the microwave path including path and site surveys
and network system design.
l. Third Party Proposals.
Entel will obtain and review third party proposals for
equipment and/or services, including but not limited to
construction, installation, testing and training and other
services required to implement the turnkey replacement and
make a recommendation to TeleCorp as to which proposal to
accept.
m. Tower Stress and Foundation Analysis.
Entel will order any required tower and foundation analyses.
Entel will coordinate and program manage the entire process.
n. Tower Options Analysis.
Entel will review results of the tower and/or foundation
analyses and based on the recommendation made by the
Supplier, determine most cost-effective option such as
structural strengthening, replacement, or alternate courses
of action.
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o. Leased Facilities.
In the event that an incumbent transfers its operations to
leased facilities and requests TeleCorp's assistance in the
transfer, Entel will coordinate the transfer of the
facilities to alternate leased by the scheduled
decommissioning date.
p. Relocation Plan.
Entel will develop a relocation plan that sets forth
detailed relocation requirements including equipment
procurement requirements, time line requirements, system
performance requirements and detailed installation
requirements. These detailed installation requirements will
include testing, acceptance, and commissioning requirements.
q. Installation Feasibility Analysis.
Entel, in coordination with a third party equipment supplier
and installer will conduct an installation feasibility
analysis in order to identify detailed installation
requirements and to ensure that decommissioning objectives
are met.
r. Installation Oversight
Entel will supervise the installation of the replacement
system to ensure that the old system is decommissioned on
schedule and that the incumbent is satisfied with the
installation of the replacement system.
s. Tower Modification Oversight.
Entel will monitor third party Suppliers' performance to
encourage timely completion of their obligations.
t. Documentation Review.
Entel will review "as-build 'documentation prepared by third
party Suppliers, verify completion of third party supplier
contractual requirements, and recommend to TeleCorp to
proceed with final payment based on acceptance criteria.
u. Incumbent Acceptance.
Entel will obtain final incumbent acceptance of equipment
and facility installation. Entel will work toward
incumbent's satisfaction that the contractual obligations by
TeleCorp and its subcontractors (if applicable) have been
met.
v. Final Cost Documentation.
Entel will provide TeleCorp with a final accounting of the
costs incurred to perform the turnkey relocation project.
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w. Monitoring of Incumbent's Performance Obligations.
For paths that resulted in a cash transaction between
Incumbent and TeleCorp, Entel will monitor incumbent to
encourage compliance with contractual obligations and report
such status to TeleCorp.
x. Decommissioning Notification.
Entel will notify TeleCorp of completion of the relocation
and provide TeleCorp with copies of FCC Form 415S and/or FCC
licenses indicating that the 2 GHz frequencies have been
removed and decommissioned.
4. Documentation for Microwave Services
a. Entel will provide TeleCorp the following deliverables on a
per incumbent basis:
i. Signed offer letter;
ii. Executed contract between incumbent and TeleCorp;
iii. Periodic reports containing the status on incumbent
compliance with the frequency relocation agreement
including status on path decommissioning.
b. Where applicable, Entel shall provide to TeleCorp the
following information:
i. Test reports;
ii. Procurement documentation;
iii. Project management reports;
iv. Equipment test certification;
v. Photos, drawings and other information obtained from
site visits;
vi. Cut-over documentation; and
vii. Equipment removal certification.
c. Entel shall provide TeleCorp with copies of FCC Form 415s
for decommissioned paths.
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E. Engineering Services
Entel shall perform certain engineering services relating to the
development of the System, including fixed network design ("Engineering
Services"), when specifically requested to do so, in writing, by TeleCorp,
pursuant to Schedule D.
----------
IV. PAYMENT
A. Payments to Contractors
Entel shall be responsible for making all payments due to contractors
and subcontractors selected by, or contracted with, Entel to perform services
and to provide materials at the Sites in connection with Services rendered
hereunder. TeleCorp may advise Entel in writing that TeleCorp will pay them
directly. Entel shall present copies of all such invoices relating to
construction of the Sites which Entel has paid to TeleCorp, and TeleCorp shall
then provide Entel reimbursement of such disbursements plus [***]% of such
disbursements within thirty (30) days of Entel's submission of said invoices to
TeleCorp.
Entel shall furnish evidence satisfactory to TeleCorp that all labor
furnished and material consumed by Entel during the invoice period has been paid
in full and that the Services are not subject to liens or claims on account
thereof. TeleCorp may withhold payment of the invoice until Entel furnishes such
evidence.
TeleCorp retains the right to directly dispute any material default
under any agreement between Entel and any materials or service provider to the
extent such agreement authorizes Entel to so dispute, provided that TeleCorp
shall provide written notice to Entel of TeleCorp's election to dispute. Upon
notice of TeleCorp's election to dispute, Entel shall cease all payments to the
disputed services or materials provider until such time as TeleCorp authorizes
Entel to resume payment schedule. Nothing in this Section IV.A., shall relieve
TeleCorp of its obligations to make reimbursement payments to Entel under this
Section IV, provided that TeleCorp may suspend such reimbursement payments for
all invoices paid by Entel following a stop payment/dispute notice from
TeleCorp. If TeleCorp disputes the amount of expenses of fees claimed by Entel,
then as between Entel and TeleCorp, such dispute shall be resolved in accordance
with Section X.
Entel shall pay all taxes, duties, and assessments of every nature due
in connection with the Site Development Services, and shall invoice TeleCorp for
said taxes on a reimbursable basis. Entel hereby indemnifies and holds harmless
TeleCorp and its subsidiaries, affiliates, stockholders, directors, officers and
agents from any and all liability on account of any and all such taxes, duties,
assessments, and deductions.
B. Compensation for Services
I . Site Acquisition and Program Management Services Fees
a. Per Site Fees for Site Acquisition
In consideration for performance of the Site Acquisition,
TeleCorp shall pay Entel, [***] per site, in the manner set forth
below:
* Confidential Treatment Requested
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<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------
Milestone Amount Due
- ----------------------------------------------------------------------------
<S> <C>
[***] $ [***]
- ----------------------------------------------------------------------------
[***] $ [***]
- ----------------------------------------------------------------------------
[***] $ [***]
- ----------------------------------------------------------------------------
[***] $ [***]
- ----------------------------------------------------------------------------
</TABLE>
b. Per Site fees for Program Management Services. In consideration
for performance of the Program Management Services, TeleCorp
shall pay Entel, [***]per site, [***]upon [***], and [***] upon
[***].
c. Reimbursement for Per Site Advances
i. Non-Reimbursable Costs.
Entel's compensation for the Site Acquisition Services shall
be inclusive of customary out-of-pocket expenses incurred by
Entel in the performance of its obligations hereunder ("Per
Site Fee"), including, without limitation;
[***].
Any extraordinary or other expenses that Entel should
reasonably anticipate incurring, which are not customarily
incurred in the ordinary course of business, must be pre-
approved by TeleCorp in order for Entel to receive
reimbursement for such expenditures.
ii. Reimbursable Costs.
In the event that Entel contracts directly with third
parties, trade contractors and subcontractors in connection
with its provision of Services., the following expenses (in
addition to other expenses which the parties may agree to
from time to time) shall be considered pass through costs
and be reimbursed to Entel to the
* Confidential Treatment Requested
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extent not paid directly by TeleCorp in accordance with
IV(a) above, provided, however, that TeleCorp shall be
obligated to reimburse expenses incurred by Entel only with
respect to which Entel had received express written
direction from TeleCorp.:
[***].
* Confidental Treatment Requested
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d. Withdrawal.
In the event TeleCorp elects to withdraw a Site assigned to
Entel, TeleCorp shall give Entel notice of such withdrawal, and
shall pay Entel [***]% of the milestone installment that would be
due if the work currently in progress was completed and [***]% of
all other amounts due hereunder for work completed on the Site as
of the date of TeleCorp's withdrawal notice and substitute the
withdrawn Site with an alternative site within [***] days
("Alternative Site"). If TeleCorp does not issue an Alternative
Site within [***] days of withdrawing a Site from the Minimum
Number of [***] Search Rings, then Entel shall be entitled to
receive [***] of the entire Per Site Fee for site Acquisition
Services for the site withdrawn.
e. Search Rings Design.
In the event that TeleCorp redesigns a search ring beyond 1.5
miles of an urban or suburban Site or 4 miles of a rural Site,
rendering unnecessary such Site that it had previously approved
and for which Entel has begun but not yet completed all Site
Acquisition Services, then TeleCorp shall pay Entel [***]% for
all site acquisition services completed at the time that the
notice of redesign is received by Entel. For all site acquisition
services rendered for the redesigned search ring TeleCorp shall
pay Entel an additional [***]% of the milestone installments due
for all milestone installments to be performed and [***] of all
milestone installments to be
* Confidential Treatment Requested
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performed for the first time.
f. Additional Services.
In the event TeleCorp desires Entel to perform isolated tasks
associated with a Site which is not assigned to Entel on Schedule
-----------
A or B, TeleCorp shall pay Entel [***].[***].
-
g. Statements.
Entel shall provide TeleCorp with statements showing in
reasonable detail the calculation of the Per Site Fees earned
during the last calendar month not more than thirty (30) calendar
days following the end of each calendar month. The Per Site Fee
shall be paid by TeleCorp to Entel within thirty (30) days
following such submission of invoices by Entel unless disputed by
TeleCorp as provided below.
2. Construction Management and Program Management Services Fees.
a. Per CMS Site Fees
In consideration for performance of the Construction
Management Services ("CMS"), TeleCorp shall pay Entel
$[***] per Site in the manner set forth below.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------
Milestones Amount Due
- ----------------------------------------------------------------------------
<S> <C>
[***] $[***]
- ----------------------------------------------------------------------------
[***] $[***]
- ----------------------------------------------------------------------------
[***] $[***]
- ----------------------------------------------------------------------------
</TABLE>
The aggregate amount of the milestone payments to Entel for the
Construction Management Services delivered to TeleCorp shall be [***] per CMS
Site.
b. Withdrawal
In the event TeleCorp elects to withdraw a CMS Site,
TeleCorp shall give Entel notice of such withdrawal, and
shall pay Entel [***]% of the milestone installment that
would be due if the work currently in progress was completed
and [***]% of all other work completed on the withdrawn CMS
Site as of the date of TeleCorp's withdrawal notice and
substitute the withdrawn CMS Site with an alternative site
within [***] days ("Alternative CMS Site"). If
* Confidential Treatment Required
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TeleCorp does not issue an Alternative CMS Site within sixty days
of withdrawing a CMS Site, then Entel shall be entitled to
receive [***]% of the entire Construction Management Fee, for the
CMS Site withdrawn.
3. Microwave Relocation Services Fees
a. Regional Compensation.
TeleCorp shall pay Entel a fixed price of [***] (the "Total Fee")
for Microwave Services for the TeleCorp Regions, on a per region
basis, as set forth in the following table:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Services [***] [***] [***] Total
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Spectrum Sharing,
Drive Test Frequency,
and Prior $[***] $[***] $[***] $[***]
Coordination Notice
Fees
- --------------------------------------------------------------------------------------------------------------------------
Negotiations and $[***] $[***] $[***] $[***]
Relocation Program
Management Fee
- --------------------------------------------------------------------------------------------------------------------------
Total Fee per Region
and Total Fee for All $[***] $[***] $[***] $[***]
TeleCorp Regions
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
b. Payment Schedule
i. TeleCorp shall pay Entel [***] equal payments (each a
"Monthly Payment") as follows:
a. [***] per month for the [***];
b. [***] per month for the [***]; and
C. [***] per month for the [***].
* Confidential Treatment Requested
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ii. [***].
iii. [***]. Invoices shall be due and payable by TeleCorp within
[***] days of the date of receipt by TeleCorp. TeleCorp
shall review the invoices and notify Entel in writing
within [***] days of receipt of the invoice of any
objection or question TeleCorp may have in connection with
the invoice. If any items are disputed, only the disputed
items may be withheld from payment. The remaining
undisputed portion of the invoice shall be paid in
accordance with the terms of this Agreement.
iv. [***]. Entel shall notify TeleCorp upon completion of all
applicable steps set forth in the Scope of Work for all
interfering paths located in the applicable region.
TeleCorp, within [***] of receipt of such notification,
shall either approve final payment or specifically identify
remaining steps for completion by Entel. Entel shall
complete any remaining steps identified by TeleCorp and
notify TeleCorp of such completion. Upon receipt of final
approval by TeleCorp, Entel shall submit an invoice to
TeleCorp for [***] of the applicable region.
v. TeleCorp may withhold Monthly Payments if Entel fails to
provide either timely or quality Services, and such failure
has not been cured within [***] of Entel's receipt of
written notice of such deficiency. Such withheld payments,
shall be due immediately upon Entel's cure of the
deficiency to TeleCorp's satisfaction.
c. Reimbursement
i. Non-Reimbursable Costs
The total fee for Microwave Services set forth herein is
inclusive of the following expenses:
[***]
* Confidential Treatment Requested
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ii. Reimbursable Costs
Entel's service fees for Microwave Services in connection
with the TeleCorp Regions include those set forth in Section
IV.13.3. hereof. TeleCorp and Entel specifically agree,
however, that TeleCorp will be additionally liable for the
cost of the following items in connection with relocation
(collectively "Pass Through Expenses"), provided, however,
that TeleCorp shall be obligated to reimburse expenses
incurred by Entel only with respect to which Entel had
received express written direction from TeleCorp:
[***].
C. Timing of Payment
All invoices shall be sent to TeleCorp's mailing address and marked:
Attn: Accounts Payable. Entel shall invoice TeleCorp in accordance with the
payment schedule set forth herein. Such invoice, after receipt in form
satisfactory to TeleCorp, and subject to verification by TeleCorp, shall be paid
within thirty (30) days of receipt by TeleCorp. Invoices must be sent in
accordance with the invoicing instructions provided in this Agreement. All
invoices must indicate the FEIN # 52-1924331 and the correct code per line item
as invoices. These codes will be provided to Entel by TeleCorp.
D. Payment Disputes
If TeleCorp disputes the amount of expenses or fees claimed by Entel,
TeleCorp shall notify Entel in writing, in the manner set forth in Section
V.C.1.a, prior to making such payment, and shall pay when due all amounts not in
dispute. If the disputed matter cannot be resolved informally between the
parties, either TeleCorp or Entel may request arbitration pursuant to Section X
of the Agreement.
* Confidential Treatment Requested
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E. Liabilities
Entel shall remain solely responsible for all matters relating to
compensation, unemployment, disability insurance, social security, withholding,
and all other federal, state, and local laws, rules and regulations governing
such matters.
F. Applicability of Section
Payment shall be due Entel from TeleCorp under the provisions of this
Section with respect to all Services performed by Entel for TeleCorp.
G. Interest
All fees and reimbursable expenses due under this Agreement which
shall remain unpaid for a period of greater than [***] shall bear interest at
the greater of the rate of [***]% per month or the maximum permitted by law
unless such amount is under dispute pursuant to Paragraph IV. D above.
V. TERM AND TERMINATION
A. Term
The Agreement shall have an initial term of [***] commencing on the
Effective Date. The Agreement shall renew automatically for consecutive
additional [***] unless it is sooner terminated pursuant to the remainder of
this Section V.
B. Termination Without Cause
Termination Without Cause.
TeleCorp may terminate this Agreement or the provision of any Service
by Entel hereunder upon [***] prior written notice for any reason or no reason,
provided, however, that upon finalization of the Performance Schedule, defined
below, such [***] period shall be changed to [***]. For purposes of this Section
B, Performance Schedule shall mean a detailed schedule of mutually agreeable
performance standards customary in the industry to be agreed upon by the parties
within [***] after the Closing (the "Performance Schedule").
Upon any termination hereunder, Entel shall be entitled to any amounts
owed hereunder whether such amounts were incurred prior to or after the Closing;
provided that such amounts have TeleCorp's prior approval.
C. Termination for Cause
1. Termination for Cause.
Either party shall have the right to terminate the provision of
any Service to be provided pursuant to this Agreement, for cause,
if the other party has
* Confidential Treatment Requested
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materially failed to perform its obligations with respect to that
Service, and (i) written notice of such failure has been provided
to the breaching party in a form reasonably calculated to allow
the breaching party to (a) acknowledge the failure and cure same
or (b) dispute the failure, and (ii) the breaching party has
failed to dispute or to cure the failure within [***] of
receiving such notice.
2. Termination Notice.
If either party intends to terminate any Service it shall do so,
subject to this Agreement, by sending a written notice by
facsimile and confirmed by reputable overnight carrier able to
provide proof of delivery, specifying which Service it intends to
terminate and for what cause. A notice of termination duly sent
shall be effective upon sending by overnight courier.
3. Upon any termination of this Agreement, Entel shall use its best
efforts to assign any subcontracts relating to the Services to
TeleCorp.
VI. INSURANCE
A. Entel's Required Insurance
Entel shall maintain in effect, without interruption, on an annual
basis, during the term of this Agreement, the following insurance
policies:
1. Commercial General Liability (Bodily Injury and Property Damage).
Insurance coverage with endorsement evidencing coverage for
contractual liability. The limits of this insurance shall not be less
than:
a. Each Occurrence Limit $1,000,000
b. General Aggregate Limit $2,000,000
2. Comprehensive Automobile Liability insurance covering the ownership,
operation and maintenance of allowed, non-owed, and hired motor
vehicles, in limits not less than $1,000,000 for bodily injury and
property damage per occurrence.
3. Worker's Compensation Insurance with statutory limits and Employer's
Liability Insurance with limits of not less than $1,000,00 for each
accident.
4. Professional Liability (errors and omissions) insurance of not less
than $1,000,000 for each occurrence) with endorsement evidencing
coverage for contractual liability.
5. All foregoing insurance shall provide for an effective date no later
than the Effective Date of this Agreement. Entel agrees to maintain
such coverage in effect without interruption on an annual basis for so
long as this
* Confidential Treatment Requested
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Agreement is in effect. TeleCorp shall be included as an additional
insured on Entel's Commercial General Liability insurance. Entel
agrees to obtain such insurance from nationally recognized carriers at
commercially reasonably rates. Entel's obligations under this
Agreement, including its indemnification obligations under Section XI
A., will not be affected by Entel's obtaining or failure to obtain any
insurance coverage required under Us Section VI.
6. Entel shall provide TeleCorp with Certificates of Insurance from its
insurance agent or broker or insurance company evidencing the above
coverage and limits.
7. All insurance policies required to be maintained hereunder shall be
issued by companies that hold a current rating of not less than a
B+V111, according to Best Key Rating Guide, unless this requirement is
expressly waived in writing by the other party.
VII. REPRESENTATIONS, WARRANTIES AND COVENANTS
A. Mutual Representations, Warranties and Covenants
Each party represents and warrants to the other party, which
representations and warranties shall continue for the term of the Agreement
and the consummation of the transactions herein contemplated, that:
1. it has full power and authority to execute and perform under
the Agreement;
2. the execution, delivery and performance of the Agreement have
been duly authorized by all necessary action on the part of such
party and the Agreement is binding and enforceable against such
party in accordance with its terms;
The parties covenant and agree to use their best efforts to cooperate with
each other in the performance of their respective obligations under the
Agreement, and to take no action that will interfere with the performance by the
other party of such obligations.
B. Entel's Representations, Warranties, and Covenants
1. Entel is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware and that, as of the
Effective Date, it is qualified to do business in and is in good
standing under the laws of the following states: Virginia, Louisiana,
Texas, Missouri, Illinois, Arkansas, Indiana, Kentucky, Tennessee,
Maine, Massachusetts, and New Hampshire.
2. Entel warrants it shall perform the Services in accordance with the
current standards of care and diligence normally practiced by
recognized firms in performing services of a similar nature. [***].
* Confidential Treatment Requested
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[***].
3. Entel shall comply with all local, municipal, state, federal, and
governmental laws, orders, codes, and regulations applicable to
Entel's provision of Services. Entel has all necessary licenses to
perform the Services and shall provide copies of same to TeleCorp.
4. The rates and fees charged for each Service hereunder by Entel are,
and during the term of this Agreement will be, no less favorable than
the terms offered by Entel to any other existing or future customer of
Entel for services comparable in nature and scope to those provided by
Entel hereunder and taking into account appropriate adjustments for
volume discounts. Entel shall conduct an annual internal audit of its
agreements to confirm compliance with this covenant and the Chief
Financial Officer of Entel shall certify such compliance in writing to
TeleCorp on each anniversary of this Agreement. TeleCorp shall be
entitled to secure a third-party audit of Entel in the event that
TeleCorp reasonably believes that Entel has failed to comply with this
provision. If at any time during the term of this Agreement, Entel
provides more favorable rates, or fees to another customer, such terms
hereunder shall be automatically retroactively amended to conform to
such other rates or fees and Entel shall promptly refund any excess
payment.
C. Telecorp's Representations, Warranties and Covenants
1. TeleCorp represents and warrants that all information which it shall
provide to Entel in connection with Entel's performance of Service
hereunder shall be true and complete in all material respects.
2. TeleCorp covenants that, in a timely fashion, it shall provide all
information which Entel reasonably requests, not otherwise freely
available to Entel, deemed necessary or desirable by Entel in the
course of its provision of the Services, including, but not limited
to, information to be supplied in connection with the zoning,
permitting or construction process.
3. TeleCorp is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
VIII. CONFIDENTIAL INFORMATION
A. Use of Confidential Information
In order to permit the parties to perform their respective obligations
under this Agreement, each party may, from time to time, disclose to the other
confidential or
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proprietary information ("Confidential Information"). Each party shall use all
Confidential Information solely for the purpose of performing its obligations
under this Agreement. Neither party shall disclose to any other person, other
than employees or agents of the party who agree, in writing, to be bound by an
equivalent undertaking, any Confidential Information. Entel agrees not to
disclose any of TeleCorp's Confidential Information or any information
pertaining to the Sites to a competitor of TeleCorp.
B. Exceptions
The aforementioned restrictions shall apply to all Confidential Information
with the exception of the following:
1. Confidential Information which is made public -by either party or
which otherwise is or hereafter becomes part of the public domain
through no wrongful act, fault, or negligence on the part of the other
party;
2. Confidential Information which a party can reasonably demonstrate is
already in such party's possession and not subject to an existing
agreement of confidentiality;
3. Confidential Information which is received from a third party without
restriction and without breach of an agreement with TeleCorp or Entel;
4. Confidential Information which is independently developed by a party
as evidenced by its records; or
5. Confidential Information which either party is required to disclose
pursuant to a valid order of a court or other governmental body or any
political subdivision thereof; provided that, to the extent that it
may lawfully do so, the disclosing party shall provide the affected
party with immediate written notice of the nature of the required
disclosure and shall, where appropriate, provide that party with the
opportunity to interpose an objection or obtain a protective order
restricting the use and disclosure of the Confidential Information.
IX. OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTY
A. Ownership of Work Product
Entel shall promptly disclose to TeleCorp all written work product
generated in the course of performing Site Development Services and all facts
respecting such work product (the "Work Product"). Entel hereby assigns to
TeleCorp all of Entel's right title and interest in Work Product, including
without limitation all engineering or architectural drawings and specifications
developed by Entel in connection with the Site Development Services and all
intellectual property rights embodied therein. In addition, all inventions,
discoveries, and other intellectual properties, whether or not patentable, that
are conceived or reduced to practice by Entel in connection with the Site
Development Services, are the sole property of TeleCorp, and Entel hereby fully
and forever assigns same to TeleCorp.
*Confidential Treatment Requested
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Whenever requested, Entel shall execute a confirmatory assignment of
particular items of Work Product and such other intellectual property rights,
and it shall perform all acts reasonably necessary or appropriate to enable
TeleCorp to obtain and enforce legal protections relating thereto in all
countries. TeleCorp shall reimburse Entel's reasonable out-of-pocket expenses in
connection therewith. The Work Product shall be the confidential and proprietary
information of TeleCorp and shall be included within the definition of
Confidential Information set forth in Section VIII above.
In addition, all materials that Entel develops and delivers to
TeleCorp pursuant to this Agreement shall become the sole and exclusive property
of TeleCorp without limitation. Entel agrees to execute all documents and to
take all steps that TeleCorp deems necessary or desirable to protect TeleCorp's
ownership and property rights of these materials.
No Implied Rights or Licenses. Except as provided elsewhere in this
-----------------------------
Agreement, no rights or licenses to the Work Product or TeleCorp's Confidential
Information or to trademarks, inventions, copyrights, or patents embodied
therein are implied or granted under this Agreement.
B. Owner's Right to Complete Work
If Entel defaults or neglects to carry out any of its obligations, or
takes any action, or omits to do anything which endangers safety or proper
construction, or risks damage or injury to persons or property and fail within a
[***] period after receipt of reasonable detailed written notice from TeleCorp
not to commence and continue correction of such default or neglect with
diligence and promptness, TeleCorp may correct all such work, omissions, or
deficiencies, and TeleCorp shall be entitled to recover costs and expenses,
including attorneys' fees, pertaining thereto from Entel.
X. DISPUTE RESOLUTION
A. Arbitration Procedure
If the parties in this Agreement are unable to resolve any dispute
arising out of or relating to this Agreement, either party may refer such
dispute for resolution by final and binding arbitration. The party submitting a
dispute to arbitration shall give notice thereof to each other party to such
dispute and to the President of the American Arbitration Association, who shall
select an arbitrator (the "Arbitrator") who (i) has expertise and at least five
years' experience in matters directly involved with the type of services to be
performed under this Agreement in the Arlington, Virginia area, (ii) certifies
to all parties that he/she is independent of the parties to the dispute and will
be able to render an impartial decision, and (iii) agrees to proceed in
accordance with the applicable provisions of this Section X.
The Arbitrator shall hold one or more hearings to begin within fifteen
(15) days of his/her selection, shall furnish a written decision within forty-
five (45) days of his/her selection, and shall provide an opinion demonstrating
the basis for such decision. The
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Arbitrator may also attempt to mediate the dispute between parties if
requested to do so by both of the parties.
The parties hereto agree to exchange promptly any and all relevant
documentation as the Arbitrator may order. All arbitration proceedings hereunder
shall be conducted in private, and each party hereby agrees to maintain the
confidentiality of the enforcement of the award. All arbitration hearings or
mediation sessions are to be held in the Washington, DC metropolitan area unless
otherwise agreed by the parties, and arbitration hearings need not be conducted
in accordance with formal rules of evidence.
The Arbitrator may determine the procedure for hearings which may, but
need not, include (a) direct testimony of witnesses; (b) cross-examination of
witnesses; (c) submission of sworn statement or affidavits; (d) consideration of
relevant documents; and (e) consideration of other matters which the Arbitrator
considers to be helpful in making his/her decision.
B. Cost of Arbitration
The Arbitrator's fees and other expenses associated with arbitration
shall be borne equally by the parties, unless the Arbitrator finds that the
position of one party is frivolous or unreasonable, in which case, the
Arbitrator may require the offending party to pay all fees and expenses (or some
disproportionate amount) associated with the arbitration.
C. Continued Performance
At all times during the course of arbitration proceedings, the parties
shall continue in good faith to perform their respective obligations under this
Agreement, to the extent such obligations are not in dispute. If a disputed
issue is impeding continued performance by either party, the Arbitrator may
adopt an expedited schedule upon request of either party. Notwithstanding the
foregoing, should Entel not be paid in timely fashion for any Service not
disputed and not subject to arbitration proceedings, Entel may suspend its
performance of such Service.
D. Award Enforcement
The arbitrator may award monetary damages and/or make a binding order,
and the parties hereby agree that an award of the Arbitrator hereunder may be
enforced by either party in the United state District Court for the Eastern
District of Virginia (Alexandria Division).
XI MISCELLANEOUS
A. Indemnification
1. TeleCorp shall indemnify and hold harmless Entel, its affiliates,
directors., officers, shareholders, agents, and employees thereof
from and against any fine, penalty, loss, cost, damage, injury,
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claim, expense (including reasonable professional fees and costs
and all reasonable fees and costs associated with enforcing this
indemnification), or liability incurred by Entel as the result of
any act, error, omission, non-performance by negligence, or
wrongful act of TeleCorp arising directly out of the performance
of this Agreement, including any election by TeleCorp to pursue
certain rights under this Agreement.
2. Entel shall indemnify and hold harmless the party and its
affiliates, and the directors, officers, shareholders, agents,
and employees thereof (collectively "Indemnities") from and
against any fine, penalty, loss, cost, damage, injury, claim,
expense (including reasonable professional fees and costs and all
reasonable fees and costs associated with enforcing this
indemnification), or liability arising out of or in connection
with the performance of the Services, or any breach of this
Agreement (individually and collectively "Liabilities")
including, but not limited to, liabilities as a result of:
a. injury to or death of any person;
b. damage to, loss, or destruction of any property;
c. infringement of a patent, copyright, trademark, service mark,
trade name, trade dress, trade secret, or other intellectual
property right proprietary right of a third party;
d. the presence of any hazardous materials or substances, oils,
asbestos, environmental pollution, or other substances
regulated by any environmental law placed at any TeleCorp
facility by Entel, its affiliates, or subcontractors, or
which were released into any TeleCorp facility through the
negligence or willful misconduct of Entel, its affiliates, or
subcontractors; or
e. any liability arising from Entel's failure to pay Entel's
vendors or suppliers all sums properly due such parties.
2. Upon request of TeleCorp, Entel shall, at its expense, defend any claim,
proceeding, appellate proceeding, or suit for Liabilities, whether or not
litigation is actually commenced or the allegations are groundless or
contain language that creates the potential for Liabilities against
Indemnities. Entel shall also (i) keep TeleCorp and any other Indemnities
subject to liabilities fully informed of the progress of such defendants of
any settlement discussions, and (ii) afford TeleCorp or any Indemnities,
each at its own expense, an opportunity to participate on an equal basis
with Entel in the defense or settlement of any such Liabilities. No
settlement shall be agreed to without the prior written consent of
TeleCorp, which shall not be unreasonably withheld or delayed.
32
<PAGE>
B. Assignment
Assignment to Third Parties. TeleCorp may freely assign its rights and
obligations hereunder. Except for a transfer to Wireless Facilities, Inc., or
its affiliate, or as specifically permitted herein, Entel may not assign or
transfer any right, interest, or obligation hereunder to any third party without
the express written consent of TeleCorp, such consent not to be unreasonably
withheld. Any purported assignment in violation of this Section shall be void.
C. Third Party Guarantees and Warranties
If any of the Site Acquisition of Construction Management Services
requires the purchase of equipment or materials or the procurement of services,
Entel shall, for the protection of TeleCorp, demand from all vendors and
subcontractors commercially reasonable guarantees and Warranties with respect to
such equipment, materials, and services, which shall be made available to
TeleCorp to the full extent of the terms thereof. Entel's liability with respect
to such equipment and materials obtained from vendors or services from
subcontractors shall be limited to procuring guarantees from such vendors or
subcontractors and rendering all reasonable assistance to TeleCorp as part of
the Site Development Services for the purpose of enforcing the same. Entel shall
not purchase equipment or materials or procure services without advance written
approval from TeleCorp of such purchases or procurements.
D. Permits
Entel shall (without additional compensation) keep current all
governmental permits (other than Building Permits), certificates, and licenses
(including professional licenses) required by law to be in Entel's name
necessary to perform the Services.
E. Publicity
Entel shall not make news releases or issue other advertising
pertaining to the Services or this Agreement without prior written approval of
TeleCorp.
F. Notices
All notices or other communications hereunder shall be in writing and
shall be deemed to have been duly delivered and effective upon receipt if
personally delivered, or on mailing if mailed by prepaid overnight express
service, addressed to the following (or other addresses as the parties hereto
may designate):
If to TeleCorp, to:
TeleCorp Holding Corporation, Inc. If to Entel, to:
TeleCorp Holding Corporation, Inc. Entel Technologies, Inc.
1110 North Glebe Road 1110 North Glebe Road
Suite 300 Suite 850
Arlington, Virginia 22201 Arlington, Virginia 22201
Attn: [***] Attn: [***]
* Confidential Treatment Requested
33
<PAGE>
G. Binding Effect
The Agreement shall be binding upon and enforceable by, and inure to
the benefit of, successors, assigns, and transferees of the parties.
H. Further Assurances
The parties shall execute and deliver such further instruments and
perform such further acts as may reasonably be required to carry out the intent
and purposes of this Agreement.
I. Choice of Law
The Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Virginia, excluding the conflict of law
provisions thereof.
J. Waiver
The failure of either party to insist upon strict performance of any
obligation hereunder ' irrespective of the length of time for which such failure
continue, shall not be a waiver of such party's right to demand strict
compliance in the future. No consent or waiver, express or implied, to or of any
breach or default in the performance of any obligation hereunder shall
constitute a consent or waiver to or of any other breach or default in the
performance of the same or any other obligation hereunder.
K. Severability
In case any term of this Agreement shall be held invalid, illegal, or
unenforceable in whole or in part, neither the validity of the remaining part of
such term nor the validity of the remaining terms of this Agreement shall in any
way be affected thereby.
L. Headings
All section and paragraph titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the text of
this Agreement.
M. Pronouns
All pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine, neuter, singular, or plural as the context may require.
N. Counterparts
This Agreement may be signed in any number of counterparts, each of
which shall be considered an original and all of which taken together shall
constitute one and the same instrument.
34
<PAGE>
0. Modification; Amendment; Additional Services
This Agreement may be amended only by a written instrument executed by
an officer or authorized representative of each of the parties. In the event
that the parties, at any time, desire Entel to provide services other than the
types of those 'provided for in this Agreement, then, at such time, the parties
shall execute an amendment to Sections III and IV of this Agreement, describing
such services and the payment to be made therefor in a manner substantially
similar to the manner in which Services and payment for Services are presently
described therein. In the vent that the parties, so amend this Agreement, the
agreement, as amended, shall continue in full force and effect thereafter.'
P. Construction of Agreement
This Agreement shall be interpreted according to its plain meeting and
shall not be strictly construed against either party.
Q. Force Majeure
If the performance of any part of this Agreement, except for payment
obligations, by either party is delayed, rendered impossible by reason of
natural disaster, acts of god, actions or decrees of governmental bodies, power
or equipment failures, strike or labor unrest, or any other causes beyond the
control of the party whose performance is affected (hereinafter referred to as
"Force Majeure Event"), the party who has been so affected shall immediately
give written notice to the other party of the nature of any such conditions and
the extend of delay and shall do everything possible to resume performance
hereunder whenever such Force Majeure Event is removed or ceases. Upon receipt
of such notice, performance of this Agreement, except for payment obligations,
to the extent prevented by Force Majeure Event shall immediately be suspended.
R. Entire Agreement
This Agreement constitutes the entire agreement of the parties with
respect to the subject matters addressed, and shall supersede any and all prior
negotiations, undertakings, and agreements with respect hereto.
[This space intentionally left blank]
35
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
Effective Date.
TELECORP HOLDING ENTEL TECHNOLOGIES, INC.
CORP., INC.
By: /S/ Gerald Vento By: /S/ John T. Vento
Its: C.E.O Its: President
36
<PAGE>
New Orleans 11/21/97 BRG148 Ramah
New Orleans 10/20/97 BRG149 United Co. #2
Schedule A
Assignment of
Search Rings
Market Date Search Ring Site Name
Issued Number
New Orleans 11/21/97 BRG150 Villa Ashley
New Orleans 11/21/97 BRG151 Entergy
New Orleans 11/21/97 BRG153 S.Rosedale
New Orleans 11/21/97 BRG154 Roadway Express
New Orleans 11/21/97 BRG155 Sonic
New Orleans 12/1/97 BRG157 Brooks Auto Sales
New Orleans 11/21/97 BRG158 Fruit of the Spirit
Ministries
New Orleans 12/1/97 BRG181 Super K Mart
New Orleans 12/1/97 BRG205 South Corner View
New Orleans 12/1/97 BRG206 Mall of Louisiana
New Orleans 10/20/97 HMA051 Texaco Bridge Line Tower
New Orleans 10/20/97 HMA052 Houma WT
New Orleans 10/20/97 HMA053 Crown Point
New Orleans 10/20/97 HMA120 Point la Hache
New Orleans 10/20/97 HMA121 Belle Chasse/Bay
New Orleans 10/20/97 HMA122 Irnton
New Orleans 10/20/97 HMA127 Bouirgh
New Orleans 10/20/97 HMA128 Amer.Tower
New Orleans 11/21/97 HMA186 W. St. Charles Baptist
Church
New Orleans 11/21/97 LAF082 Lafayette Hilton & Towers
New Orleans 11/21/97 LAF083 Texaco, Inc.
New Orleans 11/21/97 LAF085 Bradmoor Park
New Orleans 11/21/97 LAF086 Landmark Building & Tower
New Orleans 11/21/97 LAF087 Bank One
New Orleans 11/21/97 LAF088 Cadillac & Buick
New Orleans 11/21/97 LAF089 Centennial Wireless
New Orleans 11/21/97 LAF090 Univ. Medical Center
New Orleans 11/21/97 LAF091 Lafayette Govt., W.T.
New Orleans 11/21/97 LAF163 Butcher Switch
New Orleans 11/21/97 LAF164 Exit 121
New Orleans 11/21/97 LAF165 Exit 109
New Orleans 11/21/97 LAF169 Exit 115 Tri Towers
New Orleans 11/21/97 LAF172 Advanced Products &
Systems
New Orleans 11/21/97 LAF173 Honda of Lafayette
New Orleans 11/21/97 LAF174 Dullas
New Orleans 10/20/97 NOR001 ICRR
New Orleans 10/20/97 NOR002 Jefferson Downs
New Orleans 10/20/97 NOR003 Airport Hilton
New Orleans 10/20/97 NOR004 Kenner Regional
New Orleans 10/20/97 NOR005 Shrewsbury & Clairborne
New Orleans 10/20/97 NOR006 Ochsner Found. Hospital
New Orleans 10/20/97 NOR007 Napoleon Medical Building
New Orleans 11/24/97 NOR008 Loyola University
New Orleans 12/1/97 NOR009 Fountainbleu Storage
New Orleans 12/1/978 NOR010 Pallas Suite Hotel
New Orleans 10/20/97 NOR011 Fairgrounds - Belfort
47
<PAGE>
Schedule B
Addenda for Sites Outside Assigned Search Rings
<PAGE>
Schedule C
Major Trading Areas
MTA Number MTA Name
---------- --------
[***] [***]
Basic Trading Areas
BTA Number BTA NAME
[***] [***]
*Confidential Treatment Requested
<PAGE>
Schedule D
Request for Engineering Services
--------------------------------
<PAGE>
Schedule E
Responsibility Matrix
---------------------
<PAGE>
Exhibit F
In addition to those duties and services Entel required under the Agreement,
Entel shall be responsible for performance and the following:
RF ENGINEERING SUPPORT
- ----------------------
1. Identify, qualify and secure real estate for radio base station sites.
2. Perform field site visits in conjunction with RF Engineers to specify
antenna mounting locations and antenna downtilts.
3. Review base station construction drawings.
4. Spectrum clearing.
BASE STATION SITE CONSTRUCTION
- ------------------------------
1. Management of Architectural/Engineering design for site.
2. Use layout drawings to prepare Bill of Material. Furnish Bill of Material
to Owner.
3. Ensure that ground provided to minicell meets National Electrical Code
Article 250.
4. Preparation of tender documents for site construction bids.
5. Application for building permits
6. Evaluation of construction bids.
7. Negotiations with bidders.
8. Placing orders to contractors.
9. Furnish estimated "site ready for installation" date to vendor.
10. Surveyor verification of initial antenna orientations.
11. Check of site ready for installation.
12. Develop punch list of outstanding civil issues.
13. Supervision of site construction.
<PAGE>
REVISED AND RESTATED FIRST AMENDMENT
TO THE
MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
ENTEL TECHNOLOGIES, INC.
THIS REVISED AND RESTATED FIRST AMENDMENT to the Master Services Agreement
dated February 27, 1998, (the "Original Agreement") between TeleCorp
Communications, Inc. ("TeleCorp") and Entel Technologies, Inc., the legal
predecessor of Wireless Facilities, Inc. and its subsidiary, Wireless
Facilities, Inc./Entel ("WFI") is entered into and made effective as of the 21
day of May, 1999 (the "Effective Date").
WHEREAS, TeleCorp Holding Corp., Inc. and WFI (collectively referred to
hereinafter as the Parties) entered into the Original Agreement pursuant to
which WFI would provide TeleCorp Holding Corp., Inc., with various types of
services related to TeleCorp's planned PCS system; and
WHEREAS, pursuant to Section XI.B of the Original Agreement, TeleCorp
Holding Corp., Inc. assigned the Original Agreement to TeleCorp Communications,
Inc. as of July 17, 1998; and
WHEREAS, TeleCorp wishes to extend its engagement of WFI to perform certain
Fixed Network Engineering Consulting Services for TeleCorp's development of its
PCS system in its several markets; and
WHEREAS, TeleCorp wishes to engage WFI to perform Fixed Network Engineering
Services crucial to the development of TeleCorp's planned PCS system in the
[***] Major Trading Area (the "[***] MTA"); and
WHEREAS, the Parties wish to amend the Original Agreement to include the
scope of work and pricing for Fixed Network Engineering Services in the [***]
MTA; and
WHEREAS, the Parties wish to amend the Original Agreement with respect to
its termination, withdrawal and compensation provisions; and
WHEREAS, TeleCorp wishes to engage WFI to perform certain Site Development
Services in the [***] MTA; and
WHEREAS, the Parties wish to amend the Original Agreement to include the
scope of work and pricing for Site Development Services in the [***] MTA; and
WHEREAS, the Parties wish to amend the Original Agreement to indicate WFI's
right of first refusal to perform any Services for TeleCorp's System in its
present Service Areas or service areas in which TeleCorp builds a System in the
future.
Page 1 of 11
* Confidential Treatment Requested
<PAGE>
NOW THEREFORE, the Parties agree as follows:
1. Schedule C to the Original Agreement is hereby deleted and replaced
----------
with the Schedule C attached hereto.
----------
2. TeleCorp hereby extends the engagement of WFI, through its employee
Charlie Zachry, to perform certain Network Engineering tasks as outlined in Work
Order 1 for Engineering Services, dated January 29, 1998 and incorporated into
the Original Agreement. Work Order 1 is hereby replaced with a new Schedule G,
----------
which is attached hereto and made a part of the Original Agreement.
3. As contemplated by the Parties in Section III E. of the Original
Agreement, TeleCorp hereby engages WFI to perform Fixed Network Engineering
Services in the [***] MTA, pursuant to Schedule D, which is attached to
----------
this First Amendment and hereby attached to and made a part of the Original
Agreement.
4. (i) Section IV. B. 1. b. of the Original Agreement is amended in its
entirety to state as follows:
b. Per Site fees for Program Management Services. In consideration for
performance of the Program Management Services, TeleCorp shall pay Entel [***]
per Site, [***].
(ii) Section IV. B. 1. d. of the Original Agreement is amended in its
entirety to state as follows:
d. Withdrawal.
In the event TeleCorp elects to withdraw a Site assigned to Entel,
TeleCorp shall give Entel notice of such withdrawal, and shall pay
Entel [***]% of the milestone installment that would be due if the
work currently in progress was completed and [***]% of all other
amounts due hereunder for work completed on the Site as of the date
of TeleCorp's withdrawal notice.
(iii) Section IV. B. 2. b. of the Original Agreement is amended in its
entirety to state as follows:
b. Withdrawal.
In the event TeleCorp elects to withdraw a CMS Site, TeleCorp shall
give Entel notice of such withdrawal, and shall pay Entel [***]% of
the milestone installment that would be due if the work currently
in progress was completed and [***]% of all other work completed on
the withdrawn CMS Site as of the date of TeleCorp's withdrawal
notice.
(iv) Section V.B. of the Original Agreement is amended in its entirely
as follows:
* Confidential Treatment Requested
Page 2 of 11
<PAGE>
b. Termination Without Cause
TeleCorp may terminate this Agreement or the provision of any
Service by Entel hereunder upon [***] days prior written
notice for any reason or no reason.
5. TeleCorp hereby engages WFI to perform Site Development Services in the
[***] MTA, pursuant to the terms of the Original Agreement as supplemented
by those terms that are set forth in Schedule H attached hereto. Schedule H is
---------- ----------
hereby attached to and made a part of the Original Agreement.
6. The Original Agreement is hereby amended to insert the following
paragraph as Section VII. C. 4:
During the term of this Agreement, but subject to early termination
in accordance with the terms of this Agreement, TeleCorp shall not
purchase the services provided by WFI hereunder (the "Services") on
a market to market basis, for any sites other than those Phase 2
sites identified on Schedule I attached, without first complying
----------
with the following terms and procedures: In the event that TeleCorp
wishes to purchase Services, TeleCorp shall provide a written
notice (the "TeleCorp Initiating Notice") to WFI stating the
general nature of the Services to be purchased and the geographic
area or location in or at which such activities shall take place.
WFI shall have [***] after receipt of the TeleCorp Initiating
Notice to provide a written notice (the "WFI Responsive Notice") to
TeleCorp as to whether or not WFI wishes to enter into exclusive
negotiations with TeleCorp to provide such Services in the
geographic area or location set forth in the TeleCorp Initiating
Notice. If WFI provides the WFI Responsive Notice within such [***]
time frame, the Parties shall promptly enter into exclusive
negotiations to attempt to enter into an agreement for TeleCorp's
procurement of such Services in such geographic area or location,
such negotiations to extend for no more than [***] after the WFI
Responsive Notice. In the event that either WFI sends no WFI
Responsive Notice within the above time frame or the Parties are
unable to reach agreement during the period of exclusive
negotiations, then TeleCorp shall be free to procure such Services
from a third party in the geographic area or location listed in the
TeleCorp Initiating Notice without any restrictions or limitations
under this Agreement whatsoever. Nothing in this Section shall be
deemed to obligate either Party to enter into an agreement for
purchase of the Services during the exclusive negotiation period,
which either Party may or may not elect to do in its sole
discretion.
[***]
7. The Parties' notice addresses set forth in Section XI F. of the
Original Agreement are hereby replaced as follows:
Page 3 of 11
* Confidential Treatment Requested
<PAGE>
If to TeleCorp, to: If to WFI, to:
TeleCorp Communications, Inc. Wireless Facilities, Inc.
1010 North Glebe Road 9805 Scranton Road
Suite 800 Suite 100
Arlington, VA 22201 San Diego, CA 92121
Attn: [***] Attn: [***]
8. This Revised and Restated First Amendment amplifies and modifies where
specifically provided herein, but does not replace the Original Agreement. All
capitalized terms not defined in this Revised and Restated First Amendment shall
have the meanings assigned to them in the Original Agreement. Except as
otherwise specifically provided in this Revised and Restated First Amendment,
all of the terms and conditions of the Original Agreement shall remain unchanged
and in full force and effect. This Revised and Restated First Amendment
supersedes and replaces in its entirety the First Amendment executed by the
Parties and dated May 7, 1999, which First Amendment shall be void and of no
effect.
IN WITNESS WHEREOF, the Parties have executed this First Amendment
effective as of the date first written above.
TELECORP COMMUNICATIONS, INC. WIRELESS FACILITIES, INC.
By: /s/ Thomas H. Sullivan By: /s/ Masood Tayebi
----------------------- ------------------------
Name: Thomas H. Sullivan Name: Masood Tayebi
------------------- ----------------------
Title: President Title: President
---------------------- ------------------------
Page 4 of 11
* Confidential Treatment Requested
<PAGE>
SCHEDULE C
----------
TO THE
MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
ENTEL TECHNOLOGIES, INC.
Major Trading Areas
-------------------
MTA NUMBER MTA Name
---------- --------
[***] [***]
Basic Trading Areas
-------------------
BTA Number BTA Name
---------- --------
[***] [***]
* Confidential Treatment Requested
Page 5 of 11
<PAGE>
SCHEDULE D
----------
TO THE
MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
ENTEL TECHNOLOGIES, INC.
Scope of Work
- -------------
WFI will perform a complete turnkey design, engineering, equipment selection and
procurement, and project management of installation and testing of a wireless
microwave backhaul network in Puerto Rico in support of TeleCorp's PCS network
deployment in this market. Specifically, WFI will perform the following tasks:
Transmission Engineering
- ------------------------
. Conduct preliminary wireless backhaul system design
. Perform path profile using 3-second data and topographic maps
. Conduct field path surveys
. Conduct site surveys
. Optimize preliminary wireless backhaul system design
. Conduct frequency coordination and prepare and submit FCC license
applications
Equipment Procurement
- ---------------------
. Provide material procurement and management
. Prepare equipment list specifications
. Prepare equipment proposal for microwave radios and antenna systems
. Evaluate vendor's proposal and select vendors
. Prepare material list
. Procure all equipment and manage inventory
Installation, Testing and Commissioning
- ---------------------------------------
. Conduct construction feasibility assessments
. Coordinate and prepare third-party service agreements
. Select qualified subcontractor
. Provide zoning and Building permit support
Page 6 of 11
<PAGE>
. Conduct pre-construction meeting
SCHEDULE D
----------
. Provide on-site construction management for installation, testing, and
commissioning of the microwave backhaul system
. Provide site documentation and records management
. Conduct site inspections
. Provide system as-built drawings
. Prepare and submit site completion package
. Coordinate microwave radio training
Project Management
- ------------------
. Create project implementation strategies
. Establish project goals including project costs and schedules
. Schedule, track, and report project progress
. Obtain local vendor pricing for equipment and installation services
. Monitor budget and costs
Project Schedule
- ----------------
WFI will work with Lucent and TeleCorp to develop the installation schedule and
will provide such schedule to TeleCorp on a periodic basis (weekly) and/or as
requested.
Project Staffing
- ----------------
The project team will be located at TeleCorp's office facilities in San Juan,
Puerto Rico for the duration of the project. The project manager will be
responsible for project tracking, reporting, cost control, and overall
implementation of the network. The project manager will also be the designated
point of contact with TeleCorp project manager. Engineering staff will be
responsible for transmission engineering, equipment procurement and frequency
planning/ coordination, licensing, and equipment installation and testing
procedures. Construction supervisors will be responsible to oversee material
management, equipment inventory, installation, alignment and testing of the
network.
[***] Fees
- ----------
WFI's service fees for the tasks detailed in the scope of work will be [***] per
path. This fee includes [***]. The fee also includes [***]. The fixed fee does
not include [***].
* Confidential Treatment Requested
Page 7 of 11
<PAGE>
SCHEDULE D
----------
Payment Schedule
- ----------------
TeleCorp shall pay to WFI the following fee for each path to be paid in [***]
payments, as follows:
[***].
WFI may invoice TeleCorp monthly for any outstanding third party invoices
received by WFI after path completion. All payments are due within thirty (30)
days of receipt by TeleCorp.
* Confidential Treatment Requested
Page 8 of 11
<PAGE>
SCHEDULE G
----------
TO THE
MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
ENTEL TECHNOLOGIES, INC.
Fixed Network Engineering Consulting Services
- ---------------------------------------------
Scope of Work
- --------------
WFI shall provide Fixed Network Engineering Consulting Services as directed by
TeleCorp, which services shall be in the nature of Carrier Relations Services,
Coordination of Dual Entrance Facilities, Interconnection Design Support,
Circuit Order and Tracking Process Support and General Market Support.
Pricing
- -------
TeleCorp shall pay WFI [***] per day for Fixed Network Engineering Consulting
Services (the "Service Fee"). [***] In addition to the Service Fee, TeleCorp
shall reimburse WFI for [***]. Such expenses shall be passed through to TeleCorp
with a [***]% administrative fee.
Payment Schedule
- ----------------
WFI shall invoice TeleCorp monthly for Fixed Network Engineering Consulting
Services performed the previous month. All payments are due within thirty (30)
days of receipt of WFI's invoice.
Duration
- --------
WFI shall perform Fixed Network Engineering Consulting Services as directed by
TeleCorp for a period of [***] from the Effective Date of the First Amendment to
the Master Services Agreement.
* Confidential Treatment Requested
Page 9 of 11
<PAGE>
SCHEDULE H
----------
TO THE
MASTER SERVICES AGREEMENT
BETWEEN
TELECORP COMMUNICATIONS, INC.
AND
ENTEL TECHNOLOGIES, INC.
Site Development Services for the [***] MTA
- -------------------------------------------
Scope of Work
- -------------
WFI shall perform Site Development Services for TeleCorp in the [***] MTA,
for Search Rings issued to WFI by TeleCorp. Site Development Services include
all of the site acquisition, construction management and program management
services listed in the Master Services Agreement in Sections III A., B. and C.
Pricing and Payment Schedule
- ----------------------------
TeleCorp shall pay WFI a fixed fee per site of $[***], except as provided below.
WFI shall invoice TeleCorp monthly for each portion of the per site fee as
indicated below, upon completion of each of the following milestones:
<TABLE>
<CAPTION>
----------------------------------------------------------------
Milestone Milestone Fee
per Site
----------------------------------------------------------------
<S> <C>
[***] $ [***]
----------------------------------------------------------------
[***] $ [***] *
----------------------------------------------------------------
[***] $ [***]
----------------------------------------------------------------
[***] $ [***]
----------------------------------------------------------------
[***] $ [***]
----------------------------------------------------------------
Total $ [***]
----------------------------------------------------------------
</TABLE>
* [***].
[***]
* Confidential Treatment Requested
Page 10 of 11
<PAGE>
Duration
- --------
WFI shall commence performing Site Development Services for TeleCorp in the
[***] MTA on or about February 1, 1999, and shall continue until all sites
have been accepted by TeleCorp and at the conclusion of customary wind-up
activities.
Page 11 of 11
* Confidential Treatment Requested
<PAGE>
EXHIBIT 10.23
--------------------------------
Confidential Treatment Requested
under 17 C.F.R(S)(S)200.80(b)(4)
200.83 and 230.406
--------------------------------
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the "Agreement") is entered into as of
January 18, 1999 (the "Effective Date") between Nextel Partners Operating Corp.,
a Delaware corporation ("Client") and Wireless Facilities, Inc., a Delaware
corporation ("WFI"). (Client and WFI are each hereinafter referred to
individually as a "Party" or collectively as "Parties").
WHEREAS, Client intends to acquire sites and construct facilities in order
to develop and operate a telecommunications network system using the iDEN
technology (the "Project").
WHEREAS, the Parties have reached an agreement whereby WFI will provide
various engineering and site development services to Client in connection with
the Project as requested by Client on an hourly or turnkey basis.
WHEREAS, the Parties entered into a Letter of Intent to Provide
Engineering, Site Development and Construction Management Services dated
September 1, 1998, as extended by the Extension of Letter of Intent to Provide
Engineering, Site Development and Construction Management Services dated
November 6, 1998 (collectively referred to as the "Letter of Intent").
WHEREAS, under the terms of the Letter of Intent, WFI agreed to provide
such various services to Client until the Parties executed this Agreement, which
would supersede and replace the Letter of Intent.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the Parties agree as follows:
1. Description of Services. In accordance with and subject to the terms
-----------------------
and conditions of this Agreement, WFI hereby agrees to provide Client with the
services (the "Services") listed in the executed Work Order(s) on an hourly or
turnkey basis as agreed by the Parties.
2. Term of Agreement. The term of this Agreement shall be [***] years
-----------------
from the Effective Date unless otherwise terminated in accordance with this
Agreement (the "Initial Term"). The term of this Agreement will automatically
renew for successive terms of one (1) year (each, a "Renewal Term") unless
either Party communicates in writing to the other Party, thirty (30) days prior
to expiration of the Initial Term or current Renewal Term, its intention not to
renew the Agreement.
3. Compensation. Client shall pay WFI for all Services assigned by and
------------
rendered to Client pursuant to this Agreement and to any and all Work Orders
issued hereunder, based upon the pricing set forth in Exhibit I, unless a Work
---------
Order specifically sets forth other pricing terms applicable to that particular
Work Order ("Service Fees"). Where Services are compensated based upon fixed or
milestone-based pricing rather than per-hour pricing, all work performed by WFI
at Client's request in addition to the Services specifically set forth in any
particular executed Work Order(s) ("Out-of-Scope Services") shall be compensated
at the hourly rates agreed upon by the Parties and set forth in Exhibit I.
---------
Page 1 of 15
<PAGE>
4.
Invoices and Payments.
---------------------
(a) Invoicing terms for compensation of Out-of-Scope Services,
reimbursable expenses and Materials Management Services (as defined in Section 8
below) are set forth in Exhibit I of this Agreement. Unless a Work Order
---------
specifies otherwise, WFI may invoice Client monthly for all Service Fees
(including those for Out-of-Scope Services), whether billed on a milestone basis
or in accordance with WFI's hourly rates, and bi-weekly for any reimbursable
expenses (as described in Exhibit I) and Materials Management Services incurred
---------
in the previous period.
(b) All invoices are due and payable by Client within thirty (30) days of
the date of receipt by Client. Client shall review the invoices and notify WFI
in writing within thirty (30) days of receipt of the invoice of any objection or
question Client may have in connection with the invoice. If any items are
disputed, only the disputed items may be withheld from payment. The remaining
undisputed portion of the invoice shall be paid in accordance with the terms of
this Agreement.
5. Work Orders and Out-of-Scope Authorizations. Client may assign additional
-------------------------------------------
work to WFI by issuing to WFI, from time to time, a signed Work Order, in
substantially the form attached hereto as Exhibit II, or in some other format
----------
agreed upon by the Parties. WFI shall begin to render Services to Client after
WFI has indicated its acceptance of the work by countersigning and returning the
Work Order to Client. Each Work Order shall incorporate by reference all of the
terms and conditions set forth in this Agreement; however, in the case of
conflict between the terms of a Work Order and this Agreement, the terms of the
Work Order shall control, but only for the duration of the Services performed
under that particular Work Order. WFI may perform Out-of-Scope Services at
Client's request. In such event, Client and WFI shall execute an Out-of-Scope
Work Authorization, in substantially the form attached as Exhibit III.
-----------
Authorized out-of-scope work will be compensated in accordance with the hourly
rates set forth in Exhibit I, unless otherwise agreed by the Parties and
---------
specified in writing. Client hereby authorizes the officers listed in Exhibit
-------
IV to sign any Work Orders and Out-of-Scope Work Authorizations issued under
- --
this Agreement. Client shall promptly notify WFI in writing of any changes to
the list of authorized signatories.
6. Taxes. All taxes and similar assessments, levies and government-imposed
-----
obligations with respect to WFI's income derived from its performance of
Services hereunder shall be the obligation of and be paid by WFI. Client shall
pay all other applicable taxes.
7. Subcontractors. WFI may, with the consent of Client, which consent will
not be unreasonably withheld or delayed, delegate to subcontractors such duties
as WFI deems necessary for the successful completion of Services performed for
the Project. WFI shall be responsible to Client for the completion of all work
by subcontractors. If Client chooses to contract directly with subcontractor for
work performed for the Project, then Client shall be responsible for the payment
of service fees and expenses of such subcontractors for work performed in
connection with the Project. If WFI contracts directly with subcontractors for
work performed in connection with the Project, and which work is listed as
"CLIENT Provided or Reimbursed" in the Expense Summary section of Exhibit I,
then Client shall be invoiced and shall reimburse WFI for the service fees and
expenses of subcontractors at cost plus an administrative fee in accordance with
the terms of Exhibit I.
---------
Page 2 of 15
<PAGE>
8. Materials Management Services. At Client's request and written
-----------------------------
authorization, WFI shall procure, pay for, receive and store equipment and
building materials for use on the Project ("Materials Management Services").
Client shall compensate WFI for Materials Management Services by reimbursing WFI
for the cost of such equipment and building materials, together with an
administrative fee as set forth in Exhibit I.
---------
9. Ownership of Data Products and Software. All data products purchased
---------------------------------------
specifically and solely for the Project shall be the property of Client. All
licensed software used by WFI in the performance of Services is and shall remain
the property of WFI unless purchased by WFI for Client on a pass-through basis,
in accordance with the expense reimbursement terms set forth in Exhibit I.
---------
10. Resolution of Disputes. For any dispute or claim arising out of or
----------------------
relating to this Agreement, or breach thereof, the Parties, prior to filing any
claims for binding arbitration (as provided below), shall in good faith first
negotiate a written resolution of such dispute or claim for a period not to
exceed thirty (30) days from the date of receipt of a Party's request for such
negotiation. Executives or managers of each Party who have the authorization to
resolve any such dispute or claim shall conduct such negotiations. In the event
the Parties cannot negotiate a written resolution to such dispute or claim
during the thirty (30) day negotiation period provided hereunder, either Party
may submit the matter to binding arbitration in accordance with the terms set
forth in Paragraph 11 of this Agreement.
11. Arbitration of Disputes. All claims, whenever brought and whether
-----------------------
between the Parties or between one of the Parties and the employees, agents or
affiliated businesses of the other Party shall be resolved by binding
arbitration in accordance with this Paragraph; provided that the Parties have
first complied with the procedures of Paragraphs 4, 10 and 17 hereof, as
applicable.
(a) A single, mutually agreeable arbitrator engaged in the practice of
law and knowledgeable about telecommunications law and engineering practices
shall conduct the arbitration in accordance with the then current commercial
arbitration rules of the American Arbitration Association ("AAA"). The
arbitration shall be conducted in the Seattle, Washington metropolitan area.
(b) All expedited procedures prescribed by the AAA shall apply. The
arbitrator's decision shall state the reasoning by which the arbitrator
determined the award. The arbitrator's decision shall be final and binding and
judgment may be entered in any court having jurisdiction thereof.
(c) Each Party shall pay its own costs and expenses incurred in
connection with the arbitration, including legal fees, and each Party shall pay
one-half the arbitrator's professional fees.
If either Party files a judicial or administrative action asserting
claims subject to arbitration, and the other Party successfully stays such
action and/or compels arbitration of such claims, the Party filing the action
shall pay the other Party's costs and expenses incurred in seeking such stay or
compelling arbitration, including reasonable attorneys' fees.
Page 3 of 15
<PAGE>
12. Breach and Termination.
----------------------
(a) Termination Without Cause. Either Party may terminate this Agree
-------------------------
ment without cause - by sending the other party written notification of such
termination. Such termination shall take effect [***] days after written notice
has been received by the non-terminating Party.
(b) Termination for Breach. The non-breaching Party shall provide the
----------------------
breaching Party [***] after receipt of a written termination notice setting
forth the nature of the Breach to cure such Breach. The remedy for Breach shall
be unavailable until the passage of such cure period. For purposes of this
Agreement, Breach shall mean the following:
(i) Breach by Client. Client's failure to timely pay undisputed
----------------
invoiced fees and reimbursable expenses in accordance with
the procedures set forth in this Agreement. In the event of
Client's failure to pay, WFI shall have the right to suspend
its further performance of Services for Client until Client
has cured such failure.
(ii) Breach by WFI. WFI's failure to timely or completely perform,
-------------
in accordance with professional standards obtaining for
similarly situated telecommunications outsourcing firms, the
Services assigned to WFI pursuant to a fully executed Work
Order.
(c) Termination in Event of Default. Either Party may terminate this
-------------------------------
Agreement immediately upon written notice to the other Party under any of the
following circumstances, each of which shall constitute an Event of Default:
(i) the other Party makes an assignment for the benefit of creditors (other than
solely as an assignment of moneys due); (ii) the other Party becomes unable to
pay its debts as they become due, unless assurance satisfactory to the
terminating Party is provided within thirty (30) days of receipt of its notice
of termination hereunder; or (iii) the other Party becomes the subject of a
proceeding, whether voluntary or involuntary, under the bankruptcy or insolvency
laws of the United States or any other jurisdiction, unless such proceeding is
dismissed or withdrawn within forty-five (45) days of the non-defaulting Party's
receipt of the defaulting Party's notice of termination hereunder.
(d) Procedure upon Expiration or Termination. Upon the expiration or
----------------------------------------
termination of this Agreement, WFI shall promptly return to Client, or destroy,
as Client may direct, all of Client's property in WFI's possession. If Client
issues a notice of termination for any reason, WFI shall be entitled to payment
and reimbursement, respectively, for its Services rendered and reasonable
expenses incurred in connection with the Project up to the effective date of
termination of this Agreement, pursuant to its invoices therefor, provided that,
-------------
if the Services are compensated in accordance with a schedule of payment or
performance milestones, then Client shall compensate WFI for all post-milestone
work performed on a time and materials basis in accordance with the hourly rates
and expense payment provisions set forth in Exhibit I. If Client issues a
---------
notice of termination for a reason other than breach of this Agreement, then, in
addition to the Service Fees and expense reimbursements received pursuant to the
foregoing sentence, WFI shall be entitled to (i) Service Fees at the hourly
rates set forth in Exhibit I for actual and necessary work performed and (ii)
---------
reimbursement for any reasonable expenditures (together with the administrative
mark-up
* Confidential Treatment Requested
Page 4 of 15
<PAGE>
set forth in Exhibit I) incurred in connection with WFI's premature winding up
---------
of its work and the work of its subcontractors (if any) on the Project after
receipt of such notice of termination. Under no circumstances shall WFI be
required to reimburse Client for fees or expenses incurred in securing and
compensating replacement providers of any of the Services. Each Party shall
render to the other such reasonable assistance as may be necessary for the
orderly continuation of the other Party's business.
13. Insurance. Commencing on the Effective Date and throughout the term of
this Agreement, WFI shall maintain the following insurance policies:
(a) Commercial General Liability with the following minimum limits:
Combined Single Limit $1,000,000 per occurrence
General Aggregate $2,000,000 per policy period
(b) Workers Compensation with statutory limits
(c) Employers Liability with the following minimum limits:
Each Accident $1,000,000
Disease Policy Limit $1,000,000
Disease Each Employee $1,000,000
(d) Business Automobile Liability Insurance with the following
minimum limits if the performance of this Agreement involves the
use of any automobiles:
Combined
Single Limit $1,000,000
Owned, Hired and Non-Owned Coverage.
14. Year 2000 Compliance. Neither Party shall be liable to the other for
--------------------
any failure to perform obligations under this Agreement to the extent that such
failure arises from a Year 2000 Problem (a) affecting one of that Party's
subcontractors or suppliers, or (b) beyond that Party's reasonable control (such
as, without limitation, a Year 2000 Problem affecting a government entity). IN
PARTICULAR, A PARTY SHALL HAVE NO LIABILITY FOR ANY DAMAGES, INCLUDING DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES
ARISING OUT OF A YEAR 2000 PROBLEM. A "Year 2000 Problem" means a date-handling
problem relating to the Year 2000 date change that would cause a computer
system, software or equipment to fail to correctly perform, process and handle
date-related data for the dates within and between the twentieth and twenty-
first centuries and all other centuries.
15. Independent Contractor. WFI is and shall act as an independent
----------------------
contractor in the performance of its obligations under this Agreement. WFI shall
exercise full control of and supervision over its employees. WFI's personnel
performing Services are agents, employees or subcontractors of WFI and are not
employees or agents of Client. Nothing herein shall be deemed to create any
other relationship between the Parties, including, without limitation, a
partnership, agency, employer-employee or attorney-client relation. WFI shall be
solely liable for all matters relating to compensation, unemployment, disability
insurance, social security, withholding and all other federal, state and local
laws, rules and regulations governing such matters. WFI will honor Client's
request for the removal of any particular
Page 5 of 15
<PAGE>
employee of WFI from the Project, provided that Client has first submitted a
written request to WFI setting forth lawful and reasonable reasons for such
request.
16. Solicitation of Employees. WFI and Client agree that, during the term
-------------------------
of this Agreement and for [***] thereafter, neither Party shall solicit nor
accept for employment any employees of the other Party who have worked on or
performed Services in connection with the Project, without first obtaining the
express written consent of the other Party.
17. Force Majeure. Neither Party shall be liable for any delay or failure
-------------
in performing its obligations hereunder that is due to circumstances beyond such
Party's reasonable control, including, but not limited to, acts of God, civil
unrest, riots, war, fire, floods, explosions and strikes or other concerted acts
of labor (each, a "Force Majeure Event"). Upon the occurrence of a Force Majeure
Event, the Party whose performance is affected shall give written notice to the
other Party describing the affected performance. The Parties shall promptly
confer, in good faith, to agree upon equitable, reasonable action to minimize
the impact of the condition on both Parties. The Parties agree that the Party
whose performance is affected shall use commercially reasonable efforts to
minimize the delay caused by the Force Majeure Event and recommence the affected
performance. In the event that the delay caused by the Force Majeure Event lasts
for a period of more than thirty (30) days, the Parties shall negotiate an
equitable modification to this Agreement with respect to the affected
performance. If the Parties are unable to agree upon an equitable modification
within fifteen (15) days after such thirty (30) day period has expired, then
either Party shall be entitled to serve thirty (30) days notice of termination
on the other Party with respect to only the affected performance. If the Force
Majeure Event for such affected performance continues upon the expiration of
such thirty (30) day notice period the portion of this Agreement relating to the
affected performance shall automatically terminate. The remaining portion of
this Agreement that does not involve the affected performance shall continue in
full force and effect.
18. LIMITATION OF LIABILITY. THE PARTIES' RIGHTS, LIABILITIES AND
-----------------------
RESPONSIBILITIES WITH RESPECT TO THE SERVICES SHALL BE EXCLUSIVELY THOSE
EXPRESSLY SET FORTH IN THIS AGREEMENT. NEITHER PARTY SHALL BE RESPONSIBLE OR
HELD LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, WHICH
SHALL INCLUDE, WITHOUT LIMITATION: LOSS OF PROFITS, INTEREST, PRODUCT OR
SERVICE; BUSINESS INTERRUPTION; AND INCREASED COSTS OF OPERATION, MAINTENANCE OR
STAFFING.
19. Waivers and Amendments. Waiver by either Party of any default
----------------------
hereunder by the other Party shall not be deemed a waiver of any other default.
No provision of this Agreement shall be deemed waived, amended or modified by
either Party, unless such waiver, amendment or modification is in writing and
signed by the authorized representative of each Party.
20. Governing Law; Consent to Jurisdiction and Venue. Except as may apply
------------------------------------------------
to claims submitted to arbitration under Paragraph 11, this Agreement shall be
construed in accordance with the laws of the State of Washington, irrespective
of its conflict of law principles. Each Party hereby agrees to the jurisdiction
of and venue in the courts in Seattle, Washington for any suit, action or
proceeding between the Parties that arises out of this
* Confidential Treatment Requested
Page 6 of 15
<PAGE>
Agreement or the Parties' performance of their obligations hereunder, and
expressly agrees to waive any defense thereto.
21. Severability. If any provision or any part of a provision of this
------------
Agreement shall be held invalid or unenforceable, then the remaining portions of
that provision and the remainder of the Agreement shall be construed as if not
containing the particular invalid or unenforceable provision or portion thereof,
and the rights and obligations of each Party shall be construed and enforced
accordingly.
22. Survival. The terms, conditions and warranties contained in this
--------
Agreement that by their sense and context are intended to survive the
termination or expiration of this Agreement shall so survive; including, without
limitation, the provisions of Paragraphs [***].
23. Assignment. This Agreement is binding upon and inures to the benefit
----------
of the Parties and their respective permitted successors and assigns. A Party
may assign its rights and delegate its duties under this Agreement to any third
party only with the prior written consent of the other Party, except that an
assignment to a third party that controls, is controlled by, is under common
control with, or is the legal successor of the assigning Party shall not require
the non-assigning Party's consent. Any assignment of rights or delegation of
duties under this Agreement by a Party will not release that Party from its
obligations hereunder.
24. Entire Agreement; Modifications. This Agreement, including the
-------------------------------
Exhibits attached hereto, constitutes the entire agreement between the Parties
with respect to the subject matter hereof as of the Effective Date with respect
to the Services. All prior and contemporaneous agreements, representations,
statements, negotiations, understandings and undertakings, whether written or
oral, are superseded by this Agreement, including but not limited to the Letter
of Intent. This Agreement may be modified only in a written document signed by
both Parties.
25. Headings; Construction; Incorporation of Recitals. The headings of the
-------------------------------------------------
Paragraphs of this Agreement are inserted for convenience only and are not
intended to affect its meaning or interpretation. Throughout this Agreement, the
singular shall apply to the plural and the plural to the singular, unless the
context clearly indicates otherwise. The recitals set forth in the beginning of
this Agreement are hereby incorporated and made a material part hereof.
26. Jointly Drafted. This Agreement shall be deemed to have been drafted
---------------
by both Parties and, in the event of a dispute, shall not be construed against
either Party.
* Confidential Treatment Requested
Page 7 of 15
<PAGE>
27. Notices. Except as otherwise provided herein, all notices or other
-------
communications to be given or that may be given by either Party to the other
shall be deemed to have been duly given when made in writing and delivered in
person or when deposited in the United States mail, postage prepaid, certified,
return receipt requested or sent via facsimile with confirmation of receipt, and
addressed as follows:
If to WFI:
---------
Dr. Masood Tayebi, President
Wireless Facilities, Inc.
San Diego Tech Center
9805 Scranton Road, Suite 100
San Diego, CA 92121
Telephone: (619) 824-2929
Fax: (619) 824-2928
If to Client:
------------
David Aas
Nextel Partners Operating Corp.
4500 Carillon Point
Kirkland, Washington 98033
Telephone: 425-828-8051
Fax: 425-828-8098
With a Copy to:
Nextel Partners Operating Corp.
4500 Carillon Point
Kirkland, Washington 98033
Attention: General Counsel
The notice addresses may be changed by written notice given by one Party to
the other in accordance with this Paragraph.
Page 8 of 15
<PAGE>
28. Exhibits. The following Exhibits are attached hereto and incorporated
--------
herein:
Exhibit I: Hourly Rates, Expense Reimbursement and Invoice Schedule
Exhibit II: Sample Work Order
Exhibit III: Sample Out-of-Scope Authorization
Exhibit IV: Authorized Signatories
29. Indemnification. WFI will defend, indemnify, and hold harmless Client
---------------
and its officers, directors, employees, subsidiaries, parents, agents and
representatives from and against all claims, damages, losses (including, without
limitation, bodily injury or property damage) costs and expenses (including
without limitation reasonable attorney's fees actually incurred), (collectively,
"Claims"), arising out of, resulting from or caused in whole or in part by the
acts or omissions of WFI, its subcontractors and their respective employees,
agents, and representatives in performing or failing to perform any of the work
or activities contemplated herein, except to the extent that such Claims result
from or are caused by Client, its subcontractors and their respective employees,
agents and representatives.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the Effective Date.
NEXTEL PARTNERS OPERATING CORP. WIRELESS FACILITIES, INC.
/s/ David Aas /s/ Dr. Masood Tayebi
______________________________ ________________________
David Aas Dr. Masood Tayebi
Chief Technology Officer President
Page 9 of 15
<PAGE>
Exhibit I
to
Master Services Agreement
Between Nextel Partners Operating Corp. and Wireless Facilities, Inc.
Hourly Rates, Expense Reimbursement and Invoice Schedule
--------------------------------------------------------
Hourly Rates for Out-of-Scope Services
- --------------------------------------
For all services performed by WFI that are in addition to those described in any
particular executed Work Order(s) ("Out-of-Scope Services"), Client shall
compensate WFI on an hourly basis in accordance with the rates set forth in the
table below. WFI may invoice Client monthly for Out-of-Scope Services rendered
the previous period.
<TABLE>
<CAPTION>
Service Type Employment Category Hourly Rate
---------------------------------------------------------------------------------------------------
<S> <C> <C>
Program Mgmt: [***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
RF Engineering: [***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
Site Acquisition: [***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
Construction Mgmt: [***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
[***] $[***]
-------------------------------------------------------------------------------------------------
</TABLE>
Note - these hourly rates do not include expenses.
* Confidential Treatment Requested
Page 10 of 15
<PAGE>
Expense Summary
- ---------------
The following table summarizes which expenses are included in WFI's fixed
pricing and which are considered pass-through expenses to be reimbursed at
[***]. WFI may invoice Client bi-weekly for reimbursable pass-through expenses
and administrative fees.
<TABLE>
<CAPTION>
WFI CLIENT Provided or
Included Reimbursed to WFI
-----------------------------------------------------------------------------------------------------
<S> <C> <C>
Expense Summary:
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
[***] [***] [***]
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
* Confidential Treatment Requested
Page 11 of 15
<PAGE>
Materials Management Services
- -----------------------------
If requested by Client, WFI will perform Materials Management Services (as
defined in Section 8 of the Agreement). Client shall reimburse WFI for Materials
Management Services as a pass-through expense at [***]. WFI may invoice Client
bi-weekly for Materials Management Services costs and administrative fees.
* Confidential Treatment Requested
Page 12 of 15
<PAGE>
Exhibit II
to
Master Services Agreement
Between Nextel Partners Operating Corp. and Wireless Facilities, Inc.
Sample Work Order
-----------------
WORK ORDER NO.:
----
DATE: , 199
------------ --
You are hereby requested to provide the services set forth below ("the
Services") subject to the terms and conditions set forth herein and in
accordance with the provisions of Master Services Agreement (the "Agreement")
dated , 199 by and between Nextel Partners, Inc. ("Client"), and
--------- --
Wireless Facilities, Inc. ("WFI") and according to the following terms:
1. Assignment: The following illustrates the Services and specific tasks to be
performed by WFI:
[Description of Services and tasks - See attachments]
2. Invoicing for Services Fees and Reimbursement of Expenses: WFI shall invoice
Client for the Services in accordance with the schedule of Payment
Milestones per Attachment to this executed Work Order. WFI shall
------
invoice Client for Service Fees for Out-of-Scope Services, reimbursable
expenses (together with applicable administrative fees) and Materials
Management Services, if any (together with applicable administrative fees)
in accordance with Exhibit I of the Agreement.
---------
3. Payment of Invoices: All invoices shall be due and payable by Client in
accordance with the terms set forth in Section 4(b) of the Agreement.
4. Commencement of Services: WFI shall commence performance of the Services
immediately upon full execution of this Work Order.
5. Master Services Agreement: This Work Order shall be appended to the
Agreement and is incorporated therein by reference. All of the terms and
conditions of the Agreement shall apply to the provision of Services
hereunder; however, in case of conflict, the terms of this Work Order shall
govern.
NEXTEL PARTNERS OPERATING CORP. WIRELESS FACILITIES, INC.
By: By:
-------------------------- ------------------------
Name: Name:
------------------------ ----------------------
Title: Title:
----------------------- ---------------------
Page 13 of 15
<PAGE>
Exhibit III
to
Master Services Agreement
Between Nextel Partners Operating Corp. and Wireless Facilities, Inc.
Sample Out-of-Scope Work Authorization Memo
-------------------------------------------
Memo
To: [Individual and Client Company Name]
From: WFI Employee Name and Title
cc:
Date:
Re: Request for Out-of-Scope Work Authorization
- -------------------------------------------------------------------------------
WFI has been requested to perform the following services not listed in our
Master Services Agreement:
- --------------------------------------------------------------------------------
[description of services]
- --------------------------------------------------------------------------------
I have estimated that the time required to perform these Out-of-Scope Services
is hours which will be the maximum hours you will be billed for this
------
additional service. Should we spend less time to perform the services required,
you will, of course, be billed for the lower number of hours at the rates
specified in our Master Services Agreement dated , 1999 and applicable
------
Work Orders. We will also bill you for expenses incurred to perform these
services, in accordance with the provisions of the Master Services Agreement and
applicable Work Orders.
I would appreciate it if you will sign below to indicate your agreement and
acceptance. If I do not receive from you a signed copy of this Authorization
Memo, WFI will, nevertheless (unless we hear otherwise) begin to perform the
above-reference services pursuant to 's [name of authorizing
----------
individual] verbal request made on , 1999.
--------
Please call me at if you have any questions.
----------------
Accepted & Approved:
[FULL NAME OF CLIENT COMPANY]:
By:
--------------------------------
Name and Title:
--------------------
DATE:
------------------------------
Page 14 of 15
<PAGE>
Exhibit IV
to
Master Services Agreement
Between Nextel Partners Operating Corp. and Wireless Facilities, Inc.
Authorized Signatories for Work Orders and Out-of-Scope Authorizations
----------------------------------------------------------------------
Each Party hereby authorizes the following individuals to execute Work Orders
and Out-of-Scope Authorizations issued under this Agreement. Such documents,
when signed by any of the following individuals for each Party, shall be
presumptively binding on the Parties.
Authorized Signatories for Nextel Partners, Inc.:
- ------------------------------------------------
Mr. David Aas
Mr. Ray Farrell
Mr. Peter Gaffney
Authorized Signatories for Wireless Facilities, Inc.:
- ----------------------------------------------------
Dr. Masood Tayebi, President
Mr. Michael Brink, Sr. Vice President, Project Management
Mr. John Vento, Sr. Vice President, Site Development Services
Mr. Jeff Bader, Sr. Director, Project Management
Page 15 or 15
<PAGE>
EXHIBIT 10.24
---------------------------------
Confidential Treatment Requested
Under 17 C.F.R.(S)(S)200.80(b)(4)
200.83 and 230.406
---------------------------------
Agreement
between
Siemens Aktiengesellschaft, Berlin and Munchen,
Federal Republic of Germany,
represented by the Business Unit Mobile Networks,
- hereinafter referred to as "SIEMENS"-
and
Wireless Facilities Inc., San Diego, CA
United States of America
- hereinafter referred to as "CONSULTANT"-
Preamble
Article 1 - Scope of CONSULTANCY-SERVICES
1.1 Siemens' Public Communication Networks Group, Mobile Networks is
performing radio network planning services for worldwide Projects.
Subject to the terms and conditions of this agreement SIEMENS
(including any SIEMENS company which is owned or controlled either
directly or indirectly by Siemens as to 50 % (fifty percent) or more
of the issued share capital and/or voting rights)
Page 1 of 16
<PAGE>
hereby entrusts CONSULTANT with the performance of such radio network
planning projects (hereinafter collectively referred to as,
"CONSULTANCY-SERVICES"):
1.2 SIEMENS will assign the CONSULTANCY-SERVICES to CONSULTANT in advance
on a case by case basis depending on the duration and kind of the
assignment and in accordance with the timetable that follows:
One (1) week: On short notice (up to 2 working days)
Up to (4) weeks support: Two (2) weeks
Up to three (3) months: One (1) month
Over three (3) months support: Mutually agreed between SIEMENS and
CONSULTANT
1.3 Any and all CONSULTANCY-SERVICES shall be rendered in such manner, in
accordance with such standards and specifications, and at such dates
and times or in accordance with such schedules as requested or
prescribed by SIEMENS from time to time. Unless specified and agreed
otherwise specifically between SIEMENS and the CONSULTANT in writing,
all tools and materials required by CONSULTANT shall be provided by
CONSULTANT and any compensation to be paid to CONSULTANT by SIEMENS
includes payment for use of CONSULTANT's facilities, tools, materials
and equipment.
CONSULTANT shall be available through the term of this Agreement so as
to promptly respond to all requests or requirements of SIEMENS, it
being understood by CONSULTANT that time is of the essence in
CONSULTANT's performance of the CONSULTANCY SERVICES under this
Agreement.
1.4 Irrespective of the fact, that rendering CONSULTANCY-SERVICES as set
forth in this Agreement is the sole responsibility and liability of
the CONSULTANT, SIEMENS' personnel shall constantly be involved in the
CONSULTANT'S work at all stages. Such SIEMENS personnel shall be given
full opportunity to become familiar with the relevant aspects
Page 2 of 16
<PAGE>
of CONSULTANT's CONSULTANCY SERVICES and be directly involved in the
preparation of the Deliverables as per Article 5 below.
Article 2 - Basis of this Agreement
2.1 This Agreement is concluded on the basis that:
(a) with regard to the scope of work specified in Article 1 the
CONSULTANT may not assign or subcontract any of its duties
without the prior written consent of SIEMENS. However, the
CONSULTANT may engage other contractors to assist the CONSULTANT
in providing the CONSULTANCY SERVICES under this Agreement,
provided, that the CONSULTANT obtains the prior written consent
(such consent not to be unreasonably withheld) of SIEMENS. The
CONSULTANT will be solely responsible for and pay the fees, and
out-of-pocket expenses of the CONSULTANT's contractor, except
where SIEMENS has initially asked the CONSULTANT to engage
CONSULTANT's contractors, in which event SIEMENS shall be
responsible for such fees and expenses, and provided, that the
CONSULTANT has obtained SIEMENS' prior written approval of the
terms of engagement of such CONSULTANT's contractors.
(b) SIEMENS may engage such other consultants as may in SIEMENS
opinion be required in connection with matters in relation to
which the CONSULTANT is advising including technical consultants,
legal consultants and accountants;
2.2 For rendering the CONSULTANCY-SERVICES the CONSULTANT has set up a
project-team, which consists of experienced CONSULTANT's with broad
expertise in the telecommunication business including the managerial,
administrative and quality aspects. The CONSULTANT hereby represents
and warrants that all consultants have international expertise and, in
addition, all
Page 3 of 16
<PAGE>
consultants' have excellent communication skills and experience in
client oriented projects with needs for organisational development.
The members of the team will not be changed without the prior
written consent of SIEMENS which consent shall not be
unreasonably withheld. Furthermore, the CONSULTANT will replace
upon written request of SIEMENS at any time any member of the
team.
2.3 The CONSULTANT represents and warrants that:
(a) it is duly established and validly existing under the laws of its
jurisdiction of incorporation and has full power, capacity and
authority to conduct its business, and is lawfully qualified to
do business in those jurisdictions in which such qualification is
required;
(b) it has full power and capacity to execute and perform this
Agreement;
(c) it has full power and capacity to undertake and perform the
obligations assumed by it herein;
(d) this Agreement has been duly authorised and executed by it and
constitutes its legal, valid and binding obligations enforceable
in accordance with its terms;
(e) the execution and performance of this Agreement do not and will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, its statutes or
articles of incorporation or laws or by-laws or any agreement or
instrument by which it is bound or to which its properties are
subject;
(f) neither it nor any of its subsidiaries is involved in any legal,
arbitration or administrative proceedings nor are any such
proceedings pending against it or any of its subsidiaries which
in either case have or may have a
Page 4 of 16
<PAGE>
material adverse effect on its ability to perform this Agreement,
its financial position or on its and its subsidiaries' financial
position taken as a whole;
(g) all CONSULTANCY-SERVICES provided hereunder shall be performed in
good faith and in a professional manner with due care and
attention and in accordance with good CONSULTANT practice and
standards and according to the latest technical standards;
(h) it recognises the importance of this appointment and will commit
the resources appropriate and necessary to the fulfillment of its
obligations and will assign to it the priority necessary to meet
the milestone schedule as per Article 5.1 below;
(i) it will use all reasonable efforts to meet deadlines reasonably
set by SIEMENS which deadlines shall be in addition to and shall
in no way affect the milestone schedule as mentioned in Article
5.1 below;
(j) it will promptly notify SIEMENS in writing of any potential or
actual conflict of interest on its part of which it becomes
aware.
Article 3 - Duties and obligations of the CONSULTANT
3.1 The CONSULTANCY-SERVICES shall be performed in a workmanlike and
professional manner by the CONSULTANT or employees of the CONSULTANT
having a level of skill in the area commensurate with the requirements
of the Consulting Service to be performed and the applicable
professional standards currently recognized by such profession.
3.2 SIEMENS and the CONSULTANT shall each nominate to the other Party in
writing a project leader who is well experienced to give information
Page 5 of 16
<PAGE>
and support for the implementation and performance of this Agreement
and who shall be in the position to take related decisions or to
introduce them.
3.3 While performing the CONSULTANCY-SERVICES the CONSULTANT will maintain
close contact with SIEMENS.
Additionally SIEMENS and the CONSULTANT agree to consult and, if
necessary to meet with each other in order to resolve any ambiguities
or differences concerning the CONSULTANCY-SERVICES.
Article 4 - Duties and obligations of SIEMENS
4.1 SIEMENS will upon request provide the CONSULTANT with the information
necessary to render the CONSULTANCY SERVICES.
4.2 Furthermore SIEMENS will participate in the project-team as mentioned
in Section 1.3 above, which means that SIEMENS will assist the
CONSULTANT in the performance of the CONSULTANCY-SERVICES.
4.3 CONSULTANT is and shall remain at all times an independent contractor,
and is not an employee, agent or representative of SIEMENS.
Further, CONSULTANT is not authorized to and shall not at any time
attempt to act, or act on behalf of SIEMENS to bind SIEMENS in any
manner whatsoever to any obligation whatsoever. Further, CONSULTANT
shall not engage in any acts which may lead any person whomsoever to
believe that CONSULTANT is a employee, agent or representative of
SIEMENS. SIEMENS shall be promptly notified by CONSULTANT in writing
of any misunderstanding by third parties as to CONSULTANT'S
relationship with SIEMENS.
Page 6 of 16
<PAGE>
Article 5 - Prices, Discounts, Terms of Payment
5.1 The prices which CONSULTANT shall charge SIEMENS are as follows (in
US$ per hour):
<TABLE>
<CAPTION>
--------------------------------------------------------------
Expertise Level [***] Engineers* [***] Engineers*
--------------------------------------------------------------
<S> <C> <C>
Technician $ [***] $ [***]
--------------------------------------------------------------
Associate $ [***] $ [***]
--------------------------------------------------------------
Design Engineer $ [***] $ [***]
--------------------------------------------------------------
Senior Engineer $ [***] $ [***]
--------------------------------------------------------------
Manager $ [***] $ [***]
--------------------------------------------------------------
</TABLE>
*means number of WFI-Engineers contracted
simultaneously in the entirety of SIEMENS-
projects
Per-site-prices for Turnkey-Projects may be mutually agreed on a per
project basis.
The minimum Qualifications for the above Expertise Levels are the
following:
Technician [***]
Associate Engineer [***]
Design Engineer [***]
* Confidential Treatment Requested
Page 7 of 16
<PAGE>
Senior Engineer [***]
Manager [***]
5.2 The foregoing amounts include all costs and expenses, including the
daily allowance fees (per diem rate), incurred by CONSULTANT pursuant
to this Agreement or as may be required or incurred on the performance
of CONSULTANT's obligations under this Agreement; provided that the
prior written consent of SIEMENS is secured in each instance and
CONSULTANT provides to SIEMENS evidence and prove of payment.
For the cities/regions listed in APPENDIX 1, where the allowance fees
substantially exceed the world wide average, a mark-up to the charges
listed in (S)5.1 may be mutually agreed on a project-specific basis.
* Confidential Treatment Requested
Page 8 of 16
<PAGE>
SIEMENS agrees to reimburse CONSULTANT for any ordinary and reasonable
costs and expenses incurred for traveling pursuant to the terms and
conditions of this Agreement, in general limited to the following
expenses:
<TABLE>
<CAPTION>
---------------------------------------------------------------
Item Expenses
---------------------------------------------------------------
<S> <C>
accommodation Maximum: four star hotel
Airline ticket (per 3 month) Coach Ticket
Rental cars Will be provided by SIEMENS
(project)
---------------------------------------------------------------
</TABLE>
5.3 Income, sales or any other duties or taxes levied on CONSULTANT by
reason of any payments made by SIEMENS to CONSULTANT shall be the
responsibility of and be borne by CONSULTANT.
Article 6 - Results of CONSULTANCY-SERVICES
6.1 All ideas, inventions, innovations, improvements, know-how, materials,
works, writings, notes, reports, publications and information
collected, assembled, conceived, authored, created, suggested,
originated, developed, constructed, rendered or provided by the
CONSULTANT as a result of or in the course of CONSULTANT's
CONSULTANCY-SERVICES (hereinafter referred to as "Results") shall be
the sole property of SIEMENS.
CONSULTANT expressly acknowledges that all copyrightable materials
written, developed, produced, or which otherwise arise out of the
CONSULTANCY-SERVICES performed by the CONSULTANT under this
Page 9 of 16
<PAGE>
Agreement shall be owned by SIEMENS. CONSULTANT hereby transfers and
assigns to SIEMENS all right, title and interest in and to the same.
6.2 If and to the extent the Results make use of pre-existing information
of the CONSULTANT including but not limited to any kind of
intellectual property rights such as patents, patent applications or
copyrights (hereinafter referred to as "Background Information"), the
CONSULTANT herewith grants to SIEMENS the non-exclusive, perpetual,
fully-paid up license to use and sublicense such Background
Information in any way it wants.
6.3 Without limiting the effect of Sections 6.1 and 6.2 above, CONSULTANT
shall be entitled to use the concepts of general application contained
in the Results (but not those specifically applicable to the Project)
for other projects and may produce and keep copies of the Results for
archival purposes, subject to the CONSULTANTS confidentiality and
other obligations hereunder.
Article 7 - Confidentiality
7.1 All information provided by SIEMENS to the CONSULTANT as well as any
advice, data and information including but not limited to the Results
developed by the CONSULTANT under this Agreement (hereinafter referred
to as "Confidential Information") shall be treated by the CONSULTANT
as confidential and shall not be disclosed by the CONSULTANT to a
third party or published without the prior written consent of SIEMENS.
CONSULTANT will limit the disclosure of Confidential Information to
those of its employees who have a reasonable need to know that
Confidential Information for the performance of this Agreement and who
shall be bound to confidentiality by their employment agreements or
otherwise.
7.2 The obligations as per Section 7.1 above shall not apply, however, to
any information which:
Page 10 of 16
<PAGE>
(a) CONSULTANT can demonstrate, is already in the public domain or
becomes available to the public through no breach by CONSULTANT
of this Agreement;
(b) was rightfully in CONSULTANT'S possession without confidentiality
obligation prior to receipt from SIEMENS as proved by CONSULTANT'
written records;
(c) can be proved to have been rightfully received by CONSULTANT from
a third party without confidentiality obligation;
(d) is independently developed by CONSULTANT as proved by its written
records.
(e) is required to be disclosed by law or the rules of any
governmental organisation.
7.3 This Article 7 shall survive any termination or expiration of this
Agreement.
Article 8 - Force Majeure
8.1 Neither Party shall be liable to the other for failure or delay in the
performance of any of its obligations under this Agreement for the
time and to the extent such failure or delay is caused by force
majeure such as, but not limited to, riots, civil commotion's, wars,
strikes, lock-outs, hostilities between nations, governmental laws,
orders or regulations, actions by the government or any agency
thereof, storms, fires, sabotages, explosions or any other
contingencies beyond the reasonable control of the respective Party
(hereinafter referred to as "Force Majeure"). In such events, the
affected Party shall immediately inform the other Party of such
circumstances together with documents of proof and the performance of
obligations hereunder shall be suspended during, but not longer
Page 11 of 16
<PAGE>
than, the period of existence of such cause and the period reasonably
required to perform the obligations in such cases.
8.2 Should circumstances of Force Majeure uninterruptedly continue for a
period of more than3months,then either Party has the right to
forthwith terminate this Agreement by registered letter Upon notice of
its intention to terminate the Agreement which notice has to be given
not later than fourteen days prior to the intended date of termination
of the Agreement. The Parties may also negotiate for a reasonable
extension or adjustment of this Agreement.
Should the Agreement be terminated according to this Section 8.2 the
CONSULTANT is entitled to the payment which has become due up and
until the date of termination.
Article 9 - Term and Termination
9.1 This Agreement becomes effective with its execution by both Parties.
9.2 Either party shall have the right to terminate this Agreement by
providing three calendar months notice to the other. Should the
Agreement be terminated according to this Section 9.2 the CONSULTANT
is entitled to the payment which has become due up and until the date
of termination.
Article 10 - Substantive Law
All disputes shall be settled in accordance with the provisions of
this Agreement and its Annexes and all other agreements regarding its
performance, otherwise in accordance with the substantive law in force
in the Federal Republic of Germany without reference to other laws.
The United Nations Convention on Contracts for the International Sale
of Goods of April 11, 1980 shall not apply.
Page 12 of 16
<PAGE>
Article 11 - Arbitration
11.1 Any differences or disputes arising out of or in connection with this
Agreement or out of or in connection with agreements regarding its
performance, including any questions regarding the existence, validity
or termination of this Agreement or agreements regarding its
performance, during the term of this Agreement or thereafter shall be
settled by an amicable effort on the part of both Parties hereto. An
attempt to arrive at a settlement shall be deemed to have failed as
soon as one of the Parties so notifies the other Party in writing.
11.2 If an attempt at settlement has failed, the dispute shall be finally
settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce in Paris (Rules) by three
arbitrators appointed in accordance with the Rules.
11.3 The place of arbitration shall be Munchen, Federal Republic of
Germany. The procedural law of this place shall apply where the Rules
are silent.
11.4 The arbitral award shall be substantiated in writing. The arbitral
tribunal shall also decide on the matter of costs of the arbitration.
11.5 The arbitration procedure shall be conducted in the English language.
Article 12 - Miscellaneous
12.1 All changes and amendments to this Agreement must be in writing to be
valid. This requirement of written form can only be waived in writing.
Page 13 of 16
<PAGE>
12.2 Notices and communications between the CONSULTANT and SIEMENS shall be
given in writing or by facsimile in the English language to the
following addresses of the Parties or to such other address as the
Party concerned may subsequently notify in writing to the other Party:
If to the CONSULTANT to: Wireless Facilities Inc.
[***]
Director Sales and Marketing
9725 Scranton Road, Suite 140
San Diego, CA 92121, USA
Tel.: +1 (619) 824 2929 ext. 25
Fax: +1 (619) 824 2928
If to SIEMENS to: SIEMENS Aktiengesellschaft
[***]
ON MN VN14
Hofmannstrasse 51
81359 Munchen, GERMANY
Tel.: +49/89/722-44329
Fax: +49/89/722-31304
12.3 Neither Party shall assign its rights nor delegate performance of its
obligations under this Agreement to any third party without the prior
written consent of the other Party and any attempted assignment
without this consent shall be null and void.
12.4 Should individual provisions of this Agreement be legally ineffective
or unfeasible for legal reasons then, unless the basic intentions of
the Parties under this Agreement are substantially jeopardized, the
validity of the remaining provisions of this Agreement shall not be
affected thereby. In such a case the Parties shall come to an
agreement approximating as closely as possible the arrangement
originally envisaged in this Agreement.
* Confidential Treatment Requested
Page 14 of 16
<PAGE>
12.5 A waiver of any default by either Party of any of the terms and
conditions of this Agreement shall not be deemed to be a continuing
waiver or a waiver of any other provisions of this Agreement, but
shall apply solely to the instances to which such waiver is granted.
In Witness Whereof, the Parties hereto have caused these presents to be executed
in duplicate by the respective representatives thereunto duly authorized, on the
dates below and shall keep one executed copy each.
San Diego, Munchen,
Wireless Facilities Incorporated Siemens Aktiengesellschaft
/s/ Masood K. Tayebi /s/ illegible signature
Masood K. Yayebi illegible
President
Page 15 of 16
<PAGE>
Appendix 1
List of cities/regions, where a additional mark-up concerning the charges listed
in (S)5.1 may be mutually agreed on a per project basis:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Page 16 of 16
<PAGE>
<TABLE>
<S> <C>
EXHIBIT 10.25
---------------------------------
Confidential Treatment Requested
under 17 C.F.R(S)(S)200.80(b)(4)
200.83 and 230.406
--------------------------------
</TABLE>
TRITON / WFI MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (this "Agreement") is entered into effective
as of January 19, 1998 (the "Effective Date") by and between TRITON PCS
OPERATING COMPANY, L.L.C., a Delaware limited liability company (the "Company"),
and Wireless Facilities Inc., a New York corporation that is in the process of
reincorporating in Delaware ("Contractor") (collectively, the "Parties"). The
Company desires to engage Contractor to perform the "Services," as defined
below, and Contractor desires to provide the Services. Therefore, the parties
agree as follows:
1. Services. The Company hereby engages Contractor as an independent
--------
contractor to provide the services set forth in Exhibit A hereto (the
---------
"Services").
2. Independent Contractor Relationship. Contractor shall act as an
-----------------------------------
independent contractor to the Company, and nothing in this Agreement shall be
deemed to create a relationship of employer-employee, principal-agent, partner,
or joint venture between Contractor and the Company. Neither party has any
authority to bind the other to any contract or agreement without the other's
written permission. The Company has no power to supervise, give directions or
otherwise regulate Contractor's operations, although the Company will be
supervising the Contractor's personnel that Contractor is supplying pursuant to
this Agreement. Notwithstanding the foregoing, the Company shall retain the
right to request in writing upon fifteen (15) days' notice thereof that any
employee of Contractor who does not have the requisite skills be removed from
the job. No reasonable request of the Company shall be refused concerning the
dismissal or reassignment of personnel in conformance with this section.
Contractor shall be solely responsible for payment of compensation to
Contractor's employees and for all of Contractor's federal, state and local
payroll taxes, withholding, social security, and unemployment insurance.
Neither party is an agent of the other party and neither has the authority to
represent the other party as to any matters.
3. Term. The term of this Agreement shall begin on the Effective Date,
----
and shall expire on the [***] anniversary of the Effective Date (the "Initial
Term"). The term shall automatically renew for [***], unless either party
provides the other with written notice of its intent not to renew the term of
this Agreement at least [***] days prior to the expiration of the Initial Term
or any renewal term. During the Initial Term and any renewal terms
(collectively, the "Term"), in addition to the services described in Exhibit A,
---------
Contractor shall be the Company's preferred radio frequency engineering
vendor/provider and shall have a right of first refusal on all radio frequency
engineering projects awarded by the Company or any affiliate or joint venture of
the Company. In any event, the termination or expiration of the Term shall not
reduce or terminate the Company's payment obligations for services provided to
the date of termination or the Parties' confidentiality obligations under
Section 9 of this Agreement. Upon termination of the Term, all physical property
of the parties shall be returned to the proper party, including any cellular
telephones or related equipment.
* Confidential Treatment Requested
<PAGE>
4. Early Termination. The Term may be terminated early:
-----------------
4.1. Termination for Breach. By Company or Contractor, immediately
----------------------
upon written notice of termination, in the event of a material breach of this
Agreement by the other party, if such breach continues uncured for a period of
[***]business days after receipt of written notice of such breach.
4.2. Termination for Insolvency. By Company or Contractor,
--------------------------
immediately upon written notice of termination by the other Party, in the event
the other Party shall: (i) become insolvent; (ii) make an assignment for the
benefit of creditors; (iii) file a voluntary bankruptcy petition; (iv) acquiesce
to any involuntary bankruptcy petition; (v) be adjudicated bankrupt; or (vi)
cease to do business (other than as a result of an acquisition or merger).
4.3. Return of Information. Upon termination of this Agreement, the
---------------------
parties hereto shall, within thirty (30) days return all of the other party's
information in written, graphic or tangible form relating to this Agreement.
Notwithstanding the foregoing, upon the Company's payment for all Services
provided through the date of termination, the Company shall be entitled to
retain on a non-exclusive basis, any and all work product prepared or assembled
by Contractor through the day of termination.
5. Payment. The Company shall pay Contractor for the Services performed
-------
pursuant to this Agreement as specified in Exhibit B. The prices ("Prices") set
---------
forth in Exhibit B shall be fixed for each Site during the Term of the Agreement
---------
unless a specific change is mutually agreed to by the Parties in writing.
Contractor shall submit invoices for each payment due on a Site as set forth in
Exhibit B. The Company agrees that the invoice amount is correct, conclusive
- ---------
and binding unless the Company notifies Contractor in writing no later than
fourteen (14) days following the invoice date that the Company disputes a
particular item in an invoice. The Company's objection to a particular item in
an invoice shall not reduce or delay the Company's obligations to pay the
remaining portion of a particular invoice. To mitigate for the expenses and
costs the parties reasonably anticipate will occur, any invoice that remains
unpaid more than thirty-five (35) days after the invoice date shall
automatically incur a late payment charge equal to [***] of the amount charged
on the unpaid invoice, and the overdue amount owing on the invoice shall
thereafter be assessed a finance charge equal to the lesser of: (i) [***]
percent ([***]) per month, or (ii) [***]. The Company shall pay all invoices
within thirty (30) days from the date of the invoice without right of offset.
Contractor shall not file any mechanics liens with respect to the Services prior
to adjudication of any disputes between the parties.
6. Insurance. Contractor shall maintain comprehensive general liability
---------
insurance coverage in an amount not less than One Million Dollars ($1,000,000)
per occurrence for bodily injury or death, personal injury and property damage
liability. Contractor shall name the Company as an additional insured on all
applicable policies. Contractor shall promptly provide the Company with proof of
such insurance as reasonably requested by the Company.
* Confidential Treatment Requested
2
<PAGE>
7. Information Reporting. In order to track the progress of each site,
---------------------
Company requires the Contractor to adhere to the following reporting methods:
7.1. Site Data Reporting. In addition to the Services in Exhibit A,
------------------- ---------
there are a number of data items that must be documented, communicated and
stored by Contractor on behalf of the Company. Contractor will provide such
additional information as reasonably required by the Company.
7.2. Schedule and Milestone Data Reporting. Contractor will maintain
-------------------------------------
an accurate and up to date schedule of its engineering activities in a format
reasonably acceptable to the Company.
8. Indemnity. Each of Contractor and the Company agree to defend,
---------
indemnify and hold harmless the other and all of their affiliates or
subsidiaries companies, their officers, agents and employees from any all costs,
damages, expenses, losses, claims, actions, suits, causes of action, judgments,
and charges of every kind and nature whatsoever, including reasonable attorney's
fees, which may in any manner arise out of or relate to the performance or non-
performance of this Agreement, except as this obligation is limited by Section
11 (Remedies).
9. Protection of Confidential Information and Employees.
----------------------------------------------------
9.1. Confidentiality. Each Party, including its affiliates,
---------------
officers, directors, representatives and agents, shall hold confidential
information received from the other party in confidence, shall use such
information only for the purpose and in accordance with this Agreement, and
shall not disclose such information to any third party without the prior express
written approval of the disclosing party. All confidential information shall
remain the property of the disclosing party and shall be returned on written
request or upon termination of this Agreement. Confidential information shall
not include information that: (i) is or becomes publicly known for no wrongful
act, fault or negligence of the non-disclosing party; (ii) was known by the non-
disclosing party prior to disclosure and the non-disclosing party was not under
a duty of non-disclosure; (iii) was disclosed to the non-disclosing party by
someone not a party to this agreement who was free of obligations of
confidentiality to the disclosing party; (iv) is approved for release by written
authorization of the disclosing party; (v) is publicly disclosed pursuant to a
requirement or request of a governmental agency or where disclosure is required
by operation of law; or (vi) is furnished to someone not a party to this
Agreement by the disclosing party without a similar restriction on rights.
9.2. Employee Protection. During the Term and for a period lasting
-------------------
[***] beyond the Term, neither Party shall directly or indirectly solicit for
hire, contract with, retain, or employ anyone employed by the other Party during
the Term.
10. Warranties.
----------
10.1. No Violation. The Company and Contractor warrant that the
------------
execution of this Agreement and their performance of their respective
obligations hereunder does not now and will not in the future violate any
agreement with any third party, or any obligation to any third party.
* Confidential Treatment Requested
3
<PAGE>
10.2. Registration Requirements. Contractor warrants that Contractor
-------------------------
has complied with all applicable registration and licensing requirements to
enable Contractor to act as an independent contractor under the terms of this
Agreement.
11. Remedies. Upon the sending of written notice to the Company of
--------
completion of an item set forth in Exhibit A, the Company shall have [***] days
---------
(the "Warranty Period") to provide written notice to Contractor requiring
Contractor to repair or remedy all defects solely caused by Contractor in
completing the item. This shall be the Company's exclusive remedy. Failure of
the Company to give timely notice during the Warranty Period shall be deemed a
waiver of any right, claim, damages, injury or liability that the Company may
have against Contractor. Contractor shall have up to [***] days at its election
to repair or remedy the defects or else return to the Company the amount
actually received by Contractor for that item.
11.1. Inapplicability. In no event shall Contractor's obligations
---------------
arise for any damage or defect to the extent it is caused or made worse by:
11.1.1. Negligence, improper maintenance or improper operation
by anyone other than WFI or WFI's employees, agents or subcontractors; or
11.1.2. Failure by the Company or by anyone other than
Contractor or Contractor's employees, agents or subcontractors to comply with
the warranty requirements of manufacturers of equipment or other components; or
11.1.3. Failure by the Company to give notice to Contractor of
any defects during the Warranty Period; or
11.1.4. Changes, alterations or additions made to the work by
anyone other than Contractor; or
11.1.5. The failure of anyone other than Contractor to
maintain the work properly; or
11.1.6. Loss or damage that the Company has not taken
reasonable and timely action to minimize; or
11.1.7. Any defect in, caused by, or resulting from, materials
or work supplied by anyone other than Contractor, its employees, agents or
subcontractors; or
11.1.8. Normal wear and tear or normal deterioration; or
11.1.9. Loss or damage caused by, or resulting from,
accidents, riot and civil commotion, fire, explosion, smoke, water escape,
falling objects, aircraft, vehicles, Acts of God, lightning, windstorm, hail,
flood, mudslide, earthquake, volcanic eruption, wind-driven water, or changes in
the underground water table; or
11.1.10. Loss or damage caused by, or resulting from, seepage
of water; or
* Confidential Treatment Requested
4
<PAGE>
11.1.11. Bodily injury or damage to personal property.
11.2. Disclaimer of Warranties. Following the Warranty Period,
------------------------
Contractor shall have no further obligations to the Company for the particular
item. Except as specifically provided herein, CONTRACTOR DISCLAIMS ALL
WARRANTIES OF EVERY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11.3. Limitation of Liability. EXCEPT AS SPECIFICALLY PROVIDED
-----------------------
HEREIN, CONTRACTOR SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER LEGAL THEORY. Notwithstanding anything in this Agreement to
the contrary or elsewhere, in no event shall Contractor be liable in the
aggregate for more than Contractor actually received from the Company under this
Agreement.
12. Patents. Contractor represents and warrants that it is authorized to
-------
use, install, or disclose materials, techniques, devices, or information as may
be required to perform the Services required hereunder other than those supplied
by the Company or other parties not affiliated with Contractor, and that all
necessary royalties or license fees have been paid. Subject to this Agreement,
Contractor shall save, defend, hold harmless, and indemnify the Company from any
and all claims, suits and proceedings for the infringement of any patent,
copyright, trade secret or other intellectual property rights arising from the
performance of this Agreement.
13. Protection of Persons and Property.
----------------------------------
13.1. Precautions. Contractor shall at all times take reasonable
-----------
precautions to protect the persons and property of others which may be on or
adjacent to the site of performance of Contractor's obligations hereunder from
damage, loss or injury resulting from performance under this Agreement by
Contractor or any other party with whom Contractor may have subcontracted.
Contractor shall not disturb or displace any protection installed by others.
Subject to this Agreement, any property moved or damaged by Contractor during
the course of performance of the work hereunder shall be returned or repaired by
Contractor, at Contractor's expense, to the Company's reasonable satisfaction.
13.2. Notification of Injury or Damage. Contractor shall promptly
--------------------------------
notify the Company upon learning of any injury, death, loss or damage to any
persons, animals or property that is related to or occurs at the Services site
during the performance of the Services, whether or not caused by or involving in
any way, Contractor, its employees or agents.
14. Taxes. Contractor shall pay all taxes required by law in connection
-----
with this Agreement, including, without limitation, sales, use, storage, and
similar taxes, and shall secure, at Contractor's expense, all licenses and
permits, pay all charges and fees, and give all notices necessary for the
Contractor's performance of this Agreement and Contractor's furnishing of
materials and shall provide evidence of such upon demand.
5
<PAGE>
15. Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof, and supersedes all prior
agreements and understandings between the parties.
16. Modifications. This Agreement may be modified only in writing
-------------
executed by both parties. Pre-printed terms and conditions that may be printed
on either side of a work order or similar communication shall not supersede the
terms of this Agreement.
17. Assignment. This Agreement may not be assigned except upon the
----------
written consent of the non-assigning party, which consent may not be
unreasonably withheld; provided, however, that no consent shall be required for
the Company to assign any of its rights hereunder to any of its affiliates,
including, without limitation, AT&T and any of AT&T's affiliated entities, or to
any purchaser of substantially all of the Company's assets, if such affiliate or
purchaser has a net worth equal to or greater than the net worth of the Company
as of the date hereof and the Company remains liable. This Agreement shall be
binding upon the successors and assigns of the Parties.
18. Notices. All notices or other written communications required under
-------
this Agreement shall be given personally or by certified mail to the parties at
the following addresses:
To the Company: Triton PCS Operating Company, L.L.C.
101 Lindenwood Drive, Suite 125
Malvern, PA 19355
Attn: The President
Copy To: Jay Goldstein, Esq.
Kleinebard, Bell & Brecker
1900 Market Street, Suite 700
Philadelphia, PA 19103
To Contractor: Wireless Facilities, Inc.
9725 Scranton Road, Suite 140
San Diego, CA 92121
Attn: Masood K. Tayebi, Ph.D., President
Copy To: William W. Eigner, Esq.
Procopio, Cory, Hargreaves & Savitch LLP
530 "B" Street, Suite 2100
San Diego, CA 92101
All notices shall be effective upon receipt if delivered personally, or
three (3) days following mailing.
19. Governing Law. This Agreement shall be governed by and construed
-------------
according to the internal laws of the State of Delaware without regard to
Delaware's choice-of-law provisions. Venue in any action brought with respect
to this Agreement by the Company shall be in state or federal courts in
Philadelphia, Pennsylvania, and each party consents to the
6
<PAGE>
jurisdiction of those courts. Venue in any action brought with respect to this
Agreement by Contractor shall be in federal or state court in Virginia, and each
party consents to the jurisdiction of those courts.
20. Attorneys' Fees. In any legal action arising from or relating to this
---------------
Agreement, the substantially prevailing party (as determined by the court) shall
be entitled to recover reasonable attorneys' fees and other costs incurred in
that action or proceeding (including, without limitation, expert witness fees),
in addition to any other relief to which the prevailing party may be entitled.
21. Incorporation by Reference. The additional terms and conditions
--------------------------
contained in any exhibit or attachment are hereby incorporated into this
Agreement.
22. Force Majeure. If the performance of any part of this Agreement,
-------------
except for payment obligations, by either party is delayed, rendered impossible
by reason of natural disaster, acts of God, actions or decrees of governmental
bodies or any other causes entirely beyond the control of the party whose
performance is affected (hereinafter referred to as "Force Majeure Event"), the
party who has been so affected shall immediately give written notice to the
other party of the nature of any such conditions and the extent of delay and
shall do everything possible to resume performance hereunder whenever such Force
Majeure Event is removed or ceases. Upon receipt of such notice, performance of
this Agreement, except for payment obligations, to the extent prevented by Force
Majeure Event shall immediately be suspended. If the period of nonperformance
exceeds ninety (90) days from the receipt of notice of the Force Majeure Event,
the party whose ability to perform has not been so affected may, by giving
written notice, terminate the term of this Agreement.
23. Severability. If any provision in this Agreement is determined by
------------
any court of competent jurisdiction or arbitrator to be invalid or unenforceable
for any reasons, including without limitation by reason of such provision
extending for too long a period or over too large a subject area, or by reason
of its being too extensive in any other respect, such provision to the specified
extent that it is unenforceable shall be interpreted to extend only over the
maximum period of time or subject area, and to the maximum extent in all other
respects, as to which it is valid and enforceable, thereby effectuating the
parties' intent to the greatest extent possible. The invalidity or
unenforceability of any particular provisions of this Agreement shall not affect
the other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
24. Attorney Consultation. Each party has been informed of its right to
---------------------
consult with its own attorney prior to signing this Agreement and has either
done so or has considered the matter and has decided not to do so. As each
party has had opportunity to consult independent legal counsel, the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement.
25. Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
7
<PAGE>
26. Effective Date. Notwithstanding anything herein to the contrary, the
--------------
Company shall have the right to terminate the term of this Agreement upon
written notice to Contractor if the Company has not acquired the PCS License for
the Virginia and South Carolina trading areas from AT&T provided, however, that
-----------------
if the Company fails to obtain such PCS Licenses for the Service Area from AT&T,
then the Company shall pay to Contractor all professional fees and out-of-pocket
expenses incurred by Contractor, in accordance with the payment terms under
Section 5, prior to Contractor's receipt of notification from the Company of the
Company's failure to obtain the PCS Licenses.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
TRITON PCS OPERATING COMPANY, L.L.C., WIRELESS FACILITIES, INC.,
a Delaware limited liability a New York corporation (currently
company reincorporating in Delaware)
By: Triton Management Company, Inc., By: /s/ Masood Tayebi
______________________________
its Manager Name: Masood Tayebi, Ph.D.
_______________________
Title: President
____________________
By: /s/ Clyde Smith
________________________________
Name: Clyde Smith
__________________________
Title: Executive Vice President
and CTO
_________________________
8
<PAGE>
Exhibit A
---------
SERVICES
RF Engineering Scope Of Work
A. Preliminary Design
1. Definition: Coverage will be defined by the Company, and agreed upon
by Contractor, including coverage objectives and environment (urban, suburban,
rural), in-building and in-car penetration criteria, link budget and the overall
launch area. Design criteria will also include grade of service (blocking
objective) as well as estimated subscriber usage levels.
2. Contractor Scope
Procedure: Contractor will perform propagation model optimization
drive testing before issuing the Preliminary Design. The sites will be
identified in communication with the site acquisition contractor to
allow for simultaneous model optimization and site evaluation. The
following minimum number of sites will be drive tested for each
category:
Urban [***]
Suburban [***]
Rural (w/foliage) [***]
Rural (w/o foliage) [***] (where applicable)
Contractor will identify slope and intercept and determine standard
deviation on the error between measurement and preparation model
optimization. An effort will be made to keep this error in the 8dB
range for determination of optimal slope and intercept.
Search rings will be issued based on study of existing structures,
friendly sites, co-locations and zoning criteria in order to minimize
site acquisition cost and timeline. An initial study of the existing
structures and land will be performed with site acquisition.
Deliverable: Search rings will have a cover letter listing map name,
site ID, latitude, longitude, minimum and maximum radiation center site
name, target AGL (above ground level). Search rings will be released on
copies of USGS 7 1/2 minute quad maps. Search ring information may
change according to acquisition request. Site coverage objectives will
accompany the search ring. A map will also be issued identifying the
surrounding site locations. Contractor will create an optimized model
with zero mean error, slope and intercept for the four (4) site
categories described above with associated
* Confidential Treatment Requested
A-1
<PAGE>
standard deviation on the prediction error. Contractor will document
results in the Preliminary Design report used for all subsequent
propagation analyses.
Deliverable Time Line: The search ring package will be delivered
after the Company has reviewed the design and approved the release of
search rings.
B. Site Candidate Evaluation and Approval
Contractor will evaluate the candidate sites per search ring identified by
the site acquisition contractor. The process is broken down as follows:
1. Site Survey
Definition: Visit each identified candidate for RF suitability.
Determine antenna locations. Identify coverage limitations and
comparison with any other candidates. The site survey will be
performed with site acquisition and construction personnel.
Deliverable: The survey will consist of determining the suitability
of the site, identification of desired antenna location, antenna
orientation and justification of the site.
Deliverable Time Line: The engineers will survey each site within
[***] of receiving the site candidate from site acquisition. A
survey site report (documented site survey results) will be
[documented] within [***] of the site visit.
2. Drive Testing
Definition: Upon the Company's approval of the survey, Contractor
will initiate a drive test for the site. All necessary drive testing
equipment will be provided by Contractor. Site access will be
coordinated with site acquisition.
Procedure: Based on the RF coverage objective set forth in the
Preliminary Design, Contractor may evaluate the site by drive testing
(at least [***] of primary sites will be drive tested and upon the
Company's request, up to [***] of that [***] will be drive tested
using panel antennas). The drive testing shall be limited to one
primary candidate per search ring as agreed upon by the Company and
Contractor. The Company will reserve the right to require Contractor
to conduct additional drive tests in a search ring as necessary at
additional charge according to Contractor's normal published hourly
rates then in effect. Contractor will verify and record antenna type,
gain, transmitter power output, cable losses, EIRP and a picture of
the antenna set up. The equipment used will be calibrated with a dB of
accuracy. Contractor will coordinate the required test frequency with
a contractor selected by the Company. The frequencies will be approved
by the Company.
* Confidential Treatment Requested
A-2
<PAGE>
Deliverable Time Line: Drive test will be completed within [***]
of determination of preliminary site by the Company. The drive test
report will be completed within [***]of drive test completion.
A final site evaluation (approval/rejection) will be issued based on site
visit, drive testing and site availability. If the primary site is rejected,
Contractor will select another candidate site at the Company's cost according to
Contractor's normal published hourly rates then in effect for drive testing and
evaluation. Any candidate finally approved by Contractor and the Company will be
referred to as an RF Approved Site.
3. Detailed Site Design
Definition: Antenna type, frequency planning, downtilts, interference
reduction, orientation and location will be identified on the site
sketch provided by the A&E firm approved by the Company. Necessary
prediction/measurement data analyses will be performed by Contractor
to optimally configure the antenna placement on all the RF Approved
Sites.
Procedure: All zoning construction drawings prepared by the A&E firm
will be signed off by the Contractor for the purpose of verifying that
the RF coverage objectives are met. Contractor will verify the
antenna height, placement, orientation, downlift and type. Site
configuration will be determined (omni/sector, equipment type) based
on forecasted traffic usage. Contractor will not provide FAA analyses
but will be required to provide the Company with the information
reasonably necessary for such filings for FCC and FAA filings.
Deliverable: Contractor will provide the Company with detailed site
design in accordance with procedure above subject to the Company's
approval ("Detailed Site Design").
Deliverable Time Line: Detailed Site Design will be completed within
[***] after site sketch is provided to Contractor.
4. Design Review
Definition: The objective of design review ("Design Review") is to
verify that all the desired strategic coverage areas are covered in
the Detailed Site Design and to compare the predicted and actual
design cell count. The design cell count will be based on an
optimized propagation model determined by Contractor.
Procedure: An optimized propagation model will be used to develop a
system coverage analysis. The Preliminary Design will be compared
with the Detailed Site Design to determine any changes in the design
cell count. Measurement data from the drive test will be used
primarily to determine the
* Confidential Treatment Requested
A-3
<PAGE>
design cell count, and the propagation model will be used for all the
remaining sites. Contractor will perform a capacity analysis to
ensure that all cells have adequate capacity to meet the forecasted
demand determined by the Company and Contractor after final site
approval and before frequency planning.
Deliverable: A system wide coverage plot will be produced to
determine the coverage performance and design cell count. Prediction
plots will be used in place of measured date if a Detailed Site Design
has not been approved by the Company. Contractor will generate a
report documenting the coverage performance and the cell count
comparison between the Design Review and Preliminary Design.
Deliverable Time Line: [***] design review reports will be developed
by Contractor after completion of [***] of the Detailed Site Design
has been approved by the Company for all sites (each a "Design Review
Report").
5. Traffic Engineering
Definition: Contractor will develop a capacity forecast based on the
Company provided demand parameters. Contractor will identify
forecasted channel, capacity and site configuration requirements.
Procedure: Based on the Company provided market segmentation (%
mobile, residential, business, etc.), penetration and subscriber usage
pattern (mou/sub,mE/sub) a [***] year capacity analysis forecast will
be developed to determine site configuration (omni/sector), number of
RF channels and carriers, and capacity cell addition. This analysis
will be performed on a per sector basis during the Detailed Site
Design procedure. Contractor is required to meet AT&T standards for
the percentage of blocking, which requirements will be provided by the
Company.
Deliverable: This information will be provided in each Design Review
Report identifying the following: number of channels and erlangs per
sector, cell configuration, capacity cells.
6. Build Verification
Definition: Verification of site build and antenna placement
determining whether site is built according to the Contractor's
specifications.
Procedure: Contractor will verify that sites are built with correct
antenna placement and orientation. Installation accuracy will be
reviewed in relation to construction specifications based on antenna
and cable run sweeps.
* Confidential Treatment Requested
A-4
<PAGE>
Deliverable: Build verification check sheet will be completed and
provided to the Company. The Company will authorize any modification
of the Work, which will be verified by Contractor.
Deliverable Time Line: Check sheet completed within [***] of request
for verification by the Company.
C. Optimization
System optimization support will be provided by RF using Contractor
provided optimization tools (primarily using items from Ericcson). The
optimization is divided into the following sub-tasks:
1. Site Specific Optimization
Definition: Site specific parameters will be recommended by
Contractor and Contractor will put in specific format of Ericcson for
switchloading.
Procedure: As the sites are integrated into the network, Contractor
will set the parameters, test the site for coverage and hand-offs, and
verify the link balance. Any software parameter changes will be
implemented by the Company and verified by Contractor and any RF
configuration changes will be recommended to the Company. Contractor
will test the features and originate and terminate a call per sector.
Deliverables: All information regarding a particular site will be
recorded and presented to the Company.
Deliverable Time Line: Within [***] after the site is in service
and available for testing.
2. Network Verification Drive
Definition: Network-wide drive test to establish performance
benchmarks.
Procedure: A network wide drive test will be performed by
Contractor. This will provide the data required to establish the
network coverage and quality statistics and to identify any marginal
service areas. System performance benchmarks will then be established
as a result of the tests.
Deliverables: A system wide performance report will be developed by
Contractor identifying areas of poor coverage, interference, incorrect
site parameters, and an action plan to correct these performance
deficiencies within [***] after the network-wide drive test is
completed.
* Confidential Treatment Requested
A-5
<PAGE>
3. Pre-launch Optimization Process
Pre-Launch optimization will be carried out by Contractor to verify the
correct operation of the network, identifying the coverage area of each
site, validating parameters and neighbors, and documenting performance
benchmarks that meet the specified grade of service. It provides vital
data for the post-launch optimization engineers who may implement RF
configuration changes to improve the overall coverage of the network, and
who change software parameters to maintain the integrity of the system as
the traffic loan increases. The documentation produced in the process
shall accurately reflect the network performance statistics. The
percentage of dropped calls will meet AT&T standards.
4. FAA
The Contractor will provide all reasonably necessary information to the
Company approved airspace analysis contractor. Contractor will not be
responsible for filing FAA forms.
5. FCC
RF will furnish to the Company all reasonably necessary information
required for PCIA and FCC filings as requested in writing by the Company.
Contractor will not be responsible for filing FCC forms.
6. Zoning Support
Contractor will provide technical support, as reasonably necessary to
support land use planning, jurisdictional hearings and zoning functions.
This may consist of providing plots from drive testing, and the propagation
model or written justifications defending an application for a variance.
Contractor agrees to provide expert testimony as required for zoning
hearings at its published hourly rates.
A-6
<PAGE>
Exhibit B
---------
PRICES
B.1 Price Per Site. This Agreement calls for the Company to pay for each
--------------
cell site (each, a "Site") on a fixed price basis of [***] per Site. If
Contractor does not license hardware or software to the Company upon completion
of a Site, the price per Site shall be [***]. Contractor is hiring and
relocating engineers and making commitment to them and to others based on these
representations.
B.2 Schedule Of Payments. Subject to Section 5 of this Agreement, the
--------------------
Company shall pay the Prices to Contractor for each Site in [***] equal
installments of [***], each due and payable upon the following events:
[***]
* Confidential Treatment Requested
B-1
<PAGE>
B.3 Incomplete Sites. If work is halted on a particular Site due to
----------------
change of plan or another reason not caused by Contractor, the Company shall pay
Contractor the Price on a pro-rata basis under which Contractor shall be paid in
full for completed benchmarks and in part for incomplete benchmarks.
B.4 Additional Services. If the Company requests Contractor to provide
-------------------
additional RF Engineering or other services not specifically delineated in this
Agreement during the Term, the Contractor shall pay for those services
consistent with Section 5 of this Agreement, at Contractor's standard hourly
billing rates then in effect. For 1997, Contractor's standard hourly rates are
as follows: [***] per hour for Associate Engineers, [***] per hour for Design
Engineers, [***] per hour for Senior Engineers, and [***] per hour for Project
Managers.
B.5 Expenses. The Prices for a Site include compensation for the
--------
following expenses:
[***]
* Confidential Treatment Requested
B-2
<PAGE>
All other expenses not explicitly listed in Section B.5 shall be borne by
the Company, including but not limited to [***].
B-3
<PAGE>
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
caused this Amendment No. 1 to be duly executed as of the date and year first
written above.
TRITON PCS OPERATING COMPANY L.L.C.
By: Triton Management Company, Inc.,
its Manager
By: /s/ Abbas Borghei
-------------------------------
Name: Abbas Borghei
Title: Corporate Director of
Engineering & Operations
WIRELESS FACILITIES, INC.
By: /s/ Massih Tayebi
-------------------------------
Name: Massih Tayebi
Title: C.E.O.
<PAGE>
EXHIBIT A
Services
1. Corporate RF Emissions Policy (the "Policy")
1.1 Contractor shall develop and provide for Company review and comment a
Corporate Policy for RF Emissions Exposure Management.
1.2 Contractor shall incorporate all Company comments and provide no less
than 3 copies of the final document.
1.3 The document shall conform with and satisfy the requirements of OSHA,
FCC, and other agencies having jurisdiction over the control of RF
Emissions.
2. Training
2.1 Contractor shall develop a training program to implement the
requirements of the Policy.
2.2 Contractor shall provide not less than [***] training sessions
(corporate and each region) for Company staff and third parties.
Training shall be appropriate to the audience (management, engineers,
technicians, site acquisition specialists, and construction
supervisors).
2.3 Contractor shall test and certify all participants in the training
program.
3. Site RF Emissions Evaluation and Documentation
3.1 Company shall provide no less than [***] sites for Contractor's
evaluation.
3.2 Company's site acquisition contractor will coordinate access to the
sites.
3.3 Contractor shall examine all the sites thoroughly to determine which
sites require a complete evaluation.
3.4 Contractor shall perform an initial theoretical and analytical
evaluation on the sites that are not categorically exempt to
demonstrate compliance or identify the need for further study.
3.5 Contractor shall perform an initial theoretical and analytical
evaluation on a small portion of the sites (15%) that are
categorically exempt and demonstrate and document compliance.
3.6 Contractor shall perform actual field measurements on the sties that
fail the theoretical and analytical studies (all sites that have
predicted limits exceeding the FCC exposure limits or that have EMF
limits within 80% of the FCC limits).
*Confidential Treatment Required
<PAGE>
3.7 Contractor shall recommend the necessary steps to ensure compliance.
3.8 Contractor shall provide all the necessary recommendations and
procedures such as proper display of warning signs, fences, etc., for
sites with areas which have power densities in excess of the limits.
3.9 Contractor shall provide a site safety plan for each site with limits
exceeding the recommended FCC specifications.
3.10 Contractor shall provide a generic site safety plan for categorically
exempt sites
<PAGE>
4. Project Management
4.1 Contractor shall provide to Company for approval a project plan for
all Services prior to the execution of the Services.
4.2 Contractor shall provide a clearly defined site evaluation procedure
for Company review and approval prior to executing the Services.
4.3 Contractor shall maintain a database of all developed data and provide
an electronic copy prior to final payment for Services.
4.4 Contractor shall provide a bi-weekly report (3 copies) containing all
analysis and measurement data and a summary of project progress to
date.
4.5 Contractor shall provide a monthly report (3 copies) with site
analysis, data and results and a summary of project progress to date.
4.6 Contractor shall provide a final report (3 copies) containing all
sites and the necessary information to demonstrate compliance and all
recommendations prior to final payment for Services.
5. Resources
5.1 Contractor shall allocate the necessary well trained staff and
necessary tools (both software and hardware) in each region to
complete this project by 12/31/98.
5.2 Contractor shall provide a Contractor's expense all tools, software,
hardware, computers, measurement equipment, field strength meters,
spectrum analyzers, antennas or probes and any other equipment
required to perform the Services.
5.3 [***].
* Confidential Treatment Requested
A-2
<PAGE>
EXHIBIT B
Prices
The number of sites shown in the table are for the total number of sites that
require analysis.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Price Per site for
------------------
- ---------------------------------------------------------------------------------------------------
# of Shares Evaluation only Evaluation, Analysis & Measurement
- ---------------------------------------------------------------------------------------------------
<S> <C> <C>
[***] [***] [***]
- ---------------------------------------------------------------------------------------------------
[***] [***] [***]
- ---------------------------------------------------------------------------------------------------
[***] [***] [***]
- ---------------------------------------------------------------------------------------------------
</TABLE>
*Confidential Treatment Required
B-1
<PAGE>
TRITON PCS OPERATING COMPANY LLC
375 Technology Drive
Malvern, PA 19355
October 19, 1998
Wireless Facilities, Inc.
9725 Scranton Road, Suite 140
San Diego, CA 92121
Ladies and Gentlemen:
We refer to the Master Services Agreement dated as of January 19, 1998 (the
"Agreement") between Triton PCS Operating Company L.L.C. ("Triton") and Wireless
Facilities, Inc. ("WFI"). Capitalized terms not otherwise defined in this
Letter Agreement have the same meanings as specified in the Agreement.
Triton and WFI hereby agree that, effective as of the date of this Letter
Agreement, the Agreement is amended by replacing Exhibit B attached thereto with
Exhibit 1 attached hereto. The Prices set forth on Exhibit 1 shall apply only
to search rings issued before the date of this Letter Agreement. The Prices set
forth on Exhibit B shall apply to search rings issued before the date of this
Letter Amendment.
Except for the foregoing change, all other terms and conditions of the
Agreement shall remain the same and continue in full force and effect, and the
Agreement, as amended hereby, shall constitute the legally valid and binding
obligation (to the extent specifically provided therein and herein) of the
parties hereto enforceable in accordance with its terms. If WFI agrees to the
terms and conditions hereof, please evidence such agreement by having an
authorized signatory execute this letter where indicated below and return a copy
to us at the address set forth above.
Very truly yours,
TRITON PCS OPERATING COMPANY L.L.C.,
By: Triton Management Company, Inc.
its Manager
By: /s/ Clyde Smith
------------------------------
Name: Clyde Smith
Title: Executive Vice President
AGREED TO AND ACCEPTED AS
OF THE DATE FIRST ABOVE WRITTEN BY:
WIRELESS FACILITIES, INC.
By: /s/ Masood K. Tayebi
-----------------------------
Name: Masood K. Tayebi
Title: President
<PAGE>
B.5 Expenses. The Prices for a Site include compensation for the
--------
following expenses:
[***]
All other expenses not explicitly listed in Section B.5 shall be borne by
the Company, including but not limited to [***].
* Confidential Treatment Requested
<PAGE>
TRITON PCS OPERATING COMPANY LLC
375 Technology Drive
Malvern, PA 19355
November 2, 1998
Wireless Facilities, Inc.
9725 Scranton Road, Suite 140
San Diego, CA 92121
Ladies and Gentlemen:
We refer to the Master Services Agreement dated as of January 19, 1998, as
amended by the Letter Amendment dated October 19, 1998 (as so amended, the
"Agreement") between Triton PCS Operating Company L.L.C. ("Triton") and Wireless
Facilities, Inc. ("WFI"). Capitalized terms not otherwise defined in this
Letter Agreement have the same meanings as specified in the Agreement.
Triton and WFI hereby agree that, effective as of the date of this Letter
Amendment, the Agreement is amended as set forth below:
1. Exhibit A to the Agreement is amended by adding thereto to the
following Section D:
D. Maintenance of RF Network Performance ("Maintenance Services")
After completion of the Build Verification and Optimization
Milestone, the Contractor will provide the services set forth below
with respect to each launched site. In addition, so long as
Contractor performs Maintenance Services under this Agreement,
Contractor will maintain where currently located the seven (7) Planet
Stations that are currently deployed in Company regions.
1. Dropped call rate analysis per sector. Dropped calls will be
categorized due to signal strength, bad quality, timing
advancement, etc.
2. Handover attempts
3. Handover failure and success (Ratios, etc.)
4. Call attempt (Completion and Failure)
5. Call Setup completion rate
6. Traffic Channel utilization rate
7. Busy hour traffic analysis per sector
8. Network footprint drive test
9. Network quality drive test
10. Frequency planning
11. Network parameter setting
12. Antenna orientation and down-tilt setting
13. Network trouble shooting
14. Competitor footprint test (Twice each year per region)
<PAGE>
15. Current 10 worst performance lists of sites per BTA and brief
description as to the possible cause of the poor performance
and recommended solution
16. Handle all RF related trouble tickets
17. Work with Triton Corporation to evaluate new phones as needed
18. Update frequency plan, neighbor list and all RF parameters on
an ongoing basis
19. Daily statistical report to Triton Management, including
historical data and
<PAGE>
trends, weekly and monthly averages
20. Investigate and resolve all RF related problems
2. Exhibit B to the Agreement is amended by adding thereto to the
following Section B.6:
B.6. Maintenance of RF Network Performance
B.6.1 Contractor will be paid a fee of [***] per sit, per month,
for the performance of the Maintenance Services set forth in Section D
of Exhibit A.
B.6.2 The fee for the Maintenance Services includes compensation
for the following expenses:
[***]
Except for the foregoing changes, all other terms and conditions of the
Agreement shall remain the same and continue in full force and effect, and the
Agreement, as amended hereby, shall constitute the legally valid and binding
obligation (to the extent specifically provided therein and herein) of the
parties hereto enforceable in accordance with its terms. If WFI agrees to the
terms and conditions hereof, please evidence such agreement by having an
authorized signatory execute this letter where indicated below and return a copy
to us at the address set forth above.
Very truly yours,
TRITON PCS OPERATING COMPANY L.L.C.
By: Triton Management Company, Inc.
its Manager
By: /s/ Clyde Smith
----------------------------
Name: Clyde Smith
Title: Executive Vice President
AGREED TO AND ACCEPTED AS
OF THE DATE FIRST ABOVE WRITTEN BY:
WIRELESS FACILITIES, INC.
By:/s/ Masood K. Tayebi
--------------------------
Name: Masood K. Tayebi
Title: President
* Confidential Treatment Requested
<PAGE>
[WFI Letterhead]
April 20, 1999
Mr. Shekhar Deshpande
Vice President
Triton PCS Operating Company, L.L.C.
375 Technology Drive
Malvern, PA 19355
Re: Letter Amendment Number 3 to Master Services Agreement dated 1/19/98
Dear Mr. Deshpande:
We refer to the Master Services Agreement dated as of January 19, 1998, as
amended by the Letter Amendment dated October 19, 1998 and November 2, 1998 (as
so amended, the "Agreement") between Triton PCS Operating Company, L.L.C.
("Triton") and Wireless Facilities, Inc. ("WFI"). Capitalized terms not
otherwise defined in this letter amendment have the same meanings as specified
in the Agreement.
Triton and WFI hereby agree that effective as of the date of this letter
amendment, the Agreement is amended as set forth below:
1. Exhibit A to the Agreement is amended by adding the following Section
E:
E. Fixed Network and Customer Care Engineering Support Services
a. Services: WFI will perform fixed network and customer
care engineering services as directed by
Triton including working with the customer
care center to define areas for improvement
in engineering and operations and working to
resolve such issues.
b. Service Fee: WFI will provide engineers to Triton to
perform fixed network design services at the
hourly rates for additional services as set
forth in Exhibit 1 of the amended Agreement.
c. Expenses: Travel and other expenses shall be passed
through to Triton with an administrative
markup of [***]%.
d. Invoicing: WFI will invoice Triton on a monthly basis
for hours worked and expenses incurred
during the previous month.
*Confidential Treatment Requested
<PAGE>
e. Staff Assignment: WFI, will identify, based on Triton's
requirements, appropriate staff and
corresponding classifications on a per
project basis. WFI will present this
information to Triton for review and
approval.
Except for the foregoing change, all other terms and conditions of the Agreement
shall remain the same and continue in full force and effect, and the Agreement,
as amended hereby, shall constitute the legally valid and binding obligation (to
the extent specifically provided therein and herein) of the parties hereto
enforceable in accordance with its terms. If Triton agrees to the terms and
conditions hereof, please evidence such agreement by having an authorized
signatory execute this letter where indicated below and return a copy to us at
the address set forth above.
Sincerely,
WIRELESS FACILITIES, INC.
By: /s/ Dee Aliphanah
-----------------------------
Name: Dee Aliphanah
Title: Vice President
AGREED TO AND ACCEPTED
AS OF THE DATE FIRST ABOVE
WRITTEN BY:
TRITON PCS OPERATING COMPANY L.L.C.
By: /s/ Shekhar Deshpande
-----------------------------
Name: Shekhar Deshpande
Title: Vice President
<PAGE>
AMENDMENT NO. 1 TO
TRITON/WFI MASTER SERVICES AGREEMENT
This AMENDMENT NO. 1 TO TRITON/WFI MASTER SERVICES AGREEMENT ("Amendment
No. 1") is executed this 24th day of August 1998, by and between TRITON PCS
OPERATING COMPANY L.L.C., a Delaware limited liability company (the "Company"),
and WIRELESS FACILITIES, INC., a Delaware corporation ("Contractor").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Company and Contractor have entered into a Master
Services Agreement dated January 19, 1998 (the "Agreement") pursuant to which
the Company has engaged the Contractor to provide certain services to the
Company in accordance with the terms and conditions set forth in the Agreement.
WHEREAS, the Company and Contractor desire to enter into this
Amendment No. 1 to expand the scope of Services provided to the Company by the
Contractor.
NOW THEREFORE, in consideration of the premises and the mutual
promises and covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, the parties agree as follows:
1. Exhibit A Services. Exhibit A of the Agreement is hereby amended to
include those additional services to be provided by Contractor set forth on
"Exhibit A" attached hereto.
- ----------
2. Exhibit B Prices. Exhibit B of the Agreement is hereby amended to
include the pricing schedule set forth on "Exhibit B" attached hereto.
---------
3. All other terms and conditions of the Agreement are hereby ratified
and confirmed.
<PAGE>
EXHIBIT 10.27
---------------------------------
Confidential Treatment Requested
under 17 C.F.R.(S)(S)200.80(b)(4)
200.83 and 230.406
---------------------------------
SITE DEVELOPMENT SERVICES AGREEMENT
-----------------------------------
THIS SITE DEVELOPMENT SERVICES AGREEMENT (Agreement") dated as of the 10th day
of December, 1997 ("Effective Date"), by and between Triton PCS, Inc., a
Delaware limited liability company or its nominee ("Triton") and Entel
Technologies, Inc., a Delaware corporation ("Entel").
WITNESSETH:
WHEREAS, Triton desires to engage Entel to perform services related to the
development of a personal communication services ("PCS") system (the "System")
to serve the Washington, D.C./Richmond/Norfolk, Virginia Major Trading Area (the
"Service Area") comprising certain sites of real property which are designated
by Triton from time to time through a letter of authorization ("Authorization
Letter") and upon which antennae towers, wires, and/or other ancillary PCS
equipment shall be located ("Site");
WHEREAS, Triton desires to enter into an arrangement with Entel for certain
services, as hereinafter defined, relating to the development of certain
portions of the System, to include site acquisition, zoning, and construction
management services;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, it is hereby agreed as follows:
1. RELATIONSHIP OF PARTIES
-----------------------
The parties intend by this Agreement to establish an independent
contractor relationship. Neither party nor their employees shall be
agents or legal representatives of the other party for any purpose,
and neither shall have authority to act for, bind, or commit the other
party. Entel and Triton agree that this Agreement does not establish a
franchise, joint venture, or partnership for any purpose.
2. REQUIRED SERVICES
-----------------
Entel shall be assigned a range of sites between [***] sites ("Base
Number") and [***] or more sites ("Maximum Number") to perform site
development services ("Site Development Services") for Triton with respect
to the System. Entel shall devote such time and resources as are necessary
to ensure proper and expeditious completion of its duties hereunder and
shall make available to the System the full range of its expertise and
experience in constructing wireless systems. Site Development Services
shall consist of the services described on Attachment A hereto.
A. Entel Deliverables; Reporting; Approval by Triton. Within 10
-------------------------------------------------
business days after execution of this Agreement, Triton and Entel
shall agree upon and prepare a detailed schedule for the
completion of Site Development Services on a site-by-site basis,
which schedule shall become Attachment B to this Agreement. The
schedule shall contain, at a minimum, milestone dates for
completion by Entel of Site Acquisition, Site Zoning, and Site
Construction Services (each as defined in Attachment A). This
Agreement shall automatically terminate if the parties are
unable, after good faith negotiations, to agree to a schedule
within the allotted 10 business days; provided, however, in the
-----------------
event of such termination, Triton shall pay to Entel all
professional fees and out-of-pocket expenses incurred by Entel
prior to such termination, which fees shall not exceed $[***].
Following approval of this schedule by Triton, Entel shall,
thereafter, for the term of this Agreement, provide Triton with
not less than a written weekly report outlining the progress made
to attain the schedule previously submitted. Any change in
schedule which results in a time extension of one week or greater
on an individual site basis shall be clearly noted and the
reasons therefore shall be explained in writing. Triton may, at
* Confidential Treatment Requested
1
<PAGE>
its sole discretion, agree to a time extension from the detained
schedule originally provided. Entel shall attend all project
meetings reasonably requested by Triton.
B. Payments to Contractors. Triton shall be responsible for making
-----------------------
all payments due to contractors and subcontractors selected by
Triton to perform services at the Sites. Notwithstanding the
foregoing, Triton, at its option, may require Entel to contract
directly with all trade contractors and subcontractors for
provision of services at the Sites. Should Triton exercise such
option, Entel shall be responsible for disbursing funds for
payment only to those contractors, subcontractors, material
providers, and other service providers engaged by Entel directly.
Entel shall present copies of all such invoices relating to
construction of the Sites to Triton, and Triton shall then
provide Entel reimbursement of such disbursements plus [***]
within thirty (30) days of Entel's submission of said invoices to
Triton.
3. PERSONNEL
---------
A. Entel Employees and Agents. Entel may elect to rely upon its own
--------------------------
employees and agents for the performance of services under this
Agreement to the extent it, in its sole discretion, deems such
action to be necessary or advisable. Triton reserves the right to
approve Entel employees and/or contractors assigned to perform
services under this Agreement.
B. Independent Contractors. Entel may engage independent contractors
-----------------------
at Triton's consent to perform Site Development Services. Entel
shall be responsible for selecting and contracting such
independent contractors.
C. Self Dealing. Entel may rely upon its employees in accordance
------------
with Section 3 (B) above and, in addition, it may provide or
contract with an affiliate of Entel with Triton's consent at fair
market rates in accordance with competitive bids to provide goods
or services beyond those which its employees would perform, if it
deems the same to be necessary or advisable for construction of
the Sites. Entel will not, nor will any of its affiliates,
receive any compensation other than as set forth in Section 4 and
6 herein as a result of, arising from, or relating to Site
Development Services. If any such compensation would have
otherwise been payable, Entel agrees to transfer the benefit of
such compensation to Triton.
D. Prohibition of Solicitation. During the term of this Agreement,
---------------------------
neither party shall solicit nor accept for employment any
employees of the other party without the express written consent
of the other party.
4. COMPENSATION
------------
A. Reimbursement. Entel's compensation hereunder, as described in
-------------
Section 4 (B), shall be inclusive of any and all out-of-pocket
expenses, as described in Section 5, incurred by Entel in the
performance of its obligations hereunder. Any extraordinary or
other expenses which Entel anticipates incurring which are not
customarily incurred in the ordinary course of business must be
approved by Triton prior to the expenditure in order for Entel to
receive reimbursement for such expenditures.
B. Milestone Rates. In consideration for performance of the Site
---------------
Development Services, Triton shall compensate Entel the Milestone
Rates set forth below:
Milestone
---------
Milestone Services Rates
------------------ -----
(i) [***] [***]
(ii) [***] [***]
(iii) [***] [***]
* Confidential Treatment Requested
2
<PAGE>
(iv) [***] [***]
(v) [***] [***]
(vi) [***] [***]
C. Alternative Sites. In the event Triton elects to withdraw a Site
-----------------
assigned to Entel under the Authorization Letter or terminate this
Agreement in accordance with Section 8 hereof, Triton shall give Entel
notice of such withdrawal, and shall pay Entel [***]% of the
installment due for a Milestone Service which has been completed prior
to the notice of withdrawal or termination and time and materials for
a Milestone Service in process since the last completed Milestone in
accordance with the rates set forth in Section 4 (B).
D. Additional Services. In the event Triton desires Entel to perform
-------------------
isolated tasks associated with a Site not set forth on Attachment A,
Triton shall pay Entel at its standard hourly rates listed on
Attachment C.
E. Statements. Entel shall provide Triton with statements showing in
----------
reasonable detail the calculation of Milestone Rates earned during the
last calendar month not more than thirty (30) calendar days following
the end of each calendar month. The Milestone Rates shall be paid by
Triton to Entel within thirty (30) days following such submission of
invoices by Entel unless disputed by Triton as provided below.
F. Disputes. If Triton disputes the amount of expenses or fees claimed by
--------
Entel, Triton shall notify Entel in writing before payment is due,
shall include in such notice the factual basis for the dispute, and
shall pay when due all amounts not in dispute.
G. Applicability of Section. Payment shall be due Entel from Triton under
the provisions of this Section with respect to all Site Development
Services performed by Entel for Triton from and after the Effective
Date.
5. NON-REIMBURSABLE COSTS
-----------------------
Entel's compensation, described in Section 4 (B), is inclusive of the
following out-of-pocket expenses:
[***]
6. REIMBURSABLE COSTS
------------------
As described in Section 2(B), Triton, at its option, may require Entel to
contract directly with third parties, trade contractors, and subcontractors
for provision of services at the Sites. The following expenses shall be
considered pass through costs and shall be reimbursed to Entel as additional
compensation in accordance with the terms and conditions, as described in
Section 2(B):
[***]
* Confidential Treatment Requested
3
<PAGE>
[***]
7. TERM
----
The Agreement shall have an initial term of [***] commencing on the
Effective Date. The Agreement shall be renewed automatically for additional
[***] terms unless one party notifies the other party of an intent to cancel
the Agreement at the end of its then current term by written notice
delivered at least [***] prior to the end of the then current term.
8. TERMINATION.
-----------
A. In addition to its rights to terminate this Agreement in accordance
with Section 2 and Section 14:
i. Triton may terminate the Agreement upon written notice thereof
if there is a material breach of the Agreement by Entel
(including, without limitation, Entel's failure to provide
either timely or quality Site Development Services); or
ii. Triton may terminate the Agreement upon written notice thereof
if Entel shall: (i) become insolvent; (ii) make an assignment
for the benefit of creditors; (iii) file a voluntary
bankruptcy petition; (iv) acquiesce to any involuntary
bankruptcy petition; (v) be adjudicated bankrupt; or (vi)
cease to do business.
* Confidential Treatment Requested
4
<PAGE>
B. Entel may terminate the Agreement on [***] written notice in the event
of any of the following:
i. a material breach of the Agreement by Triton, which has not
been cured within [***] of Triton's receipt of written notice
of such breach from Entel; or
ii. Triton shall: (i) become insolvent; (ii) make an assignment for
the benefit of creditors; (iii) file a voluntary bankruptcy
petition; (iv) acquiesce to any involuntary bankruptcy
petition; (v) be adjudicated bankrupt; or (vi) cease to do
business.
C. After receipt of such written notice of termination, but prior to the
effective date of such termination, Entel shall continue to perform
under the Agreement unless specifically instructed by Triton to
discontinue such performance. Entel will be entitled to Milestone
Rates payable in accordance with Section 4 hereof, which accrue
through the date of discontinuance of performance on the basis of
activities preceding the discontinuance of performance.
9. CONSENT TO JURISDICTION
-----------------------
The parties hereby irrevocably (i) submit to the jurisdiction of any
Pennsylvania state court or federal court sitting in the Commonwealth of
Pennsylvania with respect to any suit, action, or proceeding relating to
this Agreement or any related agreement, (ii) waive any objection which they
may now or hereafter have to the laying of venue of any such suit, action,
or proceeding brought in any such court and any claim that any such suit,
action, or proceeding brought in any such court has been brought in an
inconvenient forum, (iii) waive the right to object that any such court does
not have jurisdiction over them, and (iv) consent to the service of process
in any such suit, action, or proceeding by the mailing of copies of such
process to the parties by certified mail to the addresses indicated in this
Agreement or at such other addresses of which the parties shall have
received written notice. Nothing herein shall preclude any party from
enforcing any judgment obtained in the Commonwealth of Virginia in any other
jurisdiction.
10. CONDITIONS, REPRESENTATIONS AND WARRANTIES
------------------------------------------
A. Representations and Warranties. The parties represent and warrant to
------------------------------
one another that they have full power and authority to enter into and
perform this Agreement and that execution of this Agreement and their
performance of their respective obligations hereunder do not and will
not violate any agreement between either such party and any third
party or any obligation of either such party to any third party,
including, without limitation, any non-compete agreement or similar
obligation.
B. Entel warrants that it has complied with all applicable federal,
state, and local registration and licensing requirements to enable it
to act as an independent contractor under the terms of this Agreement.
C. Entel has the skill necessary to perform the services required
pursuant to this Agreement, and all Site Development Services provided
by Entel shall be timely and performed in a professional manner and
shall be of a high grade nature and quality, commensurate with that
which is customary in the industry.
D. Each of the employees and subcontractors utilized by Entel for Site
Development Services hereunder shall be of the highest professional
skill and quality. At any time, Triton has the right to require the
removal of any employee or subcontractor utilized or supervised by
Entel, at Triton's sole discretion.
E. Entel shall pay all applicable local, state, and federal withholding
and insurance amounts when due and shall comply with all applicable
minimum wage requirements with respect to its employees.
* Confidential Treatment Requested
5
<PAGE>
F. Entel will during the term of this Agreement maintain insurance
policies sufficient to protect its business against all applicable
risks. Without limiting the scope of the foregoing, Entel shall
maintain: Commercial General Liability coverage in an amount of not
less than $1,000,000 per occurrence for bodily injury or death,
personal injury, and property damage liability; and for all motor
vehicles used by employees during the course of this Agreement,
liability and property damage insurance in the amount of $1,000,000.
Entel agrees to name Triton as additional insured under the above
coverages. Entel will secure and maintain all required insurance for
its employees during the term of this Agreement. All subcontractors or
other agents hired by Entel under the terms of this Agreement must
adhere to the conditions contained in this paragraph, which shall be
paid by subcontractor, and Entel shall provide Triton with a copy of
said insurance. Entel shall provide Triton with evidence of such
insurance prior to commencement of work under this contract and as
otherwise reasonably requested by Triton.
G. Covenants. The parties covenant and agree to use their best efforts to
---------
cooperate with each other in the performance of their respective
obligations under the Agreement and to take no action that will
interfere with the performance by the other party of such obligations.
11. ASSIGNMENT
----------
Assignment to Third Parties. Triton may freely assign its rights and
---------------------------
obligations hereunder. Except as specifically permitted herein, Entel may
not assign or transfer any right, interest, or obligation hereunder to any
third party without the express written consent of Triton, such consent not
to be unreasonably withheld or delayed; provided, however, Entel may freely
-------- -------
assign this Agreement to any affiliate of Entel upon written notice to
Triton. Any purported assignment in violation of this Section shall be
void.
12. INDEMNIFICATION
---------------
A. Except as a result of Entel's gross negligence or willful misconduct,
Triton agrees to defend and indemnify Entel for and hold it harmless
from any and all claims, actions, damages, or other liabilities
(including reasonable attorneys' fees) incurred by Entel as the result
of any act, error, omission, non-performance by negligence, or
wrongful act of Triton arising directly out of the performance of this
Agreement.
B. Except as a result of Triton's gross negligence or willful misconduct,
Entel agrees to defend and indemnify Triton for and hold it harmless
from any and all claims, actions, damages, or other liabilities
(including reasonable attorneys' fees) incurred by Triton as the
result of any act, error, omission, nonperformance by negligence, or
wrongful act of Entel arising directly out of the performance of this
Agreement.
13. MISCELLANEOUS
-------------
A. Choice of Law. The Agreement shall be governed by and construed in
-------------
accordance with the laws of the Commonwealth of Pennsylvania,
excluding the conflict of law provisions thereof.
B. Notice. All notices or other communications hereunder shall be in
------
writing and shall be deemed to have been duly delivered and effective
upon receipt if personally delivered, or on mailing if mailed by
prepaid overnight express service, addressed to the following (or
other addresses as the parties hereto may designate):
6
<PAGE>
to Triton,
to: and
Triton PCS, Inc. Triton PCS, Inc.
Drive, Suite 125 9211 Arboretum Parkway
Malvern, PA 19355 Richmond, VA 23236
Attn: President Attn: General Manager
If to Entel,
to:
Entel Technologies, Inc.
1110 North Glebe Road, Suite 850
Arlington, VA 22201
Attn.: Chief Financial Officer
C. Entire Agreement. This Agreement constitutes the entire agreement of
----------------
the parties with respect to the subject matters addressed, and shall
supersede any and all prior negotiations, understandings, and
agreements with respect hereto.
D. Modification. This Agreement may be amended only by a written
------------
instrument executed by an officer or authorized representative of each
of the parties.
E. Binding Effect. The Agreement shall be binding upon and enforceable by
--------------
and inure to the benefit of the successors, assigns, and transferees
of the parties.
F. Further Assurance. The parties shall execute and deliver such further
-----------------
instruments and perform such further acts as may reasonably be
required to carry out the intent and purposes of this Agreement.
G. Severability. In case any term of this Agreement shall be held
------------
invalid, illegal, or unenforceable in whole or in part, neither the
validity of the remaining part of such term nor the validity of the
remaining terms of this Agreement shall in any way be affected
thereby.
H. Headings. All section and paragraph titles or captions contained in
--------
this Agreement are for convenience only and shall not be deemed part
of the text of this Agreement.
I. Pronouns. All pronouns and any variations thereof shall be deemed to
--------
refer to the masculine, feminine, neuter, singular, or plural as the
context may require.
J. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be considered an original and all of
which taken together shall constitute one and the same instrument.
K. Waiver. The failure of either party to insist upon strict performance
------
of any obligation hereunder, irrespective of the length of time for
which such failure continues, shall not be a waiver of such party's
right to demand strict compliance in the future. No consent or waiver,
express or implied, to or of any breach or default in the performance
of any obligation hereunder shall constitute a consent or waiver to or
of any other breach or default in the performance of the same or any
other obligation hereunder.
L. Confidentiality. In order to permit Entel to perform its obligations
---------------
hereunder, Triton may from time to time disclose to Entel confidential
or proprietary information of Triton ("Confidential Information").
Entel shall use all Confidential Information solely for the purpose of
performing its obligations to Triton under this Agreement, and shall
keep confidential and not disclose to any other person, other than
employees or agents of Entel who agree to be bound by an equivalent
undertaking, any Confidential Information. The foregoing restrictions
shall not apply to any Confidential Information:
7
<PAGE>
i. which is made public by Triton or which otherwise is or
hereafter becomes part of the public domain through no
wrongful act, fault, or negligence on the part of Entel;
ii. which Entel can reasonably demonstrate is already in Entel's
possession and not subject to an existing agreement of
confidentiality;
iii. which is received from a third party without restriction and
without breach of an agreement with Triton;
iv. which is independently developed by Entel as evidenced by
its records; or
v. which Entel is required to disclose pursuant to a valid
order of a court or other governmental body or any political
subdivision hereof; provided, however, that, to the extent
that it may lawfully do so, Entel shall first have given
notice to Triton and given Triton a reasonable opportunity
to interpose an objection or obtain a protective order
requiring that the Confidential Information so disclosed be
used only for the purposes for which the order was issued.
14. EFFECTIVE DATE
Notwithstanding anything herein to the contrary, Triton shall have the
right to terminate this Agreement upon written notice to Entel if Triton
has not acquired the PCS Licenses for the Service Area from AT&T provided,
--------
however, that if Triton fails to obtain such PCS Licenses for the Service
-------
Area from AT&T, then Triton shall pay to Entel all professional fees and
out-of-pocket expenses incurred by Entel, in accordance with the payment
terms under Section 4, prior to Entel's receipt of notification from Triton
of Triton's failure to obtain the PCS Licenses.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the Effective
Date.
TRITON PCS, INC. ENTEL TECHNOLOGIES, INC.
By: /s/ Steven R. Skinner By: /s/ John T. Vento
------------------------------- --------------------------
Name: Steven R. Skinner Name: John T. Vento
----------------------------- ------------------------
Its: President Its: President
------------------------------ -------------------------
8
<PAGE>
ATTACHMENT A
------------
Scope of Work
SERVICES: To enable Triton to develop, deploy, and deliver its PCS network,
Entel has been engaged to perform various Site Development Services as more
specifically described in the Attachments to this Attachment A ("Services").
Work Item Attachment
---------- ----------
Pre-zoning A-1
Pre-Design A-2
Site Selection A-3
Site Acquisition A-4
Site Survey A-5
Zoning A-6
Building Permit A-7
Phase One/NEPA
Environmental Screening A-8
Project Reporting A-9
Geotechnical Report A-10
FAA Survey A-11
Construction Management A-12
Project Management A-13
Materials Management A-14
DEFINITIONS: For purposes of this Agreement, the following words will have the
following meanings:
"Building Permit Milestone" means completing to the reasonable satisfaction of
Triton all Building Permit Services described in Attachment A-7.
"Deliverables" mean any items or work product arising from the performance of
Entel's Services under this Agreement and delivered to Entel, including
letters of intent, leases, purchase agreements, zoning authorizations,
building permits, soil, environmental,, title and site reports and studies,
drawings, status reports and similar data, as are to be provided by Entel
under this Agreement.
"PCS" Equipment means Triton's towers, antennas, and related equipment necessary
to deploy and deliver PCS from Sites in the MTA/BTA covered by this Agreement.
"RF" means Wireless Facilities, Inc.
"Construction Commencement Milestone" means completing all Phase One/NEPA
Environmental Project Reporting, Geotechnical Reports and FAA Survey services
described in Attachments A-8 through A-11.
"Construction Completion Milestone" means completing all Construction
Management, Project Management Services and Materials Management set forth in
Attachments A-12 through A-14.
"Lease Milestone" means completing all Site Selection and Site Acquisition
services set forth in Attachments A-3 through A-4.
"Site Survey Milestone" means completing all Pre-Zoning and Pre-Design services
set forth in Attachments A-1 through A-2.
"Zoning Milestone" means completing all Site Survey and Zoning Services set
forth in Attachments A-6 through A-7.
9
<PAGE>
ATTACHMENT A-1
--------------
Pre-Zoning
1. Entel will work with Triton to develop zoning classifications to be
utilized in this phase of the project.
2. Entel will identify, within the BTA coverage area as defined by Triton, all
zoning jurisdictions within the BTA. Entel will obtain zoning maps and
regulations for each jurisdiction, identifying all restrictions, including,
but not limited to height restrictions, setback requirements, fence height
restrictions, tower fall zones, and other restrictions. Entel will obtain
the names and telephone numbers of zoning and building permit contact
persons.
10
<PAGE>
ATTACHMENT A-2
--------------
Pre-Design
1. Entel will identify and catalog all potential sites available to Triton from
site providers that previously leased space to an Entel client or expressed
an interest in leasing space to Entel ("Friendly Sites").
11
<PAGE>
ATTACHMENT A-3
--------------
Site Selection
1. RF will issue a search ring based on its preliminary design (such design will
consider Friendly Sites).
2. RF will deliver search rings to Triton, which will then issue search rings to
Entel.
3. [***].
4. Entel will identify [***] potential candidates for each search ring within
[***] after receipt of the search ring from Triton. Entel shall have an
additional [***] to identify potential candidates for additional search rings
if Triton has delivered more than [***] search rings to Entel within a
calendar week. If [***] such candidates are not available, Entel will
furnish to Triton a written explanation of Entel's reason(s) why unavailable.
5. Triton will approve or reject candidates or re-design a search ring at
Triton's option.
6. Entel will utilize necessary resources to comply with Triton's established
scheduled time lines in accordance with Section 6 of the Agreement.
7. Entel will provide search ring reports containing the following minimum
information:
A. BTA
B. Site name
C. Acquisition Agent
D. GPS coordinates
E. Site locale
F. Site address or exact location if address unavailable
G. 4 photos taken from site (photos should be taken for a 360 orientation
for a rooftop site)
H. 4 photos taken of the site
I. Name of site owner and manager and address (if applicable)
J. Lessor's name and address
K. Proposed monthly lease rate/purchase price/term
L. Physical data (overall structure height, height(s) available to mount
antennas, space available for Triton's electronic equipment, distance
for coax from antennas to equipment, tower manufacturer and type,
primary use of structure, etc.) Additional specifics will be required
as needed by Triton.
M. Presence of transmitters, receivers, or antennas visible in the area
including operating frequencies, photographs
N. Indicate if space available is/has:
. clean . 24 hrs/7-day access
. phone circuits . elevator to equipment room
. ventilation . adjacent or nearby man-made or natural
obstructions
. loading dock . transmitter shelter area - provide
drawings
. pest infestation . describe exact dimensions and locations
. air conditioning . electrical service available
. emergency power . map with street level detail showing
site location
. moisture/water . additional information to assist with
site evaluation
* Confidential Treatment Requested
12
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ATTACHMENT A-4
--------------
Site Acquisition
Entel shall coordinate closely all site acquisition work with any Third Party.
1. If the site is to be acquired by lease, Entel will be responsible for
securing proper execution by the site owner/landlord of the appropriate form
of lease with respect to each proposed site. [***]. [***]. Entel will follow
all negotiating guidelines provided by Triton and will not submit any
proposed agreement for Triton's consideration that is clearly outside of the
provided guidelines .
2. Due diligence with respect to title of all sites to be acquired by Triton (by
lease, purchase, or otherwise) shall be performed at the option of Triton as
follows:
a. acquire an ownership and encumbrance report ("O&E Report") from a
nationally known title insurance company satisfactory to Triton which
sets forth the same information as required for an ALTA title
insurance policy described below relating to the proposed site (to the
extent ascertainable by the title company);
b. acquire an ALTA title insurance policy on ground leases, insuring that
Triton is the owner of the leasehold estate created by the lease
covering the site in question, such policy to be issued by a
nationally recognized title insurance company acceptable to Triton and
to be in such amount and to contain such exceptions to title as are
satisfactory to Triton in Triton's sole discretion, and in this regard
the title insurance requirements to be followed by Entel with respect
to the insuring of the leasehold shall be substantially the same as
the title insurance requirements set forth in this Scope of Work for
purchase of sites below ;
c. perform or coordinate with the subcontractor or third party (`Third
Party") to ensure that all applicable due diligence tests and studies
have been performed prior to Triton executing the lease to determine
to Triton's reasonable satisfaction that the proposed site is suitable
for Triton's intended use of it, including, but not limited to:
. soil suitability and compaction testing in accordance with
Attachments A-10 and A-11with respect to ground lease sites and
vacant land sites only; and
. an asbestos survey with respect to sites where Triton's
electronic equipment will be located on or in existing
improvements constructed prior to 1980, and
. a Phase I environmental assessment with respect to ground lease
sites, switch sites, and vacant land sites.
In addition, the following tasks shall be performed and confirmed in
writing by Entel, or Entel shall coordinate with a Third Party to
perform and confirm in writing:
. legal access to the site;
. adequate utility service available to the site consistent with
specifications provided by Triton to Entel;
. necessary building permits or other required governmental
approvals relating to the construction and installation of
Triton's equipment or other improvements at the site;
. no easements, conditions, restrictions, liens, or other matters
exist of record which negatively impact Triton's ability to use
the site for its intended purposes, and that there are no
delinquent taxes or assessments;
* Confidential Treatment Requested
13
<PAGE>
ATTACHMENT A-4
--------------
Site Acquisition
(continued)
. proper zoning for Triton's intended use or whether a zoning
change or variance will be necessary;
. detailed construction drawings and plans and specifications for
all improvements to be constructed or located upon the site
obtained by Entel;
. resolutions or other appropriate authorizations or consents
pertaining to the due execution and delivery of the lease in
question by the lessor/owner of the site.
e. If the site is to be acquired by purchase, Entel shall additionally
. complete all due diligence items to Triton's reasonable
satisfaction which are conditions to Triton's purchase of a
site as set forth in a purchase agreement (which is to be
substantially in the form provided by Triton to Entel),
including, without limitation, all requirements and conditions
pertaining to title insurance, survey matters, soil testing,
environmental compliance, governmental authorizations and
approvals relating to the development of the site for Triton's
intended use of it, the availability of adequate utility
service and legal access to the site, and any other matters
permitted by the terms and provisions of a purchase agreement
to enable Triton to reasonably determine whether the site is
suitable for Triton's intended use of it;
. collect from the seller of the site for delivery to Triton all
documents, surveys, drawings, and other information pertaining
to the site which the seller is required to deliver to Triton
pursuant to the terms of a purchase agreement;
. provide preliminary closing statement figures to Triton with
respect to the purchase of the site not less than ten (10) days
prior to the projected closing date; and
. assure that all requirements of the title company with respect
to the issuance of its policy of owner's title insurance are
satisfied prior to the closing date to the extent feasible, but
if Triton completes the purchase of a site with outstanding
title requirements unsatisfied, and Entel has so advised Triton
in writing thereof, then Entel has no liability or
responsibility to Triton with respect to any such unsatisfied
requirement.
14
<PAGE>
ATTACHMENT A-5
--------------
SITE SURVEY
1. Entel will obtain and deliver to Triton an ALTA/ACSM minimum standards
survey with such additional items as may be required by Triton, certified
by a licensed surveyor, and site plan/architectural drawings required by
local zoning authorities. (Entel may subcontract this work locally.) Survey
drawings shall include, without limitation:
a. site name and number;
b. legal description of parcel, access road easement and utility
easement;
c. relationship of site parcel to adjacent property boundaries by
distance and direction;
d. site parcel and adjacent parcels by map and parcel number, by
deed book and page, and by ownership;
e. name, telephone number, and address of surveyor and office
contact;
f. the location of all matters described in recorded instruments
affecting the site if capable of being shown on a survey;
g. results of flood plain determination.
2. Entel will secure and deliver to Triton any required survey plats, mylars,
exemption plats, or other survey documents required along with any required
signatures.
15
<PAGE>
ATTACHMENT A-6
--------------
ZONING
1. Entel will prepare and submit all zoning applications and appeals with
required drawings and other related materials and it will obtain any
required zoning approval.
2. Entel will attend all required hearings and represent Triton at Triton's
request.
3. Entel will determine needed compliance with any subdivision regulations for
purchased sites.
4. Entel will involve legal counsel only in zoning situations in which Triton
agrees legal representation is warranted.
5. Entel will provide staffing, at its expense, and the necessary associated
equipment to scan photographs into a document format. If further
enhancement is required to create special presentation quality materials
for a landlord or zoning approval, Triton agrees to the use of a Third
Party at its specific approval and expense.
16
<PAGE>
ATTACHMENT A-7
--------------
BUILDING PERMIT
1. Entel shall apply for, coordinate/track, and obtain building permit.
17
<PAGE>
ATTACHMENT A-8
--------------
PHASE ONE/NEPA ENVIRONMENTAL SCREENING
Within a reasonable period after Triton has approved a primary site candidate
for a search ring:
1. Entel agrees that within its scope of work shall be included a
comprehensive investigation and completion of NEPA checklist for all actual
or potential federal, state, local, or other jurisdictional environmental
requirements, including, but not limited to, the SARA Title II and Federal
Communications Commission regulations regarding Environmental Assessments
(e.g., FCC Rules on Environmental Impact, 47 C.F.R. 1.11307) referred to as
"Environmental Screening." Triton shall complete, execute, and submit a
fully executed original NEPA Checklist for each site. The NEPA Checklist
shall be in the form acceptable to Triton and shall include, without
limitation, whether a proposed site:
a is located in an officially designated wilderness area;
b is located in a designated wilderness preserve;
c may affect threatened or endangered species or their habitats;
d may affect sites listed on the National Register of Historic Places;
e may affect Indian religious sites;
f is located in a flood plain;
g may involve a significant change in surface features;
h whether an antenna tower to be equipped with high intensity white light
would be located in a residential neighborhood.
2. Entel agrees that it shall engage an environmental consultant to perform a
Phase One Environmental Assessment ("Phase One") in accordance with Triton
standards. The results of such assessment shall be delivered to Triton in
writing.
3. At Triton's option, Entel will coordinate activities required to complete
the Environmental Screening requirement on radio frequency emissions to
determine whether the proposed facilities are located where an operator or
transmitter would cause human exposure to levels of radio frequency
radiation in excess of the limits specified in Subsections 1.1310 and
2.1093, 47 C.F.R. (Applications to the FCC for construction permits,
licenses to transmit or renewals thereof, equipment authorizations, or
modifications in existing facilities must contain a statement confirming
compliance with the radio frequency limits unless the facility, operation,
or transmitter is categorically excluded as discussed in Subsection 1.1307.
Technical information showing the basis for this statement must be
submitted to the FCC upon request.) This particular Environmental Screening
requirement shall be sufficient to uncover the impact or potential impact
of any such jurisdictional requirements, including, but not limited to,
regulatory filings, hearings, approvals and/or fees, site sampling,
testing, or relocation of the site requirements.
4. Entel agrees that the results of any and all Environmental Screening and
Phase One performed Third Party shall be reported to Triton. Entel
acknowledges that the timely reporting of such information may influence
the site acquisition decision, and Entel shall pro-actively work in good
faith with Triton to arrive at the optimal site acquisition decision in
light of such information. Entel agrees to seek indemnification for Triton
from the Third Party for any costs, including reasonable attorneys' fees
associated with any environmental remediation, fine, or other penalty
imposed on Triton as the direct or indirect result of Third Party's failure
to detect such impact or requirement as described in this Attachment A-8.
Should Entel not obtain this indemnification for Triton in the Entel/Third
Party agreement, Entel agrees to indemnify Triton for any costs, including
reasonable attorneys' fees associated with any environmental remediation,
fine, or other penalty imposed on Triton as the direct or indirect result
of Third Party's failure to detect such impact or requirement as described
in this Agreement.
18
<PAGE>
ATTACHMENT A-9
--------------
PROJECT REPORTING
1. Entel will provide Triton with weekly reports showing project status. This
status report will be put into a format acceptable to Triton. Report
information will be transmitted to Triton via electronic means. Each status
report must include all the following items. Next to each task must be
included the date it was completed or the expected date of completion.
a BTA name
b Cell name
c Grid ID
d Site ID
e Acquisition received search ring
f Search area report delivered to RF
g Site approved by RF, Entel & Triton
h Draft lease/option delivered to Triton
i Legal review of lease/option complete
j Lease execution
k Lease memo recorded
l Loading study complete
m Survey and site plan complete
n Soil borings complete
o Flood way investigation complete
p Lien and title insurance complete
q Phase I NEPA checklist complete
r Zoning approved
s Building permit obtained
t Property closed
u Site released to construction
v FAA approval
w Construction started
x Construction completed
y Summary report of number of sites at each above stage by completion
2. Additional items to report may be added to the above list as reasonably
determined necessary by Triton.
19
<PAGE>
ATTACHMENT A-10
---------------
GEOTECHNICAL REPORT
1. Entel will use Third Party to obtain geotechnical report for applicable land
sites. Geotechnical report shall be completed in accordance with Triton
standards and laws of any applicable jurisdiction.
20
<PAGE>
ATTACHMENT A-11
---------------
FAA SURVEY
1. FAA Surveys are to be coordinated and tracked by RF, except as otherwise
specified by Triton.
21
<PAGE>
ATTACHMENT A-12
---------------
CONSTRUCTION MANAGEMENT
y) Pre-construction Planning
In support of the pre-construction planning requirements, Entel will complete
the following activities:
10. Receive in a recordable form a Memorandum of Lease and any Subordination
and Non-Disturbance Agreements for signature by applicable parties,
substantially in forms provided to Entel by Triton.
20. Conduct construction feasibility assessments with all applicable
subcontractors to assess construction costs, identify potential problems,
and develop the most efficient design for each of Triton's sites.
Coordinate the production and review of all construction drawings to
ensure compliance with Triton's specifications and requirements.
30. Coordinate and manage new service requests, field surveys, and the
installation of power and telephone service to ensure that new utility
service is supplied on time and in compliance with Triton's
specifications. Act as a liaison with local building jurisdictions to
ensure that construction permits are expedited and that questions are
answered or additional information is provided as required.
40. Qualify and select Construction Subcontractors. Develop and deliver
request for quotation packages and systematically evaluate the responses.
Each subcontractor is required to participate in a thorough qualification
process during which Entel will ensure that each is fully insured and has
obtained all required local, state, and federal licenses and
certifications. Review safety programs and records, references, and the
financial viability of all subcontractors. Coordinate subcontractor's
selection activities with Triton. 50. At Triton's request and additional
expense (i) procure materials and supplies from wireless industry
suppliers and manufacturer and (ii) implement a customized inventory
management system, designed to effectively control material orders and
their distribution.
60 Develop a Master Construction Plan that includes a detailed schedule for
each of Triton's sites. Entel shall continuously monitor and update to
ensure compliance with project milestones.
6. Construction Execution
In support of construction execution, Entel will:
10. Conduct pre-construction meetings with subcontractors, property managers,
and utility service providers to ensure that construction objectives,
property owner concerns, and site-specific requirements are understood
and agreed upon by all parties involved in the buildout of Triton's
network.
20. Provide on-site supervision of all construction activities to minimize
disruption to property owners and to ensure adherence to construction
specifications and standards, and complete construction in compliance
with Triton's construction schedule.
2. Quality Assurance
As part of its quality assurance services, Entel will:
1. Conduct a thorough quality assurance inspection upon completion of each
site, ensuring that each of Triton's punch list items is resolved within
[***].
2. Coordinate and attend site inspections with all local building department
representatives.
3. Prepare detailed as-built drawings that accurately reflect the
installation at each site.
4. Close out each site by compiling and providing Triton with a comprehensive
site completion package. This package will create an historical record of
everything related to the construction of the site and includes, without
limitation, site identification data, construction permit documentation,
material reconciliation construction test results, site photographs, and
as-built drawings.
* Confidential Treatment Requested
22
<PAGE>
ATTACHMENT A-13
---------------
PROJECT MANAGEMENT
Entel will provide the following services:
1. Develop and implement a thorough deployment plan which tracks all
activities associated with site acquisition and construction management
for each site. The deployment plan will clearly articulate schedule
dependencies and critical path elements, identify the allocation of
resources, and update regularly to reflect the actual deployment.
2. Implement a quality assurance program which ensures that all activities
are performed to the highest quality standards.
3. Utilize a comprehensive cost accounting system which will include, at a
minimum, procedures for conducting financial transactions, financial
tracking and management, and comprehensive financial reporting.
4. Implement comprehensive reporting mechanisms so that detailed site
progress is tracked on a daily basis and complete reports are provided
when required by Triton.
5. Implement a comprehensive filing system which ensures that all relevant
site information is organized and available. Utilize electronic means
whenever possible.
6. Manage and coordinate interactions between site acquisition and site
construction. Ensure that both formal and informal communications
between these Milestone Services are effective and in the best interests
of Triton. Manage and coordinate interactions among site acquisition and
construction management and other disciplines involved in the system
deployment (e.g., RF engineering, network engineering, marketing).
Ensure that both formal and informal communications among these
disciplines are effective and in the interests of Triton.
23
<PAGE>
ATTACHMENT A-14
---------------
MATERIALS MANAGEMENT
Entel will provide the following services:
1. Provide Procurement Coordinator(s) at the Triton Project office that will be
responsible for all material take-offs, ordering, tracking, coordination of
deliveries, and processing of invoices for all material related to the
construction of the sites. Triton will order the radio equipment.
2. Use primary vendor(s), selected by Triton, to order all standard material
for the construction of the sites.
3. Obtain no less than [***] bids from manufacturers of custom and additional
items such as electrical, masonry and roofing materials and miscellaneous
hardware.
4. Develop detailed bills of material for each site.
5. Present the bills of materials to Triton for review, approval and issuance
of a purchase order.
6. Place the order with the supplier using the purchase order generated by
Triton.
7. Track the status of the order using both the suppliers material management
system and internal project scheduling.
8. Coordinate the time and place for the delivery of material among all parties
and schedule appropriate personnel and equipment needed to accept the
shipment.
9. Manage back-up material stock, provided by the vendor at a location
designated by triton.
10. Ensure that adequate security measures are taken to prevent the loss of
materials once they are delivered to the site.
11. Accept and verify the shipments by comparing the original order and the
packing slip.
12. Accept, compile and maintain all packing slips (or other form of
verification), invoices and other related documents.
13. Review and approve all material invoices for submittal to triton in site
invoice packages that include the invoice, a copy of the purchase order and
packing slips or other form of verification for final approval and payment
by Triton.
14. Provide in the Completed Site Package a form detailing the types and
quantities of materials used on the site.
* Confidential Treatment Requested
24
<PAGE>
Attachment B
------------
to the
------
Site Development Services Agreement
-----------------------------------
Between
-------
TRITON PCS, INC. & ENTEL TECHNOLOGIES, INC.
-------------------------------------------
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
DATE
SEARCH Cell Id # Estimated Milestone Completion Dates
RING For Site Development Services
ISSUED Cell Name --------------------------------------------------------------------------------
Site ZONING BUILDING CONSTRUCTION CONSTRUCTION
Survey Lease PERMIT START COMPLETION
<S> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
42 TOTAL SITES
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
</TABLE>
AGREED & ACCEPTED:
Triton PCS, Inc.
By: ____________________________________
Its: ___________________________________
Date: ___________________________________
25
<PAGE>
Attachment B-1
--------------
Critical Dependency Schedule
Recognizing the benefits to both parties that Entel satisfy the Site Development
Services Schedule of Attachment B, Triton and Entel agree to exert all
commercially reasonable efforts to meet the Critical Dependency Schedule set
forth below. Notwithstanding the above, Entel agrees that the Critical
Dependency Schedule is non-binding to Triton and its purpose is to illustrate
ideal response time. Entel further agrees that any failure to meet the Site
Development Services Schedule of Attachment B cannot be overlooked simply by
Triton's failure to meet the Critical Dependency Schedule, as set forth in this
Attachment B-1, unless Triton's failure is frequent and significantly
delinquent.
For purposes of this Critical Dependency Schedule, "Site agreement" means an
option to lease or purchase a Site from a site Owner, or a lease for a Site from
a Site Owner entitling Triton to accept such lease under the terms and
conditions negotiated and approved by Triton and/or to terminate such lease
under the termination provisions of such lease.
<TABLE>
<CAPTION>
Item Time Frame
(in business days)
<S> <C>
a) Triton to provide Entel with Triton's [***] after Entel completes Pre-Design in section 2
preliminary acceptance or rejection of Friendly of Scope of Work; if more than [***] friendly Sites
Sites as identified by Entel under Attachment A-2 are identified to Triton by Entel in any [***]
period, Triton shall have an additional [***] to
provide Entel with Triton's preliminary approval or
rejection of each friendly Site exceeding [***],
and [***] additional days for any exceeding [***]
in such period.
b) Triton to provide Entel with Triton's [***] after delivery of Site information to Triton
preliminary acceptance or rejection of search by Entel ([***] if Triton considers it appropriate
ring Sites identified by Entel under Attachment to radio-test the Site, with such [***] days to
A-2 begin after access to Site is available); if more
than [***] friendly Sites are identified to Triton
by Entel in any [***] period, Triton shall have an
additional [***] days to provide Entel with
Triton's preliminary approval or rejection of each
friendly Site exceeding [***], and [***] additional
days for any exceeding [***] in such period.
c) Triton to redesign search ring or area where [***] days after request to do so by Entel.
no suitable Sites found (unless redesign is
impracticable, in which case Triton shall so
advise Entel that no redesign is necessary)
</TABLE>
* Confidential Treatment Requested
26
<PAGE>
<TABLE>
<CAPTION>
Item Time Frame
(in business days)
<S> <C>
d) As each Site is preliminary accepted by [***] days after receipt of site agreement terms of
Triton, Triton to communicate to Entel its Site Owner (if more than [***] site agreements are
(Triton's) comments/revisions, if any, to Site received by Triton in any [***]-day period, Triton
Owner's conditions for site agreement(s) for Site shall have an additional [***] days to communicate
its comments to Entel for each site agreement
received in such period exceeding [***], and [***]
additional days for any exceeding [***] in such
period).
e) * As to site agreements finally satisfactory [***]days after submission to Triton by Entel of
to Triton and Site Owner, Triton to execute site site agreements (for each site agreement requiring
agreements (with intention of parties that Entel an initial or upfront payment exceeding [***],
will then commence in full its due diligent Triton has a total of [***] days to obtain its
services as set forth in Attachments A-1 through execution).
A-8, or sooner if requested by Triton) and
Triton may also perform due diligence to
ascertain Site feasibility, etc. and at any time
Triton determines Site is not feasible, Triton
may terminate any such site agreement, and such
site will not be deemed an acquired Site.
f) * Triton to give Entel all of Triton's [***] days after submission to Triton by Entel of
objections/comments on title report for Site title report (if more than [***] title reports are
received by Triton in any [***]day period, Triton
shall have an additional [***] days to give
objections/comments on each report exceeding [***]).
g) * Triton to give Entel documents needed to [***] days after Entel provides Triton with
cure title objections for Site (or notice that objection.
no documents are satisfactory to Triton for
curing such objections)
</TABLE>
* Confidential Treatment Requested
27
<PAGE>
<TABLE>
<CAPTION>
Item Time Frame
(in business days)
<S> <C>
h) Triton to give Entel approval or disapproval [***] days (as to subcontractors and Triton by
(and reasons for purchase orders/bids submitted Entel upon or within [***] days after execution by
to disapproval) of subcontractors of Entel and Triton of this Agreement), and [***] days (as to
purchase orders or bids obtained from time to subcontractors and purchase orders/bids submitted
time by Entel to Triton by Entel anytime [***] or more days after
Triton's execution).
i) i. Triton shall provide Entel all [***] days after initial term commences.
"General Forms" defined and listed on
Attachment G hereto
j) Triton shall provide Entel with description [***] days after initial term commences.
of not less than 80% of Triton's desired initial
MTA coverage objective
k) Triton shall provide Entel with a description [***] days after initial term commences.
of the balance of Triton's desired initial MTA
coverage objective
l) Triton shall provide Entel with general [***] days after execution of this Agreement.
physical equipment specifications
m) Triton to provide to Entel all pertinent Site [***] days after Entel's request for such
building permit information involving vendors information, and provided Triton has determined
that Entel does not have direct control over such Site is practical for Triton's effective
delivery of PCS from such site. practical for
Triton's effective delivery of PCS from such Site.
[***].
</TABLE>
* Confidential Treatment Requested
28
<PAGE>
Attachment C
------------
Triton Standard Hourly Rates
Position Hourly Rate
- -------- -----------
Corporate Staff
- ---------------
Chief Executive Officer [***]
President [***]
Account Manager [***]
Program Management Specialist [***]
Office Manager [***]
Account Clerk [***]
Site Acquisition Staff
- ----------------------
Project Manager [***]
Site Acquisition Team Leader [***]
Site Acquisition Specialist [***]
Site Acquisition Project Coordinator [***]
Zoning Manager [***]
Legal Assistant [***]
Database Administrator [***]
SA Administrative Assistant [***]
Construction Staff
- ------------------
Construction Manager [***]
Construction Supervisor [***]
Construction Project Coordinator [***]
Utility Permit Coordinator [***]
CM Administrative Assistant [***]
* Confidential Treatment Requested
29
