<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 For the quarterly period ended September 30, 1999.
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 For the transition period
from ____________ to____________.
Commission File Number ( 0-21767 )
VIASAT, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0174996
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2290 COSMOS COURT, CARLSBAD, CALIFORNIA 92009
(760) 438-8099
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
The number of shares outstanding of the issuer's common stock, $.0001
par value, as of November 8, 1999 was 8,120,843.
<PAGE> 2
VIASAT, INC.
INDEX
<TABLE>
<CAPTION>
PAGE
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Balance Sheet at September 30, 1999 and
March 31, 1999 3
Condensed Statement of Income for the three and six months
ended September 30, 1999 and 1998 4
Condensed Statement of Cash Flows for the six months
ended September 30, 1999 and 1998 5
Condensed Statement of Stockholders' Equity for the
six months ended September 30, 1999 6
Notes to Condensed Financial Statements 7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9
Item 3. Quantitative and Qualitative Disclosures About Market
Risk 13
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders 14
Item 6. Exhibits and Reports on Form 8-K 14
</TABLE>
2
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VIASAT, INC.
CONDENSED BALANCE SHEET
<TABLE>
<CAPTION>
SEPTEMBER 30, MARCH 31,
1999 1999
----------- -----------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $12,482,000 $ 6,005,000
Short-term investments 6,206,000 14,788,000
Accounts receivable 21,229,000 16,176,000
Inventory 3,142,000 2,525,000
Deferred income taxes 2,335,000 2,358,000
Other current assets 574,000 446,000
----------- -----------
Total current assets 45,968,000 42,298,000
Property and equipment, net 5,883,000 6,630,000
Other assets 795,000 1,088,000
----------- -----------
Total assets $52,646,000 $50,016,000
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 3,949,000 $ 3,754,000
Accrued liabilities 5,025,000 6,027,000
Current portion of notes payable 1,034,000 1,219,000
----------- -----------
Total current liabilities 10,008,000 11,000,000
----------- -----------
Notes payable 726,000 1,243,000
Other liabilities 1,074,000 926,000
----------- -----------
Total long-term liabilities 1,800,000 2,169,000
----------- -----------
Contingencies (Note 6)
Stockholders' equity:
Common stock 81,000 81,000
Paid in capital 17,991,000 17,609,000
Retained earnings 22,766,000 19,157,000
----------- -----------
Total stockholders' equity 40,838,000 36,847,000
----------- -----------
Total liabilities and stockholders' equity $52,646,000 $50,016,000
=========== ===========
</TABLE>
See accompanying notes to condensed financial statements
3
<PAGE> 4
VIASAT, INC.
CONDENSED STATEMENT OF INCOME
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
----------------------------- -----------------------------
1999 1998 1999 1998
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Revenues $ 17,017,000 $ 18,037,000 $ 34,052,000 $ 34,341,000
Cost of revenues 9,558,000 11,228,000 19,267,000 21,060,000
------------ ------------ ------------ ------------
Gross profit 7,459,000 6,809,000 14,785,000 13,281,000
Operating expenses:
Selling, general and
administrative 2,433,000 2,520,000 5,381,000 4,875,000
Independent research and
development 2,290,000 2,162,000 3,880,000 4,102,000
------------ ------------ ------------ ------------
Income from operations 2,736,000 2,127,000 5,524,000 4,304,000
Other income (expense):
Interest income 223,000 268,000 479,000 408,000
Interest expense (42,000) (66,000) (89,000) (136,000)
------------ ------------ ------------ ------------
Income before income taxes 2,917,000 2,329,000 5,914,000 4,576,000
Provision for income taxes 1,113,000 952,000 2,305,000 1,810,000
------------ ------------ ------------ ------------
Net income $ 1,804,000 $ 1,377,000 $ 3,609,000 $ 2,766,000
============ ============ ============ ============
Basic net income per share $ .22 $ .17 $ .45 $ .35
============ ============ ============ ============
Diluted net income per share $ .22 $ .17 $ .44 $ .34
============ ============ ============ ============
Shares used in basic net income
per share computation 8,075,837 7,974,103 8,079,360 7,947,843
============ ============ ============ ============
Shares used in diluted net income
per share computation 8,379,251 8,192,121 8,298,486 8,197,548
============ ============ ============ ============
</TABLE>
See accompanying notes to condensed financial statements.
4
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VIASAT, INC.
CONDENSED STATEMENT OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
SEPTEMBER 30,
-----------------------------
1999 1998
------------ ------------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 3,609,000 $ 2,766,000
Adjustments to reconcile net income
to net cash provided by (used in) operating
activities:
Depreciation 1,731,000 1,357,000
Deferred taxes 321,000 (341,000)
Increase (decrease) in cash
resulting from changes in:
Accounts receivable (5,053,000) 1,173,000
Inventory (617,000) (374,000)
Other assets (133,000) 336,000
Accounts payable 195,000 394,000
Accrued liabilities (1,002,000) (479,000)
Other liabilities 148,000 (119,000)
------------ ------------
Net cash (used in) provided by operating activities (801,000) 4,713,000
------------ ------------
Cash flows from investing activities:
Purchases and sales of short-term investments, net 8,582,000 (4,693,000)
Purchases of property and equipment (984,000) (1,747,000)
------------ ------------
Net cash provided by (used in) investing activities 7,598,000 (6,440,000)
------------ ------------
Cash flows from financing activities:
Proceeds from issuance of notes payable -- 1,092,000
Repayment of notes payable (702,000) (498,000)
Proceeds from issuance of common stock 382,000 565,000
------------ ------------
Net cash (used in) provided by financing activities (320,000) 1,159,000
------------ ------------
Net increase (decrease) in cash and cash equivalents 6,477,000 (568,000)
Cash and cash equivalents at beginning of period 6,005,000 3,290,000
------------ ------------
Cash and cash equivalents at end of period $ 12,482,000 $ 2,722,000
============ ============
Supplemental information:
Cash paid for interest $ 89,000 $ 136,000
============ ============
Cash paid for income taxes $ 2,017,000 $ 2,187,000
============ ============
</TABLE>
See accompanying notes to condensed financial statements.
5
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VIASAT, INC.
CONDENSED STATEMENT OF STOCKHOLDERS' EQUITY
(UNAUDITED)
<TABLE>
<CAPTION>
COMMON STOCK
---------------------------
NUMBER OF PAID IN RETAINED
SHARES AMOUNT CAPITAL EARNINGS
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Balance at March 31, 1999 8,034,204 $ 81,000 $17,609,000 $19,157,000
Exercise of stock options 40,127 136,000
Issuance of shares for Employee
Stock Purchase Plan 28,810 246,000
Net income 3,609,000
----------- ----------- ----------- -----------
Balance at September 30, 1999 8,103,141 $ 81,000 $17,991,000 $22,766,000
=========== =========== =========== ===========
</TABLE>
See accompanying notes to condensed financial statements.
6
<PAGE> 7
VIASAT, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (UNAUDITED)
NOTE 1 - BASIS OF PRESENTATION
The accompanying condensed balance sheet as of September 30, 1999, the condensed
statements of income for the three and six month periods ended September 30,
1999 and 1998, the condensed statement of cash flows for the six month periods
ended September 30, 1999 and 1998, and the condensed statement of stockholders'
equity for the six months ended September 30, 1999 have been prepared by ViaSat,
Inc. (the "Company"), and have not been audited. These financial statements, in
the opinion of management, include all adjustments (consisting only of normal
recurring accruals) necessary for a fair presentation of the financial position,
results of operations and cash flows for all periods presented. These financial
statements should be read in conjunction with the financial statements and notes
thereto for the year ended March 31, 1999 included in the Company's 1999 Annual
Report on Form 10-K. Interim operating results are not necessarily indicative of
operating results for the full year.
NOTE 2 - MANAGEMENT ESTIMATES AND ASSUMPTIONS
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
reported amounts of revenues and expenses during the reporting period. Estimates
have been prepared on the basis of the most current and best available
information, and actual results could differ from those estimates.
NOTE 3 - REVENUE RECOGNITION
The majority of the Company's revenues are derived from services performed for
the United States Government and its prime contractors under a variety of
contracts including cost-plus-fixed fee, fixed-price, and time and materials
type contracts. Generally, revenues are recognized as services are performed
using the percentage of completion method, measured primarily by costs incurred
to date compared with total estimated costs at completion or based on the number
of units delivered. The Company provides for anticipated losses on contracts by
a charge to income during the period in which they are first identified.
Contract costs, including indirect costs, are subject to audit and negotiations
with Government representatives. These audits have been completed and agreed
upon through fiscal year 1996. Contract revenues and accounts receivable are
stated at amounts which are expected to be realized upon final settlement.
NOTE 4 - EARNINGS PER SHARE
Common stock equivalents of 303,414 and 218,018 shares for the three months
ended September 30, 1999 and 1998, respectively, and 219,126 and 249,705 for the
six months ended September 30, 1999 and 1998 respectively, were used to
calculate diluted earnings per share. Antidilutive shares excluded from the
calculation were 61,174 and 249,065 shares for the three months ended September
30, 1999 and 1998, respectively. Antidilutive shares excluded from the
calculation were 273,286 and 146,443 shares for the six months ended September
30, 1999 and 1998, respectively. Common stock equivalents are primarily
comprised of options granted under the Company's stock option plan. There are no
reconciling items in calculating the numerator for basic and diluted earnings
per share for any of the periods presented.
7
<PAGE> 8
VIASAT, INC.
NOTES TO CONDENSED FINANCIAL STATEMENTS (UNAUDITED)
NOTE 5 - COMPOSITION OF CERTAIN BALANCE SHEET CAPTIONS
<TABLE>
<CAPTION>
SEPTEMBER 30, MARCH 31,
1999 1999
----------- -----------
(UNAUDITED)
<S> <C> <C>
Accounts receivable:
Billed $13,733,000 $ 7,765,000
Unbilled 7,496,000 8,411,000
----------- -----------
$21,229,000 $16,176,000
=========== ===========
Inventory:
Raw materials $ 1,709,000 $ 914,000
Work in process 1,115,000 1,157,000
Finished goods 318,000 454,000
----------- -----------
$ 3,142,000 $ 2,525,000
=========== ===========
Accrued liabilities:
Current portion of warranty reserve $ 928,000 $ 1,440,000
Accrued vacation 1,116,000 1,143,000
Accrued bonus 507,000 1,195,000
Accrued 401(k) matching contribution 582,000 791,000
Income taxes payable 72,000 694,000
Collections in excess of revenues 1,166,000 527,000
Other 654,000 237,000
----------- -----------
$ 5,025,000 $ 6,027,000
=========== ===========
</TABLE>
NOTE 6 - CONTINGENCIES
The Company is currently a party to various government and commercial contracts
which require the Company to meet performance covenants and project milestones.
Under the terms of these contracts, failure by the Company to meet such
performance covenants and milestones permit the other party to terminate the
contract and, under certain circumstances, recover liquidated damages or other
penalties. The Company is currently not in compliance, or in the past was not in
compliance, with the performance or milestone requirements of certain of these
contracts. Historically, the Company's customers have not elected to terminate
such contracts or seek liquidated damages from the Company and management does
not believe that its existing customers will do so; therefore, the Company has
not accrued for any potential liquidated damages or penalties.
8
<PAGE> 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
When used in this discussion, the words "believes," "anticipated" and similar
expressions are intended to identify forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995. Such statements
are subject to certain risks and uncertainties which could cause actual results
to differ materially from those projected. Readers are cautioned not to place
undue reliance on these forward-looking statements which speak only as of the
date hereof. The Company undertakes no obligation to republish revised
forward-looking statements to reflect events or circumstances after the date
hereof or to reflect the occurrence of unanticipated events. Readers are also
urged to carefully review and consider the various disclosures made by the
Company which attempt to advise interested parties of the factors which affect
the Company's business, including without limitation the disclosures made under
the caption "Risk Factors" in the Company's Annual Report on Form 10-K for its
fiscal year ended March 31, 1999 filed with the Securities and Exchange
Commission.
RESULTS OF OPERATIONS
The following table sets forth, as a percentage of total revenues, certain
income data for the periods indicated.
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
----------------- -----------------
1999 1998 1999 1998
----- ----- ----- -----
<S> <C> <C> <C> <C>
Revenue 100.0% 100.0% 100.0% 100.0%
Cost of revenue 56.2 62.2 56.6 61.3
----- ----- ----- -----
Gross profit 43.8 37.8 43.4 38.7
Operating expenses:
Selling, general and administrative 14.3 14.0 15.8 14.2
Independent research and development 13.5 12.0 11.4 11.9
Income from operations 16.1 11.8 16.2 12.5
----- ----- ----- -----
Income before income taxes 17.1 12.9 17.4 13.3
Net income 10.6 7.6 10.6 8.1
</TABLE>
THREE MONTHS ENDED SEPTEMBER 30, 1999 VS. THREE MONTHS ENDED SEPTEMBER 30, 1998
Revenues. Revenues decreased 5.7% from $18.0 million for the three
months ended September 30, 1998 to $17.0 million for the three months ended
September 30, 1999. This decrease was primarily due to lower volumes of defense
products offset in part by improvements in revenues generated by commercial
products.
Gross Profit. Gross profit increased 9.5% from $6.8 million (37.8% of
revenues) for the three months ended September 30, 1998 to $7.5 million (43.8%
of revenues) for the three months ended September 30, 1999. The increase in
gross profit was primarily due to a favorable product mix including volume
related improvements in commercial programs.
Selling, General and Administrative Expenses. Selling, general and
administrative ("SG&A") expenses decreased 3.5% from $2.5 million (14.0% of
revenues) for the three months ended September 30, 1998 to $2.4 million (14.3%
of revenues) for the three months ended September 30, 1999. The decrease in SG&A
expenses reflects reductions in indirect expenditures offset in part by
increases in bid and proposal costs, and additional administrative staffing to
support the Company's growth. SG&A expenses consist primarily of personnel costs
and expenses for business development, marketing and sales, bid and proposal,
finance, contract administration and general management. Certain SG&A expenses
are difficult to predict and vary based on specific government and commercial
sales opportunities.
9
<PAGE> 10
Independent Research and Development. Independent research and
development ("IR&D") expenses increased 5.9% from $2.2 million (12.0% of
revenues) for the three months ended September 30, 1998 to $2.3 million (13.5%
of revenues) for the three months ended September 30, 1999. This increase
resulted from work related to the Company's defense products.
Interest Expense. Interest expense decreased from $66,000 for the three
months ended September 30, 1998 to $42,000 for the three months ended September
30, 1999. Interest expense relates to loans for the purchase of capital
equipment, which are generally three year variable-rate term loans, and to
short-term borrowings under the Company's line of credit to cover working
capital requirements. Total outstanding equipment loans were $3.2 million at
September 30, 1998 and $1.8 million at September 30, 1999. There were no
outstanding borrowings under the Company's line of credit as of September 30,
1998 and 1999.
Interest Income. Interest income decreased from $268,000 for the three
months ended September 30, 1998 to $223,000 for the three months ended September
30, 1999. This decrease resulted from lower interest income on U.S Government
receivables partially offset by higher average cash balances. Interest income
relates largely to interest earned on short-term deposits of cash.
Provision for Income Taxes. The Company's effective income tax rate
decreased from 40.9% for the three months ended September 30, 1998 to 38.2% for
the three months ended September 30, 1999. The decrease relates primarily to
increased tax credits.
SIX MONTHS ENDED SEPTEMBER 30, 1999 VS. SIX MONTHS ENDED SEPTEMBER 30, 1998
Revenues. Revenues decreased 0.8% from $34.3 million for the six months
ended September 30, 1998 to $34.1 million for the six months ended September 30,
1999. This decrease was primarily due to lower volumes of defense products
offset in part by improvements in revenues generated by commercial products.
Gross Profit. Gross profit increased 11.3% from $13.3 million (38.7% of
revenues) for the six months ended September 30, 1998 to $14.8 million (43.4% of
revenues) for the six months ended September 30, 1999. The increase in gross
profit was primarily due to a favorable product mix including volume related
improvement in commercial programs.
Selling, General and Administrative Expenses. SG&A expenses increased
10.4% from $4.9 million (14.2% of revenues) for the six months ended September
30, 1998 to $5.4 million (15.8% of revenues) for the six months ended September
30, 1999. The increase in SG&A expenses reflects increased expenditures relating
to marketing of commercial products, increased business development and bid and
proposal efforts for defense programs, and additional administrative staffing to
support the Company's growth. SG&A expenses consist primarily of personnel
costs and expenses for business development, marketing and sales, bid and
proposal, finance, contract administration and general management. Certain SG&A
expenses are difficult to predict and vary based on specific government and
commercial sales opportunities.
Independent Research and Development. IR&D expenses decreased 5.4% from
$4.1 million (11.9% of revenues) for the six months ended September 30, 1998 to
$3.9 million (11.4% of revenues) for the six months ended September 30, 1999.
This decrease resulted from the award of funded development contracts related to
both the Company's defense and commercial products.
Interest Expense. Interest expense decreased from $136,000 for the six
months ended September 30, 1998 to $89,000 for the six months ended September
30, 1999. Interest expense relates to loans for the purchase of capital
equipment, which are generally three year variable-rate term loans, and to
short-term borrowings under the Company's line of credit to cover working
capital requirements. There were no outstanding borrowings under the Company's
line of credit as of September 30, 1998 and 1999.
Interest Income. Interest income increased from $408,000 for the six
months ended September 30, 1998 to $479,000 for the six months ended September
30, 1999. This increase resulted from higher average invested cash balances.
10
<PAGE> 11
Provision for Income Taxes. The Company's effective income tax rate
decreased from 39.6% for the six months ended September 30, 1998 to 39.0% for
the six months ended September 30, 1999. The decrease relates primarily to
increased tax credits.
BACKLOG
At September 30, 1999, the Company had firm backlog of $39.9 million, of which
$28.7 million was funded. The firm backlog of $39.9 million does not include
contract options of $56.3 million. These options include $48.0 million of
Indefinite Delivery/Indefinite Quantity (IDIQ) UHF Satcom products and $6.6
million of IDIQ awards for other Company products. As a result of the Federal
Acquisition Streamlining Act of 1994, the trend in U.S. Government procurement
has been toward more off the shelf products and technology. More of the
Company's backlog is expected to come from this type of order with shorter
lead-times. Consequently the Company's backlog is expected to remain lower than
historical trends would indicate. Of the $39.9 million in firm backlog,
approximately $24.2 million is expected to be delivered in the fiscal year
ending March 31, 2000, $8.6 million is expected to be delivered in the fiscal
year ending March 31, 2001 and the balance is expected to be delivered in the
fiscal year ending March 31, 2002 and thereafter. The Company had firm backlog
of $44.9 million at March 31, 1999, of which $36.8 million was funded, not
including options of $45.2 million. The Company includes in its backlog only
those orders for which it has accepted purchase orders. However, backlog is not
necessarily indicative of future sales. A majority of the Company's backlog
scheduled for delivery can be terminated at the convenience of the government
since orders are often made substantially in advance of delivery, and the
Company's contracts typically provide that orders may be terminated with limited
or no penalties. In addition, purchase orders may set forth product
specifications that would require the Company to complete additional product
development. A failure to develop products meeting such specifications could
lead to a termination of the related purchase order.
The backlog amounts as presented are comprised of funded and unfunded
components. Funded backlog represents the sum of contract amounts for which
funds have been specifically obligated by customers to contracts. Unfunded
backlog represents future amounts that customers may obligate over the specified
contract performance periods. The Company's customers allocate funds for
expenditures on long-term contracts on a periodic basis. The ability of the
Company to realize revenues from government contracts in backlog is dependent
upon adequate funding for such contracts. Although funding of its government
contracts is not within the Company's control, the Company's experience
indicates that actual contract fundings have ultimately been approximately equal
to the aggregate amounts of the contracts.
11
<PAGE> 12
LIQUIDITY AND CAPITAL RESOURCES
The Company has financed its operations to date primarily from cash flows from
operations, bank line of credit financing, equity financing and loans for the
purchase of capital equipment. Cash used by operating activities for the six
months ended September 30, 1999 was $801,000 and cash provided by operating
activities was $4.7 million for the six months ended September 30, 1998. The
relative decrease in cash provided by operating activities for the six months
ended September 30, 1999 compared to the same period of the prior year was
primarily due to the timing of receivable collections.
Cash provided by investing activities for the six months ended September 30,
1999 was $7.6 million and cash used in investing activities for the six months
ended September 30, 1998 was $6.4 million. During the six months ended September
30, 1999, $8.6 million in short term investments matured and were reinvested
into investments classified as cash equivalents. The Company purchased $984,000
and $1.8 million of property and equipment during the six months ended September
30, 1999 and 1998, respectively. The Company's purchases of property and
equipment primarily consist of test equipment and computers.
Cash used by financing activities for the six months ended September 30, 1999
was $320,000 and cash provided by financing activities for the six months ended
September 30, 1998 was $1.2 million. This decrease was primarily the result of
reduced borrowings for equipment financing.
At September 30, 1999, the Company had $18.7 million in cash, cash equivalents
and short-term investments, $36.0 million in working capital and $1.8 million in
equipment financing. The Company had a zero balance under its line of credit at
September 30, 1999.
The Company's credit facilities, including the line of credit and equipment
financing, expired on December 15, 1998. The Company is in the process of
renegotiating the terms of the commitment with Union Bank of California.
The Company's future capital requirements will depend upon many factors,
including the progress of the Company's research and development efforts,
expansion of the Company's marketing efforts, and the nature and timing of
orders. The Company believes that its current cash balances and net cash
expected to be provided by operating activities will be sufficient to meet its
working capital and capital expenditure requirements for at least the next 12
months. Management invests the Company's cash in excess of current operating
requirements in short-term, interest-bearing, investment-grade securities.
YEAR 2000 ISSUE
Many computer programs have been written using two digits rather than four to
define the applicable year. This poses a problem when 1/1/00 could represent
either year 2000 or year 1900. This, in turn, could result in system failures or
miscalculations, and is generally referred to as the "Year 2000 issue." The
Company's Year 2000 Plan includes four phases--evaluation, implementation of any
required changes, testing and release/installation.
The Company has completed the evaluation and implementation of modifications for
its business systems software and has completed testing of Company computers.
Because the Company's fiscal year 2000 began April 1, 1999, applications which
depend upon the fiscal year instead of the calendar year were required to be
free of any Year 2000 issues by April 1,1999. All critical business systems
dependent upon the fiscal year 2000 were compliant before April 1, 1999, and
subsequently there have been no related issues. A few personal computers were
found to need modifications and/or replacement to be Year 2000 compliant. All
necessary modifications and replacements will be complete before January 1,
2000.
The Company has conducted evaluations of its products to determine if they are
Year 2000 compliant. The Company does not believe that there are any material
Year 2000 defects in its products. The Company has been asked by some customers
to complete tests on products to determine if there are any Year 2000 issues.
The products have passed these tests. The Company does not believe that any Year
2000 compliance issues
12
<PAGE> 13
related to its products will result in a material adverse effect on the
financial position or results of operations of the Company.
The Company has completed extensive inquiries with significant suppliers to
evaluate their Year 2000 status to determine the extent to which the Company is
vulnerable to those third parties' failure to remedy their own Year 2000 issues.
The Company does not believe that any Year 2000 compliance issues related to its
suppliers will result in a material adverse effect on the financial position or
results of operations of the Company.
The Company currently estimates that the total cost of implementing its Year
2000 Plan will be less than $100,000.
The Company anticipates that the Year 2000 issue will not have a material
adverse effect on the financial position or results of operations of the
Company. There can be no assurances, however, that the systems of other
companies or the U.S. Government, on which the Company relies for supplies, cash
payments, and future business, will be timely converted, or that a failure to
convert by another company or the U.S. Government would not have a material
adverse effect on the financial position or results of operations of the
Company. If third party service providers and vendors, due to the Year 2000
issue, fail to provide the Company with components or materials which are
necessary to manufacture its products, with sufficient electrical power and
other utilities to sustain its manufacturing process, or with adequate, reliable
means of transporting its products to its customers worldwide, then any such
failure could have a material adverse effect on the Company's ability to conduct
business, as well as on the Company's financial position and results of
operations.
Because the Company has adopted a plan to address Year 2000 issues, it has not
developed a comprehensive contingency plan for dealing with the most reasonably
likely worst case scenario. However, if the Company identifies significant risks
in the future or is unable to meet its anticipated schedule for completion of
its Year 2000 compliance, the Company will develop contingency plans to the
extent necessary at that time.
The foregoing discussion of Year 2000 issues contains forward-looking statements
and should be read, along with all other forward-looking statements herein, in
conjunction with the Company's disclosures in the first paragraph under the
caption "Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations" above.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
13
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PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO VOTE OF SECURITY HOLDERS
(a) The Company held its Annual Meeting of Stockholders on September
15, 1999
(b) Not applicable
(c) The matters voted upon at the meeting and the votes cast with
respect thereto were as follows:
<TABLE>
<CAPTION>
Votes Votes Broker
For Against/Withheld Abstentions Non-Votes
--------- ---------------- ----------- ---------
<S> <C> <C> <C> <C>
Election of Directors:
Mark D. Dankberg 7,245,817 10,814 -0- -0-
James F. Bunker 7,234,076 22,555 -0- -0-
Amendment to Employee
Stock Purchase Plan 7,189,383 37,734 29,514 -0-
</TABLE>
(d) Not applicable
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibit 10.1 - Satellite Network and Ordering Agreement by and between
ViaSat, Inc. and Science Applications International Corporation, dated
October 12, 1999
Exhibit 27.1 - Financial Data Schedule
(b) The Company filed no reports on Form 8-K during the quarter ended
September 30, 1999.
14
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
VIASAT, INC.
Date: November 15, 1999
/s/ Mark D. Dankberg
-----------------------------
MARK D. DANKBERG
President
Chief Executive Officer
/s/ Richard Baldridge
-----------------------------
RICHARD BALDRIDGE
Vice President
Chief Financial Officer
15
<PAGE> 1
*** Certain information in this exhibit has been omitted and filed
separately with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted portions.
EXHIBIT 10.1
================================================================================
SATELLITE NETWORK AND ORDERING AGREEMENT
BY AND BETWEEN
VIASAT, INC.
AND
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
VERSION 1.0
OCTOBER 12, 1999
================================================================================
Page 1
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I: DEFINITIONS AND CONSTRUCTION........................................1
1.1 DEFINITIONS............................................................1
1.2 RULES OF CONSTRUCTION..................................................5
1.3 LETTER SUBCONTRACT.....................................................5
ARTICLE II: TERM OF AGREEMENT..................................................5
2.1 INITIAL TERM OF THIS AGREEMENT.........................................5
2.2 RENEWAL TERM OF THIS AGREEMENT.........................................5
ARTICLE III: PROVISION OF SERVICES.............................................6
3.1 PROVISION OF SERVICES..................................................6
3.2 PROJECT SCHEDULE.......................................................6
3.3 *** ...................................................................6
3.4 CHANGES................................................................7
3.5 YEAR 2000 READINESS....................................................8
3.6 COVENANTS RELATING TO THE SERVICES.....................................9
3.7 NON-EXCLUSIVE ARRANGEMENT.............................................10
3.8 TECHNOLOGICAL ADVANCEMENTS............................................10
3.9 VIASAT TO PROVIDE ALL NECESSARY PERSONNEL AND FACILITIES..............10
3.10 SHIPMENTS.............................................................10
3.11 ORDERING OF ADDITIONAL PRODUCT AND SERVICES...........................10
ARTICLE IV: SERVICE LEVELS....................................................11
4.1 SERVICE LEVELS, IN GENERAL............................................11
4.2 INITIAL SERVICE LEVELS................................................11
4.3 PERIODIC REVIEWS AND REVISIONS OF SERVICE LEVELS......................11
4.4 MEASUREMENT AND MONITORING TOOLS FOR SERVICE LEVELS...................11
4.5 FAILURE TO MEET SERVICE LEVELS........................................12
ARTICLE V: CHARGES............................................................12
5.1 PRICES PAYABLE TO VIASAT..............................................12
5.2 CURRENCY..............................................................13
5.3 TAXES.................................................................13
5.4 *** ..................................................................13
ARTICLE VI: INVOICING AND PAYMENT.............................................14
6.1 INVOICING.............................................................14
6.2 PAYMENT DUE...........................................................14
6.3 INVOICE PAYMENT.......................................................14
6.4 LATE INVOICING........................................................14
6.5 LATE CHARGES..........................................................15
6.6 ACCOUNTABILITY........................................................15
ARTICLE VII: PERSONNEL MATTERS................................................15
7.1 KEY VIASAT PERSONNEL..................................................15
7.2 VIASAT PROGRAM MANAGER................................................16
7.3 REPLACEMENT OF VIASAT PERSONNEL.......................................16
</TABLE>
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
<PAGE> 3
<TABLE>
<S> <C>
7.4 QUALIFICATIONS OF VIASAT PERSONNEL...................................16
7.5 NO SOLICITATION OF EMPLOYEES OF THE OTHER PARTY.......................16
ARTICLE VIII: SUBCONTRACTORS..................................................17
8.1 VIASAT'S USE OF SUBCONTRACTORS........................................17
ARTICLE IX: USE OF SAIC FACILITIES............................................17
9.1 USE OF SAIC FACILITIES................................................17
9.2 SECURITY AND ACCESS TO SAIC FACILITIES................................17
ARTICLE X: CONFIDENTIALITY, AUDIT RIGHTS AND ACCESS...........................18
10.1 CONFIDENTIALITY.......................................................18
10.2 AUDIT RIGHTS..........................................................20
10.3 PRIVACY LAWS..........................................................21
ARTICLE XI: INTELLECTUAL PROPERTY RIGHTS AND INTERESTS........................22
11.1 DATA..................................................................22
11.2 TRADEMARKS AND SERVICE MARKS..........................................23
11.3 RIGHTS RELATING TO THIRD PARTY SOFTWARE...............................23
11.4 SOFTWARE PRODUCTS LICENSE.............................................23
11.5 *** ..................................................................25
11.6 TERMINATION OF LICENSE................................................25
11.7 FURTHER ASSURANCES....................................................25
ARTICLE XII: VIASAT'S REPRESENTATIONS AND WARRANTIES.........................25
12.1 VIASAT REPRESENTATIONS AND WARRANTIES.................................25
12.2 PRODUCT WARRANTY......................................................26
12.3 EXTENDED WARRANTY.....................................................28
12.4 DISCLAIMER OF WARRANTIES..............................................28
ARTICLE XIII: SAIC'S REPRESENTATIONS AND WARRANTIES...........................28
13.1 SAIC REPRESENTATIONS AND WARRANTIES...................................28
13.2 DISCLAIMER............................................................29
ARTICLE XIV: INDEMNITIES......................................................29
14.1 GENERAL INDEMNITY.....................................................29
14.2 INFRINGEMENT INDEMNITY................................................29
14.3 INDEMNIFICATION PROCEDURES............................................30
ARTICLE XV: LIMITATIONS OF LIABILITY..........................................32
15.1 EXCLUSION OF CONSEQUENTIAL DAMAGES AND OTHER DAMAGES..................32
15.2 LIMITATIONS OF LIABILITY..............................................32
ARTICLE XVI: DISPUTE RESOLUTION...............................................33
16.1 INFORMAL DISPUTE RESOLUTION...........................................33
16.2 MEDIATION AND ARBITRATION.............................................34
16.3 LITIGATION............................................................36
16.4 CONTINUED PERFORMANCE.................................................37
ARTICLE XVII: TERMINATION.....................................................37
</TABLE>
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the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
<PAGE> 4
<TABLE>
<S> <C>
17.1 TERMINATION BY SAIC FOR CAUSE.........................................37
17.2 TERMINATION BY VIASAT FOR CAUSE.......................................38
17.3 TERMINATION FOR CONVENIENCE...........................................38
17.4 EXTENSION OF TERMINATION EFFECTIVE DATE...............................39
17.5 EFFECT OF EXPIRATION OR TERMINATION...................................39
17.6 FURTHER ASSURANCES....................................................40
17.7 EQUITABLE REMEDIES....................................................40
17.8 VIASAT SHALL PROVIDE TERMINATION ASSISTANCE IN GOOD FAITH............40
ARTICLE XVIII: INSURANCE......................................................41
18.1 INSURANCE.............................................................41
ARTICLE XIX: GENERAL..........................................................42
19.1 BINDING NATURE AND RESTRICTIONS ON ASSIGNMENT.........................42
19.2 NOTICES...............................................................42
19.3 GOVERNING LAW.........................................................43
19.4 WAIVER OF IMMUNITY....................................................43
19.5 EXPORT................................................................44
19.6 EXPENSES..............................................................44
19.7 RELATIONSHIP OF PARTIES...............................................44
19.8 SEVERABILITY..........................................................44
19.9 CONSENTS AND APPROVAL.................................................45
19.10 WAIVER OF DEFAULT; CUMULATIVE REMEDIES..............................45
19.11 SURVIVAL............................................................45
19.12 MEDIA RELEASES......................................................45
19.13 THIRD PARTY BENEFICIARIES...........................................45
19.14 COVENANT OF GOOD FAITH..............................................46
19.15 COUNTERPARTS........................................................46
19.16 ENTIRE AGREEMENT....................................................46
19.17 PUBLIC FILINGS......................................................46
</TABLE>
SCHEDULES
A - *** - Version 1.0
B - *** - Version 1.0
C - *** - Version 1.0
C-1 - *** - Version 1.0
D - Reserved
E - *** - Version 1.0
F - *** - Version 1.0
G - *** - Version 1.0
H *** - Version 1.0
I - *** - Version 1.0
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
<PAGE> 5
Satellite Network and Ordering Agreement Subcontract No. 4500390091
Version 1.0
SAIC AND VIASAT
SATELLITE NETWORK AND ORDERING AGREEMENT
THIS SATELLITE NETWORK AND ORDERING AGREEMENT (this "Agreement") is
entered into effective October 12, 1999 (the "Effective Date"), by and between
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, a Delaware corporation ("SAIC"),
and ViaSat, Inc., a Delaware corporation ("ViaSat").
RECITALS
WHEREAS, *** wishes to procure, and SAIC has agreed to provide or
arrange to provide, a global private satellite-based network capability for ***
current and future business requirements, all as specified in the Satellite
Network Agreement dated October 12, 1999 between *** and SAIC (as amended from
time to time, the "SNA").
WHEREAS, SAIC, as the prime contractor, has selected ViaSat to be its
major subcontractor to provide such portions of the global private
satellite-based network capability to SAIC to support SAIC's obligations under
the SNA, all as specified herein.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Parties agree as follows:
ARTICLE I: DEFINITIONS AND CONSTRUCTION
1.1 DEFINITIONS. For purposes of this Agreement, the following
capitalized terms shall have the meaning ascribed thereto. Other capitalized
terms used in this Agreement are defined in the context in which they are used
and shall have the meanings there indicated.
"AAA Rules" shall have the meaning given in Section 16.2(b) of this
Agreement.
"Additional Products and Services" shall mean the Products and Services
in excess of the quantities set forth in Schedule C.
"Affiliate" of a Person shall mean any individual, partnership, joint
venture, corporation, trust, unincorporated association, or any other entity
that, directly or indirectly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with such Person and with respect to
which such Person has a primary management responsibility.
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"Agreement" shall mean this Satellite Network and Ordering Agreement,
together with all of the appendices, schedules and exhibits that are referred to
herein, as it may be modified from time to time in accordance with the terms
hereof.
"Change Order" shall have the meaning given in Section 3.4.
"Change Request" shall have the meaning given in Section 3.4.
"Claims" shall mean all claims, losses, liabilities, actions, damages
(including taxes and related penalties if applicable), costs and expenses
(including reasonable legal fees and disbursements and reasonable costs of
investigation) arising out of a third party claim.
"Control" and its derivatives shall mean, with respect to any entity,
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such entity, whether through the
ownership of voting shares, by contract or otherwise
***
"Developed Software" shall mean any Software that is developed as a
deliverable by ViaSat or its Affiliates under this Agreement.
"Hardware" shall mean the items of equipment listed in Appendix C to the
Statement of Work, as integrated by ViaSat into the Products to be delivered
hereunder.
"*** Data" shall mean all data and information of *** and its
Affiliates, and/or data and information of the customers or businesses of *** or
its Affiliates, regardless of the form of, or the method in which, such data and
information is stored or maintained (including data or information that is
stored or transmitted in electronic form).
"Initial Term" shall have the meaning given in Section 2.1.
"Intellectual Property Rights" shall mean any and all proprietary rights
existing from time to time in a specified jurisdiction, U.S. or foreign, under
federal and state laws, including patent law, copyright law, trade secret law,
semiconductor chip protection law, trademark law, or other laws providing
proprietary rights.
"Key ViaSat Personnel" shall mean those individuals who are assigned to
the "key ViaSat positions" identified in Schedule E, and any replacements or
substitutions of those individuals in accordance with Section 7.1(c).
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
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"Party" shall mean either ViaSat or SAIC. Parties shall mean both ViaSat
and SAIC.
"Person" shall mean any individual, partnership, joint venture,
corporation, trust, unincorporated association, or any other entity.
"Product" means Hardware and/or ViaSat Software.
"Project Schedule" means the Project Schedule set forth in the Statement
of Work, as it may be changed from time to time in accordance with Section 3.4.
"Renewal Term" shall have the meaning set forth in Section 2.2.
"SAIC Contract Administrator" shall mean a representative of SAIC who is
authorized to approve, through written amendments to this Agreement, any
modifications or changes to this Agreement.
"SAIC Data" shall mean all data and information of SAIC and its
Affiliates, and/or data and information of the customers or businesses of SAIC
or its Affiliates, regardless of the form of, or the method in which, such data
and information is stored or maintained (including data or information that is
stored or transmitted in electronic form).
"SAIC Facilities" shall mean those offices and facilities including
ships that are (a) owned, leased or used by SAIC or its Affiliates or (b) owned,
leased or used by *** or its Affiliates and to which SAIC has access rights
under the SNA, in each case, to which ViaSat requires access in connection with
the provision of Services pursuant to this Agreement.
"SAIC Indemnified Parties" means SAIC and all of its Affiliates, *** and
all of its Affiliates, and their respective subcontractors, directors, officers,
agents, partners, representatives, employees, successors and assigns.
"SAIC Program Manager" shall mean a representative of SAIC, designated
from time to time by SAIC, who is authorized to act generally as the primary
point of contact for SAIC in dealing with ViaSat under this Agreement. The SAIC
Program Manager does not have the authority to agree to any amendments to this
Agreement.
"Services" shall mean all of the services to be provided to SAIC by
ViaSat, together with all of the functions and responsibilities of ViaSat that
are set forth in the Statement of Work and elsewhere in this Agreement, as such
Services may be modified from time to time in accordance with this Agreement.
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
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"Service Levels" shall mean the standards for performance, availability,
reliability, security, quality and responsiveness established for ViaSat's
performance of the Services, as such standards are established and modified in
accordance with Article IV.
"SNS" shall mean the services provided by ViaSat at satellite network
centers in accordance with the Statement of Work.
"Software" shall mean computer programs, together with input and output
formats, source and object codes, program listings, data models, flow charts,
outlines, narrative descriptions, operating instructions and supporting
documentation, and includes the tangible media upon which such programs and
documentation are recorded, including, without limitation, all authorized
reproductions, corrections, updates, new releases and new versions of such
programs. Except as otherwise expressly provided in this Agreement, Software
includes any Software Changes.
"Software Changes" shall mean all enhancements, translations,
modifications, updates, new releases and other changes to any Software.
"Statement of Work" shall mean the Statement of Work attached hereto as
Schedule A.
"Subcontractor" shall mean any third party contractor or supplier to
ViaSat relating to the provision of Services under this Agreement.
"Term" shall mean collectively the Initial Term and the Renewal Terms,
if applicable.
"Third Party Product" means any Hardware or Software that is proprietary
to any party other than ViaSat, SAIC or *** or their respective Affiliates and
is licensed by ViaSat or its Affiliates or Subcontractors for use in connection
with the provision of the Services
"ViaSat Contract Administrator" shall mean a representative of ViaSat
who is authorized to approve, through written amendments to this Agreement, any
modifications or changes to this Agreement.
"ViaSat Indemnified Parties" means ViaSat and all of its Affiliates, and
their respective subcontractors, directors, officers, agents, partners,
representatives, employees, successors and assigns.
"ViaSat Project Executive" means the representative of ViaSat,
designated from time to time by ViaSat pursuant to Section 7.1(a), who will be
authorized to act generally as the primary point of contact for ViaSat in
dealing with SAIC under this Agreement.
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
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"ViaSat Software" means any Software that is owned by ViaSat or any of
its Affiliates, and is used by ViaSat in connection with its provision of the
Services.
1.2 RULES OF CONSTRUCTION. The article and section headings and the
table of contents contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
As used in this Agreement, unless otherwise provided to the contrary, (i) all
references to days, months, quarters or years shall be deemed references to
calendar days, months, quarters or years and (ii) any reference to a "Section,"
"Article," "Exhibit" or "Schedule" shall be deemed to refer to a section,
article, exhibit or schedule to this Agreement. The words "hereof," "herein" and
"hereunder" and words of similar import referring to this Agreement refer to
this Agreement as a whole and not to any particular provision of this Agreement.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation."
1.3 LETTER SUBCONTRACT. The ViaSat and SAIC Letter Subcontract dated
August 30, 1999 authorized ViaSat to commence the provision of services. The
Letter Subcontract shall be replaced and superceded by this Agreement as of the
Effective Date, and any authorized efforts thereunder shall be continued under
this Agreement.
ARTICLE II: TERM OF AGREEMENT
2.1 INITIAL TERM OF THIS AGREEMENT. The initial term of this Agreement
("Initial Term") shall commence on the Effective Date and end December 31, 2004
unless earlier terminated pursuant to Article XVII of this Agreement.
2.2 RENEWAL TERM OF THIS AGREEMENT. Upon expiration of the Initial Term,
this Agreement shall automatically be extended for successive one (1) year
periods (each a "Renewal Term"); provided that the Parties have agreed to
pricing for such Renewal Term, which pricing proposal shall be presented by
ViaSat to SAIC twelve (12) months in advance of each Renewal Term and shall be
consistent with Note 6 on Schedule C; and provided further that, during any
Renewal Term, either Party may terminate this Agreement by giving the other
sixty (60) calendar days advance written notice.
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ARTICLE III: PROVISION OF SERVICES AND PRODUCT
3.1 PROVISION OF SERVICES. ViaSat shall provide to SAIC and/or its
Affiliates and SAIC agrees to procure from ViaSat the Services and Product as
identified in Schedule C, except that all budgetary items shall be priced in
accordance with Schedule C and subject to mutual agreement for inclusion in the
contract/project, in accordance with the Project Schedule in a manner that meets
or exceeds the Service Levels applicable to such Services, subject to Section
3.4 (Changes) and Article 17 (Termination).
3.2 PROJECT SCHEDULE. The Project Schedule is set forth in Appendix D to
the Statement of Work. The Project Schedule is subject to change from time to
time at SAIC's direction to meet HES' changing business requirements. Any such
changes will be made in accordance with the change procedures that are set forth
in Section 3.4.
3.3 ***
(i) ***
(ii) ***
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requested with respect to the omitted portions.
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***
(iii) ***
(b) ***
3.4 CHANGES.
(a) In recognition of the likelihood that the Services under
this Agreement will require modification from time to time to respond to ***
changing needs and requirements, ViaSat agrees that SAIC may, at any time during
the Term, request changes to the types of Services, Service Levels, place of
performance (including additional regions of the world in which the Global
Private Satellite Network System may be deployed), specifications or quantity of
the Services to be furnished by ViaSat under this Agreement. Any such request
for a change shall be in writing and shall describe the nature of the change and
the particular elements of contract performance for which an adjustment is
sought (each, a "Change Request").
(b) As soon as practical after its receipt of a Change Request,
ViaSat shall prepare a proposal to adjust the applicable price and to amend, if
applicable, the relevant Services and/or implementation dates. The Parties shall
then use their reasonable efforts to negotiate adjustments and amendments that
are fair and reasonable, and upon mutual agreement of such adjustments and
amendments, the Parties will sign a Change Order reflecting such
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mutual agreement. Neither Party shall proceed with performance in response to a
Change Request until a Change Order has been executed by both Parties, unless
otherwise specifically authorized by the SAIC Contract Administrator.
(c) The cost of preparing and presenting the proposal for a
Change Request shall be borne by ViaSat as overhead, and shall not be directly
charged to this Agreement. Notwithstanding the foregoing, ViaSat shall be
entitled to reimbursement for any travel, engineering projects or other material
expenses incurred in preparation of a proposal, to the extent approved in
advance by the SAIC Contract Administrator.
3.5 YEAR 2000 READINESS.
(a) ViaSat warrants that each hardware, software, and firmware
product that is delivered under this Agreement and that is not a Third Party
Product (each, a "Warranted Item") shall be able to accurately process dates and
date-related data (including, but not limited to, calculating, comparing, and
sequencing) from, into, and between the twentieth and twenty-first centuries,
and the years 1999 and 2000 and leap year calculations, to the extent that other
information technology, used in combination with the information technology
being acquired, properly exchanges date/time data with it. If this Agreement
requires that specific listed products must perform as a system in accordance
with the foregoing warranty, then that warranty shall apply to those listed
products as a system.
(b) ViaSat shall repair or replace, at its option, any Warranted
Item whose non-compliance is discovered and made known to ViaSat in writing by
SAIC within ninety (90) days after acceptance. Nothing in this warranty shall be
construed to limit any rights or remedies SAIC may otherwise have under this
Agreement with respect to defects other than Year 2000 performance.
(c) As to any item of third party hardware, software or firmware
delivered by ViaSat, ViaSat shall, to the extent permitted by the manufacturer
or licensor, pass through or assign to SAIC and *** the manufacturer's or
licensor's warranties, if any, given to ViaSat, regarding Year 2000 compliance.
(d) Where third parties provide services or products included as
part of the Services, ViaSat shall endeavor to obtain for the benefit of ViaSat,
SAIC and ***, a Year 2000 Compliance Statement from said third parties which
is substantially in compliance with ViaSat's standard Year 2000 Compliance
Statement, which is attached as Schedule F hereto. Where a third party refuses
to execute a Year 2000 Compliance Statement substantially in accordance with
Schedule F, ViaSat shall notify SAIC and obtain SAIC's approval prior to
proceeding to engage said third party.
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the Securities and Exchange Commission. Confidential treatment has been
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3.6 COVENANTS RELATING TO THE SERVICES.
(a) Performance. ViaSat will perform or cause to be performed
all of the Services in a professional and workmanlike manner.
(b) Maintenance of Equipment. ViaSat will maintain all equipment
for which it has maintenance responsibilities in good working order (reasonable
wear and tear excepted) and in accordance with applicable manufacturer
requirements.
(c) No Infringement. ViaSat will perform the Services and its
obligations hereunder in a manner that to its actual knowledge does not
infringe, or constitute an infringement or misappropriation of any Intellectual
Property Right of any third party.
(d) Regulatory Approvals. ViaSat will obtain, or will cause its
Subcontractors to obtain, all necessary regulatory approvals applicable to its
business and all necessary permits, and will comply with any regulatory or legal
requirement applicable to the performance of the Services.
(e) Viruses. ViaSat will use commercially reasonable measures to
screen any software provided or made available by it to SAIC hereunder for the
purpose of avoiding the introduction of any "virus" or other computer software
routine or hardware components which are designed (i) to permit access or use by
third parties to the software of SAIC or *** not authorized by this Agreement,
(ii) to disable or damage hardware or damage, erase or delay access to software
or data of SAIC or (iii) to perform any other similar actions.
(f) Disabling Codes. *** ViaSat will not, without informing
SAIC, knowingly set the dongle into the Software used by it hereunder any code
or other device which would have the effect of disabling, damaging, erasing,
delaying or otherwise shutting down all or any portion of the Services or the
hardware, software or data used in providing the Services. ViaSat will not
invoke such code or other device at any time, including upon expiration or
termination of this Agreement for any reason, without SAIC's prior written
consent.
(g) Compliance with Laws. The Parties shall comply with all
applicable laws relating to the performance of its obligations under this
Agreement and the provision and delivery of the Services.
3.7 NON-EXCLUSIVE ARRANGEMENT. ViaSat is providing the Services to SAIC
under the SNA on a non-exclusive basis, therefore, SAIC will have the right to
obtain, at any time and from time to time, any of the services described in the
SNA from any third party or to provide
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such services internally. In the event of a change in responsibilities of
providing the Services is initiated, the Parties shall appropriately adjust this
Agreement, including the Service Level Agreements.
3.8 TECHNOLOGICAL ADVANCEMENTS. In the event of a significant and
presently unanticipated change in technology that materially reduces ViaSat's
costs in providing any of the Services, ViaSat and SAIC agree to negotiate in
good faith to change the relevant Service Levels and priced options, as
appropriate, to reflect such improvements. Any resulting changes must be
implemented through a mutually agreed Change Order.
3.9 VIASAT TO PROVIDE ALL NECESSARY PERSONNEL AND FACILITIES. Except as
otherwise agreed by the Parties, during the Term ViaSat shall be responsible, at
no additional charge to SAIC, for providing all facilities, personnel and other
resources as necessary for ViaSat to provide the Services in accordance with the
Statement of Work.
3.10 SHIPMENTS. Shipments are Ex-Works, Carlsbad, California ViaSat's
facility and will be shipped pursuant to the shipping instructions provided by
SAIC. All risk of loss or damage passes to SAIC upon delivery of the Products to
the carrier at ViaSat's shipping point. SAIC is responsible for all freight,
packing, insurance and other transportation charges. Products held or stored for
SAIC shall be at SAIC's risk and subject to reasonable storage charges. Prior to
shipment, all Products shall comply with the Product Assurance Procurement
Provisions attached as Schedule G.
3.11 ORDERING OF ADDITIONAL PRODUCT AND SERVICES. In addition to the
program's deliverable requirements set forth in Schedule C, SAIC may, during the
Term and pursuant to the terms and conditions of this Agreement, order
Additional Products and Services under separate purchase orders received by
ViaSat.
SAIC shall order Additional Products and Services under separate
purchase orders received and accepted in writing by ViaSat during the Term of
this Agreement. Each purchase order shall reference and be subject to the terms
and conditions of this Agreement. Any terms and conditions on any order, printed
or otherwise, shall be null and void except those which are expressly allowed by
this Agreement. A purchase order shall specify the following: ship to address,
purchase order number, shipping instructions, part and model number, quantity,
price, statement that the purchase order is being placed under this Agreement
***. Delivery shall occur upon delivery to the carrier at ViaSat's
shipping point. Delivery schedule changes must be mutually agreed to in writing.
***. In the event that a supplier of a third party product
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discontinues or significantly changes its pricing, ViaSat may increase the
prices of such Products by written notice to SAIC after two years from the
Effective Date.
All transactions, orders and/or deliveries between ViaSat and SAIC subsequent to
the expiration and/or termination of this Agreement shall not serve as an
extension and/or renewal of this Agreement but shall be governed by the terms of
this Agreement.
ARTICLE IV: SERVICE LEVELS
4.1 SERVICE LEVELS, IN GENERAL. ViaSat will perform the Services in a
manner at least consistent with the specific Service Levels identified in this
Agreement.
4.2 INITIAL SERVICE LEVELS. The initial Service Levels for Services are
set forth in Schedule B.
4.3 PERIODIC REVIEWS AND REVISIONS OF SERVICE LEVELS. Starting with the
first quarter of 2000, and on a quarterly basis thereafter, *** ViaSat and SAIC
will review the Service Levels and will make adjustments to the Service Levels,
by mutual agreement, to reflect improved performance capabilities (if any)
associated with advances in the technology and methods then used by ViaSat to
perform the Services. ViaSat will strive to improve the Service Levels over
time. As part of this review process, the Parties shall jointly determine and
agree on improvements in existing Service Levels, and additional Service Levels,
as appropriate.
4.4 MEASUREMENT AND MONITORING TOOLS FOR SERVICE LEVELS.
(a) ViaSat shall implement the necessary measurement and
monitoring tools and procedures that are required to measure and report ViaSat's
performance of the Services against the applicable Service Levels. Such
measurement and monitoring tools and procedures shall be used for reporting on
compliance with the Service Levels. ViaSat shall maintain records and
sufficiently detailed information to permit *** and/or SAIC to audit ViaSat's
compliance with Service Levels as set out in Section 10.2.
(b) In connection with an audit of Service Levels conducted by
*** and/or SAIC under Section 10.2, ViaSat shall, to the extent permitted by
applicable third party agreements, provide *** and/or SAIC with reasonable
access to such tools and procedures for purposes of such audit and/or
verification.
(c) ViaSat will maintain copies of all records and information
relating to the measurement and monitoring of the Service Levels for at least
two years. Upon SAIC's request, ViaSat will provide to SAIC copies of such
records and information in electronic formats to the extent available. Prior to
destroying any such records, ViaSat will provide SAIC thirty (30) days
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written notice of its intention to destroy such records. At such time, SAIC may:
(i) permit such destruction; (ii) purchase the media containing the records at
net book value of such media; or (iii) request ViaSat maintain such records,
during the Term, at an off-site facility and at mutually agreed upon rates.
4.5 FAILURE TO MEET SERVICE LEVELS.
(a) SAIC and ViaSat agree that the damage resulting from
ViaSat's failure to meet Service Levels may be difficult to calculate.
Accordingly, if ViaSat fails to meet service levels, SAIC and ViaSat agree that
liquidated damages for such failure, SAIC is entitled to receive, with respect
to such failure, a credit for such services as set forth in Schedule B
("Performance Credits"). SAIC may, in its sole discretion and may pursue that
may be available to it in law or in equity.
(b) If ViaSat fails to meet any Service Level, ViaSat shall
promptly investigate the causes of the problem and prepare a report identifying
the same. ViaSat shall use all commercially reasonable efforts to correct the
problem and to begin meeting the Service Levels as soon as practicable; and
shall reasonably advise SAIC of the status of remedial efforts being undertaken
with respect to such problems. SAIC will cooperate and assist in determining,
identifying and correcting such problems.
ARTICLE V: PRICES
5.1 PRICES PAYABLE TO VIASAT. The prices for the Products, Third Party
Products, Non-Recurring Engineering, SNS Services and other Services are set
forth in Schedule C to this Agreement.
5.2 CURRENCY. All payments to ViaSat for any amounts due under this
Agreement shall be made in U.S. dollars.
5.3 TAXES.
(a) The prices for the Product and Services set forth in
Schedule C are exclusive of all taxes, excises or other charges by any
government authority, whether local, state, national or foreign no matter how
designated, including but not limited to sales, use, withholding, import/export
customs fees and duties, and SAIC shall pay such taxes or charges either to
VIASAT or to the government authority as applicable.
(b) Each Party shall bear sole responsibility for all taxes,
assessments and other real property-related levies on its owned or leased real
property.
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(c) The Parties agree to reasonably cooperate with each other to
more accurately determine each Party's tax liability and to minimize such
liability to the extent legally permissible.
(d) Each Party shall provide and make available to the other any
resale certificates, information regarding out-of-state sales and use of
equipment, materials or services, and other exemption certificates or
information reasonably requested by either Party. The Parties will also work
together to segregate the total price into separate payment streams, including:
(i) Taxable services;
(ii) Nontaxable services;
(iii) Services for which a sales, use or similar tax has
already been paid by ViaSat
5.4 ***
ARTICLE VI: INVOICING AND PAYMENT
6.1 INVOICING.
(a) ViaSat will invoice SAIC for each amount due in accordance
with Schedule C. Certain tasks shall be invoiced on a milestone payments basis
as set forth in Schedule C-1.
(b) All invoices shall reference the applicable line items from
Schedule C or C-1.
(c) To the extent a credit may be due SAIC pursuant to this
Agreement, ViaSat shall provide SAIC with an appropriate credit within thirty
(30) days.
6.2 PAYMENT DUE. Subject to the other provisions of this Article VI,
each invoice provided for under Section 6.1 shall be due and payable within
thirty (30) days after SAIC's receipt of a properly submitted invoice.
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6.3 INVOICE PAYMENT. SAIC shall pay each invoice by wire funds transfer
or other electronic means acceptable to ViaSat to an account specified by
ViaSat, unless wire transfer is not available in a particular jurisdiction or
unless the Parties otherwise agree. ViaSat retains a security interest in each
Product shipped and the proceeds therefrom (including accounts receivable) and
the right of possession to such Product shall remain with ViaSat, until payment
for such Product is made in full. Title and ownership to any Software Products
shall, in any event and at all times, remain with ViaSat as the Software
Products are provided under license only. Payment is not subject to
inspection/acceptance of the Products since SAIC protection for nonconforming
Products is provided exclusively under ViaSat's warranty.
6.4 LATE INVOICING.
(a) SAIC shall not be required to pay any invoices received
after 180 days following the date on which the invoiced Services were performed.
Any portion of an invoice that represents charges to SAIC after such 180 day
period shall be unenforceable.
(b) Notwithstanding the provisions of Section 6.4(a), any late
billings for third party reimbursable expenses or other expenses which SAIC is
obligated to pay under this Agreement and that are late due to the slow billing
of a third party, but not due to any fault of ViaSat, may be billed after such
180 day period, but in no event later than 180 days after ViaSat receives an
invoice therefor. Where ViaSat is aware of the possibility of such late or slow
billing, ViaSat will indicate to SAIC either through a regular invoice or
separate written notice that such charge will be billed at a later time,
together with an estimate of such charge if available.
6.5 LATE CHARGES. If SAIC fails to pay any undisputed invoice when due,
and if SAIC has not paid such invoice within ten days after it receives written
notice that such invoice is late ("ten day grace period"), then SAIC shall be
subject to the late charges equal to one percent (1%) per month or the legal
maximum, whichever is less, plus reasonable collection fees on any amount not
timely paid. Interest shall accrue on any unpaid amounts from the end of such
ten day grace period until such amount is paid in full ViaSat may, at any time,
decline to fulfill any outstanding orders in the event the current payment
arrangements with SAIC become unsatisfactory.
6.6 ACCOUNTABILITY. ViaSat shall maintain complete and accurate records
of, and supporting documentation for, all amounts billable to and payments made
by SAIC hereunder. Such records exclude financial, accounting or time card data.
ViaSat shall maintain such records for at least two years following the
termination or expiration of this Agreement.
ARTICLE VII: PERSONNEL MATTERS
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7.1 KEY VIASAT PERSONNEL.
(a) Project Executive. ViaSat will notify SAIC in writing of
designation of the ViaSat's Project Executive, which designation will remain in
effect until ViaSat notifies SAIC in writing of any changes thereto.
(b) Key Personnel. ViaSat shall require each of the Key ViaSat
Personnel to devote the time necessary to provide Services under this Agreement
so as to meet the Service Levels.
(c) Assignment of Personnel. Before permanently assigning an
individual to be a Key ViaSat Personnel, ViaSat shall notify SAIC of the
proposed assignment, shall introduce the individual to the SAIC's Program
Manager, and consistent with ViaSat's personnel policies, ViaSat shall provide
SAIC with a resume and any other relevant information about the individual
reasonably requested by SAIC. If, after being notified thereof, SAIC has an
objection to the proposed assignment and notifies ViaSat thereof within fifteen
(15) days after its receipt of such notice, then ViaSat agrees to discuss such
objections with SAIC and attempt to resolve such objections on a mutually
agreeable basis. If the Parties have not been able to resolve SAIC objections
within seven (7) working days of SAIC's objection, ViaSat shall not assign the
individual to that position and shall propose to SAIC the assignment of another
individual of suitable ability and qualifications, which assignment shall be
subject to the same review and approval procedure.
(d) Transfer. ViaSat agrees not to transfer or reassign the
personnel designated as Key ViaSat Personnel unless (i) SAIC consents, which
shall not be unreasonably withheld, to such transfer or reassignment, or (ii)
the individual (A) voluntarily resigns from ViaSat, (B) is dismissed by ViaSat
for misconduct or unsatisfactory performance with respect to its duties and
responsibilities to ViaSat or SAIC, (C) is removed pursuant to Section 7.3, or
(D) is promoted to a higher position by ViaSat.
7.2 VIASAT PROGRAM MANAGER. ViaSat shall designate upon the Effective
Date and from time to time thereafter, the ViaSat Program Manager to whom all
SAIC communications concerning this Agreement may be addressed. The ViaSat
Program Manager shall have the authority to provide approvals, decisions and
information on behalf of ViaSat and its Affiliates, but shall not have the
authority to amend the terms of this Agreement. ViaSat will also designate, upon
the Effective Date and from time to time thereafter, the ViaSat Subcontract
Administrator who will have the authority to amend the terms of this Agreement.
7.3 REPLACEMENT OF VIASAT PERSONNEL. If SAIC reasonably determines that
ViaSat employee who has significant contact with SAIC in connection with the
provision of the Services
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is not performing in a satisfactory manner, then SAIC shall give ViaSat written
notice to that effect requesting that the employee be replaced with or without
stating the reason thereof.
7.4 QUALIFICATIONS OF VIASAT PERSONNEL. ViaSat agrees that the personnel
it assigns to perform the Services will be adequately educated, trained and
qualified for the Services they are to perform.
7.5 NO SOLICITATION OF EMPLOYEES OF THE OTHER PARTY. During the Term,
neither Party nor its Affiliates shall directly solicit for employment any
employees of the other Party or its Affiliates actively involved in the
performance, consumption or evaluation of the Services pursuant to this
Agreement, unless such solicitation or hiring is explicitly agreed to in writing
by the other Party. Upon notice by either Party hereunder of termination or
expiration of this Agreement, SAIC shall have the right to solicit employment of
any ViaSat employee who is primarily dedicated to the SAIC account at the time
of such notice.
It is agreed that a Party's general solicitation of employees (through,
for example, advertisements in newspapers, magazines or trade journals) shall
not be a violation of this Section nor shall a Party's hiring an employee of the
other Party who responds to such a general solicitation be a violation of this
Section.
ARTICLE VIII: SUBCONTRACTORS
8.1 VIASAT'S USE OF SUBCONTRACTORS.
(a) Responsibility. ViaSat's subcontracting of any obligation
shall not relieve ViaSat of its responsibility for the performance of its
obligations under this Agreement. In addition, ViaSat shall not disclose any
Confidential Information of SAIC or *** to any Subcontractor unless and until
such Subcontractor has agreed in writing to protect the confidentiality of such
Confidential Information in a manner substantially equivalent to that required
of SAIC by Section 10.1. In no event shall ViaSat subcontract the SNS without
written approval of SAIC, such approval shall not be unreasonably withheld.
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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(b) Pass Through of Warranties and Indemnities ViaSat shall use
all reasonable efforts to obtain warranties and indemnities under its
Subcontracts that benefit SAIC as a third party beneficiary. SAIC shall pass
through to *** all benefits that ViaSat receives from any warranty or
indemnity in any Subcontract.
ARTICLE IX: USE OF SAIC FACILITIES
9.1 USE OF SAIC FACILITIES. During the Term, ViaSat shall be granted
access to the SAIC Facilities solely in conjunction with, and as are required by
ViaSat in connection with, the proper performance of the Services. ViaSat may
not use any part of the SAIC Facilities to provide any services to any third
party. *** or SAIC, as applicable, shall own all fixtures at all SAIC
Facilities, including such fixtures installed or paid for by ViaSat as mutually
agreed to in writing or otherwise provided for in this Agreement, including all
wiring that is located in walls, ceilings or floors, or otherwise permanently
installed.
9.2 SECURITY AND ACCESS TO SAIC FACILITIES.
(a) ViaSat shall, at all times while at a SAIC or HES Facility,
comply with the SAIC and *** standard physical security and access policies
(if any) that may be in effect from time to time at such SAIC Facility,
including SAIC and *** health, safety and environmental regulations and
requirements.
(b) When provided sufficient advance notice, SAIC shall provide
or arrange to provide the same security safeguards, personal protection and
accommodations to the personnel of ViaSat that SAIC affords its own employees.
ARTICLE X: CONFIDENTIALITY, AUDIT RIGHTS AND ACCESS
10.1 CONFIDENTIALITY. Each Party acknowledges that the other possesses
and will continue to possess information that has been developed or received by
it or its Affiliates, has commercial value in its or its Affiliates' business or
that of their respective customers and is not in the public domain.
(a) Confidential Information. Except as otherwise specifically
agreed in writing by the Parties, "Confidential Information" shall include:
(i) with respect to ViaSat and its Affiliates, (A) ***
customer lists, *** customer information, account information, and
business information regarding
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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business planning and operations of *** or its Affiliates, regardless
of the form of such information (e.g., electronic, written or verbal),
(B) network designs, configurations and addresses of ***, and (C) any
information or data that is marked as confidential, or if verbally
communicated to ViaSat as confidential, that is promptly reduced to
written form and marked as confidential, and (D) any other information
of SAIC or its Affiliates which by its nature or content can be
reasonably considered to be confidential information.
(ii) with respect to ViaSat, any ViaSat Software, and all
proprietary business and other information that is marked as
confidential, or if verbally communicated to SAIC as confidential, that
is promptly reduced to written form and marked as confidential, and any
other information of ViaSat which by its nature or content can be
reasonably considered to be confidential information.
(b) Exceptions. "Confidential Information" shall not include any
particular information which a Party can demonstrate (i) was, at the time of
disclosure to it, in the public domain; (ii) after disclosure to it, is
published or otherwise becomes part of the public domain through no fault of
such Party; (iii) was already known by, or in the possession of, such Party at
the time of disclosure to it; (iv) was received after disclosure to it from a
third party who had a lawful right to disclose such information to it; or (v)
was or is independently developed by such Party without reference to
Confidential Information of the other Party. In addition, a Party shall not be
considered to have breached its obligations under this Section 10.1 for
disclosing Confidential Information if such disclosure is required to satisfy
any legal requirement of a competent government body, provided that, promptly
upon receiving any such request and to extent that it may legally do so, such
Party advises the other Party promptly and, to the extent reasonably
practicable, prior to making such disclosure in order that the other Party may
interpose an objection to such disclosure, take action to assure confidential
handling of the Confidential Information, or take such other action as it deems
appropriate to protect the Confidential Information. It is understood that the
receipt of Confidential Information by ViaSat's personnel will not limit or
restrict the assignment or reassignment of ViaSat's personnel, but the foregoing
is not intended to reduce or terminate such personnel's obligations under this
Section 10.1 with respect to such Confidential Information.
(c) Non-Disclosure. Each Party will use at least the same degree
of care to prevent disclosing to third parties the Confidential Information as
it employs to avoid unauthorized disclosure, publication or dissemination of its
own information of a similar nature; provided, however, that a Party may
disclose such information to persons or entities performing services required
hereunder where (a) use of such person or entity is authorized under this
Agreement, (b) such disclosure is necessary or otherwise naturally occurs in
that entity's scope of responsibility, or (c) the disclosure is to those of the
recipient Party's attorneys, accountants, auditors, insurers, subcontractors and
full-time employees who have a need to have access to
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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such information in connection with their employment (or engagement, if
applicable) by the recipient Party, so long as the recipient Party requires, in
the case of its accountants, auditors, subcontractors and insurers, that each of
them execute a confidentiality agreement containing terms and conditions no less
restrictive than those set forth in this Section 10.1. Any disclosure to such
person or entity shall be under the terms and conditions as provided herein.
(d) Nonuse. Neither Party will (a) make any use or copies of the
Confidential Information of the other Party except as contemplated by this
Agreement, (b) acquire any right in or assert any lien against the Confidential
Information of the other Party, or (c) refuse for any reason (including a
default or material breach of this Agreement by the other Party) to promptly
provide to the other Party the Confidential Information of the other Party
(including copies thereof) if requested to do so in accordance with Section
10.1(f) or Section 11.1.
(e) Notice. In the event of any improper disclosure or loss of,
or inability to account for, any Confidential Information, the Party with
knowledge of such disclosure, loss or inability will promptly notify the other
Party thereof.
(f) Return of Information. Upon the termination or expiration of
this Agreement, or at any time requested by a Party, each Party shall return or
destroy, as the other Party may direct, all documentation in any medium that
contains, refers, to, or relates to the Confidential Information of the
requesting Party, except that the other Party may retain one (1) copy of such
materials for archival purposes only. ViaSat shall be relieved of any applicable
Service Levels to the extent that it is unable to meet a Service Level because
of SAIC's request for such materials; provided, however, that ViaSat shall be
relieved of such Service Levels only if ViaSat gives SAIC written notice as soon
as practicable that SAIC's request either caused or will cause ViaSat to fail to
meet a Service Level.
(g) Obligations. In addition, each Party shall take reasonable
steps to ensure that its employees comply with these confidentiality provisions.
Nothing contained in this Section shall be construed as obligating a Party to
disclose its Confidential Information to the other Party, or as granting to or
conferring on a Party, expressly or impliedly, any rights or license to the
Confidential Information of the other Party; provided, however, SAIC and its
Affiliates shall provide ViaSat and its Affiliates Confidential Information to
the extent reasonably required by ViaSat to perform the Services.
(h) Survival. The obligations of the Parties under this Section
shall apply for the lesser of ten (10) years from the date of disclosure or for
a period of ten (10) years following the termination or expiration of this
Agreement, provided that such obligations shall continue to apply to trade
secret, Confidential Information as long as it constitutes trade secret
information under applicable law.
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10.2 AUDIT RIGHTS.
(a) Operational or Security Audits. Subject to the provisions of
this Section 10.2, ViaSat will provide to ***, SAIC and their Affiliates, and
their respective auditors (including internal audit staff), inspectors,
regulators, consultants and other representatives as *** or SAIC may from time
to time designate in writing and who have agreed to ViaSat's standard
confidentiality terms, access to the part of any facility at which ViaSat is
providing the Services, to any equipment used in connection with the Services,
to personnel of ViaSat providing the Services, and to relevant data and records
relating to the Services. SAIC shall have reasonable approval rights as to the
identity of such *** and/or SAIC representatives, in order to protect ViaSat's
competitive information. The purpose of such access shall include performing
audits and inspections to verify the compliance of ViaSat with *** or SAIC's
security procedures, to verify the integrity of *** or SAIC Data, to examine the
systems that support and transmit the data, and to examine ViaSat's performance
of the Services hereunder.
Without limiting the foregoing, ***, SAIC and its
representatives may review, inspect and audit, to the extent related to ViaSat's
performance of the Services, (i) ViaSat's practices, policies and procedures,
(ii) ViaSat's systems, (iii) ViaSat's general controls and security practices
and procedures, (iv) ViaSat's disaster recovery and backup procedures, (v) to
the extent reasonably necessary to ensure SAIC or *** compliance with
applicable legal or regulatory requirements.
(b) Subject to ViaSat's standard security requirements, ViaSat
shall provide *** or SAIC and their representatives with access to such
facilities and any reasonable equipment, software or personnel at such
facilities, in a timely manner and during regular business hours. *** or SAIC
will provide ViaSat (at least 48 hours advance written notice of need for access
to ViaSat's facilities or records in connection with an operational or security
audit; provided that if extraordinary circumstances do not permit such advance
notice, *** or SAIC will provide as much advance notice as practicable under the
circumstances. ViaSat and its Affiliates shall only be required to provide
access to information necessary to perform the audit.
(c) *** and SAIC will use its reasonable efforts to conduct each
audit expeditiously and efficiently.
(d) ViaSat will provide to such inspectors, regulators, and
representatives such assistance as they reasonably require, including installing
and operating audit software. ViaSat will cooperate fully with ***, SAIC or
their designees in connection with audit functions and with regard to
examinations by regulatory authorities. Following an audit or examination, ***
and SAIC will conduct (in the case of an internal audit), or request its
external auditors or examiners to conduct, an exit conference with ViaSat to
obtain factual concurrence with issues identified in the review.
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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(e) ViaSat and *** and/or SAIC, as appropriate, will meet to
review each audit report promptly after the issuance thereof and to mutually
agree upon the appropriate manner, if any, in which to respond to the changes
suggested by the audit report. ViaSat, *** and SAIC agree to develop mutually
acceptable operating procedures for the sharing of audit and regulatory findings
and reports related to ViaSat operating practices and procedures produced by
auditors or regulators of either Party.
(f) *** or SAIC, as appropriate, shall bear the expenses related
to any audits conducted pursuant to this Section 10.2.
10.3 PRIVACY LAWS
(a) It is understood and agreed that *** shall be and remain the
controller of the *** Data for purposes of all applicable laws relating to data
privacy, transborder data flow and data protection (collectively, "Privacy
Laws"), and nothing in this Agreement shall restrict or limit in any way ***
rights or obligations as owner and/or controller of the *** Data for such
purposes. It is further understood and agreed that ViaSat may have certain
responsibilities prescribed by applicable Privacy Laws to the extent that it is
considered to be a processor of the *** Data, and ViaSat hereby accepts such
responsibilities to the extent any such Privacy Laws apply to ViaSat.
(b) It is understood and agreed that SAIC shall be and remain
the controller of the SAIC Data for purposes of all Privacy Laws, and nothing in
this Agreement shall restrict or limit in any way SAIC's rights or obligations
as owner and/or controller of the SAIC Data for such purposes. It is further
understood and agreed that ViaSat may have certain responsibilities prescribed
by applicable Privacy Laws to the extent that it is considered to be a processor
of the SAIC Data, and ViaSat hereby accepts such responsibilities to the extent
any such Privacy Laws apply to ViaSat
ARTICLE XI: INTELLECTUAL PROPERTY RIGHTS AND INTERESTS
11.1 DATA.
(a) *** Data shall be and remain the property of ***. *** shall
have the right at all times, for any reason that it wishes in its sole
discretion, to access and copy such data. ViaSat shall not refuse *** such
access or impose any unreasonable conditions on such access; provided that
ViaSat shall be excused from any Service Level or schedule that cannot
reasonably be met as a result of *** requesting the return of *** Data. Upon
*** request from time to time, upon the termination or expiration of this
Agreement for any reason or, with respect to any particular data on such earlier
date that the same shall be no longer required by ViaSat in order to
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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render the Services hereunder, such *** Data shall be promptly returned to ***
by ViaSat in a form and format reasonably acceptable to *** (and in a form in
which ViaSat regularly stores such data), or, if *** so elects, shall be
destroyed. ViaSat shall not use the *** Data for any purpose other than that of
rendering the Services under this Agreement, and ViaSat shall not sell, assign,
lease, disseminate, or otherwise dispose of *** Data or any part thereof to any
other person, nor shall ViaSat commercially exploit any part of *** Data. ViaSat
shall not possess or assert any property interest in or any lien or other right
against or to *** Data. *** shall be the sole and exclusive owner of all ***
Data, including all United States and foreign Intellectual Property Rights in
such data. ViaSat may maintain one copy of the *** Data for archival purposes.
(b) SAIC Data shall be and remain the property of SAIC. SAIC
shall have the right at all times, for any reason that it wishes in its sole
discretion, to access and copy such data. ViaSat shall not refuse SAIC such
access or impose any unreasonable conditions on such access; provided that
ViaSat shall be excused from any Service Level or schedule that cannot
reasonably be met as a result of SAIC's requesting the return of SAIC Data. Upon
SAIC's request from time to time, upon the termination or expiration of this
Agreement for any reason or, with respect to any particular data on such earlier
date that the same shall be no longer required by ViaSat in order to render the
Services hereunder, such SAIC Data shall be promptly returned to SAIC by ViaSat
in a form and format reasonably acceptable to SAIC (and in a form in which
ViaSat regularly stores such data), or, if SAIC so elects, shall be destroyed.
ViaSat shall not use the SAIC Data for any purpose other than that of rendering
the Services under this Agreement, and ViaSat shall not sell, assign, lease,
disseminate, or otherwise dispose of SAIC Data or any part thereof to any other
person, nor shall ViaSat commercially exploit any part of SAIC Data. ViaSat
shall not possess or assert any property interest in or any lien or other right
against or to SAIC Data. SAIC shall be the sole and exclusive owner of all SAIC
Data, including all United States and foreign Intellectual Property Rights in
such data. ViaSat may maintain one copy of the SAIC Data for archival purposes.
11.2 TRADEMARKS AND SERVICE MARKS. ViaSat agrees that it will not,
without SAIC's prior written, applicable consent, use the name, service marks or
trademarks of SAIC. SAIC agrees that it will not, without ViaSat's prior written
consent, use the name, service marks or trademarks of ViaSat.
11.3 RIGHTS RELATING TO THIRD PARTY SOFTWARE. All Third Party software
will be and remain the property of the applicable third party vendor(s), and, as
between SAIC and ViaSat, any Software Changes made by ViaSat thereto shall be
considered to be ViaSat Software for purposes of this Agreement. ViaSat hereby
grants to SAIC, HES and its Affiliates, the right to use any Third Party
Software that is incorporated in any products delivered by ViaSat hereunder, or
is required to be used or accessed in order to receive the benefit of the
Services to be provided by ViaSat. ViaSat warrants that it has all necessary
consents and authority to grant this
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the Securities and Exchange Commission. Confidential treatment has been
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sublicense, and ViaSat will pay all costs and expenses associated therewith.
During the Term of this Agreement, SAIC will pay all required license,
installation, maintenance and upgrade fees with respect to the Third Party
Software. Upon the termination or expiration of this Agreement, ViaSat will
transfer to SAIC or *** (if designated by SAIC), all of its rights and licenses
for any such Third Party Software, subject to (i) SAIC's acceptance of any
applicable vendor's terms, and (ii) SAIC's payment of any transfer fee, license
fee or other charges imposed by the vendor. For purposes of the foregoing, the
Third Party Software includes any Third Party Software provided with the
Hardware Products in whatever form provided (whether as floppy or hard disks,
cartridges, magnetic tapes, semiconductor chips or otherwise) or however
designated (whether as firmware, microcode or otherwise) and includes all
changes, additions, revisions, replacements, manuals and documentation to such
software or Products which may be provided.
11.4 SOFTWARE PRODUCTS LICENSE.
(a) SAIC License. ViaSat hereby grants SAIC a nonexclusive,
fully paid, royalty-free, worldwide license to use the ViaSat Software in object
code form, with the right to sublicense such rights to *** and its Affiliates
pursuant to an end user license agreement, the form of which is attached as
Schedule I. This license is assignable by SAIC to *** without the prior consent
of ViaSat, provided that *** provides ViaSat written notice of such assignment
and agrees to be bound to the terms of this license. For purposes of the
foregoing, the term ViaSat Software includes any ViaSat Software provided with
the Hardware Products in whatever form provided (whether as floppy or hard
disks, cartridges, magnetic tapes, semiconductor chips or otherwise) or however
designated (whether as firmware, microcode or otherwise) and include all
changes, additions, revisions, replacements, manuals and documentation which may
be provided to such software or products.
(b) SAIC's Ownership Rights. SAIC has no rights to source or
non-executable code. ViaSat Software is the proprietary, trade secret and
copyrighted property of ViaSat or its licensors and all ownership and title
thereto is retained. SAIC agrees that it will use the ViaSat Software only as
authorized herein, that it will not copy or modify the ViaSat Software, that it
will not decompile, disassemble, translate or reverse engineer the ViaSat
Software, and that it will retain all proprietary and copyright notices of
ViaSat and its licensors in the ViaSat Software and any copies thereof. The
licenses hereunder are not a sale of the software or any rights thereto and
convey no rights or interest to the licensee other than a right to use the
software as provided herein. Copyright to, title in, ownership of, and all
ownership rights associated with the software shall remain vested in ViaSat and
its licensors.
(c) Nothing herein shall prohibit a licensee from achieving
interoperability of the software with its operating environment to the extent
the licensee has such right under Articles 5 and 6 of the EC Council Software
Directive of May 14, 1991 and reasonable information and
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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assistance to achieve such interoperability is not available from ViaSat (for
end user licenses issued to end users/customers located in European Community
countries only).
(d) The Parties acknowledge that Third Party Software may be
included as part of the Products purchased by SAIC hereunder and SAIC agrees
that it will not unreasonably withhold its approval of any sublicense terms and
conditions that may be required by such third party software suppliers.
(e) The Network Control Computer (NCC) utilizes Microsoft
Windows NT as its operating software. By acceptance and use of the NCC, SAIC
agrees to comply with the terms of the Microsoft Windows NT Licensing Agreement
(current version at the time of acceptance of individual Starwire NCS) including
the requirement to obtain client access licenses if so required under the terms
of the Microsoft Windows NT Licensing Agreement. Furthermore, SAIC agrees to
transfer the Microsoft license to its sublicensees and include in all sublicense
agreements a provision identical to the provision herein regarding compliance
with the Microsoft licensing agreement. Individual Microsoft licensing
agreements shall be provided by ViaSat with each NCC.
(f) Developed Software. If ViaSat creates any Developed
Software, ViaSat shall be the sole owner of the work of authorship and all
rights of copyright and other Intellectual Property Rights therein. Such
Developed Software shall become ViaSat Software upon delivery to SAIC or
commercial use in connection with the Services provided herein to SAIC.
11.5 ***
11.6 TERMINATION OF LICENSE. ViaSat shall have the right to terminate
the license granted under Section 11.4(a) upon SAIC's material breach of any of
the provisions of this license. SAIC shall have been provided notice and the
opportunity to cure such material breach. Upon termination, SAIC must
immediately take action to return all software Products and copies in SAIC's
possession or under its control, in whatever form, to ViaSat. In the event of a
material breach, ViaSat or its suppliers are entitled to seek injunctive relief,
in addition to any other remedies available, it being acknowledged that legal
remedies could be inadequate. SAIC's obligations with respect to the software
Products will survive any termination or expiration of this Agreement.
Notwithstanding the foregoing, sub-licenses then validly in effect with ***
shall survive such termination and shall be deemed direct licenses with ViaSat
pursuant to the terms of the end user license and *** may retain such
sub-licensed software copies.
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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11.7 FURTHER ASSURANCES. SAIC and ViaSat agree to execute and deliver
such other instruments and documents as either Party reasonably requests to
evidence or effect the transactions contemplated by this Article XI. The
provisions of this Article XI will survive the expiration or termination of this
Agreement for any reason.
ARTICLE XII: VIASAT'S REPRESENTATIONS AND WARRANTIES
12.1 VIASAT REPRESENTATIONS AND WARRANTIES.
(a) Authority. ViaSat represents and warrants that ViaSat has
all requisite corporate power and authority to execute and deliver this
Agreement and to perform fully all of its obligations hereunder, and that the
execution, delivery and performance of this Agreement has been duly authorized
by all requisite corporate action.
(b) Binding Obligation. ViaSat represents and warrants that this
Agreement has been duly executed and delivered by ViaSat and, assuming the due
authorization, execution and delivery hereof by SAIC, this Agreement will be a
valid and binding obligation of ViaSat, enforceable against it in accordance
with its terms.
(c) No Violation. ViaSat represents and warrants that the
execution, delivery and performance of this Agreement by ViaSat does not, and
with notice, lapse of time or both will not, violate or constitute a breach of
any of ViaSat's contractual obligations with third parties.
(d) Compliance with Laws.
(i) ViaSat represents that it is familiar with the terms and
provisions of the U.S. Foreign Corrupt Practices Act (the "FCPA") and
will comply with the FCPA and regulations promulgated thereunder.
(ii) ViaSat represents that it has not heretofore made any
payment or gift of money or other thing of value to a Government
Official in connection with the matter which is the subject of this
Agreement and agrees that it will not hereafter make any such payment or
gift. As used in this provision, "Government Official" includes each of
the following: any government official of any level, any other person in
a government or political position, any candidate for political office,
and any political party.
(iii) ViaSat acknowledges that SAIC is subject to the Code of
Business Conduct, which has been previously delivered to ViaSat. ViaSat
agrees that it will not violate such code in connection with its
obligations under this Agreement.
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(iv) ViaSat acknowledges and agrees that as a corporation
organized and existing under the laws of the United States of America,
ViaSat is, and its Affiliates may be, subject from time to time to trade
laws of the United States prohibiting or limiting trade in goods and
services in or for the benefit of persons, entities or governments in or
from certain geographic areas, including, without limitation, Cuba,
North Korea, Iraq, Iran and Libya. Nothing in this Agreement shall
require ViaSat, or any of its Affiliates, to provide Services in
contravention of any such trade embargo or other laws as may be or
become applicable to it during the Term.
(e) Disclaimer for Data Corruption. ViaSat will not be
responsible for any corruption, damage, loss or mistransmission of data or for
the security of data during transmission via public telecommunication
facilities.
12.2 PRODUCT WARRANTY.
(a) Hardware Products. ViaSat warrants the Hardware will
substantially conform to the applicable specifications (as identified in the
Statement of Work) ***. In the event that the Statement of Work requires an
Acceptance Test Procedure (ATP), the warranty period commences upon ViaSat's
successful completion of the ATP ***. ViaSat will, at its sole option, repair or
replace those Products or components determined to be defective under this
Warranty which are returned promptly to ViaSat but no later than ten (10) days
after expiration of the warranty period. SAIC shall provide for any removal of
the defective unit or component from any Product with which it has been
integrated subsequent to leaving ViaSat's plant. Replacement parts may be
reconditioned and will not extend the warranty period. Warranty service is on a
return to ViaSat's facility only with SAIC being responsible for prepaying all
freight, insurance and other charges. ***
This warranty shall not apply to any product or parts thereof, that (a)
has had the Serial Number, Model Number, or other identification markings
intentionally altered, removed or rendered illegible, (b) has been damaged by or
subject to improper installation or operation, misuse, neglect, use in any way
with equipment not previously approved in writing by ViaSat; (c) has been
repaired or altered by other than ViaSat personnel and/or has been subject to
the opening of any sealed cabinet boxes without ViaSat's prior written consent,
and/or (d) has been
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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used in any way other than in strict compliance with ViaSat's installation and
operation instructions provided with the Products.
All Products returned under a warranty claim must be returned in
accordance with ViaSat's standard return material authorization procedures,
including a written claim reciting the nature and details of the claim, the date
the cause of the claim was first observed and the unit serial number.
(b) Software Products. ViaSat warrants that the Software will
substantially conform to the applicable specification (as identified in the
Statement of Work) for such Software ***. To be eligible for a remedy, SAIC must
report all warranted problems within the ten (10) days of expiration of the
warranty period to in order to be eligible for a remedy. ViaSat shall use
reasonable efforts to correct or provide a workaround for any reproducible
errors. SAIC agrees to cooperate with ViaSat in creating the environment in
which the error occurred and shall supply any third party equipment, which may
be necessary for duplicating the error.
This warranty does not apply to Software which (1) has been altered,
except as may be expressly authorized by ViaSat, (2) has not been installed,
operated, repaired or maintained in accordance with any installation, handling,
maintenance or operating instructions supplied by ViaSat, (3) has been subjected
to unusual physical or electrical stress, misuse, negligence or accident, (4) is
used in ultra hazardous activities, (5) has been used in such a way that ViaSat
can not reasonably reproduce the Software error, or (6) has been misapplied. In
no event does ViaSat warrant that the Software is error free.
12.3 EXTENDED WARRANTY. SAIC shall have the option to extend the
warranties provided herein, on an annual basis throughout the Initial Term.
***
12.4 DISCLAIMER OF WARRANTIES EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
THIS ARTICLE XII, ViaSat MAKES NO REPRESENTATIONS OR
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE
MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR
RESULTS TO BE DERIVED FROM THE USE OF ANY SERVICE, SOFTWARE, HARDWARE OR OTHER
MATERIALS PROVIDED UNDER THIS AGREEMENT.
ARTICLE XIII: SAIC'S REPRESENTATIONS AND WARRANTIES
13.1 SAIC REPRESENTATIONS AND WARRANTIES.
(a) Authority. SAIC represents and warrants that SAIC has all
requisite corporate power and authority to execute and deliver this Agreement
and to perform fully all of its obligations hereunder, and that the execution,
delivery and performance of this Agreement has been duly authorized by all
requisite corporate action.
(b) Binding Obligation. SAIC represents and warrants that this
Agreement has been duly executed and delivered by SAIC and, assuming the due
authorization, execution and delivery hereof by ViaSat, this Agreement will be a
valid and binding obligation of SAIC, enforceable against it in accordance with
its terms.
(c) No Violation. SAIC represents and warrants that the
execution, delivery and performance of this Agreement by SAIC does not, and with
notice, lapse of time or both will not, violate or constitute a breach of any of
SAIC's contractual obligations with third parties.
13.2 DISCLAIMER. SAIC HEREBY DISCLAIMS ALL OTHER WARRANTIES (WHETHER
ORAL, EXPRESS OR IMPLIED).
ARTICLE XIV: INDEMNITIES
14.1 GENERAL INDEMNITY. ViaSat agrees to indemnify, defend, release, and
hold each of the SAIC Indemnified Parties harmless from, and SAIC agrees to
indemnify, defend and hold each of the ViaSat Indemnified Parties harmless from,
any and all Claims and threatened Claims by any third party arising out of or
related to the Services or in connection with:
(a) any claim for rent or utilities at any location where the
indemnitor is financially responsible under this Agreement for such rent or
utilities,
(b) any claim for taxes, wages, benefits or third party fees for
which the indemnitor is financially responsible under this Agreement,
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(c) an act or omission of the indemnitor in its capacity as an
employer of a person and arising out of or relating to (i) federal, state or
other laws or regulations for the protection of persons who are members of a
protected class or category of persons, (ii) sexual discrimination or
harassment, (iii) work related injury or death, (iv) accrued employee benefits
not expressly assumed by the indemnitee, and (v) any other aspect of the
employment relationship or its termination (including claims for breach of an
express or implied contract of employment) and which, with respect to each of
clauses (i) through (v) arose when the person asserting the claim, demand,
charge, action, or other proceeding was or purported to be an employee of the
indemnitor, and/or
(d) any amounts, including taxes, interest and penalties,
assessed against a Party which relate to obligations of the other Party pursuant
to Article V hereof.
14.2 INFRINGEMENT INDEMNITY.
(a) ViaSat agrees to indemnify, defend and hold each of the SAIC
Indemnified Parties harmless from and against any and all Claims arising out of,
under or in connection with a claim that any of the Services or software (other
than third party software) provided by ViaSat under this Agreement, or any part
thereof, (i) infringes a copyright enforceable under the laws of the United
States or under the applicable law of the country in which the Services are
provided, (ii) infringes a patent enforceable under the laws of the United
States or under the applicable law of the country in which the Services are
provided or any alleged infringing component is manufactured, sold or used; or
(iii) constitutes an unlawful disclosure, use or misappropriation of another
party's trade secret; provided that ViaSat will have no liability to SAIC
hereunder if any claim of infringement is based upon the use of software
provided by ViaSat hereunder in connection or in combination with equipment,
devices or software not supplied by ViaSat or used in a manner for which the
software was not designed; and provided further, ViaSat will have no liability
if SAIC modifies any software provided by ViaSat hereunder and such infringement
would not have occurred but for such modification, or if SAIC combines, operates
or uses the software with devices, data, equipment, systems, programs or
products not furnished by ViaSat , or if SAIC uses the software, outside the
scope of this Agreement, in the practice of a patented process and there would
be no infringement in the absence of such practice, or if such claim arises out
of ViaSat's compliance with specifications provided by SAIC and such
infringement would not have occurred but for such compliance.
(b) If any software (other than third party software) or
confidential information provided by a party under this Agreement becomes the
subject of a claim or action as described in Section 14.2(a), or in ViaSat's
opinion is likely to become the subject of such a claim or action, then ViaSat
may, at its option and expense: (i) replace or modify the software or
confidential information to make it non-infringing or cure any claimed misuse of
another's trade secret without any loss of service, functionality, or benefit to
SAIC, or (ii) procure for SAIC the
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right to continue using the software or confidential information. If neither
option is available to ViaSat through the use of commercially reasonable
efforts, (A) SAIC will return such software or confidential information to
ViaSat, and (B) SAIC will be entitled to an adjustment in the charges payable
under this Agreement to reflect the fact that SAIC no longer has the use of such
software or confidential information (which adjustment may be established by
mutual agreement, or failing mutual agreement through the dispute resolution
procedures set forth in Article XIV).
14.3 INDEMNIFICATION PROCEDURES. The indemnification obligations set
forth in this Article XIV will be subject to the following procedures: The
person entitled to indemnification pursuant to the terms of this Agreement (the
"Indemnified Party") shall advise the Party obligated to indemnify (the
"Indemnifying Party") of the claim in writing within five business days after
its receipt of a summons, or within ten business days after its receipt of other
written communication giving information as to the nature of the claim; provided
that failure to so notify will only relieve the Indemnifying Party of its
obligations under this Section 14.3 if and to the extent that the Indemnifying
Party is materially prejudiced thereby. If the Indemnified Party has been sued,
it shall use reasonable efforts to obtain an extension of time to answer the
complaint if the Indemnifying Party so requests. The Indemnifying Party shall
not be liable or responsible for any expenses which are incurred by the
Indemnified Party before such notice has been given to the Indemnifying Party,
nor bound by (or obligated to indemnify with respect to) any settlements made by
the Indemnified Party before such notice. The Indemnifying Party shall, within
the lesser of twenty days after receipt of such notice or ten days before an
answer is required to be filed, advise the Indemnified Party whether or not the
Indemnifying Party will undertake the defense of such claim on behalf of the
Indemnified Party and if so shall specify the name of the attorney who will
handle the matter, which attorney shall be reasonably satisfactory to the
Indemnified Party. The Indemnified Party may participate in the defense of such
claim with its own counsel paid for by the Indemnified Party, except that if
both the Indemnified Party and the Indemnifying Party are named parties in an
action relating to such claim and such counsel has any present or potential
conflict in representing the interests of both parties, then the Indemnified
Party may retain its own counsel at the expense of the Indemnifying Party. If
the Indemnifying Party timely notifies the Indemnified Party that it will
undertake the defense of such claim, then (i) the Indemnified Party shall
cooperate with counsel selected by the Indemnifying Party in the defense of such
claim, (ii) the Indemnifying Party shall have the right in its discretion to
control the defense and settlement of such claim, except that the Indemnifying
Party cannot settle such claim without the consent of the Indemnified Party
where the settlement involves a remedy other than the payment of money, and
(iii) the Indemnified Party shall not settle or compromise such claim without
the prior written consent of the Indemnifying Party.
If the Indemnifying Party fails timely to advise the Indemnified Party
that it will undertake the defense of such claim on behalf of the Indemnified
Party, or if the Indemnifying Party undertakes such defense but thereafter fails
to diligently pursue
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such defense (but only after the Indemnifying Party receives a written demand
from the Indemnified Party to diligently pursue such defense and the
Indemnifying Party fails to do so after twenty days from its receipt of such
demand or such shorter period as may be required to respond to a deadline
imposed by a court), the Indemnified Party may undertake the defense of such
claim with its own counsel and may settle or compromise such claim in its sole
discretion, all at the expense of the Indemnifying Party.
ARTICLE XV: LIMITATIONS OF LIABILITY
15.1 EXCLUSION OF CONSEQUENTIAL DAMAGES AND OTHER DAMAGES. IN NO EVENT
SHALL A PARTY OR ITS AFFILIATES OR SUBCONTRACTORS BE LIABLE TO THE OTHER PARTY,
WHETHER BASED IN CONTRACT, TORT, WARRANTY, OR ANY OTHER LEGAL OR EQUITABLE
GROUNDS, FOR ANY LOSS OF THE INCOME, PROFIT OR SAVINGS OF THE OTHER PARTY OR ITS
AFFILIATES, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY
EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, RESULTING FROM OR RELATING
TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. Each Party shall have a duty to mitigate damages for which the
other Party is responsible.
15.2 LIMITATIONS OF LIABILITY.
(a) NEITHER PARTY'S LIABILITY TO THE OTHER PARTY FOR ANY
PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS, COVENANTS OR WARRANTIES UNDER
THIS AGREEMENT OR OTHERWISE ARISING IN CONNECTION WITH THIS AGREEMENT OF EVERY
KIND AND NATURE, REGARDLESS OF THE FORM OF ACTION THAT IMPOSES LIABILITY,
WHETHER IN CONTRACT, EQUITY, NEGLIGENCE, INTENDED CONDUCT, TORT OR OTHERWISE,
SHALL EXCEED AN AGGREGATE OF THE REVENUE PAYABLE UNDER THIS AGREEMENT OVER THE
12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CLAIM
ARISES.
(b) The limitations set forth in this Article XV shall not apply
to any of the following:
(i) A deliberate and willful breach of the obligations of
nondisclosure and nonuse as set forth in Article X or misappropriation
or infringement of a Party's Intellectual Property Rights or a third
party's Intellectual Property Rights;
(ii) Any liability relating to the indemnities set forth in
Sections 14.1(d) and 14.2(a); or
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(iii) SAIC's and its Affiliates' obligation to make payments
under this Agreement.
(iv) The amounts recoverable from ViaSat in the event of a DA/DR
Capability failure, pursuant to Section 3.3.
ARTICLE XVI: DISPUTE RESOLUTION
Any dispute between the Parties, either with respect to the
interpretation of any provision of this Agreement or with respect to the
performance by ViaSat or SAIC, shall be resolved as provided in this Article
XVI.
16.1 INFORMAL DISPUTE RESOLUTION. Prior to the initiation of formal
dispute resolution procedures, the Parties shall first attempt to resolve their
dispute informally, as follows:
(a) Every effort should be made to resolve all disputes at the
lowest possible level of authority. If the Parties fail to agree through normal
channels and procedures, then the Parties shall attempt to resolve any disputes
arising hereunder in the following manner.
(b) The Parties will use their best efforts to arrange personal
meetings and/or telephone conferences as needed, at mutually convenient times
and places, between negotiators for the parties at the following successive
management levels. Each negotiator will have the authority to negotiate and
enter into a settlement of the dispute on their respective company's behalf.
Each level of management will have the time allotted below in
which to attempt to resolve the dispute:
<TABLE>
<CAPTION>
=================== ============================ ========================== ===============
Management SAIC ViaSat Allotted Time
Level
- ------------------- ---------------------------- -------------------------- ---------------
<S> <C> <C> <C>
1st Level SAIC Program Manager ViaSat Program Manager/ 15 days
/Procurement Contracts
- ------------------- ---------------------------- -------------------------- ---------------
2nd Level RISG Group Manager Director, Contracts 30 days
=================== ============================ ========================== ===============
</TABLE>
(c) The allotted time for the first-level negotiators will begin
on the date a Party receives notice from the other Party invoking the dispute
resolution process. Each negotiator will furnish to the other all information
with respect to the matter in issue that the Parties believe to be appropriate
and germane in connection with its resolution. The negotiators shall discuss the
problem and negotiate in good faith in an effort to resolve the dispute without
the necessity of any formal proceeding.
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(d) During the course of negotiations, all reasonable requests
made by one Party to another for non-privileged information, reasonably related
to this Agreement, will be honored in order that each of the Parties may be
fully advised of the other's position; provided, however, neither Party shall be
required to disclose its confidential or proprietary information.
(e) The specific format for the discussions will be left to the
discretion of the negotiators, but may include the preparation of agreed-upon
statements of fact or written statements of position. The Parties agree that any
such written statements will be prepared in connection with settlement
negotiations, and as such will be privileged and shall not be used against the
Party who prepared such statement unless it is subsequently introduced by the
preparing Party in the formal proceedings.
(f) If the dispute is not resolved prior to the conclusion of
the allotted time frame for the second-level negotiators, as such period may be
extended by mutual agreement, formal proceedings for the resolution of a dispute
may be commenced at the conclusion of such period.
(g) This Section will not be construed to prevent a Party from
instituting, and each Party is authorized to institute, formal proceedings
earlier to avoid the expiration of any applicable limitations period, or to
preserve a superior position with respect to other creditors, or as provided in
Section 16.3.
16.2 MEDIATION AND ARBITRATION. If the Parties are unable to resolve any
controversy arising under this Agreement as contemplated by Section 16.1 and if
such controversy is not subject to Sections 16.3 of this Agreement, then such
controversy shall be submitted to mediation and then (unless this Agreement
otherwise expressly provides) mandatory and binding arbitration at the election
of either Party (the "Disputing Party") pursuant to the following conditions:
(a) Mediation. Prior to submittal to arbitration, the Parties
will enter into non-binding mediation and will retain the services of a mutually
acceptable professional mediator to attempt to resolve the dispute. If the
parties cannot agree on a mediator, a mediator shall be appointed in accordance
with the AAA Rules. If the dispute cannot be resolved within thirty (30) days of
the appointment of the mediator, then either Party may elect to proceed with
binding arbitration as follows:
(b) Procedures. The arbitration shall be conducted pursuant to
the Federal Arbitration Act with the Arbitrators referring to the Commercial
Arbitration Rules of the American Arbitration Association, as they may be
amended from time to time, except as expressly provided in this Article XVI (the
"AAA Rules").
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(c) Selection of Arbitration Panel. The Disputing Party shall
notify the American Arbitration Association and the other party in writing
describing in reasonable detail the nature of the Dispute (the "Dispute
Notice"). Within thirty days of the notice of initiation of the arbitration
procedure, (i) in the event the amount in controversy is less than $250,000, the
Parties shall nominate one (1) arbitrator or (ii) in the event the amount in
controversy is more than $250,000, each party shall nominate one arbitrator, who
need not be neutral. If the Parties or a Party fails or refuses to select a
Party-appointed arbitrator within such period of time, such arbitrator shall be
appointed in accordance with the AAA Rules. In the event two (2) arbitrators are
selected, the two arbitrators shall select a third arbitrator, failing agreement
on which within thirty days of the original notice the parties (or either of
them) the third arbitrator shall be appointed in accordance with the AAA Rules.
The arbitrators shall have substantial experience in the area of information
technology. The one arbitrator, or the three arbitrators acting by majority
vote, shall resolve all disputes between the parties. If one of the
party-appointed arbitrators refuses to participate in the proceedings or refuses
to vote, the decision of the other two arbitrators shall be binding.
(d) Replacement of Arbitrator. Should any arbitrator refuse or
be unable to proceed with arbitration proceedings as called for by this Section
16.2, such arbitrator shall be replaced in the same manner by which he or she
was appointed (i.e., if a Party appointed the departing Arbitrator, that Party
would appoint his or her replacement; if the two Arbitrators appointed the
departing Arbitrator, then they would appoint his or her replacement).
(e) Place of Arbitration. The arbitration shall be held in San
Diego, California or, in the event any such arbitration is joined with
arbitration under the SNA, in Houston, TX. Such arbitration shall be handled, by
the San Diego or Houston offices, respectively, of the American Arbitration
Association for purposes of such arbitration.
(f) Conduct of Arbitration. The Arbitration Panel will allow
reasonable discovery in the forms permitted by the Federal Rules of Civil
Procedure, to the extent consistent with the purpose of the arbitration.
Recognizing the express desire of the Parties for an expeditious means of
dispute resolution, the Arbitration Panel shall limit or allow the Parties to
expand the scope of discovery as may be reasonable under the circumstances.
The arbitration hearing shall be commenced promptly and
conducted expeditiously, with each party being allocated an equal amount of time
for the presentation of its case. Unless otherwise agreed to by the Parties, an
arbitration hearing shall be conducted on consecutive days. There shall be no
transcript of the arbitration hearing. The arbitrator(s) must give effect to
legal privileges including the attorney-client privilege and the work-product
immunity.
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(g) Arbitration Award. The Arbitration Panel shall render a
binding decision within twenty (20) days following the completion of the
arbitration hearing. The award of the Arbitration Panel shall be in writing, but
shall be as brief as possible. The Arbitration Panel may assign reasons for the
award, in its discretion. The Arbitration Panel must certify in the award that
such award conforms to the terms and conditions set forth in this Agreement
(e.g., the award must comply with the parameters set forth in Article XV of this
Agreement).
(h) Binding Nature of the Arbitration Award. The arbitration
award shall be binding on the parties, and judgment thereon may be entered in
any court of competent jurisdiction, and may not be appealed except to the
extent permitted by the Federal Arbitration Act.
(i) Time of the Essence. The Arbitration Panel is instructed
that time is of the essence in the arbitration proceeding, and that the
Arbitration Panel shall have the right and authority to issue reasonable
monetary sanctions against either of the parties if, upon a showing of good
cause, that party is unreasonably delaying the proceeding. The amount of such
sanction shall be related to the additional harm, if any, caused by the delay.
(j) Expenses. The Arbitration Panel shall have the authority to
assess the costs and expenses of the arbitration proceeding (including the
arbitrators' fees and expenses) against either or both Parties. However, each
Party shall bear its own attorneys' fees and expenses, and the Arbitration Panel
shall have no authority to award attorneys' fees.
(k) Confidentiality. To the fullest extent permitted by law, the
arbitration proceedings and award shall be maintained in confidence by the
Parties.
16.3 LITIGATION.
(a) Immediate Injunctive Relief. The Parties agree that the only
circumstances in which disputes between them will not be subject to the
provisions of Sections 16.1 and 16.2 are those situations where a Party makes a
good faith determination that a breach (or potential breach) of the
confidentiality or intellectual property rights provisions of this Agreement by
the other Party may result in damages or consequences that will be immediate,
severe, and incapable of adequate redress after the fact, so that a temporary
restraining order or other immediate injunctive relief is the only adequate
remedy.
If a Party files a pleading with a court seeking immediate
injunctive relief and this pleading is challenged by the other Party and the
injunctive relief sought is not awarded, the Party filing the pleading seeking
immediate injunctive relief shall pay all of the costs and reasonable attorneys'
fees of the Party successfully challenging the pleading. If such injunctive
relief is granted, then the requirements of Sections 16.1 and 16.2 shall not
apply, and the Parties may proceed with the litigation so filed.
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(b) Jurisdiction. UNLESS THIS AGREEMENT OTHERWISE EXPRESSLY
PROVIDES, THE PARTIES CONSENT TO NON-EXCLUSIVE VENUE TO ANY DISPUTE ARISING
UNDER THIS AGREEMENT IN THE HOUSTON DIVISION OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS, OR IN A TEXAS STATE COURT OF COMPETENT
JURISDICTION LOCATED IN HARRIS COUNTY, TEXAS OR IN THE APPLICABLE FEDERAL COURTS
IN THE COUNTY OF SAN DIEGO, CALIFORNIA. The Parties further consent to the
non-exclusive jurisdiction of any state court located within a district which
encompasses assets of a Party against which a judgment has been rendered, either
through arbitration or through litigation, for the enforcement of such judgment
or award against the assets of such Party.
16.4 CONTINUED PERFORMANCE. Each Party agrees to continue performing its
obligations under this Agreement while any dispute is being resolved unless and
until such obligations are terminated by the termination or expiration of this
Agreement, provided that SAIC is continuing to pay ViaSat in accordance with
this Agreement
ARTICLE XVII: TERMINATION
17.1 TERMINATION BY SAIC FOR CAUSE. If any of the following events
occur:
(a) ViaSat materially breaches or defaults under any of its
obligations under Section 10.1, which breach or default is not substantially
cured within 30 days after written notice is given to ViaSat specifying such
default, or
(b) ViaSat breaches or defaults under any of its material duties
or obligations under this Agreement, which breach or default is (a) not
substantially cured within 30 days after written notice is given to ViaSat
specifying such default, or (b) with respect to those defaults that cannot
reasonably be cured within 30 days, ViaSat fails to (i) proceed within 30 days
to commence curing the default and thereafter to proceed with all reasonable
diligence to substantially cure the default, and/or (ii) substantially cure the
default within 60 days after written notice of the default;
Then SAIC may, by giving written notice to ViaSat, terminate
this Agreement in whole or in part, including any or all of the Services to be
provided by ViaSat, as of a date specified in the notice of termination (which
date may be up to 180 days after the date of such notice).
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17.2 TERMINATION BY VIASAT FOR CAUSE. In the event that:
(a) SAIC fails to pay ViaSat when due undisputed amounts due
under this Agreement within ninety (90) days of SAIC's receipt of a written
notice from ViaSat describing the failure to make such payment and demanding
payment therefor, or
(b) SAIC materially breaches or defaults under any of its
obligations under Section 10.1, which breach or default is not substantially
cured within 30 days after written notice is given to SAIC specifying such
default;
Then ViaSat may, by giving written notice to SAIC, terminate
this Agreement as of a date specified in the notice of termination. Upon any
such termination, ViaSat shall be obligated, if *** so requests, to continue to
provide Services directly to *** on substantially the same terms and conditions
as are set forth in this Agreement, provided that *** cures any such default.
17.3 TERMINATION FOR CONVENIENCE. SAIC may, at any time, terminate this
Agreement, in whole or in part, for any reason and for its convenience and
without cause, by giving ViaSat at least sixty (60) days prior written notice
designating the effective date of termination. If a purported termination for
cause by SAIC under Section 17.1 is determined not to be properly a termination
for cause, then such termination by SAIC shall be deemed to be termination for
convenience under this Section 17.3. In the event of ViaSat being terminated in
whole or in part for SAIC's convenience, ViaSat shall invoice SAIC and SAIC
shall pay to ViaSat, on or before the date of termination of this Agreement, the
following:
(i) The price for the Services rendered prior to the termination
date, as set forth in Schedule C or (where relevant) Schedule C-1, which
have not been paid for.
(ii) The price for Product delivered prior to the termination
date for which payment has not been received.
(iii) The price as set forth in Schedule C for all Product
scheduled for delivery within the twelve (12) calendar week period
starting on the date of receipt of notice of a termination for
convenience; provided that payment for any such Product shall become due
only upon delivery of such Product, even with respect to Product
scheduled for delivery following the termination date.
(iv) A restocking fee *** set forth on Schedule C for any
Product that is cancelled by such termination for convenience, and was
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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<PAGE> 42
scheduled for delivery after the twelve (12) calendar week period
starting on the date of receipt of a notice of termination for
convenience.
(v) For any Satellite Network Services cancelled, a charge for
the balance of the month in which the service was cancelled plus 30
days.
(vi) For cancellation of any contract for satellite band-width,
the balance owed under the current annual contract or the best
negotiated amount that ViaSat can achieve with the band-width provider.
(vii) Administrative costs for contract termination will be
***
17.4 EXTENSION OF TERMINATION EFFECTIVE DATE. If SAIC terminates this
Agreement pursuant to Section 17.1, then after SAIC establishes the effective
date for such termination, SAIC may by written notice to ViaSat extend the
effective date of termination of the Services one time, at its sole discretion,
provided that such extension shall not exceed one-hundred and eighty (180) days
following the original effective date of termination. Any such notice of
extension must be provided to ViaSat in writing prior to such then-effective
date of termination.
17.5 EFFECT OF EXPIRATION OR TERMINATION.
(a) Transition. In connection with the expiration or termination
of this Agreement for any reason other than Sections 17.2 and 17.3, ViaSat will
comply with SAIC's reasonable directions to cause the orderly transition and
migration from ViaSat to SAIC Upon mutual agreement, ViaSat will perform the
following obligations (and such other obligations as may be mutually agreed in
the Termination Transition Plan) at SAIC's expense, unless otherwise stated
below or in the Termination Transition Plan.
(i) Termination Transition Plan. SAIC and ViaSat will work
together to develop a transition plan (the "Termination Transition
Plan") setting forth the respective tasks to be accomplished by each
Party in connection with the Termination Transition and a schedule
pursuant to which such tasks are to be completed, priced and charged.
(iii) Software. Subject to SAIC's acceptance of any applicable
vendor terms and conditions, and the satisfaction of the requirements of
Section 11.3, upon SAIC's request ViaSat will transfer any Third Party
Software that SAIC identifies in such request.
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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(iv) Training. If requested by SAIC, ViaSat will provide
appropriate training for the employees of SAIC (or the Third Party
Provider) who will be assuming responsibility for operation of the
Software following the Transition Termination.
(v) Hiring of Employees. Ninety (90) days after the date of
notice of termination, SAIC may offer employment to any ViaSat employee
performing any of the Services
(vi) ***
(b) Charges. The Parties will execute a Change Order to address
any additional services to be provided by ViaSat as part of the transition, and
any charges for such services will be at commercially reasonable prices. The
Parties will negotiate in good faith to the price for such additional services.
17.6 FURTHER ASSURANCES. ViaSat agrees to execute and deliver to SAIC
all such documents, instruments and agreements and to do all such further acts
and things as may be mutually agreed to more fully to vest in, and to assure
SAIC of, all of the rights and benefits intended to be granted to or conferred
to SAIC under this Section.
17.7 EQUITABLE REMEDIES. ViaSat acknowledges that, in the event it
materially breaches (or attempts or threatens to breach materially) its
obligation to provide SAIC assistance as provided in Section 17.5, SAIC may be
irreparably harmed. In such a circumstance, notwithstanding Article XVI, SAIC
may proceed directly to court to seek relief, including injunctive relief or
other equitable remedies.
17.8 VIASAT SHALL PROVIDE TERMINATION ASSISTANCE IN GOOD FAITH. ViaSat
shall provide the required termination assistance to SAIC in good faith. ViaSat
shall not strive to impose conditions on such termination assistance that are
not expressly specified in this Agreement.
ARTICLE XVIII: INSURANCE
18.1 INSURANCE. ViaSat shall during the Term have and maintain in force
the following insurance coverages which shall be primary and non-contributing
with respect to any other insurance or self insurance which may be maintained by
SAIC. ViaSat shall use
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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<PAGE> 44
commercially reasonable efforts to cause its insurers to issue certificates of
insurance evidencing that the coverage and policy endorsements required under
this Agreement are maintained in force and that not less than thirty (30) days
written notice will be given to SAIC prior to cancellation or non-renewal of the
policies. ViaSat shall assure that its Subcontractors, if any, maintain
reasonable insurance coverage.
All insurance policies required under this Section shall be endorsed to
provide that the applicable underwriters or insurers waive any and all rights of
subrogation against SAIC, its Affiliates and their respective officers,
directors, agents, employees and other representatives.
(a) Worker's Compensation. Worker's Compensation Insurance,
including occupational illness or disease coverage, or other similar social
insurance in accordance with the laws of the nation, province, state, or
territory exercising jurisdiction over the employee and Employer's Liability
Insurance with a limit of $1,000,000 per occurrence.
(b) General Liability. Commercial General Liability Insurance,
including Contractual Liability and Broad Form Property Damage Liability
coverage for damages to any property with a combined single limit of $1,000,000
per occurrence.
(c) Automotive Liability. Automotive Liability Insurance
covering use of all owned, non-owned, and hired automobiles with a combined
single limit of $1,000,000 per occurrence for bodily injury and property damage
liability.
(d) Dishonesty. Employee Dishonesty and Computer Fraud coverage
for loss arising out of or in connection with any fraudulent or dishonest acts
committed by the employees of ViaSat, acting alone or in collusion with others,
in an amount of $200,000.
All deductibles, self-insured retentions or retrospective premium
features shall be assumed by ViaSat, for the account of ViaSat, and at ViaSat's
sole expense and risk.
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ARTICLE XIX: GENERAL
19.1 BINDING NATURE AND RESTRICTIONS ON ASSIGNMENT. This Agreement shall
be binding on the Parties hereto and their respective successors and permitted
assigns (it being understood and agreed that nothing contained in this Agreement
is intended to confer upon any other person any rights, benefits or remedies of
any kind or character whatsoever under or by reason of this Agreement). Neither
Party may, nor will it have the power to, assign this Agreement, or any part
hereof, without the prior written consent of the other. The Parties acknowledge
that either of them may become a party to one or more transactions in the form
of a merger (including a reincorporation merger), consolidation, reorganization,
stock sale or exchange, sale of all or substantially all of such Party's assets
or some similar or related transaction, in any case with the result being that
the affected Party is the surviving entity or, if the affected Party is not the
surviving entity, the surviving entity continues to conduct the business
conducted by the affected Party prior to consummation of the transaction.
No such transaction involving either Party will be deemed to be an
assignment of this Agreement requiring the consent of the other unless (i) in
the case of ViaSat being involved in such a transaction, the transaction
materially and adversely affects ViaSat's ability to continue to perform the
Services in accordance with this Agreement or (ii) in the case of SAIC involved
in such a transaction, the transaction (i) materially changes the scope of
Services as described in this Agreement, (ii) impairs ViaSat's ability to meet
the Service Levels or (iii) impacts the cost for ViaSat to perform its
obligations hereunder.
19.2 NOTICES. All notices, requests, demands, and determinations under
this Agreement (other than routine operational communications), shall be in
writing and shall be deemed duly delivered (a) when delivered by hand, (b) one
(1) day within the continental United States or three (3) days outside the
continental United States after being given to a nationally recognized
over-night delivery service with a reliable system for tracking delivery, (c)
when sent by confirmed facsimile with a copy sent by another means specified in
this Section, or (d) six (6) days after the day of mailing, when mailed by
United States mail, registered or certified mail, return receipt requested,
postage prepaid, and addressed as follows:
In the case of SAIC:
Science Applications International Corporation
4161 Campus Point Court
San Diego, California 92121
Attn: Blake C. Lawless, Vendor Management
Facsimile No.: (858)826-9351
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With a copy to:
[***]
In the case of ViaSat:
ViaSat, Inc.
2290 Cosmos Court
Carlsbad California 92009-1517
Attn: Director, Commercial Business Relations
Facsimile No.: (760)438-7310
With a copy to:
ViaSat, Inc.
2290 Cosmos Court
Carlsbad, CA 92009-1517
Attn: Vice President and Legal Counsel
Facsimile No.: 760-438-7310
A Party may from time to time change its address or designee for
notification purposes by giving the other prior written notice of the new
address or designee and the date upon which it will become effective.
19.3 GOVERNING LAW. Unless otherwise provided in this Agreement, this
Agreement and performance under it shall be governed by and construed in
accordance with the laws of the State of California, excluding any applicable
principles of conflicts of laws that would require the application of laws of
another jurisdiction. It is acknowledged that this is an international
transaction for the provision of services and the sale of goods, and the Parties
expressly elect and agree that the terms of the United Nations Convention on
Contracts for the International Sale of Goods shall not apply to this Agreement.
19.4 WAIVER OF IMMUNITY. Each of SAIC and ViaSat, on its own behalf and
on behalf of each of its Affiliates, hereby: (i) irrevocably waive all immunity
from jurisdiction, attachment, and execution, whether on the basis of
sovereignty or otherwise, to which it might otherwise be
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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<PAGE> 47
entitled in any proceeding, action or claim with respect to a dispute or
controversy hereunder, (ii) represents and acknowledges that the execution and
delivery by it of this Agreement and the performance of its obligations
thereunder are commercial activities and (iii) agrees that it will not raise or
claim any such immunity at or in respect of any such action, proceeding or
claim.
19.5 EXPORT. This Agreement is expressly made subject to any applicable
laws, regulations, orders or other restrictions regarding export from or import
to any country of hardware, software, technical data or products thereof.
Without limiting the foregoing, notwithstanding anything to the contrary in this
Agreement or other agreement, neither Party will, or be considered contractually
obligated to, directly or indirectly export (or re-export), or permit the
transshipment of, any hardware, software, technical data or products thereof (a)
to any country or destination for which requires an export license or other
approval for export without first having obtained such license or other approval
or (b) otherwise contrary to applicable law. Each party will reasonably
cooperate with the other and will provide to the other promptly upon request any
end-user certificates, affidavits regarding re-export or other certificates or
documents as are reasonably requested to obtain any approvals, consents,
licenses and/or permits required for any payment or any export or import of
products or services under this Agreement.
19.6 EXPENSES. Except as otherwise expressly provided by this Agreement,
each Party shall pay all fees and expenses incurred by it in connection with the
negotiation and execution of this Agreement.
19.7 RELATIONSHIP OF PARTIES. ViaSat, in furnishing services to SAIC
hereunder, is acting as an independent contractor, and ViaSat has the sole right
and obligation to supervise, manage, contract, direct, procure, perform or cause
to be performed, all work to be performed by ViaSat under this Agreement. SAIC
shall not control, and shall have no right to control, the methods and means
that ViaSat employs to carry out its responsibilities and obligations under this
Agreement. ViaSat is not an agent of SAIC and has no authority, express or
implied, to represent or bind SAIC as to any matters, except as expressly
authorized in this Agreement. SAIC and ViaSat are not partners or venturers with
each other and this Agreement will not be construed to create any other form of
legal association that would impose liability on one Party for the act or
failure of the other or as providing either Party with the right, power or
authority (express or implied) to create any duty or obligation of the other.
19.8 SEVERABILITY. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by an arbitrator or a court with jurisdiction
over the Parties, such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law. The remainder of this Agreement shall remain in full force and
effect.
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19.9 CONSENTS AND APPROVAL. Except where expressly provided as being in
the sole discretion of a Party, where agreement, approval, acceptance, consent,
or similar action by either Party is required under this Agreement, such action
shall not be unreasonably delayed or withheld, and in any event such action
shall not be delayed more than 10 business days. For purposes of the foregoing,
except as and to the extent otherwise expressly provided in such approval or
consent, an approval or consent given by a Party under this Agreement shall not
relieve the other Party from responsibility for complying with the requirements
of this Agreement, nor shall it be construed as a waiver of any rights under
this Agreement.
19.10 WAIVER OF DEFAULT; CUMULATIVE REMEDIES. A delay or omission by
either Party hereto to exercise any right or power under this Agreement shall
not be construed to be a waiver thereof. A waiver by either of the Parties
hereto of any of the covenants to be performed by the other or any breach
thereof shall not be construed to be a waiver of any succeeding breach thereof
or of any other covenant herein contained. Except as otherwise expressly
provided herein, all remedies provided for in this Agreement shall be cumulative
and in addition to and not in lieu of any other remedies available to either
Party at law, in equity or otherwise.
19.11 SURVIVAL. Termination or expiration of this Agreement or the
Services to be provided hereunder shall not release either party from any
liabilities or obligations set forth in this Agreement which (i) the Parties
have expressly agreed shall survive any such termination or expiration or (ii)
remain to be performed or by their nature would be intended to be applicable
following such termination or expiration.
19.12 MEDIA RELEASES. All media releases, public announcements, and
public disclosures by either Party relating to this Agreement or the subject
matter of this Agreement, including without limitation, promotional or marketing
material, but not including announcements intended solely for internal
distribution or to meet legal or regulatory requirements beyond the reasonable
control of the disclosing Party, shall be coordinated with and approved by the
other Party prior to release. This Section does not alter the restrictions on
the disclosure of Confidential Information set forth in Section 10.1 and,
subject to Section 10.1, will not be construed so as to delay or restrict either
Party from disclosing any information required to be disclosed in order to
comply with any applicable law, rule or regulation.
19.13 THIRD PARTY BENEFICIARIES. HES shall be a third party beneficiary
to this Agreement. This Agreement is entered into solely between ViaSat and
SAIC; and this Agreement shall not be deemed to create any rights in third
parties (other than HES who may enforce the terms hereof for its benefit,
subject to the obligations hereof), including employees, or customers of a
Party, or to create any obligations of a Party to any third parties (other than
HES).
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19.14 COVENANT OF GOOD FAITH. Each Party agrees that, in its respective
dealings with the other Party or its Affiliates under or in connection with this
Agreement, it shall act in good faith.
19.15 COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which taken together shall constitute one single agreement
between the Parties hereto.
19.16 ENTIRE AGREEMENT. The parties agree that this Agreement, including
all documents incorporated herein by reference, shall constitute the entire
agreement and understanding between the parties hereto and shall supersede and
replace any and all prior or contemporaneous representations, agreements or
understandings of any kind, whether written or oral, relating to the subject
matter hereof.
19.17 PUBLIC FILINGS. SAIC and HES shall have the right to review and
approve the form of, subject to the government's final determination, and
require that ViaSat seek confidential treatment with respect to confidential
portions of, any public filing of this Agreement or summary thereof.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
VIASAT, INC.
By: /s/ Andy Paul
Title: Vice President,
Business Development
SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION
By: /s/ Jerry S. Sampson
Title: Subcontracts Manager
Page 45
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE VIASAT,
INC. FINANCIAL STATEMENTS FOR THE SIX MONTHS ENDED SEPTEMBER 30, 1999 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS INCLUDED IN
FORM 10-Q.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-31-2000
<PERIOD-START> APR-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 12,482
<SECURITIES> 6,206
<RECEIVABLES> 21,229
<ALLOWANCES> 0
<INVENTORY> 3,142
<CURRENT-ASSETS> 45,968
<PP&E> 14,737
<DEPRECIATION> 8,854
<TOTAL-ASSETS> 52,646
<CURRENT-LIABILITIES> 10,008
<BONDS> 0
0
0
<COMMON> 81
<OTHER-SE> 40,757
<TOTAL-LIABILITY-AND-EQUITY> 52,646
<SALES> 34,052
<TOTAL-REVENUES> 34,052
<CGS> 19,267
<TOTAL-COSTS> 19,267
<OTHER-EXPENSES> 9,261
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (390)
<INCOME-PRETAX> 5,914
<INCOME-TAX> 2,305
<INCOME-CONTINUING> 3,609
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,609
<EPS-BASIC> .45
<EPS-DILUTED> .44
</TABLE>
