Exhibit 10.61
Dated 24 September 2004
XXXXXXXXX INTERNATIONAL LIMITED
and
XXXXXXXXX TELECOMMUNICATIONS INTERNATIONAL LIMITED
IPR FRAMEWORK AGREEMENT
Linklaters
00xx Xxxxx, Xxxxxxxxx Xxxxx
Xxxxxx Xxxx
Xxxx Xxxx
Telephone (000) 0000 0000
Facsimile (000) 0000 0000/2810 1695
Ref BYYH/L-069967-05-009
This Agreement is made on 24 September 2004 between:
(1) Xxxxxxxxx International Limited, a company incorporated in Hong Kong,
whose registered office is at 00xx Xxxxx, Xxxxxxxxx Xxxxx, 00 Xxxxxxxx
Xxxx, Xxxx Xxxx ("HIL"); and
(2) Xxxxxxxxx Telecommunications International Limited, a company
incorporated in the Cayman Islands, whose principal place of business is
at 18th Floor, Two Harbourfront, 00 Xxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx,
Xxxx Xxxx ("HTIL").
WHEREAS:
(A) Certain members of the Retained Group are the legal and/or beneficial
owners and/or licensees of certain IPR in relation to the
telecommunications business and operations of the relevant members of
the Group.
(B) HIL has agreed to procure that the relevant members of the Retained
Group shall grant appropriate licences to the Operating Companies in
relation to the use of the IPR by the Operating Companies.
It is agreed as follows:
1 INTERPRETATION
1.1 DEFINITIONS
"Effective Date" means the date of listing of shares of HTIL on
the Stock Exchange and/or New York Stock Exchange, Inc or the
date the first of the Specific Licensing Agreements is entered
into, whichever is the earlier;
"Group" means HTIL and its subsidiaries;
"HWL" means Xxxxxxxxx Whampoa Limited, a company incorporated in
Hong Kong and the ultimate holding company of HIL, whose shares
are listed on the Main Board of the Stock Exchange;
"IPR" or "Intellectual Property Rights" means trade marks,
service marks, trade names, domain names, logos, get-up,
patents, inventions, registered and unregistered design rights,
copyrights, semi-conductor topography rights, database rights
and all other similar rights in any part of the world (including
Know-how) including, where such rights are obtained or enhanced
by registration, any registration of such rights and
applications and rights to apply for such registrations;
"Know-how" means confidential industrial and commercial
information and techniques in any form including without
limitation drawings, formulae, test results, reports, project
reports and testing procedures, instruction and training
manuals, tables of operating conditions, market forecasts, lists
and particulars of customers and suppliers;
"Prospectuses" means the prospectuses as filed with the Stock
Exchange and/or New York Stock Exchange, Inc in respect of the
listing of shares of HTIL;
"Operating Companies" means operating companies in the Group as
set out in Schedule 1, as amended from time to time by HTIL;
"Retained Group" means HWL and its subsidiaries (excluding the
Group);
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"Specific Licensing Agreements" means agreements in relation to
the licensing arrangements of specific IPR in specific
territory(ies) entered into or to be entered into from time to
time between the relevant members of the Retained Group and the
Operating Companies, as may be amended from time to time; and
"Stock Exchange" means The Stock Exchange of Hong Kong Limited.
1.2 SINGULAR AND PLURAL
References to the singular include the plural and vice versa.
1.3 RECITALS, CLAUSES AND SCHEDULES
References to this Agreement include its Recitals and Schedules
and references to Recitals, Clauses and Schedules are to
Recitals, Clauses and Schedules of this Agreement.
1.4 INFORMATION
References to books, records or other information mean books,
records or other information in any form including paper,
electronically stored data, magnetic media, film and microfilm.
1.5 HEADINGS
Headings shall be ignored in construing this Agreement.
2 HIL PROCUREMENT OBLIGATION
2.1 Subject to Clause 2.3, HIL shall procure that the relevant
members of the Retained Group, being the legal and/or beneficial
owners and/or licensees of the relevant IPR, shall enter into
Specific Licensing Agreements with Operating Companies in
respect of the use of the relevant IPR in connection with their
telecommunications operations in the relevant territory(ies),
but only to the extent that (i) such members have rights to
grant such rights of use to the relevant IPR and (ii) such IPR
is reasonably required for such Operating Companies to operate
their telecommunications businesses in the same manner as
immediately prior to listing of shares of HTIL. The IPR licences
to the Operating Companies shall be granted on a royalty free
basis, until the relevant change of control provisions agreed
between the relevant Operating Companies and the relevant
member(s) of the Retained Group in the Specific Licensing
Agreements are triggered..
2.2 For the avoidance of doubt, unless restricted or prohibited in
accordance with the provisions of the Specific Licensing
Agreements, the relevant members of the Retained Group may,
during the term of this Agreement or any Specific Licensing
Agreement, themselves exercise and/or grant licences to third
parties to exercise the rights granted or to be granted to the
relevant Operating Companies under Clause 2.1, provided such
exercise and/or grant does not affect the relevant Operating
Companies' rights to use the IPR in accordance with the terms
and conditions of the Specific Licensing Agreements.
2.3 The procurement obligation in Clause 2.1 shall not apply to an
Operating Company, where a Specific Licensing Agreement has been
entered into with such Operating
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Company and that Specific Licensing Agreement has been
terminated in accordance with the terms and conditions thereof.
3 DUTY OF HTIL
Unless otherwise provided for in the Specific Licensing Agreements, HTIL
shall use its best endeavours to procure that the relevant Operating
Companies shall comply with the terms and conditions of the applicable
Specific Licensing Agreements.
4 REPRESENTATIONS AND WARRANTIES
Each party represents and warrants to the other party that:
4.1 it has full authority, power and capacity to enter into and
carry out its obligations under this deed;
4.2 all necessary acts and things have been taken or done to enable
it lawfully to enter into and carry out its obligations under
this deed; and
4.3 when executed, this deed will create obligations which are valid
and binding on it and enforceable in accordance with their
terms.
5 TERM AND TERMINATION
5.1 The term of this Agreement shall commence on the Effective Date
and shall continue until terminated in accordance with the
provisions of this Agreement.
5.2 This Agreement shall terminate upon the termination of the
Non-Competition Agreement between HWL and HTIL.
5.3 Each party may terminate this Agreement immediately by notice to
the other party if the other party commits a breach of its
obligations under this Agreement and, if it is a breach capable
of remedy, fails to remedy the breach within sixty (60) days of
receipt of a notice from the other party specifying the breach
and requiring its remedy.
5.4 HIL may terminate this Agreement immediately by notice if HTIL:
5.4.1 becomes insolvent, is adjudicated bankrupt or compounds
with or makes any arrangement with or makes a general
assignment for the benefit of its creditors;
5.4.2 compulsorily or voluntarily enters into liquidation,
except for the purposes of a bona fide reconstruction or
amalgamation; or
5.4.3 has a receiver or manager appointed over the whole or a
substantial part of its undertakings or assets.
5.5 Clauses 5.5, 5.6 and 6 to 14 shall survive termination of this
Agreement.
5.6 The termination of this Agreement shall not affect the Specific
Licensing Agreements which shall remain in full force and effect
in accordance with the terms and conditions therein. For the
avoidance of doubt, the term, events of termination and effects
of termination of the Specific Licensing Agreements are as set
out in the relevant Specific Licensing Agreements.
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6 CONFIDENTIALITY
If, pursuant to this Agreement or any Specific Licensing Agreement, a
party or any of its subsidiaries receives confidential or proprietary
information supplied by or relating to that party and/or it
subsidiaries, that party shall keep and shall use its best endeavours to
procure that its relevant subsidiaries shall keep the same confidential
and in accordance with the provisions of the relevant Specific Licensing
Agreement (to the extent applicable).
7 WHOLE AGREEMENT
This Agreement contains the whole agreement between the parties relating
to the subject matter of this Agreement.
8 SEVERANCE
If any provision in this Agreement shall be held to be illegal, invalid
or unenforceable, in whole or in part in any jurisdiction, under any
enactment or rule of law, such provision or part shall to that extent,
in such jurisdiction, be deemed not to form part of this Agreement but
the legality, validity and enforceability of the remainder of this
Agreement shall not be affected.
9 FURTHER ASSURANCE
At any time after the Effective Date of this Agreement, each party
shall, and shall procure that its subsidiaries and any necessary third
party shall, at their own cost or the cost of the relevant third party,
as the case may be, execute such documents and do such acts and things
as the other party or its subsidiaries may reasonably require for the
purpose of giving effect to the provisions of this Agreement.
10 VARIATION/WAIVER
10.1 No variation of this Agreement shall be effective unless in
writing and signed by or on behalf of each of the parties.
10.2 No delay or forbearance by either party in exercising any right
or remedy arising under this Agreement shall operate as a waiver
of it, nor shall any single or partial exercise of any right or
remedy preclude any other or further exercise of it or the
exercise of any other right or remedy.
11 NOTICES
11.1 Any notice given under this Agreement shall be in writing and
may be delivered to the relevant party or sent by recorded
delivery or fax to the address or fax number stated in this
Agreement or to such other address or fax number as may be
notified by that party for this purpose, and shall be effective
notwithstanding any change of address or fax number not
notified.
If to HIL:
00xx Xxxxx, Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxx, Xxxx Xxxx
Tel. No. (000) 0000 0000
Fax No. (000) 0000 0000
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Attn. Company Secretary
If to HTIL:
18th Floor, Two Harbourfront, 00 Xxx Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxx, Xxxx Xxxx
Tel. No. (000) 0000 0000
Fax No. (000) 0000 0000
Attn. Company Secretary
With a copy to HWL:
00xx Xxxxx, Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxx, Xxxx Xxxx
Tel. No. (000) 0000 0000
Fax No. (000) 0000 0000
Attn. Company Secretary
11.2 Unless proved otherwise, a notice shall be deemed to have been
given, if sent by letter, 48 hours after the date of posting,
and if delivered or sent by fax during the hours of 9.00 a.m. to
6.00 p.m., when left at the relevant address or transmitted (as
applicable), and otherwise on the next working day.
12 GOVERNING LAW AND SUBMISSION TO JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of England and Wales. With respect to any dispute or difference
arising out of under or in connection with this Agreement, the parties
hereby submit to the exclusive jurisdiction of the English courts.
13 THIRD PARTY RIGHTS
A person who is not a party to this Agreement shall have no rights under
the Contracts (Rights of Third Parties) Xxx 0000 to enforce any of its
terms.
14 COUNTERPARTS
This Agreement may be entered into in any number of counterparts, all of
which taken together shall constitute one and the same instrument. Any
party may enter into this Agreement by executing any such counterpart.
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SCHEDULE
Operating Companies
1. Xxxxxxxxx 3G HK Limited
2. Xxxxxxxxx 3G Services (HK) Limited
3. Xxxxxxxxx Telephone Company Limited
4. Xxxxxxxxx Telephone (Macau) Company Limited
5. Xxxxxxxxx Telecommunications Services Limited
6. Xxxxxxxxx Global Communications Holdings Limited
7. Xxxxxxxxx Global Communications Limited
8. Xxxxxxxxx Multimedia Services Limited
9. Xxxxxxxxx GlobalCenter Limited
10. Xxxxxxxxx CAT Wireless MultiMedia Limited
11. Xxxxxxxxx Wireless Multimedia Holdings Limited
12. Xxxxxxxxx Multimedia Services (Thailand) Limited
13. Xxxxxxxxx Telecommunications (Thailand) Co Limited
14. Xxxxxxxxx Telecommunications Lanka (Private) Limited
15. Xxxxxxxxx Telecom East Limited
16. Aircel Digilink India Limited
17. Fascel Limited
18. Xxxxxxxxx Essar Telecom Limited
19. Xxxxxxxxx Essar South Limited
20. Xxxxxxxxx Xxx Telecom Private Limited
21. Kasapa Telecom Limited
22. Xxxxxxxxx Telecommunications Paraguay S.A.
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IN WITNESS whereof this Agreement has been executed as a deed on the date stated
at the beginning.
SIGNED as a DEED by )
for and on behalf of ) [Common Seal]
XXXXXXXXX INTERNATIONAL )
LIMITED in the presence of: )
/s/ Xxxxx Xxxx
/s/ Xxxxx Xxxx
SIGNED as a DEED by )
for and on behalf of ) [Common Seal]
XXXXXXXXX TELECOMMUNICATIONS )
INTERNATIONAL LIMITED )
in the presence of: )
/s/ Xxxxx Xxxx
/s/ Xxxxx Xxxx
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