PATENT LICENSE AGREEMENT
FOR PEGASUS DEVELOPMENT CORPORATION
This Agreement is made this 13th day of January 2000 by and between:
PMC SATELLITE DEVELOPMENT, L.L.C., a limited liability company
organized and existing under the laws of the State of Delaware, United States of
America and having a principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter "LICENSOR"), and
PEGASUS DEVELOPMENT CORPORATION, a subsidiary of PEGASUS Communications
Corporation ("PCC"), a corporation organized and existing under the laws of the
State of Delaware and located c/o Pegasus Communications Management Company, ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter "PEGASUS" or
"LICENSEE");
RECITALS
LICENSOR is the exclusive licensee under that certain Patent License
Agreement dated January 13, 2000 ("PMC SATELLITE LICENSE") for a specified
FIELD OF USE as to certain issued patents and patent applications pending in the
United States and foreign countries relating to, among other things,
personalized interactive broadcast media which are assigned to Personalized
Media Communications, L.L.C., a limited liability company organized and existing
under the laws of the State of Delaware and having a principal place of business
at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("PMC"). The
currently issued United States patents and any patents issuing from any pending
United States and foreign patent applications assigned to PMC and exclusively
licensed to LICENSOR are further identified below and are referred to herein as
the SUBJECT PATENTS.
LICENSEE desires to acquire an exclusive sublicense under the SUBJECT
PATENTS, including any patents issuing after the date of this Agreement, for the
FIELD OF USE, with a right to sublicense such patents and subject to certain
conditions in prior licenses as recited below.
LICENSOR has the right to grant the exclusive sublicense described
herein to LICENSEE under the SUBJECT PATENTS, including any patent issuing after
the date of this Agreement, within the FIELD OF USE, and is willing to do so on
the terms and conditions recited in this Agreement.
NOW, THEREFORE, LICENSOR and LICENSEE agree as follows.
In addition to the terms appearing in bold type above, other terms
appearing in bold type are defined in Article 8 of this Agreement.
ARTICLE 1. LICENSE GRANT
1.01 LICENSOR hereby grants to LICENSEE, during the term of this
Agreement, an exclusive sublicense to use the inventions disclosed and claimed
in the SUBJECT PATENTS within the FIELD OF USE including the right to grant
sublicenses on the conditions specified herein. The license granted herein is
subject to rights granted in the prior field-of-use licenses issued to (1) The
Weather Channel, Inc. for the delivery of weather information under the Patent
License Agreement for Lanmark Communications, Inc. and The Weather Channel, Inc.
dated January 31, 1996 and (2) to StarSight Telecast Inc. ("STARSIGHT") for the
delivery of schedule information under the Patent License Agreement for
StarSight Telecast Inc. dated March 2, 1994 ("STARSIGHT LICENSE"), only if such
StarSight license exists.
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Notwithstanding the foregoing, in the event that PMC or an AFFILIATE(s)
(i) assigns any of the SUBJECT PATENTS to any person or entity, (ii) accepts an
equity investment of $1 million or more from any person or entity (other than
its existing interest holders or LICENSEE or its AFFILIATES) , (iii) engages in
any transaction resulting in a change of control of PMC, (iv) licenses or
sublicenses inventions disclosed in the SUBJECT PATENTS to STARSIGHT or any
entity AFFILIATED with STARSIGHT (STARSIGHT and its AFFILIATES collectively
being referred to as "STARSIGHT AFFILIATES") for a field of use other than that
described in the STARSIGHT LICENSE or (v) settles its outstanding disputes with
STARSIGHT, then PMC will, or will cause its AFFILIATE(s) to, obligate in writing
any party to the foregoing transactions to: (i) if the party is a STARSIGHT
AFFILIATE, not ▇▇▇ LICENSEE and its SUBLICENSEES and their AFFILIATES for
infringement of the SUBJECT PATENTS within the field of use licensed to
STARSIGHT under the STARSIGHT LICENSE, if such license exists; (ii) if the party
is not a STARSIGHT AFFILIATE, agree to cause STARSIGHT not to ▇▇▇ LICENSEE and
its SUBLICENSEES and their AFFILIATES for infringement of the SUBJECT PATENTS
within the field of use licensed to STARSIGHT under the STARSIGHT LICENSE, if
such license exists, in the event that such party becomes a STARSIGHT AFFILIATE
or engages in an intellectual property licensing transaction with a STARSIGHT
AFFILIATE.
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1.02 In furtherance of the sublicense granted herein, LICENSOR agrees
to and will require PMC to furnish to LICENSEE all information requested by
LICENSEE concerning the issued patents identified in Schedule A attached hereto
and any subsequent patent which issues from the pending patent applications
identified in Schedule B attached hereto; as well as all manufacturing and
technical information requested by LICENSEE concerning or pertaining to the use
of the inventions disclosed and/or claimed in those patents and pending patent
applications within the FIELD OF USE, which manufacturing and technical
information is in PMC's possession at the time of such request.
1.03 No provision in this Agreement shall be deemed to prevent LICENSOR
and LICENSEE from entering into other agreements with PMC involving the SUBJECT
PATENTS for activities or products other than those expressly set forth in the
FIELD OF USE as defined in this Agreement.
1.04 LICENSOR warrants and represents that it has obtained from PMC and
hereby conveys to LICENSEE covenants from PMC not to ▇▇▇ LICENSEE and the
CONSUMERS who subscribe to any of LICENSEE's or its AFFILIATES' services for any
of the following: (i) the COMMUNICATION of any infringing PROGRAMMING SERVICES
within the FIELD OF USE and the use by CONSUMERS who subscribe to LICENSEE's or
its AFFILIATES' services of such PROGRAMMING SERVICES, (ii) the combination by a
RECEIVER at a CONSUMER's location of PROGRAMMING SERVICES delivered by any means
outside the FIELD OF USE with PROGRAMMING SERVICES delivered within the FIELD OF
USE, but only if such combination is made independent of any service provided by
LICENSEE or its AFFILIATES other than PROGRAMMING SERVICES within the FIELD OF
USE, or (iii) any sale or provision of infringing RECEIVERS by LICENSEE or its
AFFILIATES or their agents or dealers or use of such infringing RECEIVERS, when
such RECEIVERS are principally intended for receipt of PROGRAMMING SERVICES
delivered by LICENSEE or its AFFILIATES to such RECEIVERS within the FIELD OF
USE. Further, LICENSOR warrants and represents that it has obtained from PMC and
hereby conveys to LICENSEE the authority from PMC for LICENSEE, as agent for
PMC, to grant to any party sublicensed by LICENSEE under this Agreement the
covenants not to ▇▇▇ specified above, provided that such covenants not to ▇▇▇
are construed as though any such party sublicensed is LICENSEE, and LICENSOR
agrees to require PMC to be bound by such specified covenants granted by
LICENSEE. This provision shall, in no way, be construed as an implied license
for the creators, programmers or distributors of infringing PROGRAMMING
SERVICES, CONSUMERS who combine licensed PROGRAMMING SERVICES with infringing
signals or program content, or the manufacturers of infringing RECEIVERS to make
or sell any invention disclosed and claimed in the SUBJECT PATENTS.
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ARTICLE 2. LICENSE FEES
2.01 In consideration of the license granted hereunder, LICENSEE shall
pay to LICENSOR (a) ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($100,000) twelve
months after the EFFECTIVE DATE, (b) ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars
($100,000) twenty-four months after the EFFECTIVE DATE and (c) ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($100,000) thirty-six months after the EFFECTIVE
DATE.
2.02 PMC may, pursuant to this Agreement, designate one person to serve
on PCC's Board of Directors ("DIRECTOR DESIGNATION RIGHT"). The DIRECTOR
DESIGNATION RIGHT shall terminate upon the first to occur of the following: (i)
termination of this Agreement or the commencement of litigation by one of the
parties to this Agreement against the other relating to the respective party's
rights and/or obligations under this Agreement; (ii) PMC's designee commits a
breach of fiduciary duty to PCC; (iii) PMC or PMC's designee or AFFILIATES
commits a material violation of any federal or state securities law in
connection with the purchase or sale of any of PCC's securities; and (iv) PMC
disposes of 50 percent or more of its holdings of PCC Class A Common Stock,
measured on a fully diluted basis taking into consideration all of PCC Class A
Common Stock and warrants to purchase PCC Class A Common Stock owned by PMC as
of the EFFECTIVE DATE.
-5-
ARTICLE 3. ENFORCEMENT
3.01 LICENSEE shall have the right to enforce the SUBJECT PATENTS in
its own name against any person operating in the FIELD OF USE. Any enforcement
action brought under this provision shall be conducted in consultation with PMC
and LICENSOR and at LICENSEE'S sole expense. LICENSOR shall, and shall require
PMC to, use reasonable best efforts to cooperate to the extent feasible with
LICENSEE in any such enforcement action. LICENSOR shall, and shall require PMC
to, execute upon request by LICENSEE all documents and take all other actions,
including joining as a party, to the extent reasonably necessary to enforce any
SUBJECT PATENT under this provision. PMC will be reimbursed for the reasonable
time of its employees and its reasonable expenses which result from such
cooperation, including any litigation costs resulting from becoming a party to
any action (except for litigation costs relating to PMC's claims for
infringements outside the FIELD OF USE that may be pursued in conjunction with
LICENSEE's claims for infringements within the FIELD OF USE). If LICENSEE
enforces the SUBJECT PATENTS in the FIELD OF USE, LICENSEE shall receive all
proceeds and benefits from such enforcement action to the extent that the
revenue and other benefits from such enforcement proceeding relates to
infringement in the FIELD OF USE (even if PMC and LICENSOR cooperate in such
enforcement, by joining as parties or otherwise). [omitted and filed separately
with the Commission]
3.02 If, under this Agreement, LICENSEE or any SUBLICENSEE is
obligated to make any payment to LICENSOR or PMC under Exhibit 7.01 to this
Agreement or the Option Agreement executed by PMC and PEGASUS concurrently
herewith, LICENSEE or any such SUBLICENSEE shall keep and make available to PMC
on reasonable notice sufficient records to allow PMC to determine that such
payment is proper and complete. LICENSEE shall ensure that any SUBLICENSEE is
obligated to keep and make available records as required by this Section 3.02.
During the term of this Agreement and for two years following the termination or
expiration of this Agreement, LICENSEE and any SUBLICENSEE shall permit its
records to be inspected to determine the correctness of the computation of any
payments made hereunder. Such inspections shall be during reasonable business
hours and on reasonable notice to LICENSEE and any such SUBLICENSEES and shall
be conducted by an auditor designated by PMC and acceptable to LICENSEE or such
SUBLICENSEES. The acceptance by LICENSEE and any such SUBLICENSEE of such
auditor designated by PMC shall not be unreasonably withheld. The auditor shall
report to PMC the amount of any payments and the basis upon which it was
determined. If the payments made in any payment period are found to have been
understated by ten percent (10%) or more, LICENSEE or any such SUBLICENSEE shall
reimburse PMC for its costs and expenses incurred in having the inspection
conducted.
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ARTICLE 4. WARRANTIES AND LIABILITY
4.01 LICENSOR represents and warrants that it owns an exclusive license
in the SUBJECT PATENTS for the FIELD OF USE and the inventions disclosed and/or
claimed therein, and that it has the right to grant the license granted to
LICENSEE pursuant to this Agreement, including all requirements for PMC to act
on behalf of LICENSOR.
4.02 Nothing in this Agreement shall be construed as:
(a) a warranty or representation by LICENSOR or PMC as to the
validity or scope of any of the SUBJECT PATENTS;
(b) a warranty or representation by LICENSOR or PMC that any
manufacture, use, lease, or sale of any product does not or will not infringe
patents, copyrights, industrial design rights or other proprietary rights owned
or controlled by third parties. LICENSOR or PMC shall not be liable to LICENSEE
directly or as an indemnitor of (i) LICENSEE, (ii) LICENSEE'S sublicensees or
(iii) customers of LICENSEE'S sublicensees as a consequence of any alleged
infringement of any such third party patents, copyrights, industrial design
rights or other proprietary rights;
(c) a requirement that LICENSOR or PMC shall file any patent
applications, secure any patent, or maintain any patent in force.
Notwithstanding the foregoing, LICENSOR shall require PMC to use its reasonable
best efforts to prosecute the pending patent applications set out in Schedule B
hereto. However, PMC shall have the sole discretion to abandon any application
set out in Schedule B as is, in its opinion, unnecessary to claim fully the
inventions disclosed in such applications;
(d) an obligation to bring or prosecute actions or suits against third
parties for infringement of any patent, except as otherwise set forth in Section
3.01; or
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(e) granting by implication, estoppel or otherwise, any license or
rights under patents other than the SUBJECT PATENTS.
4.03 In no event shall LICENSOR have any liability, in contract, tort
or otherwise, arising out of or in any way connected with this Agreement to pay
or return to LICENSEE royalties paid or accrued hereunder by LICENSEE to
LICENSOR.
ARTICLE 5. TERM AND TERMINATION
5.01 Unless terminated earlier under a provision of this Article 5, the
license granted to LICENSEE under this Agreement shall extend from the EFFECTIVE
DATE to the date of expiration of the last to expire of the SUBJECT PATENTS.
5.02 LICENSOR may terminate the license granted to LICENSEE under this
Agreement
(a) for material breach by LICENSEE at any time of any duty to make
required payments required by Exhibit 7.01 or the Option Agreement executed
concurrently herewith or to ▇▇▇▇ RECEIVERS as required by Section 7.02, upon
thirty (30) days written notice to LICENSEE identifying such breach; provided,
however, that if LICENSEE satisfactorily remedies such breach within the thirty
(30) days after receiving notice of breach, then the license granted herein by
LICENSOR to LICENSEE shall not terminate;
(b) upon bankruptcy of PEGASUS or PCC if, at the time of such
bankruptcy, any further payments to LICENSOR of any kinds may be due from
LICENSEE; and
(c) upon dissolution of PEGASUS.
5.03 Any provision herein notwithstanding, LICENSEE may terminate this
Agreement at any time by giving PMC at least thirty (30) days prior written
notice. Upon such termination, all rights of LICENSEE and LICENSOR under this
Agreement cease to have force and effect.
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5.04 Notwithstanding Section 5.03, termination of this Agreement for
any reason shall not release either party hereto from any liability which at the
time of such termination has already accrued to the other party. In the event
this Agreement is terminated for any reason, any sublicense granted by LICENSEE
hereunder shall survive with PMC as licensor and any rights of LICENSEE as
licensor of any such sublicense shall accrue to PMC.
ARTICLE 6. NOTICES
Notices, reports and communications hereunder shall be deemed to have
been sufficiently given if in writing and sent by overnight delivery service or
registered mail, postage prepaid to the other party at the address given below.
Until further notice, all notices shall be addressed as follows:
If from LICENSOR to LICENSEE:
Pegasus Development Corporation
c/o Pegasus Communications Management Company
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President and Chief
Executive Officer
With a copy to: ▇▇▇ ▇. Lodge, Senior Vice President,
Chief Administrative Officer and General Counsel
If from LICENSEE to LICENSOR
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior Vice President
PMC Satellite Development L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Each party may change such address by written notice to the other party.
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ARTICLE 7. MISCELLANEOUS PROVISIONS
7.01 Sublicenses; Assignment; Changes of Control. (a) (i) LICENSEE may,
at its sole expense, grant sublicenses under the SUBJECT PATENTS within the
FIELD OF USE. (ii) LICENSEE may assign this Agreement in whole or in part, by a
transfer of control of LICENSEE or otherwise, without the prior written consent
of LICENSOR, provided that the assignee expressly assumes all obligations of
LICENSEE under this Agreement by a writing delivered to LICENSOR. Any such
assignment will be conditioned on the requirements set forth in Exhibit 7.01
hereto. LICENSOR may assign this Agreement, in whole or in part, by transfer of
control of LICENSOR or otherwise, with the prior written consent of LICENSEE,
provided that assignee expressly assumes all the obligations of LICENSOR under
this Agreement by a writing delivered to LICENSEE. (iii) In the event of any
sublicenses, assignments and changes of control set forth in Exhibit 7.01
attached hereto, LICENSEE shall be obligated to pay the additional consideration
and satisfy the other obligations, all as set forth in Exhibit 7.01. (b)
LICENSEE agrees that the right of LICENSOR or PMC to receive the consideration
as set forth in Exhibit 7.01 and to exercise the designation rights therein may
be assigned separately by LICENSOR to any of PMC's AFFILIATES without the
necessity of LICENSOR assigning the entire Agreement, provided that such rights
are still governed by the terms and conditions of this Agreement.
7.02 Marking. LICENSEE shall clearly and indelibly ▇▇▇▇ the packaging
of any apparatus provided or sold to CONSUMERS by LICENSEE or sublicensees under
this Agreement which embodies the inventions disclosed and claimed in the
SUBJECT PATENTS with the words "Licensed to Patent" (or "Patents") and the
number of the SUBJECT PATENTS applicable to such apparatus. LICENSEE and PMC
shall review together the functionality of such apparatus to determine the
SUBJECT PATENTS applicable, if any. LICENSEE shall require all SUBLICENSEES to
be bound by this marking provision.
7.03 Agency. Except as provided in Paragraphs 1.04 and 3.01 above,
LICENSOR and LICENSEE agree and stipulate that neither LICENSEE nor LICENSOR
shall be construed as acting as an agent or representative of the other or PMC
in any dealings which either party may have with any other person, firm or
corporation and that neither LICENSEE nor LICENSOR has any power to act for or
legally bind the other or PMC in any transaction. This Agreement shall not be
construed as any form of joint venture or partnership between LICENSEE and
LICENSOR.
7.04 APPLICABLE LAW. THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS
AND LIABILITIES OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
7.05 Severability. The terms and conditions of this Agreement are
severable. If any condition of this Agreement is found to be illegal or
unenforceable under any rule of law, all other terms shall remain in force.
Further, the term or condition which is held to be illegal or unenforceable
shall remain in effect as far as possible in accordance with the intention of
the parties.
7.06 Costs and Attorneys' Fees. In the event it is necessary for either
party to commence legal proceedings against the other to enforce this Agreement,
or to collect amounts due hereunder, the prevailing party will be entitled to
recover from the losing party its reasonable costs of suit and collection,
including attorneys' fees.
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7.07 Entire Agreement. This Agreement constitutes the complete and
exclusive statement of the agreement between LICENSOR and LICENSEE with respect
to the subject matter hereof. There are no understandings, representations or
warranties of any kind, oral or written, express or implied, with respect to the
subject matter indicated above, except as expressly set forth herein. Failure by
either party to enforce any provision of this Agreement shall not be deemed a
waiver of that provision or of any other provision of this Agreement. Any claim
of waiver of any right, obligation, term or condition of this Agreement and any
claim that any provision of this Agreement has been modified or amended shall be
null and void unless such waiver, modification or amendment is made in writing
and signed by authorized representatives of both LICENSEE and LICENSOR.
7.08 Confidentiality. The parties hereto agree that they will keep the
terms of this Agreement confidential, and neither of the parties shall disclose
such terms to any third party without prior written consent of the other party,
except (i) as required by federal and state securities law (as determined by
independent counsel to the party required to make such disclosure), (ii) in
connection with a judicial or administrative proceeding or other filing with an
administrative agency, (iii) to professional advisors who are bound by an
obligation of confidentiality, or (iv) to existing or prospective lenders or
investors who agree in writing not to disclose the terms and conditions of this
Agreement. In addition, LICENSOR or LICENSEE may, in its discretion, disclose
the FIELD OF USE licensed in this Agreement to third parties who agree in
writing not to disclose the terms and conditions of this Agreement. With regard
to a press release related to this Agreement and the relationship between
LICENSOR and LICENSEE, both parties shall discuss and determine the timing and
manner of the announcement and other details thereof after the execution of this
Agreement.
7.09 Third Party Beneficiary. The parties agree that PMC is intended to
be a third beneficiary of the Agreement and PMC may directly enforce the rights
given to it hereunder.
ARTICLE 8. DEFINITIONS
8.01 "SUBJECT PATENTS" means the United States and foreign patents
assigned to LICENSOR identified in Schedule A attached hereto, any United States
or foreign patent issuing from the applications identified in Schedule B
attached hereto and any United States or foreign patent issuing from any
application that claims filing priority from any of the patents or patent
applications identified on Schedule A or Schedule B.
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8.02 "FIELD OF USE" means the field of COMMUNICATION of PROGRAMMING
SERVICES through a SATELLITE COMMUNICATION SYSTEM to a CONSUMER through a
RECEIVER, the CONSUMER's use of such PROGRAMMING SERVICES and the COMMUNICATION
of information resulting from a CONSUMER's use of PROGRAMMING SERVICES by means
of any return path, including satellite and terrestrial modes. The FIELD OF USE
expressly excludes (i) the manufacture of RECEIVERS, including the software
supplied with RECEIVERS, and the sale of such RECEIVERS by manufacturers (but
not the use of RECEIVERS by CONSUMERS or sale of RECEIVERS by LICENSEE or any
sublicensee or its dealers or agents); (ii) the creation or origination of
PROGRAMMING SERVICES and the sale of PROGRAMMING SERVICES by programmers (but
not the use of PROGRAMMING SERVICES by CONSUMERS or sale of PROGRAMMING SERVICES
by LICENSEE or any sublicensee or its dealers or agents); (iii) the
COMMUNICATION of PROGRAMMING SERVICES produced for and targeted specifically for
a professional, occupational, commercial, governmental or educational market,
including continuing professional education; (iv) the COMMUNICATION of
PROGRAMMING SERVICES through a cable or MMDS head-end facility, a broadcasting
facility using a terrestrial propagation path, or a telephone system; (v) the
COMMUNICATION of any signal from the ORBITAL SATELLITES to a CONSUMER at a
RECEIVER, which involves changes to such signal or the insertion or inclusion of
other signals in such signal at any point intermediate between the ORBITAL
SATELLITES and a CONSUMER at a RECEIVER ; (vi) the delivery of computer software
to RECEIVERS for purposes other than specifically to facilitate the use of
PROGRAMMING SERVICES by a CONSUMER; and, (vii) the monitoring of the operations
of any computer, including its output, at the CONSUMER'S location, for the
purpose of developing commercially salable data. Notwithstanding the foregoing,
the FIELD OF USE explicitly includes (i) the use of RECEIVERS by a CONSUMER
within the FIELD OF USE, including the use by such CONSUMER of any capability of
the RECEIVER which allows the CONSUMER to time shift the use of any PROGRAMMING
SERVICES, (ii) the COMMUNICATION from a remote device such as a satellite
receiver antenna to a CONSUMER'S location, such as, for example, through an
apartment rooftop MDU installation, if no change is made in the retransmitted
signal and the signal is merely amplified and/or retransmitted with no other
signal inserted in or included with that retransmitted signal, (iii) the
COMMUNICATION of services specifically designed to promote the use by a CONSUMER
of PROGRAMMING SERVICES received by such CONSUMER from the ORBITAL SATELLITES,
including any program guide which provides a CONSUMER schedule information and
recording capabilities for PROGRAMMING SERVICES, and (iv) the provision of any
service which allows the delivery of pay-per-view movies to a CONSUMER and the
making of a record of a CONSUMER'S selection of pay-per-view movies for purposes
of payment for such selected movies.
8.03 "COMMUNICATION SYSTEM" means a system for the COMMUNICATION of
PROGRAMMING SERVICES and the return path for the COMMUNICATION of information
resulting from a CONSUMER'S use of such PROGRAMMING SERVICES.
8.04 "SATELLITE COMMUNICATION SYSTEM" means a COMMUNICATION SYSTEM
which uses any part or all of the ORBITAL SATELLITES for the COMMUNICATION of
PROGRAMMING SERVICES from a terrestrial ground station and uses any means of
COMMUNICATION, including satellite and terrestrial modes, for the return of
information resulting from a CONSUMER'S use of such PROGRAMMING SERVICES.
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8.05 "PROGRAMMING SERVICES" as used herein means any programming
content, including video, audio, voice services and/or data services delivered
to, or intended to be delivered to, a CONSUMER through a RECEIVER, and all
advertising content which is embedded in such PROGRAMMING SERVICES and which is
directed to CONSUMERS.
8.06 "CONSUMER," as used in this Agreement, means one or more
individuals, including those located in single family households, multiple
dwelling units, hotels and motels, public facilities such as bars or
restaurants, commercial establishments such as offices and showrooms, vehicles,
and airplanes, to the extent such individuals receive, by means of a RECEIVER,
PROGRAMMING SERVICES intended solely for their use. Specifically, CONSUMER
excludes individuals receiving and using information produced for and targeted
specifically for a professional, occupational, commercial, governmental or
educational market.
8.07 "RECEIVER" means the apparatus which is used by a CONSUMER to
receive, access, process and display PROGRAMMING SERVICES, emit PROGRAMMING
SERVICES as sound or transmits any information resulting from a CONSUMER'S use
of such PROGRAMMING SERVICES.
8.08 "COMMUNICATION" means any activity relating to the communication,
delivery, transmission, retransmission, distribution and/or transport of
PROGRAMMING SERVICES, without modification of the programming content of such
services, through a transmission station, such as a satellite uplink, to a
remote location such as a satellite for purposes of further delivery to a
RECEIVER and the return communication, delivery, transmission, distribution
and/or transport of information resulting from a CONSUMER's use of such
PROGRAMMING SERVICES, provided that the term COMMUNICATION specifically excludes
the origination and/or creation of PROGRAMMING SERVICES.
8.09 "ORBITAL SATELLITES" means the earth orbiting satellites in the
geosynchronous orbital locations as specified by International
Telecommunications Union (ITU) identified in the table below and operating at
the specific frequencies and frequency bands for such locations as specified by
ITU identified in the table below or any other location or frequencies for which
the parties authorized by the Federal Communications Commission or their
successors in interest on the EFFECTIVE DATE of this Agreement to operate at the
locations and frequencies identified in the table below (or their successor in
interest) may directly exchange for such identified locations and frequencies or
otherwise acquire.
Location Frequency Band Specific Frequencies
-------- -------------- --------------------
West Longitude 101(0) Ku All frequencies
West Longitude 110(0) Ku Channels 28, 30, 32
West Longitude 119(0) Ku Channels 22 through 32
West Longitude 99(0) Ka All frequencies
West Longitude 101(0) Ka All frequencies
West Longitude 103(0) Ka All frequencies
West Longitude 125(0) Ka All frequencies
8.10 "AFFILIATE" means any person or entity controlling, controlled by
or under the common control with the person or entity being referenced.
8.11 "AFFILIATED" means that a person or entity is an AFFILIATE of the
person or entity being referenced.
8.12 "SUBLICENSEE" means any sublicensee of LICENSEE or their
sublicensees.
8.13 "EFFECTIVE DATE" means the date of execution of this Agreement by
both parties hereto.
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year written below.
For PEGASUS DEVELOPMENT For PMC SATELLITE
CORPORATION DEVELOPMENT L.L.C.
/s/ ▇▇▇ ▇. Lodge 1/13/00 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ 1/13/00
--------------------------- ----------------------------
Signature Date Signature Date
▇▇▇ ▇. Lodge ▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President Managing Member
-14-
SCHEDULE A
PMC PATENTS
▇▇▇▇▇▇ PATENTS
United States Patent No. 4,694,490 for "Signal Processing Apparatus and Methods"
United States Patent No. 4,704,725 for "Signal Processing Apparatus and Methods"
United States Patent No. 4,965,825 for "Signal Processing Apparatus and Methods"
United States Patent No. 5,109,414 for "Signal Processing Apparatus and Methods"
United States Patent No. 5,233,654 for "Signal Processing Apparatus and Methods"
United States Patent No. 5,335,277 for "Signal Processing Apparatus and Methods"
United States Patent No. 5,887,243 for "Signal Processing Apparatus and Methods"
European Patent No. 0382764 for "Signal Processing Apparatus and Methods"
Japanese Patent No. ▇▇▇▇▇▇▇ for "Signal Processing Apparatus and Methods"
Japanese Patent No. ▇▇▇▇▇▇▇ for "Signal Processing Apparatus and Methods"
-1-
SCHEDULE B
PMC APPLICATIONS
PMC APPLICATIONS
United States Patent Applications for "Signal Processing Apparatus Methods"
Serial Number Filing Date
------------- -----------
08/113,329 30-Aug-93
08/397,636 2-Mar-95
08/435,757 9-May-95
08/435,758 9-May-95
08/437,044 9-May-95
08/437,045 9-May-95
08/437,635 9-May-95
08/437,791 9-May-95
08/437,819 9-May-95
08/437,864 9-May-95
08/437,887 9-May-95
08/437,937 9-May-95
08/438,011 9-May-95
08/438,206 9-May-95
08/438,216 9-May-95
08/438,659 9-May-95
08/439,668 15-May-95
08/439,670 15-May-95
08/440,837 15-May-95
08/441,033 15-May-95
08/441,575 15-May-95
08/441,577 15-May-95
08/441,701 15-May-95
08/441,027 16-May-95
08/441,749 16-May-95
08/441,880 16-May-95
08/441,996 16-May-95
08/442,165 16-May-95
08/442,335 16-May-95
08/442,369 16-May-95
08/442,383 16-May-95
08/442,505 16-May-95
08/442,507 16-May-95
08/444,756 19-May-95
08/444,758 19-May-95
08/444,786 19-May-95
-2-
08/444,787 19-May-95
08/444,788 19-May-95
08/444,887 19-May-95
08/445,045 19-May-95
08/445,054 19-May-95
08/445,290 19-May-95
08/445,294 19-May-95
08/445,296 19-May-95
08/445,328 19-May-95
08/446,124 19-May-95
08/446,553 19-May-95
08/446,579 19-May-95
08/446,429 22-May-95
08/446,431 22-May-95
08/446,432 22-May-95
08/446,494 22-May-95
08/447,380 23-May-95
08/447,415 23-May-95
08/447,446 23-May-95
08/447,447 23-May-95
08/447,496 23-May-95
08/447,502 23-May-95
08/447,611 23-May-95
08/447,621 23-May-95
08/447,679 23-May-95
08/447,711 23-May-95
08/447,712 23-May-95
08/447,724 23-May-95
08/447,908 23-May-95
08/447,938 23-May-95
08/447,974 23-May-95
08/447,977 23-May-95
08/448,099 23-May-95
08/448,143 23-May-95
08/448,175 23-May-95
08/448,251 23-May-95
08/448,309 23-May-95
08/448,326 23-May-95
08/449,530 23-May-95
08/449,901 23-May-95
08/447,529 24-May-95
08/448,644 24-May-95
08/448,662 24-May-95
08/448,810 24-May-95
-3-
08/448,977 24-May-95
08/448,979 24-May-95
08/449,097 24-May-95
08/449,110 24-May-95
08/449,248 24-May-95
08/449,263 24-May-95
08/449,281 24-May-95
08/449,291 24-May-95
08/449,302 24-May-95
08/449,369 24-May-95
08/449,413 24-May-95
08/449,523 24-May-95
08/449,532 24-May-95
08/449,652 24-May-95
08/449,702 24-May-95
08/449,717 24-May-95
08/449,800 24-May-95
08/449,867 24-May-95
08/451,203 26-May-95
08/451,377 26-May-95
08/451,746 26-May-95
08/452,395 26-May-95
08/458,760 2-Jun-95
08/459,216 2-Jun-95
08/459,218 2-Jun-95
08/459,506 2-Jun-95
08/459,507 2-Jun-95
08/459,521 2-Jun-95
08/459,522 2-Jun-95
08/459,788 2-Jun-95
08/460,043 2-Jun-95
08/460,081 2-Jun-95
08/460,085 2-Jun-95
08/460,187 2-Jun-95
08/460,256 2-Jun-95
08/460,274 2-Jun-95
08/460,387 2-Jun-95
08/460,394 2-Jun-95
08/460,556 2-Jun-95
08/460,591 2-Jun-95
08/460,592 2-Jun-95
08/460,634 2-Jun-95
08/460,677 2-Jun-95
08/460,711 2-Jun-95
-4-
08/460,766 2-Jun-95
08/460,770 2-Jun-95
08/460,793 2-Jun-95
08/460,817 2-Jun-95
08/466,888 6-Jun-95
08/466,890 6-Jun-95
08/466,894 6-Jun-95
08/468,324 6-Jun-95
08/469,078 6-Jun-95
08/469,103 6-Jun-95
08/469,106 6-Jun-95
08/469,108 6-Jun-95
08/469,355 6-Jun-95
08/469,612 6-Jun-95
08/469,623 6-Jun-95
08/470,051 6-Jun-95
08/470,054 6-Jun-95
08/470,448 6-Jun-95
08/470,476 6-Jun-95
08/470,571 6-Jun-95
08/471,024 6-Jun-95
08/471,191 6-Jun-95
08/472,066 6-Jun-95
08/511,491 6-Jun-95
08/472,399 7-Jun-95
08/472,462 7-Jun-95
08/472,980 7-Jun-95
08/473,484 7-Jun-95
08/473,927 7-Jun-95
08/473,997 7-Jun-95
08/473,999 7-Jun-95
08/474,119 7-Jun-95
08/474,139 7-Jun-95
08/474,146 7-Jun-95
08/474,147 7-Jun-95
08/474,496 7-Jun-95
08/474,674 7-Jun-95
08/474,964 7-Jun-95
08/475,341 7-Jun-95
08/475,342 7-Jun-95
08/477,547 7-Jun-95
08/477,564 7-Jun-95
08/477,660 7-Jun-95
08/477,711 7-Jun-95
-5-
08/477,712 7-Jun-95
08/477,805 7-Jun-95
08/477,955 7-Jun-95
08/478,544 7-Jun-95
08/478,794 7-Jun-95
08/478,864 7-Jun-95
08/478,908 7-Jun-95
08/479,042 7-Jun-95
08/479,215 7-Jun-95
08/479,374 7-Jun-95
08/479,375 7-Jun-95
08/479,414 7-Jun-95
08/479,523 7-Jun-95
08/479,524 7-Jun-95
08/480,059 7-Jun-95
08/480,383 7-Jun-95
08/480,392 7-Jun-95
08/482,573 7-Jun-95
08/482,574 7-Jun-95
08/482,857 7-Jun-95
08/483,054 7-Jun-95
08/483,169 7-Jun-95
08/483,174 7-Jun-95
08/483,269 7-Jun-95
08/483,980 7-Jun-95
08/484,275 7-Jun-95
08/484,858 7-Jun-95
08/484,865 7-Jun-95
08/485,283 7-Jun-95
08/485,507 7-Jun-95
08/485,775 7-Jun-95
08/486,258 7-Jun-95
08/486,259 7-Jun-95
08/486,266 7-Jun-95
08/487,155 7-Jun-95
08/487,397 7-Jun-95
08/487,408 7-Jun-95
08/487,410 7-Jun-95
08/487,411 7-Jun-95
08/487,428 7-Jun-95
08/487,526 7-Jun-95
08/487,536 7-Jun-95
08/487,546 7-Jun-95
08/487,556 7-Jun-95
-6-
08/487,565 7-Jun-95
08/487,649 7-Jun-95
08/487,851 7-Jun-95
08/487,895 7-Jun-95
08/487,981 7-Jun-95
08/488,058 7-Jun-95
08/488,378 7-Jun-95
08/488,383 7-Jun-95
08/488,436 7-Jun-95
08/488,438 7-Jun-95
08/488,439 7-Jun-95
08/488,619 7-Jun-95
08/488,620 7-Jun-95
08/498,002 7-Jun-95
08/474,145 7-Jul-95
Country Serial No. Filing Date
Japan 8-273536
October 16, 1996
(in Japan)
Europe 96-1149358
September 8, 1988
(PCT filed)
PCT PCT/US88/03000
September 8, 1988
-7-
EXHIBIT 7.01(a)
[omitted and filed separately with the Commission]
-8-