Attachment DA-11-1488.pdf

This document pretains to ITC-T/C-20110818-00266 for Transfer of Control on a International Telecommunications filing.

IBFS_ITCTC2011081800266_923055

AGREEMENT This AGREEMENT is made as of the date of the last signature affixed hereto (the "Effective Date")}, by and between: TELENOR SATELLITE SERVICES HOLDINGS, INC. ("TSSH"), a Delaware Corporation; its wholly—owned subsidiaries, TELENOR SATELLITE, INC. ("TSI"), a Delaware Corporation, and TELENOR SATELLITE SERVICES, INC. ("TSS"), a Delaware Corporation, (with TSSH, TSI, and TSS collectively referred to as "Telenor USA"); and their Norwegian indirect sole owner and guarantor, TELENOR BROADBAND SERVICES AS ("TBS"), a limited liability company established pursuant to the laws of the Kingdom of Norway and headquartered in Oslo, Norway (with Telenor USA and TBS collectively referred to as "Telenor") on the one hand; and the FEDERAL BUREAU OF INVESTIGATION (the "FBI") and the UNITED STATES DEPARTMENT OF JUSTICE (the "DOJ") on the other, (with each of the foregoing referred to individually as a "Party" and collectively as the "Parties"). RECITALS WHEREAS, U.S. communications systems are essential to the ability of the U.S. government to fulfill its responsibilities to the public to preserve the national security of the United States, to enforce the laws, and to maintain the safety of the public; WHEREAS, the U.S. government has an obligation to the public to ensure that U.S. communications and related information are secure in order to preserve the national security of the United States, to protect the privacy of U.S. persons and to enforce the laws of the United States; WHEREAS, it is critical to the well being of the nation and its citizens to maintain the viability, integrity, and security of the communication system of the United States (see, e.g., Presidential Decision Directive 63 on Critical Infrastructure Protection); WHEREAS, protection of Classified, Controlled Unclassified, and Sensitive Information is also critical to U.S. national security; WHEREAS, Telenor filed with the Federal Communications Commussion (the "FCC" or "Commission") on May 4, 2001, a set of applications (the "Application") under Sections 214 and 310(d) of the Communications Act of 1934, as amended (the "Act"), seeking FCC approval for the assignment to TSI of certain Title I common carrier authorizations and Title IH licenses (collectively, the "Licenses") of COMSAT Corporation and COMSAT General Corporation, _ both owned by Lockheed Martin Global Telecommunications Corporation (collectively "COMSAT"), in connection with the proposed acquisition by TSSH of the assets of COMSAT Mobile Communications ("CMC"), a business unit of COMSAT (with the proposed transaction referred to as the "CMC Acquisition", and to be fully consummated only upon approval by the FCC of COMSAT‘s assignment of the Licenses to TSI (the "FCC Approval")); WHEREAS, as part of the Application, Telenor has also requested of the FCC a declaratory ruling that TSI‘s holding of the Licenses would serve the public interest and in all other respects be consistent with Section 310(b)(4) of the Act (the "Declaratory Ruling"), which ruling will reflect the current ownership by the Kingdom of Norway of approximately 79% of the shares of Telenor ASA, a Norway—incorporated. Oslo—based company that is publicly—listed _

on the NASDAQ and Oslo stock exchanges and that is the ultimate parent of TBS, TSSH, TSI, TSS and other wholly—owned subsidiaries through which Telenor ASA would own the CMC business once its proposed acquisition by TSSH is complete; WHEREAS, the Application also requests authorization for the assignment of (1) any . licenses or authorizations issued to COMSAT for the benefit of CMC during the pendency of the Commission‘s consideration of the Application or during the period required for consummation of the assignments following the FCC Approval; and (2) applications that will have been filed by COMSAT for the benefit of CMC and that are pending at the time of consummation of the proposed assignments; WHEREAS, on June 21, 2001, the Parties submitted to the FCC a joint Petition to Defer the Application pending the negotiation and execution of an Agreement to address U.S. national security, law enforcement and public safety issues in connection with the CMC Acquisition; WHEREAS, by Executive Order 12661, the President, pursuant to Section 721 of the Defense Production Act, as amended, authorized the Committee on Foreign Investment in the United States ("CFIUS") to review, for national security purposes, foreign acquisitions of U.S. companies; WHEREAS, Telenor and COMSAT intend to submit or have submitted a voluntary notification (the "Notification") to CFIUS of the proposed CMC Acquisition, and Telenor has agreed to enter into this Agreement to resolve any national security or law enforcement issues that the DOJ and the FBI might have in their consideration of the Notification or any other process of U.S. government review of the CMC Acquisition, consistent with Article 6.3 below; WHEREAS, Telenor represents that Telenor ASA is subject to the same rules and regulations under the Norwegian Public Limited Companies Act as all other corporations whose shares are traded on the Oslo Stock Exchange, and Telenor further represents that its operation of the CMC business will be fully insulated from Norwegian government involvement; WHEREAS, in the course of reaching this Agreement, representatives of Telenor have represented to the DOJ and the FBI that (a) it has no present plans, and is aware of no present plans of any other entity, as a result of which Telenor USA will provide communications, or Telenor will provide Domestic Communications, through facilities located outside the United States except for bona fide commercial reasons, (b) no government has, as a direct or indirect shareholder of Telenor, special voting or veto rights concerning the actions of Telenor other than those that would apply to a similarly—situated non—government shareholder under applicable U.S. and Norwegian securities laws, and Telenor is aware of no plans the result of which would confer such rights to a government concerning the actions of Telenor, and (c) the CMC business, including any future provision of Inmarsat services related to U.S.—Licensed MESs, will be operated, on or after the Consummation Date, exclusively by or on behalf of Telenor USA; and WHEREAS, Telenor represents that it will have no officers or directors directly appointed or nominated by the Kingdom of Norway and that Telenor will continue to be directed, operated and managed on a day to day basis by its board of directors and officers in accordance with regular commercial practices: 3

NOW THEREFORE, the Parties are entering into this Agreement to address U.S., national security, law enforcement and public safety issues in connection with the CMC Acquisition. ' ARTICLE 1: DEFINITION OF TERMS As used in this Agreement: 1.1 "Call—Associated Data" or "CAD" means any information relating to a communication or relating to the sender or recipient of that communication and may include, without limitation, subscriber identification, called party number, calling party number, start time, end time, call duration, feature invocation and deactivation, feature interaction, registration information, user location, diverted to number, conference party numbers, post cut—through dual—tone multifrequency (dial digit extraction), in—band and out—of—band signaling, party add, dropand hold, and any other call—identifying information, as defined in 47 U.S.C. § 1001(2). 1.2 "Classified Information" means any information that has been determined pursuant to Executive Order 12958, or any predecessor or successor order, or the Atomic Energy Act of 1954, or any statute that succeeds or amends the Atomic Energy Act, to require protection against unauthorized disclosure. 1.3 "Consummation Date" means the date of final consummation (F.e., closing) of the CMC Acquisition. 1.4 "Control" and "Controls" mean the power, direct or indirect, whether or not exercised, and whether or not exercised or exercisable through the ownership of a majority or a dominant minority of the total outstanding voting securities of an entity, or by proxy voting, contractual arrangements, or other means, to determine, direct, or decide matters affecting an entity or facility; in particular, but without limitation, to determine, direct, take, reach or cause decisions regarding: a. The sale, lease, mortgage, pledge, or other transfer of any or all of the principal assets of the entity, whether or not in the ordinary course of business; The dissolution of the entity; c. The closing and/or relocation of the production orresearch and development facilities of the entity; d. The termination or non—fulfillment of contracts of the entity; e. The amendment of the articles of incorporation or constituent agreement of the entity with respect to the matters described in paragraphs (a) through (d) above; or f. Rights or obligations under this Agreement. 1.5 "Controlled Unclassified Information" means unclassified information, the export of which is controlled by the International Traffic in Arms Regulations (ITAR), 22 C.FR. Chapter I, Subchapter M, or the Export Administration Regulations (EAR), 15 C.FR. Chapter VII, Subchapter C.

1.6 "De facto" and "de jure" control have the meanings provided in 47 C.E.R. § 1.2110. 1.7 "Domestic Communications" means (i) Wire Communications or Electronic Communications (whether stored or not) originating at one U.S. location and terminating at another U.S. location and (ii) the U.S. portion of a Wire Communication or Electronic Communication (whether stored or not) that originates from or terminates at a U.S.— Licensed MES. 1.8 "Domestic Communications Infrastructure" means (a) transmission and switching equipment (including software and upgrades) subject to Control by Telenor and in use to provide, process, direct, control, supervise or manage Domestic Communications, and (b) facilities and equipment in use by or on behalf of Telenor that are physically located in the United States, and (c) facilities in use by or on behalf of Telenor USA to control the equipment described in (a) and (b). 1.9 "Effective Date" has the meaning given it in the Preamble. 1.10 "Electronic Communication" has the meaning given it in 18 U.S.C. § 2510(12). 1.11 "Electronic Surveillance" means (i) the interception of wire, oral, or electronic communications as defined in 18 U.S.C. §§ 2510(1), (2), (4) and (12), respectively, and electronic surveillance as defined in 50 U.S.C. § 1801(f); (ii) access to stored wire or electronic communications, as referred to in 18 U.S.C. § 2701 et seq.; (iii) acquisition of information through pen register or trap and trace devices or other devices or features capable of acquiring such information pursuant to law as defined in 18 U.S.C. § 3121 et seq. and 50 U.S.C. § 1841 et seq.; (iv) acquisition of location—related information concerning a service subscriber; (v) preservation of any of the above information pursuant to 18 U.S.C. § 2703(f); and (vi) access to, or acquisition or interception of, communications or information as described in (i) through (v) above and comparable State laws. 1.12 "Foreign" where used in this Agreement, whether capitalized or lower case, means non— U.S. 1.13 "Governmental Authority" or "Governmental Authorities" mean any government, any governmental, administrative, or regulatory entity, authority, commission, board, agency, instrumentality, bureau or political subdivision and any court, tribunal, judicial or arbitral body. 1.14 "Intercept" or "Intercepted" has the meaning defined in 18 U.S.C. §2510(4). 1.15 "Lawful U.S. Process" means U.S. federal, state or local Electronic Surveillance orders or authorizations, and other orders, legal process, statutory authorizations, and certifications for interception of, access to or disclosure of Domestic Communications, Call Associated Data, Transactional Data or Subscriber Information authorized by U.S. federal, state or local law. 4—

1.16 "MES" means a mobile earth station (i.e., a hand—held, portable or other mobile terminal capable of receiving and/or transmitting Wire Communications or Electronic Communications by satellite). 1.17 "Non U.S.—Licensed MES" means an Inmarsat MES other than a U.S.—Licensed MES. 1.18 Party" or "Parties" have the meaning given in the Preamble. 1.19 "Pro forma assignments" or "pro forma transfers of control" are transfers or assignments that do not "involve a substantial change in ownership or control" of the licenses as provided in 47 C.F.R. 63.24. 1. 20 "Sensitive Information" means unclassified information regarding (i) the persons or facilities that are the subjects of Lawful U.S. Process, (ii) the identity of the government agency or agencies serving such Lawful U.S. Process, (iii) the location or identity of the line, circuit, transmission path, or other facilities or equipment used to conduct Electronic Surveillance, (iv) the means of carrying out Electronic Surveillance, (v) the type(s) of service, telephone number(s), records, communications, or facilities subjected to Lawful U.S. Process, and (vi) other unclassified information designated in writing by an authorized official of a federal, state or local law enforcement agency or a U.S. intelligence agency as Sensitive Information. 1.21 "Subscriber Information" means information of the type referred to and accessible subject to procedures specified in 18 U.S.C. § 2703(c) or (d) or 18 U.S.C. § 2709. Such information shall also be considered Subscriber Information when it is sought pursuant to the provisions of other Lawful U.S. Process. "Telenor" has the meaning given to it in the Preamble. It includes all successors and assigns of Telenor. "Telenor Broadband Services AS" or "TBS" has the meaning given to it in the Preamble, and also encompasses its directly or indirectly wholly—owned Norway—incorporated subsidiaries, Telenor Satellite Mobile Ventures AS and Telenor Satellite Mobile AS, including all of their successors, assigns and subsidiaries. 1.24 "Telenor USA" has the meaning given to it in the Preamble. It inc]udgs all successors, assigns and subsidiaries of Telenor USA. 1.25 "Transactional Data" means: a. Call—identifying information, as defined in 47 U.S.C. § 1001(2), including without limitation the telephone number or similar identifying designator associated with a communication; b. Internet address or similar identifying designator associated with a communication; C. The time, date, size, and duration of a communication; d. Any information relating to identity and physical address of a Telenor USA J

subscriber, user, or account payer; e e. To the extent associated with such a subscriber, user, or account payer, any information relating to all telephone numbers, Internet addresses, or similar identifying designators; the physical location of equipment, if known and if different from the location information provided under (f) below; types of services; length of service; fees; and usage, including billing records; and f. any information indicating as closely as possible the physical location to or from which communication is transmitted. ' The term does not include the content of any communication. 1.26 "United States," "US" or "U.S." means the United States of America including all of its States, districts, territories, possessions, commonwealths, and the special maritime and territorial jurisdiction of the United States. 1.27 "U.S. LES" means a land earth station facility located in any state of the United States that is involved with the transmission of satellite communications and meets all other applicable requirements of this Agreement and the Implementation Plan. 1.28 "U.S.—Licensed MES" means an MES licensed by the Federal Communications Commission to or on behalf of Telenor. 1.29 "U.S. POP" or "POP" means a Point of Presence through which communications are routed for purpose of switching and at which Electronic Surveillance can be conducted, and meeting all other applicable requirements of this Agreement and the Implementation Plan. ' 1.30 "Wire Communication" has the meaning given it in 18 U.S.C. § 2510(1). 1.31 Other Definitional Provisions. Other capitalized terms used in this Agreement and not defined in this Article 1 shall have the meanings assigned them elsewhere in this Agreement. The definitions in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Whenever the words "include," "includes," "including" or "such as" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." ARTICLE 2: INFORMATION STORAGE AND ACCESS 2.1 Implementation Plan. Certain of the rights and obligations of the Parties are set forth in further detail in an Implementation Plan, which is executed by Telenor and is incorporated in and constitutes an integral part of this Agreement. Telenor shall comply with the Implementation Plan, subject to possible modifications in accordance with Article 9 of this Agreement. The Implementation Plan and all provisions of this Agreement related to it. unless otherwise specified herein, shall take effect on the Consummation Date.

2.2 Domestic Communications Infrastructure. Except to the extent and under conditions concurred in by the FBI and the DOJ in writing: 2.2.1 Location and Operation. Except strictly for bona fide commercial reasons weighing in favor of using foreign—located Domestic Communications Infrastructure, all Domestic Communications Infrastructure shall at all times be located in the United States and will be directed, controlled, supemsed and managedin the United States by Telenor USA or its agent. 2.2.2 Point of Presence. As specified in the Implementation Plan, all Domestic Communications shall either be transmitted through a U.S. LES or routed through a POP that includes a network switch under the control of Telenor USA and is physically located in the United States, from which Electronic Surveillance can be conducted pursuant to Lawful U.S. Process. Telenor USA will provide technical or other assistance to facilitate such Electronic Surveillance. 2.2.3 Communications of a U.S.—Licensed MES. Domestic Communications from a U.S.—Licensed MES shall not be routed outside the United States by Telenor except strictly for bona fide commercial reasons. 2.24 Communications of a Non U.S.—Licensed MES. Telenor shall configure its network such that pursuant to Lawful U.S. Process, Electronic Surveillance of a Non U.S.—Licensed MES can be conducted in accordance with the Implementation Plan. 2.3 Compliance with Lawful U.S. Process. Telenor shall take all practicable steps to configure its Domestic Communications Infrastructure to be capable of complying in an effective, efficient, and unimpeded fashion, and shall ensure that its employees in the United States will have unconstrained authority to comply, with: a. Lawful U.S. Process; . b. Presidential orders issued under § 706 of the Communications Act of 1934, as amended, (47 U.S.C. § 606), § 302(e) of the Aviation Act of 1958 (49 U.S.C. § 40107(b)) and Executive Order 11161 (as amended by Executive Order 11382); and c. National Security and Emergency Preparedness rules, regulations and orders issued pursuant to the Communications Act of 1934, as amended (47 U.S.C. § 151 et seq.). 2.4 Information Storage and Access. Effective upon the Consummation Date, Telenor USA shall make available in the United States: a. stored Domestic Communications, if such communications are stored by or on behalf of Telenor for any reason; b. any Wire Communications or Electronic Communications (including any other . type of wire, voice or electronic communications not covered by the definitions of 7


Document Created: 2011-10-27 16:37:58
Document Modified: 2011-10-27 16:37:58
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