bandwidthrwservicesagree






                               SERVICES AGREEMENT                                                     SERVICES AGREEMENT (this “Agreement”), dated as of September 30, 2019, by and between  Bandwidth Inc., a Delaware corporation ( “Bandwidth”), and Republic Wireless, Inc., a Delaware  corporation (“Republic Wireless”).                                                      NOW THEREFORE, in consideration of the mutual agreements contained herein and other good  and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties  hereto, intending to be bound legally, agree as follows:                                                                                    ARTICLE I                                                                          ENGAGEMENT AND SERVICES                                                     Section 1.1   Engagement.  Republic Wireless engages Bandwidth to provide to Republic  Wireless, commencing on the date hereof (the “Effective Date”), the services set forth in Section 1.2  (collectively, the “Services”), and Bandwidth accepts such engagement, subject to and upon the terms and  conditions of this Agreement.  The parties acknowledge that certain of the Services will be performed by  officers, employees or consultants of Bandwidth, who may also serve, from time to time, as officers,  employees or consultants of other companies.               Section 1.2   Services.                       (a)    The Services will include the following, if and to the extent requested by Republic  Wireless during the Term of this Agreement:                                                          (i)    services performed by Bandwidth’s legal department; and                                           (ii)   such other services as Bandwidth may obtain from its officers, employees                            and consultants in the management of its own operations that Republic                            Wireless may from time to time request or require, as may be agreed in                            writing between Bandwidth and Republic Wireless.                       The Services are more completely described in Exhibit A attached hereto.           Section 1.3  Services Not to Interfere with Bandwidth’s Business.  Republic Wireless  acknowledges and agrees that in providing Services hereunder Bandwidth will not be required to take any  action that would disrupt, in any material respect, the orderly operation of Bandwidth’s business activities.                 Section 1.4   Books and Records.   Bandwidth will maintain books and records, in reasonable  detail in accordance with Bandwidth’s standard business practices, with respect to its provision of Services  to Republic Wireless pursuant to this Agreement, including records supporting the determination of the  Services Fee and other costs and expenses to Republic Wireless pursuant to Article II (collectively,  “Supporting Records”). Bandwidth will give Republic Wireless and its duly authorized representatives,  agents, and attorneys reasonable access to all such Supporting Records during Bandwidth’s regular business  hours upon Republic Wireless’s request after reasonable advance notice.                                              ARTICLE II                                                                                                       Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






                                   COMPENSATION                                                     Section 2.1  Services Fee.   Republic Wireless agrees to pay, and Bandwidth agrees to accept,  fee(s) (the “Services Fees”) set forth on Exhibit A with respect to applicable Services utilized by Republic  Wireless during the Term of this Agreement, payable in monthly installments in arrears as set forth in  Section 2.3.  Bandwidth and Republic Wireless will review and evaluate the Services Fees for  reasonableness semiannually during the Term and will negotiate in good faith to reach agreement on any  appropriate adjustments to the Services Fee.  Based on such review and evaluation, Bandwidth and Republic  Wireless will agree on the appropriate effective date (which may be retroactive) of any such adjustment to  the Services Fees.  For the avoidance of doubt, the determination of the Services Fees and any future  adjustment thereto does not and will not include charges included under the Annual Allocation Expense (as  such term is defined in the Facilities Sharing Agreement, dated as of November 30, 2016) payable by  Republic Wireless under the Facilities Sharing Agreement.               Section 2.2   Cost Reimbursement.  In addition to (and without duplication of) the Services Fee  payable pursuant to Section 2.1, Republic Wireless also will reimburse Bandwidth for all direct out-of- pocket costs, with no markup (“Out-of-Pocket Costs”), incurred by Bandwidth in performing the Services  (e.g., postage and courier charges, travel, meals and entertainment expenses, and other miscellaneous  expenses that are incurred by Bandwidth in the conduct of the Services).               Section 2.3   Payment Procedures.                       (a)         Republic Wireless will pay Bandwidth, by wire or intrabank transfer of funds or  in such other manner specified by Bandwidth to Republic Wireless, in arrears on or before the fifth (5th)  day of each calendar month immediately following the calendar month during which Republic Wireless  utilized the applicable Services, beginning with November 5, 2019, the Services Fees then in effect.                             (b)           Any reimbursement to be made by Republic Wireless to Bandwidth pursuant to  Section 2.2 will be paid by Republic Wireless to Bandwidth within 15 days after receipt by Republic  Wireless of an invoice therefor, by wire or intrabank transfer of funds or in such other manner specified by  Bandwidth to Republic Wireless.  Bandwidth will invoice Republic Wireless monthly for reimbursable  expenses incurred by Bandwidth on behalf of Republic Wireless during the preceding calendar month as  contemplated in Section 2.2; provided, however, that Bandwidth may separately invoice Republic Wireless  at any time for any single reimbursable expense incurred by Bandwidth on behalf of Republic Wireless in  an amount equal to or greater than $5,000.00. Any invoice or statement pursuant to this Section 2.3(b) will  be accompanied by supporting documentation in reasonable detail consistent with Bandwidth’s own  expense reimbursement policy.                             (c)           Any payments not made when due under this Section 2.3 will bear interest at the  rate of 1.5% per month on the outstanding amount from and including the due date to but excluding the  date paid.          Section 2.4   Survival.  The terms and conditions of this Article II will survive the expiration or  earlier termination of this Agreement.                                              ARTICLE III                                                                                      TERM                                                                                           2                                                          Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






       Section 3.1  Term Generally.  The term of this Agreement will commence on the Effective Date  and will continue until the second anniversary of the Effective Date (the “Term”).  This Agreement is  subject to termination prior to the end of the Term in accordance with Section 3.3.               Section 3.2   Discontinuance of Select Services.  At any time during the Term, on not less than  thirty (30) days’ prior notice by Republic Wireless to Bandwidth, Republic Wireless may elect to  discontinue obtaining any of the Services previously obtained from Bandwidth pursuant to this  Agreement.  In such event, Bandwidth’s obligation to provide Services that have been discontinued  pursuant to this Section 3.2, and Republic Wireless’s obligation to compensate Bandwidth for such  Services, will cease as of the end of such 30-day period (or such later date as may be specified in the notice),  and this Agreement will remain in effect for the remainder of the Term with respect to those Services that  have not been so discontinued.  Bandwidth and Republic Wireless will promptly reduce the Services Fees  payable by Republic Wireless as described pursuant to Exhibit A following the discontinuance of any  Services.  Each party will remain liable to the other for any required payment or performance accrued prior  to the effective date of discontinuance of any Service.               Section 3.3   Termination.  This Agreement will be terminated prior to the expiration of the  Term in the following events:                      (a)         at any time upon at least thirty (30) days’ prior written notice by Republic Wireless  to Bandwidth;                             (b)        immediately upon written notice (or at any later time specified in such notice) by  Bandwidth to Republic Wireless if a Change in Control or Bankruptcy Event occurs with respect to  Republic Wireless; or                             (c)         immediately upon written notice (or at any later time specified in such notice) by  Republic Wireless to Bandwidth if a Change in Control or Bankruptcy Event occurs with respect to  Bandwidth.                      For purposes of this Section 3.3, a “Change in Control” will be deemed to have occurred with  respect to a party if a merger, consolidation, binding share exchange, acquisition, or similar transaction  (each, a “Transaction”), or series of related Transactions, involving such party occurs as a result of which  the voting power of all voting securities of such party outstanding immediately prior thereto represent  (either by remaining outstanding or being converted into voting securities of the surviving entity) less than  75% of the voting power of such party or the surviving entity of the Transaction outstanding immediately  after such Transaction (or if such party or the surviving entity after giving effect to such Transaction is a  subsidiary of the issuer of securities in such Transaction, then the voting power of all voting securities of  such party outstanding immediately prior to such Transaction represent (by being converted into voting  securities of such issuer) less than 75% of the voting power of the issuer outstanding immediately after such  Transaction).               For purposes of this Section 3.3, a “Bankruptcy Event” will be deemed to have occurred with  respect to a party upon such party’s insolvency, general assignment for the benefit of creditors, such party’s  voluntary commencement of any case, proceeding, or other action seeking reorganization, arrangement,  adjustment, liquidation, dissolution, or consolidation of such party’s debts under any law relating to  bankruptcy, insolvency, or reorganization, or relief of debtors, or seeking appointment of a receiver, trustee,  custodian, or other similar official for such party or for all or any substantial part of such party’s assets  (each, a “Bankruptcy Proceeding”), or the involuntary filing against Republic Wireless or Bandwidth, as  applicable, of any Bankruptcy Proceeding that is not stayed within 60 days after such filing.                                                     3                                                          Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






       Each party will remain liable to the other for any required payment accrued prior to the termination  of this Agreement.                                               ARTICLE IV                                                                          PERSONNEL AND EMPLOYEES                                                     Section 4.1  Personnel to Provide Services.                       (a)        Bandwidth will make available to Republic Wireless, on a non-exclusive basis, the  appropriate personnel (the “Personnel”) to perform the Services.  The personnel made available to perform  selected Services are expected to be substantially the same personnel who provide similar services in  connection with the management and administration of the business and operations of Bandwidth.                             (b)         Republic Wireless acknowledges that:                                    (i)           certain of the Personnel also will be performing services for Bandwidth        and/or other companies, from time to time, including certain Subsidiaries and Affiliates of        Bandwidth, in each case, while also potentially performing services directly for Republic Wireless        and certain of its Subsidiaries and Affiliates under a direct employment, consultancy or other        service relationship between such Person and Republic Wireless and irrespective of this        Agreement; and                                           (ii)            Bandwidth may elect, in its discretion, to utilize independent contractors        rather than employees of Bandwidth to perform Services from time to time, and such independent        contractors will be deemed included within the definition of “Personnel” for all purposes of this        Agreement.                             Section 4.2   Bandwidth as Payor.  The parties acknowledge and agree that Bandwidth, and not  Republic Wireless, will be solely responsible for the payment of salaries, wages, benefits (including health  insurance, retirement, and other similar benefits, if any) and other compensation applicable to all  Personnel; provided, however, that Republic Wireless is responsible for the payment of the Services Fees  in accordance with Section 2.1.  All Personnel will be subject to the personnel policies of Bandwidth and  will be eligible to participate in Bandwidth’s employee benefit plans to the same extent as similarly situated  employees of Bandwidth performing services in connection with Bandwidth’s business.  Except as  otherwise provided by the Tax Sharing Agreement, dated as of November 30, 2016, Bandwidth will be  responsible for the payment of all federal, state, and local withholding taxes on the compensation of all  Personnel and other such employment related taxes as are required by law.  Each of Republic Wireless and  Bandwidth will cooperate with the other to facilitate the other’s compliance with applicable federal, state,  and local laws, rules, regulations, and ordinances applicable to the employment or engagement of all  Personnel by either party.               Section 4.3   Additional Employee Provisions.  Bandwidth will have the right to terminate its  employment of any Personnel at any time.                                               ARTICLE V                                                                     REPRESENTATIONS AND WARRANTIES                                                    Section 5.1   Representations and Warranties of Bandwidth.  Bandwidth represents and  warrants to Republic Wireless as follows:                                             4                                                          Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






                      (a)        Bandwidth is a corporation duly organized, validly existing, and in good standing         under the laws of the State of Delaware.                             (b)          Bandwidth  has  the  power  and  authority  to  enter  into  this  Agreement  and  to         perform its obligations under this Agreement, including the Services.                             (c)          Bandwidth  is  not  subject  to  any  contractual  or  other  legal  obligation  that         materially interferes with its full, prompt, and complete performance under this Agreement.                             (d)          The individual executing this Agreement on behalf of Bandwidth has the authority         to do so.                       Section 5.2  Representations and Warranties of Republic Wireless.  Republic Wireless  represents and warrants to Bandwidth as follows:                      (a)         Republic Wireless is a corporation duly organized, validly existing, and in good        standing under the laws of the State of Delaware.                (b)           Republic Wireless has the power and authority to enter into this Agreement and        to perform its obligations under this Agreement.                             (c)           Republic Wireless is not subject to any contractual or other legal obligation that        materially interferes with its full, prompt, and complete performance under this Agreement.                             (d)           The individual executing this Agreement on behalf of Republic Wireless has the        authority to do so.                                                     ARTICLE VI                                                                               INDEMNIFICATION                                                    Section 6.1   Indemnification by Bandwidth.  Bandwidth will indemnify, defend, and hold  harmless Republic Wireless and each of its Subsidiaries, Affiliates, officers, directors, employees and  agents, successors and assigns (collectively, the “Republic Wireless Indemnitees”), from and against any  and all Actions, judgments, Liabilities, losses, costs, damages, or expenses, including reasonable counsel  fees, disbursements, and court costs (collectively, “Losses”), that any Republic Wireless Indemnitee may  suffer arising from or out of, or relating to, (a) any material breach by Bandwidth of its obligations under  this Agreement, or (b) the gross negligence, willful misconduct, fraud, or bad faith of Bandwidth in  connection with the performance of any provision of this Agreement except to the extent such Losses (i) are  fully covered by insurance maintained by Republic Wireless or such other Republic Wireless Indemnitee  or (ii) are payable by Republic Wireless pursuant to Section 7.11.               Section 6.2   Indemnification by Republic Wireless.  Republic Wireless will indemnify, defend,  and hold harmless Bandwidth and its Subsidiaries, Affiliates, officers, directors, employees and agents,  successors and assigns (collectively, the “Bandwidth Indemnitees”), from and against any and all Losses  that any Bandwidth Indemnitee may suffer arising from or out of, or relating to (a) any material breach by  Republic Wireless of its obligations under this Agreement, or (b) any acts or omissions of Bandwidth in  providing the Services pursuant to this Agreement (except to the extent such Losses (i) arise from or relate  to any material breach by Bandwidth of its obligations under this Agreement, (ii) are attributable to the  gross negligence, willful misconduct, fraud, or bad faith of Bandwidth or any other Bandwidth Indemnitee                                              5                                                          Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






seeking indemnification under this Section 6.2, (iii) are fully covered by insurance maintained by  Bandwidth or such other Bandwidth Indemnitee, or (iv) are payable by Bandwidth pursuant to  Section 7.11).                 Section 6.3  Indemnification Procedures.                       (a)        (i)     In connection with any indemnification provided for in Section 6.1 or 6.2, the         party seeking indemnification (the “Indemnitee”) will give the party from which indemnification         is sought (the “Indemnitor”) prompt notice whenever it comes to the attention of the Indemnitee         that the Indemnitee has suffered or incurred, or may suffer or incur, any Losses for which it is         entitled to indemnification under Section 6.1 or 6.2, and, if and when known, the facts constituting         the basis for such claim and the projected amount of such Losses (which shall not be conclusive as         to the amount of such Losses), in each case in reasonable detail. Without limiting the generality of         the foregoing, in the case of any Action commenced by a third party for which indemnification is         being sought (a “Third-Party Claim”), such notice will be given no later than ten business days         following receipt by the Indemnitee of written notice of such Third-Party Claim.  Failure by any         Indemnitee to so notify the Indemnitor will not affect the rights of such Indemnitee hereunder         except to the extent that such failure has a material prejudicial effect on the defenses or other rights         available to the Indemnitor with respect to such Third Party Claim.  The Indemnitee will deliver to         the Indemnitor as promptly as practicable, and in any event within five business days after         Indemnitee’s receipt, copies of all notices, court papers and other documents received by the         Indemnitee relating to any Third-Party Claim.                                       (ii)        After receipt of a notice pursuant to Section 6.3(a)(i) with respect to any         Third-Party Claim, the Indemnitor will be entitled, if it so elects, to take control of the defense and         investigation with respect to such Third-Party Claim and to employ and engage attorneys         reasonably satisfactory to the Indemnitee to handle and defend such claim, at the Indemnitor’s cost,         risk and expense, upon written notice to the Indemnitee of such election, which notice         acknowledges the Indemnitor’s obligation to provide indemnification under this Agreement with         respect to any Losses arising out of or relating to such Third-Party Claim. The Indemnitor will not         settle any Third-Party Claim that is the subject of indemnification without the written consent of         the Indemnitee, which consent will not be unreasonably withheld, conditioned or         delayed; provided, however, that, after reasonable notice, the Indemnitor may settle a claim without         the Indemnitee’s consent if such settlement (A) makes no admission or acknowledgment of         Liability or culpability with respect to the Indemnitee, (B) includes a complete release of the         Indemnitee and (C) does not seek any relief against the Indemnitee other than the payment of         money damages to be borne by the Indemnitor. The Indemnitee will cooperate in all reasonable         respects with the Indemnitor and its attorneys in the investigation, trial and defense of any lawsuit         or action with respect to such claim and any appeal arising therefrom (including the filing in the         Indemnitee’s name of appropriate cross-claims and counterclaims).  The Indemnitee may, at its         own cost, participate in any investigation, trial and defense of any Third-Party Claim controlled by         the Indemnitor and any appeal arising therefrom, including participating in the process with respect         to the potential settlement or compromise thereof.  If the Indemnitee has been advised by its counsel         that there may be one or more legal defenses available to the Indemnitee that conflict with those         available to, or that are not available to, the Indemnitor (“Separate Legal Defenses”), or that there         may be actual or potential differing or conflicting interests between the Indemnitor and the         Indemnitee in the conduct of the defense of such Third-Party Claim, the Indemnitee will have the         right, at the expense of the Indemnitor, to engage separate counsel reasonably acceptable to the         Indemnitor to handle and defend such Third-Party Claim, provided, that, if such Third-Party Claim         can be reasonably separated between those portion(s) for which Separate Legal Defenses are         available (“Separable Claims”) and those for which no Separate Legal Defenses are available, the                                              6                                                          Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






Indemnitee will instead have the right, at the expense of the Indemnitor, to engage separate counsel  reasonably acceptable to the Indemnitor to handle and defend the Separable Claims, and the  Indemnitor will not have the right to control the defense or investigation of such Third-Party Claim  or such Separable Claims, as the case may be (and, in which latter case, the Indemnitor will have  the right to control the defense or investigation of the remaining portion(s) of such Third-Party  Claim).                               (iii)         If, after receipt of a notice pursuant to Section 6.3(a)(i) with respect to  any Third-Party Claim as to which indemnification is available hereunder, the Indemnitor does not  undertake to defend the Indemnitee against such Third-Party Claim, whether by not giving the  Indemnitee timely notice of its election to so defend or otherwise, the Indemnitee may, but will  have no obligation to, assume its own defense, at the expense of the Indemnitor (including attorneys  fees and costs), it being understood that the Indemnitee’s right to indemnification for such Third  Party Claim shall not be adversely affected by its assuming the defense of such Third Party  Claim.  The Indemnitor will be bound by the result obtained with respect thereto by the  Indemnitee; provided, that the Indemnitee may not settle any lawsuit or action with respect to which  the Indemnitee is entitled to indemnification hereunder without the consent of the Indemnitor,  which consent will not be unreasonably withheld, conditioned or delayed; provided further, that  such consent shall not be required if (i) the Indemnitor had the right under this Section 6.3 to  undertake control of the defense of such Third-Party Claim and, after notice, failed to do so within  thirty days of receipt of such notice (or such lesser period as may be required by court proceedings  in the event of a litigated matter), or (ii) (x) the Indemnitor does not have the right to control the  defense of the entirety of such Third-Party Claim pursuant to Section 6.3(a)(ii) or (y) the  Indemnitor does not have the right to control the defense of any Separable Claim pursuant to  Section 6.3(a)(ii) (in which case such settlement may only apply to such Separable Claims), the  Indemnitee provides reasonable notice to Indemnitor of the settlement, and such settlement  (A) makes no admission or acknowledgment of Liability or culpability with respect to the  Indemnitor, (B) does not seek any relief against the Indemnitor and (C) does not seek any relief  against the Indemnitee for which the Indemnitor is responsible other than the payment of money  damages.                       (b)       In no event will the Indemnitor be liable to any Indemnitee for any special,  consequential, indirect, collateral, incidental or punitive damages, however caused and on any  theory of liability arising in any way out of this Agreement, whether or not such Indemnitor was  advised of the possibility of any such damages;  provided, that the foregoing limitations shall not  limit a party’s indemnification obligations for any Losses incurred by an Indemnitee as a result of  the assertion of a Third Party Claim.         (c)        The Indemnitor and the Indemnitee shall use commercially reasonable efforts to  avoid production of confidential information, and to cause all communications among employees,  counsel and others representing any party with respect to a Third Party Claim to be made so as to  preserve any applicable attorney-client or work-product privilege.         (d)        The Indemnitor shall pay all amounts payable pursuant to this Section 6.3 by wire  transfer of immediately available funds, promptly following receipt from an Indemnitee of a bill,  together with all accompanying reasonably detailed backup documentation, for any Losses that are  the subject of indemnification hereunder, unless the Indemnitor in good faith disputes the amount  of such Losses or whether such Losses are covered by the Indemnitor’s indemnification obligation  in which event the Indemnitor shall promptly so notify the Indemnitee. In any event, the Indemnitor  shall pay to the Indemnitee, by wire transfer of immediately available funds, the amount of any  Losses for which it is liable hereunder no later than three (3) days following any final determination                                       7                                                   Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






       of the amount of such Losses and the Indemnitor’s liability therefor. A “final determination” shall         exist when (a) the parties to the dispute have reached an agreement in writing or (b) a court of         competent jurisdiction shall have entered a final and non-appealable order or judgment.                       (e)        If  the  indemnification  provided  for  in  this  Section 6.3  shall,  for  any  reason,  be         unavailable or insufficient to hold harmless an Indemnitee in respect of any Losses for which it is         entitled to indemnification hereunder, then the Indemnitor shall contribute to the amount paid or         payable by such Indemnitee as a result of such Losses, in such proportion as shall be appropriate         to reflect the relative benefits received by and the relative fault of the Indemnitor on the one hand         and the Indemnitee on the other hand with respect to the matter giving rise to such Losses.                       (f)          The  remedies  provided  in  this  Section 6.3  shall  be  cumulative  and  shall  not         preclude assertion by any Indemnitee of any other rights or the seeking of any and all other remedies         against an Indemnitor, subject to Section 6.3(b).                       (g)          To the fullest extent permitted by applicable law, the Indemnitor will indemnify         the Indemnitee against any and all reasonable fees, costs and expenses (including attorneys’ fees),         incurred in connection with the enforcement of his, her or its rights under this Article VI.                 Section 6.4  Survival.  The terms and conditions of this Article VI will survive the expiration  or termination of this Agreement.                                              ARTICLE VII                                                                                MISCELLANEOUS                                                    Section 7.1   Defined Terms.                       (a)        The following terms will have the following meanings for all purposes of this  Agreement:                       “Action” means any demand, action, claim, suit, countersuit, litigation, arbitration, prosecution,  proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing,  inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or  otherwise involving, any court, grand jury or other governmental authority or any arbitrator or arbitration  panel.               “Affiliate” means, with respect to any Person, any other Person controlled by such first Person,  with “control” for such purpose meaning the possession, directly or indirectly, of the power to direct or  cause the direction of the management and policies of a Person, whether through the ownership of voting  securities or voting interests, by contract, or otherwise. Notwithstanding the foregoing, for purposes of this  Agreement, none of the Persons listed in clause (i) or (ii) shall be deemed to be Affiliates of any Person  listed in any other such clause: (i) Bandwidth taken together with its Subsidiaries, or (ii) Republic Wireless  taken together with its Subsidiaries.                “Confidential Information” means any information marked, noticed, or treated as confidential by  a party which such party holds in confidence, including all trade secrets, technical, business, or other  information, including customer or client information, however communicated or disclosed, relating to past,  present and future research, development and business activities.                                               8                                                          Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






       “Liabilities” means any and all debts, liabilities, commitments and obligations, whether or not  fixed, contingent or absolute, matured or unmatured, direct or indirect, liquidated or unliquidated, accrued  or unaccrued, known or unknown, and whether or not required by GAAP to be reflected in financial  statements or disclosed in the notes thereto (other than taxes).               “Person” means any natural person, corporation, limited liability company, partnership, trust,  unincorporated organization, association, governmental authority, or other entity.               “Subsidiary” when used with respect to any Person, means (i)(A) a corporation a majority in voting  power of whose share capital or capital stock with voting power, under ordinary circumstances, to elect  directors is at the time, directly or indirectly, owned by such Person, by one or more Subsidiaries of such  Person, or by such Person and one or more Subsidiaries of such Person, whether or not such power is subject  to a voting agreement or similar encumbrance, (B) a partnership or limited liability company in which such  Person or a Subsidiary of such Person is, at the date of determination, (1) in the case of a partnership, a  general partner of such partnership with the power affirmatively to direct the policies and management of  such partnership or (2) in the case of a limited liability company, the managing member or, in the absence  of a managing member, a member with the power affirmatively to direct the policies and management of  such limited liability company, or (C) any other Person (other than a corporation) in which such Person,  one or more Subsidiaries of such Person or such Person and one or more Subsidiaries of such Person,  directly or indirectly, at the date of determination thereof, has or have (1) the power to elect or direct the  election of a majority of the members of the governing body of such Person, whether or not such power is  subject to a voting agreement or similar encumbrance, or (2) in the absence of such a governing body, at  least a majority ownership interest or (ii) any other Person of which an aggregate of 50% or more of the  equity interests are, at the time, directly or indirectly, owned by such Person and/or one or more Subsidiaries  of such Person.  Notwithstanding the foregoing, for purposes of this Agreement, none of the Subsidiaries  of Bandwidth will be deemed to be Subsidiaries of Republic Wireless or any of its Subsidiaries, nor will  any of Republic Wireless’s Subsidiaries be deemed to be Subsidiaries of Bandwidth or any of its  Subsidiaries.                Section 7.2   Entire Agreement; Severability.  This Agreement, the Facilities Sharing  Agreement, and the Tax Sharing Agreement constitute the entire agreement among the parties hereto with  respect to the subject matter hereof and thereof, and supersedes all prior agreements and understandings,  oral and written, among the parties hereto with respect to such subject matter. It is the intention of the  parties hereto that the provisions of this Agreement will be enforced to the fullest extent permissible under  all applicable laws and public policies, but that the unenforceability of any provision hereof (or the  modification of any provision hereof to conform with such laws or public policies, as provided in the next  sentence) will not render unenforceable or impair the remainder of this Agreement. Accordingly, if any  provision is determined to be invalid or unenforceable either in whole or in part, this Agreement will be  deemed amended to delete or modify, as necessary, the invalid or unenforceable provisions and to alter the  balance of this Agreement in order to render the same valid and enforceable, consistent (to the fullest extent  possible) with the intent and purposes hereof.  If the provisions of this Agreement conflict with any  provisions of the Facilities Sharing Agreement, the provisions of this Agreement shall control, and if the  provisions of this Agreement conflict with any provisions of the Tax Sharing Agreement, the provisions of  the Tax Sharing Agreement shall control.         Section 7.3   Notices.  All notices and communications hereunder will be in writing and will be  deemed to have been duly given if delivered personally or mailed, certified or registered mail with postage  prepaid, or sent by confirmed facsimile, addressed as follows:                 if to Bandwidth:        Bandwidth Inc.                                             9                                                          Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






                                      900 Main Campus Drive, Suite 100                                       Raleigh, NC 27606                                       Attention: Legal Department                                       Fax: 919.239.9903                               if to Republic Wireless: Republic Wireless, Inc.                                       940 Main Campus Drive, Suite 300                                       Raleigh, NC 27606                                       Attention: Legal Department                                       Fax: 919.670.3115  or to such other address (or to the attention of such other person) as the parties may hereafter designate in  writing.  All such notices and communications will be deemed to have been given on the date of delivery  if sent by facsimile or personal delivery, or the third day after the mailing thereof, except that any notice of  a change of address will be deemed to have been given only when actually received.         Section 7.4   Governing Law.  This Agreement and the legal relations among the parties hereto  will be governed in all respects, including validity, interpretation and effect, by the laws of the State of  North Carolina applicable to contracts made and performed wholly therein, without giving effect to any  choice or conflict of laws provisions or rules that would cause the application of the laws of any other  jurisdiction.               Section 7.5   Rules of Construction.  The descriptive headings in this Agreement are inserted  for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation  of this Agreement.  Words used in this Agreement, regardless of the gender and number specifically used,  will be deemed and construed to include any other gender, masculine, feminine, or neuter, and any other  number, singular or plural, as the context requires.  As used in this Agreement, the word “including” or any  variation thereof is not limiting, and the word “or” is not exclusive.  The word day means a calendar day.  If  the last day for giving any notice or taking any other action is a Saturday, Sunday, or a day on which banks  in New York, New York or Raleigh, North Carolina are closed, the time for giving such notice or taking  such action will be extended to the next day that is not such a day.               Section 7.6   No Third-Party Rights.  Nothing expressed or referred to in this Agreement is  intended or will be construed to give any Person other than the parties hereto and their respective successors  and permitted assigns any legal or equitable right, remedy or claim under or with respect to this Agreement,  or any provision hereof, it being the intention of the parties hereto that this Agreement and all of its  provisions and conditions are for the sole and exclusive benefit of the parties to this Agreement and their  respective successors and assigns.         Section 7.7   Counterparts.  This Agreement may be executed in one or more counterparts, each  of which will be an original and all of which together will constitute one and the same instrument.               Section 7.8   Payment of Expenses. From and after the Effective Date, and except as otherwise  expressly provided in this Agreement, each of the parties to this Agreement will bear its own expenses,  including the fees of any attorneys and accountants engaged by such party, in connection with this  Agreement.               Section 7.9   Binding Effect; Assignment.                       (a)        This Agreement will inure to the benefit of and be binding on the parties to this  Agreement and their respective legal representatives, successors and permitted assigns.                                            10                                                          Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






                            (b)       Except  as  expressly  contemplated  hereby  (including  by  Section 4.1),  this  Agreement, and the obligations arising hereunder, may not be assigned by either party to this  Agreement, provided, however, that Republic Wireless and Bandwidth may assign their respective rights,  interests, duties, liabilities and obligations under this Agreement to any of their respective wholly-owned  Subsidiaries, but such assignment shall not relieve Republic Wireless or Bandwidth, as the assignor, of its  obligations hereunder.                       Section 7.10  Amendment, Modification, Extension or Waiver.  Any amendment, modification  or supplement of or to any term or condition of this Agreement will be effective only if in writing and  signed by both parties hereto.  Either party to this Agreement may (a) extend the time for the performance  of any of the obligations or other acts of the other party to this Agreement, or (b) waive compliance by the  other party with any of the agreements or conditions contained herein or any breach thereof. Any agreement  on the part of either party to any such extension or waiver will be valid only if set forth in an instrument in  writing signed on behalf of such party. No waiver of any term, provision or condition of this Agreement,  whether by conduct or otherwise, in any one or more instance, will be deemed or construed as a further or  continuing waiver of any such term, provision or condition or of any other term, provision or condition, but  any party hereto may waive its rights in any particular instance by written instrument of waiver.               Section 7.11  Legal Fees; Costs.  If either party to this Agreement institutes any action or  proceeding to enforce any provision of this Agreement, the prevailing party will be entitled to receive from  the other party reasonable attorneys’ fees, disbursements and costs incurred in such action or proceeding,  whether or not such action or proceeding is prosecuted to judgment.               Section 7.12   Force Majeure.  Neither party will be liable to the other party with respect to any  nonperformance or delay in performance of its obligations under this Agreement to the extent such failure  or delay is due to any action or claims by any third party, labor dispute, labor strike, weather conditions or  any cause beyond a party’s reasonable control.  Each party agrees that it will use all commercially  reasonable efforts to continue to perform its obligations under this Agreement, to resume performance of  its obligations under this Agreement, and to minimize any delay in performance of its obligations under  this Agreement notwithstanding the occurrence of any such event beyond such party’s reasonable control.         Section 7.13  Specific Performance.  Each party agrees that irreparable damage would occur and  that the parties would not have any adequate remedy at law in the event that any of the provisions of this  Agreement were not performed in accordance with their specific terms or were otherwise breached.  It is  accordingly agreed that each of the parties shall be entitled to seek an injunction or injunctions to prevent  breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this  being in addition to any other remedy to which they are entitled at law or in equity.               Section 7.14   Further Actions.  The parties will execute and deliver all documents, provide all  information, and take or forbear from all actions that may be necessary or appropriate to achieve the  purposes of this Agreement.               Section 7.15  Confidentiality.                       (a)        Except with the prior consent of the disclosing party, each party will:                                    (i)     limit access to the Confidential Information of the other party disclosed to        such party hereunder to its employees, agents, representatives, and consultants on a need-to-know        basis;                                                                  11                                                          Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






                    (ii)      advise its employees, agents, representatives, and consultants having access         to such Confidential Information of the proprietary nature thereof and of the obligations set forth         in this Agreement; and                                           (iii)     safeguard such Confidential Information by using a reasonable degree of         care to prevent disclosure of the Confidential Information to third parties, but not less than that         degree of care used by that party in safeguarding its own similar information or material.                                    (b)      A party’s obligations respecting confidentiality under Section 7.15(a) will not apply  to any of the Confidential Information of the other party that 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 the receiving party; (iii) was in the possession of the receiving party  at the time of disclosure to it without being subject to any obligation of confidentiality; (iv) was received  after disclosure to it from a third party who, to its knowledge, had a lawful right to disclose such information  to it; (v) was independently developed by the receiving party without reference to the Confidential  Information; (vi) was required to be disclosed to any regulatory body having jurisdiction over a party or  any of their respective clients; or (vii) was required to be disclosed by reason of legal, accounting, or  regulatory requirements beyond the reasonable control of the receiving party.  In the case of any disclosure  pursuant to clauses (vi) or (vii) of this paragraph (b), to the extent practical, the receiving party will give  prior notice to the disclosing party of the required disclosure and will use commercially reasonable efforts  to obtain a protective order covering such disclosure.                             (c)       The provisions of this Section 7.15 will survive the expiration or termination of this  Agreement.                                                 [Signature Page Follows]                                                                                          12                                                          Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






       IN WITNESS WHEREOF, each of the parties has signed this Agreement, or has caused this  Agreement to be signed by its duly authorized officer, as of the date first above written.                                             BANDWIDTH:                                                                                         BANDWIDTH INC.                                                                                                                                      By:                                             Name: W. Christopher Matton                                            Title: General Counsel                                                                                                                                      REPUBLIC WIRELESS:                                                                                         REPUBLIC WIRELESS, INC.                                                                                                                                      By:                                             Name: Peter D. Holthausen                                            Title: General Counsel                                                                                          13                                                          Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1





 






                                        EXHIBIT A – SERVICES  Category of Service            Service                                          Applicable     Service   Fee                                                                                  (Monthly) Legal                          Deputy General Counsel – Intellectual Property /      (1) $10,483.34 for the                                 Patent Support as follows: (1) 50% of anticipated         period ending March                                 customary working time through and until March 31,        31, 2020,                                 2020, (2) 25% of anticipated customary working time   (2) $5,241.67 for the                                 from April 1, 2020 through and until September 30,        period from April 1,                                 2020, and (3) as reasonably needed by Republic            2020 through                                 Wireless thereafter, but not more than 25% of             September 30, 2020,                                 anticipated customary working time                        and                                                                                      (3) as mutually agreed                                                                                           thereafter  Other                          Such other services as Bandwidth may obtain from its To be mutually agreed, but not                                 officers, employees and consultants in the management less than fair market value                                of its own operations that Republic Wireless may from                                 time to time request or require                                                        14                                                                        Doc ID: 5d47de3d65fa83167eea606299d816b27e4421d1