Exhibit 10.38


 


CONFIDENTIAL TREATMENT REQUESTED FOR
PORTIONS OF THIS DOCUMENT. PORTIONS FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED HAVE BEEN MARKED WITH THREE ASTERISKS [***]
AND A FOOTNOTE INDICATING "CONFIDENTIAL TREATMENT REQUESTED". MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
 


FRAMEWORK AGREEMENT


 


PARTIES


 


GLOBAL EAGLE ENTERTAINMENT INC.
(“Customer”), a Delaware corporation with offices located at 4353 Park Terrace Drive, Suite 100, Westlake Village,
CA 91361, and


 


NEW SKIES SATELLITES B.V. (“SES”),
a company with offices located at Rooseveltplantsoen 4, 2517 KR, The Hague, The Netherlands


 


(Customer and SES, each a “Party”
and collectively the “Parties”).


 


WHEREAS


 


The Parties are in discussions to enter
into a Master Services Agreement (“MSA”), a service order ***
for space segment capacity on *** and a service order *** for space segment capacity on ***; and


 


The Parties wish to set out the terms and
conditions for a commercial framework of the provision of the space segment capacity (hereafter referred to as “Capacity”),
to be implemented in the MSA, the *** and the *** to be signed by the Parties on the same date hereof or no later than 30 October
2014, as well as other service orders (“SO(s)”) as may be identified by the Parties.


 


NOW THEREFORE, it is hereby agreed as
follows:


 


1.
Term


 


The term of this Framework Agreement will
commence as of the last signature date set forth below and end on the ten (10) year anniversary of *** (the “Term”),
subject to the terms and conditions set forth herein. “***” shall mean the commercial operation date of ***.


 


2.
PRE PAYMENT and Security


 


Pre-Payment. Following execution
of this Framework Agreement, Customer will provide a pre-payment equal to *** (the “Prepayment”), in accordance with
the schedule below. The first Prepayment installment will be applied towards the Service Fees, as they become due, from Customer
pursuant to any SO *** entered into following the date of the execution of this Framework Agreement. *** The second and third Prepayment
installments will be applied towards the Service Fees, as they become due, from Customer ***. *** Within *** of the termination
of this Framework Agreement, Customer shall receive a refund from SES of the Prepayment less any amounts applied to Services rendered
or Services scheduled to be rendered.


 





 



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	Prepayment 

Installment	 	Amount Due	 	Date Due
	1	 	USD 4,000,000.00	 	***
	2	 	***	 	the later of: (a) June 30, 2015; or ***
	3	 	***	 	the later of: (a) January 1, 2016; or ***


 


3.
SERVICE CommitmentS


 


(a) Agreements. The Parties hereby
agree that they shall enter into the following agreements:


 


***


 


*** the provision of all Capacity and related
facilities is subject to the execution of a SO or amendments or renewals thereto by the Parties and the procedures for acquiring
Capacity as described in this Framework Agreement.


 


(b) Service Forecasting and Ordering
Procedures.


 


(i) Capture Team. Within
five (5) Days of the execution of this Framework Agreement, each Party shall designate a commercial contact, a technical contact,
and a program administration contact to be part of a capture team (the “Capture Team”) which will be responsible for
coordination of capacity availability and ordering forecasts and analysis. Either Party may change its designated members of the
foregoing Capture Team upon notice to the other Party. The designated members of the Capture Team are members of the senior staff
of such Party or such other staff members with the access to appropriate information to provide good faith input as part of the
Capture Team meetings. The Capture Team shall meet ***
or as otherwise agreed by the Parties. The Capture Team shall have the authority and responsibility for coordinating *** The Capture
Team shall agree upon reasonable and appropriate information sharing required to accomplish the foregoing responsibilities; provided
that, as part of each regularly scheduled Capture Team meeting, the Parties shall prepare a report comprising the information set
forth on Schedule 1 hereto.


 


(ii) Capacity Ordering.
*** Customer’s ability to order capacity shall be subject to *** provided that SES agrees to make good faith efforts to accommodate
Customer’s requests for capacity with existing available capacity and capacity which may become available at a later date
*** Each of Customer and SES agree to follow the capacity ordering procedures set forth on Schedule 1; provided that the Capture
Team may agree to follow alternative procedures if the Parties mutually agree such procedures provide for more efficient and effective
ordering of capacity.


 


(c) Bandwidth and Rates. Capacity
ordered by Customer during the Term shall be in the following categories and at the following rates:


 


***


 


(d) Minimum Capacity
Commitment. ***


 


(e) Teleport Services. *** SES may
provide teleport services under a SO through *** (the “Teleport(s)”). SES may provide teleport services through the
Teleport(s) at a rate of *** In the event that Customer requests and SES agrees to provide colocation services, SES may provide
colocation services under a SO at the Teleport for Customer’s hub equipment at a rate of *** Teleport services, including
colocation, are subject to availability (as determined by SES in its sole discretion) of related facilities at the time of execution
of the relevant SO. Services through other teleports (i.e., not through Teleport(s)) will be evaluated on a case-by-case basis.
SES shall not unreasonably refuse Customer’s requests for teleport services.


 





 



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4. PORTABILITY AND RIGHT TO REDUCE CAPACITY


 


(a) Portability Option. During the
Term, Customer shall have the option to port capacity between *** subject to the following conditions: ***


 


***


 


5. EXCLUSIVITY


 


Pursuant to Customer's request, the Parties
agree that, throughout the Term, Customer shall procure from SES its capacity requirements as follows:


 


***


 


Customer understands and agrees that all
capacity is subject to availability of capacity and related facilities at the time of execution of SO(s) by the Parties. *** SES
agrees to make commercially reasonable efforts to satisfy Customer's capacity requirements, including through third party providers.
Except as provided above, in the event SES is not able to provide capacity requested by Customer from the SES fleet, SES may obtain
such capacity from third party providers; provided that ***


 


Notwithstanding the foregoing, Customer
may procure such capacity directly from third party providers in the event that:


 


***


 


The Parties agree that SES shall have no
obligation to provide and Customer shall have no obligation to take capacity through third party providers except under a fully
executed SO. ***


 


6. THIRD PARTY PROVIDERS


 


(a) Credits/Rebate. Customer may
procure capacity on the SES fleet through a third party provider, in accordance with Section 5 above, *** In such event, prior
to Customer and SES agreeing on Customer initiating any such third party request, the Parties shall agree on the associated economics
of any credit provisions, which may be ***


 


(b) Portability. In the event Customer
procures capacity on the SES fleet through a third party provider, in accordance with Section 5 above, during the Term, such third
party provider, at Customer’s direction, shall have the right to port such capacity on the same basis Customer has under
the Portability Option in Subsection 4(a) above.


 


(c) Assignment. In addition to any
rights of Customer to transfer its rights and obligations under any Agreement pursuant to Subsection 11(h) of the MSA, Customer
may assign *** in whole, but not in part, provided that: ***


 





 



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7. TERMINATION


 


In the event of termination
of *** pursuant to a termination right under either the *** of the *** and the *** then either Party may terminate this Framework
Agreement *** written notice to the other Party.


 


Termination of this Framework
Agreement will not affect the validity of any SOs executed by the Parties prior to such termination, including the *** and the
***


 


8. CONDITIONS


 


This Framework Agreement
is contingent upon the satisfaction of the following conditions:


 


(a) (i) the approval
by the SES S.A. Board of Directors no later than *** of *** the Services to Customer (as represented in Attachment A to the ***
and the ***), and (ii) *** failing which this Framework Agreement shall be void ab initio and the Parties shall have no
further obligations or liabilities to each other under this Framework Agreement. ***


 


(b) the Parties’
execution of *** and the *** by ***


 


9.
Licenses


 


Customer will be responsible for obtaining
all applicable governmental and regulatory authorizations to enable Customer to utilize the Capacity over the designated region
of service. As part of the Capture Team meetings, regulatory issues shall be discussed in the selection, utilization and portability
of Capacity and SES agrees to provide Customer reasonably requested information necessary to enable Customer to seek AMSS and similar
authorization to operate Customer’s service over a particular jurisdiction.


 


10. OTHER TERMS AND CONDITIONS


 


(a) Confidentiality. The Parties
agree that the content of this Framework Agreement is confidential, contains information which is proprietary to SES and Customer,
and is subject to the Proprietary Information Agreement between the Parties dated ***
(the “PIA”), except that the termination date of the PIA as set forth in Section (7) of the PIA shall not apply.


 


(b) Publicity/Regulatory Disclosures.
Any press release that either Party intends to do in order to announce this Framework Agreement is subject to review and approval
by the other Party, such approval not to be unreasonably withheld, conditioned or delayed. In addition, notwithstanding the terms
of the PIA, disclosure by a Party pursuant to law, judicial order, governmental regulation, securities laws or regulations, or
rules of a recognized stock exchange is permitted, provided that the disclosing Party gives reasonable advance notice to the other
Party of such disclosure and cooperates with the other Party in endeavoring to obtain limitations on disclosures (including protective
orders) as requested by the disclosing Party and, in the case of required disclosures under securities laws or regulations, or
rules of a recognized stock exchange, the disclosing Party coordinates with the other Party prior to disclosure and any such required
disclosures shall be done in good faith utilizing of all opportunities to minimize such disclosure and/or redacting of key competitive
terms.


 


(c) Expenses. Each Party shall bear
its own costs and expenses incurred by it in negotiating and preparing this Framework Agreement, *** any other the SO(s), and ***


 





 



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(d) Governing Law & Jurisdiction.
This Framework Agreement shall be construed in accordance with the laws of New York without regard to its conflicts of laws provisions
and the courts of New York shall have exclusive jurisdiction over any disputes that may arise in connection with this Framework
Agreement.


 


(e) No Liability. NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR UNDER ANY OTHER THEORY OF LIABILITY), INCLUDING BUT NOT LIMITED TO LOSS OF ACTUAL OR ANTICIPATED
REVENUES OR PROFITS, LOSS OF BUSINESS, CUSTOMERS OR GOOD WILL. This section does not modify the limitations applicable to breaches
of the PIA, which are governed by the PIA.


 


(f) No Third Party Rights; No Fiduciary
Relationship. Nothing contained in this Framework Agreement shall be deemed or construed by the Parties or by any third party
to create any rights, obligations or interests in third parties, or to create the relationship of principal and agent, partnership
or joint venture or any other fiduciary relationship or association between the Parties.


 


(g) Non-Waiver of Breach. The waiver
by either Party of a breach of, or a default under, any of the provisions of this Framework Agreement, or the failure of either
Party on one or more occasions to enforce any of the provisions of this Framework Agreement or to exercise any right or privilege
in under this Framework Agreement, will not be construed as a waiver of any subsequent breach or default of a similar nature or
as a waiver of any such provision, right, or privilege under this Framework Agreement.


 


(h) Notices. All notices and other
communications from one Party to the other Party will be in writing, in English, and hand-delivered or sent by courier service,
facsimile transmission or email attachment to the other Party at the address stated in the preamble. A Party may change its notice
receipt information on notice to the other Party.


 


(i) Severability. If any provisions
of this Framework Agreement are invalid, illegal or unenforceable in any respect under applicable law, then the validity, legality
and enforceability of the remaining provisions will not in any way be affected or impaired, and the invalid provision will be replaced
by a valid provision that comes closest to the intent of the Parties.


 


(j) Counterparts. This Framework
Agreement may be executed in several counterparts, each of which will be deemed an original, and all such counterparts will constitute
one and the same instrument.


 


(k) Definitions. Each capitalized
term used in this Framework Agreement that is not otherwise defined in this Framework Agreement shall have the meaning as defined
in the *** or SO.


 





 



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In Witness Whereof, the Parties
have caused this Framework Agreement to be executed as of the date of last signature below.


 


	GLOBAL EAGLE ENTERTAINMENT INC.	 	
        New
Skies Satellites B.V.

	 	 	 
	By: 	 /s/ Aditya Chatterjee	 	By: 	/s/ U. Bouwsma
	 	 	 
	Name:     	Aditya Chatterjee	 	Name:    	U. Bouwsma
	 	 	 
	Title:	 CTO	 	Title:	 Director
	 	 	 
	Date:	 October 24, 2014	 	Date:	 October 28, 2014
	 	 	 
	 	 	By:	/s/ Gerson Souto
	 	 	 
	 	 	Name: 	Gerson Souto
	 	 	 
	 	 	Title:	 Director
	 	 	 
	 	 	Date:	 October 28, 2014


 




     


     


    

  


Annex A: Capacity


 


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Schedule 1


 


Capture Team Information


 


Customer Forecast Items.


 


Customer will provide periodic reports
to include the following:


 


***


 


SES Forecast Items.


 


SES will provide periodic bandwidth reports
highlighting the available capacities as related to the bandwidth forecasts provided by Customer. These reports will include the
following:


 


***


 


SES and Customer shall exchange the necessary
technical information, on an ongoing basis, to best verify the usability of the potential capacity identified by SES for the demand
above, including, without limitation, taking into account ***


 


Notwithstanding the foregoing and without
prejudice to the Ordering Procedures below, Customer may make *** SES shall respond to all such requests ***


 


Ordering procedures


 


Request: Based on information provided
in the context of the Capture Team, Customer shall make requests for Capacity from time to time, including, as applicable, expected
variances in duration, scheduled increases/decreases in need, ground earth station information and desired mitigation items in
the event of a delay or failure and other terms.


 


Acknowledgment: SES shall acknowledge receipt
of such request within ***


 


Discussion: In the event any aspect of
the request is unclear, SES shall cause its Capture Team members to contact Customer’s Capture Team members and engage in
question/answer period ***


 


Response: SES shall provide a response
within ***


 


Service Order Negotiation: In the event
SES is able to provide the requested Capacity, Customer and SES shall then enter into SO negotiations.


 


 






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