EXHIBIT 10.27
220-222 MHz SMR SYSTEM
PURCHASE AND LICENSE ASSIGNMENT AGREEMENT
This 220-222 MHz Systems Purchase and License Assignment Agreement (the
"Agreement") is entered into between Digi Link Technologies, Inc., a Delaware
corporation ("Purchaser"), and Communications Concepts, Inc., a Florida
corporation (hereafter "Seller"), to be effective as of January 21, 2001 (the
"Agreement").
WHEREAS, Purchaser is engaged in the ownership, development and management
of 220 MHz SMR licenses; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, each in accordance with the terms and conditions of this
Agreement, all of Seller's right, title and interest in and to various mobile
communications radio systems and licenses operating or to be operated in the
220-222 MHZ band (the "Systems"), which Systems are evidenced by, and operated
or to be operated pursuant to, an authorization (the "License") issued by the
Federal Communications Commission (the "FCC"), and which Systems and Licenses
are further described in Exhibit A attached hereto and made a part of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and terms
contained herein, and for other valuable consideration, receipt and sufficiency
of which is hereby mutually acknowledged, the Parties hereto, intending to be
legally bound, agree as follows:
1. Sale and Purchase.
1.1 Systems and Licenses. Subject to the terms and conditions of this
Agreement, Seller agrees to sell, and Purchaser agrees to purchase, subject to
prior FCC approval, all of Seller's right, title and interest in and to all
tangible and intangible assets (the "Assets") used in connection with the
Systems and the Licenses including, without limitation, assignment of the
License, License files and records, customer lists and records, contracts,
leases and other agreements, and other assets owned by Seller and used in
connection with the operation of the Systems and/or the Licenses existing on the
date of execution of this Agreement:
(a) Tycom Dispatch Systems, L.C. with SMR systems in Dallas and
Jacksonville;
(b) SMR Acquisition L.C. with two SMR Systems in Los Angeles, California;
(c) Comnet Dispatch with SMR System in Los Angeles;
(d) Bottom Line Dispatch L.C. with SMR System in Chicago; and
(e) License Pool 3, L.C., Milwaukee.
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1.2 Purchase Price. Purchaser agrees to pay Seller the amounts detailed
immediately below for the Systems / Licenses:
Systems / Licenses Purchase Price
(a) Tycom Dispatch Systems, L.C.
with SMR systems
in Dallas and Jacksonville; $600,000.00
(b) SMR Acquisition L.C.
with SMR Systems
in Los Angeles and Long Beach; $600,000.00
(c) Comnet Dispatch
with SMR System
in Los Angeles; $600,000.00
(d) Bottom Line Dispatch L.C.
with SMR System
in Chicago; and $600,000.00
Total (a) through (d) $2,400,000.00
(e) License Pool 3, L.C.,
Milwaukee. $840,000.00
Purchaser agrees to pay Seller $3,240,000, which purchase price shall be
paid in the form of: (i) 3,240,000 shares of restricted common stock of Digi
Link with an agreed to value of $1.00 per share or (ii) if there is an
established public trading market for Digi Link stock at the time the conditions
set forth in 1.3(c) are met, then the purchase price of $3,240,000 shall be paid
in Digi Link restricted common stock at a rate equal to the last closing bid on
the OTC Bulletin Board or in the over-the-counter market on the date before the
satisfaction of the last condition set forth in subparagraph 1.3c(i) and (ii)
below. By way of illustration, if Digi Link stock is trading at $2.00 bid on
the date the conditions are met, then the number of shares to be issued shall be
1.62 million shares.
1.3 Closing. The purchase and sale of the License shall be consummated in
the manner described in this Section 1.3. Upon the signing of this Agreement by
Seller and Purchaser, the following shall occur immediately thereafter:
(a) Seller shall deliver to Purchaser written confirmation, in form and
substance reasonably satisfactory to Purchaser, that Seller has applied to the
FCC for the transfer of the License to Purchaser as described herein, including
photocopies of all correspondence and documents exchanged by Seller and the FCC
regarding the License.
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(b) Purchaser shall prepare to deliver to Seller a stock certificate
representing the shares of Common Stock to be delivered as part of the Purchase
Price.
(c) Closing is conditioned upon the later of: (i) final FCC approval; or
(ii) satisfactory valuation of the assets being transferred by the auditors of
Digi Link, ▇▇▇▇▇▇▇▇ & Co., CPA's. At such time as all of the License transfers
from Seller to Purchaser are approved by the FCC, Seller shall cause the Common
Stock certificates to be delivered to Purchaser in accordance with the formula
set forth in Section 1.2 above.
Closing is conditioned upon final approval by the Board of Directors of
Purchaser and Seller and satisfactory completion of due diligence by Purchaser.
1.4 FCC Rules; Management Agreement. Purchaser and Seller each acknowledge
that it is familiar with the responsibilities of the licensee under federal
licenses of 220-222 MHz specialized mobile radio systems under the
Communications Act of 1934, as amended, and applicable FCC rules and policies.
In order to comply with applicable laws, rules and policies, the Parties agree
to enter into the 220-222 MHz System Management Agreement (the "Management
Agreement") in the form attached to and made a part of this Agreement as Exhibit
B. The Management Agreement shall be effective as of its execution date and
shall continue in full force and effect until such time that the FCC approves
the transfer of the License as contemplated by this Agreement. Seller shall pay
to Purchaser the compensation set forth in the Management Agreement according to
the terms and conditions set forth in the Management Agreement.
1.5 Specific Performance. If Purchaser fails to make payment as required in
this Agreement or Seller fails to cause transfer of the License to Purchaser to
be approved by the FCC, each of the Parties agrees that the respective
obligations of the Parties may be specifically enforced.
2. Representations of Seller. Seller represents, warrants and agrees to and
with Purchaser as follows as of the Effective Date and as of each Closing Date:
(a) Seller is the sole beneficial, legal and record licensee of the
License;
(b) Seller has full power, authority and legal right to transfer the
License;
(c) Other than restrictions imposed by the FCC in the ordinary course of
business, there are no claims, liens or other encumbrances on the
License;
(d) This Agreement constitutes a legal and binding obligation of the
Seller, and is valid and enforceable against the Seller and Seller's
successors in accordance with its terms;
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(e) Seller has had the opportunity to discuss Seller's acquisition of the
Common Stock pursuant to this Agreement and Seller has obtained or been
given access to all information concerning Purchaser that Seller has
reasonably requested, including all filings made by Purchaser's parent,
▇▇▇▇▇▇▇▇▇ Technologies Corporation, with the U.S. Securities and
Exchange Commission and the Purchaser's Private Placement Memorandum
dated as of September 25, 2000; and [PJJ: Do you want to reference new
PPM as in ABC??]
(f) There are no other restrictions on Seller's right or ability to
transfer the License to Purchaser.
3. Representations of Purchaser. Purchaser hereby represents, warrants and
agrees to and with Seller as follows:
(a) Purchaser has full power, authority and legal right to acquire the
License from Seller, and the entering into of this Agreement by
Purchaser does not require the consent of, or notice to, any party not
previously obtained or given; and
(b) This Agreement constitutes a legal and binding obligation of Purchaser,
and is valid and enforceable against Purchaser and Purchaser's
successors in accordance with its terms.
4. Additional Covenants.
4.1 Brokerage Commissions and Finders' Fees. Purchaser shall indemnify and
hold harmless Seller from any loss, cost or expense arising out of any claim for
brokerage commissions, finders' fees or other like payment with respect to this
Agreement or other transfer of the System or license if such claim is based upon
any agreement or understanding with Purchaser or any of Purchaser's
representatives or agents. Seller shall indemnify and hold harmless Purchaser
from any loss, cost or expense arising out of a claim for brokerage commissions,
finders' fees or other like payment with respect to this Agreement or other
transfer of the System or License if such claim is based upon any agreement or
understanding with Seller or any of Seller's representatives or agents.
4.2 Expenses. Each respective Party will pay all expenses and fees of his
or its legal counsel, accountants and other agents and advisers incurred
pursuant to this Agreement regardless of whether the transactions contemplated
in this Agreement are consummated.
5. Miscellaneous.
5.1 Entire Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof.
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5.2 Notice. All notices, requests, demands, directions and other
communications ("Notices") provided for in this Agreement shall be in writing
and shall be mailed or delivered personally or sent by telecopier or facsimile
to the applicable Party at the address of such Party set forth below in this
Section 5.2. When mailed, each such Notice shall be sent by first class,
certified mail, return receipt requested, enclosed in a postage prepaid wrapper,
and shall be effective on the third business day after it has been deposited in
the mail. When delivered personally, each such Notice shall be effective when
delivered to the address for the respective Party set forth in this Section 5.2.
When sent by telecopier or facsimile, each such Notice shall be effective on the
first business day on which or after which it is sent. Each such Notice shall be
addressed to the Party to be notified as shown below:
Purchaser: Digi Link Technologies, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman and CEO
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Seller: Communications Concepts, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may change its respective address for purposes of this Section
5.2 by giving the other Party Notice of the new address in the manner set forth
above.
5.3 Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under applicable
law, and if any provision of this Agreement shall be or become prohibited or
invalid in whole or in part for any reason whatsoever, that provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remaining portion of that provision or the remaining provisions
of this Agreement.
5.4 Non-Waiver. The waiver by either Party of a breach or a violation of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach or violation of any provision of this Agreement.
5.5 Amendment. No amendment or modification of this Agreement shall be
deemed effective unless and until it has been executed in writing by the Parties
to this Agreement. No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel to enforce any provision of
this Agreement, except by a written instrument that has been executed by the
Party charged with such waiver or estoppel.
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5.6 Inurement. This Agreement shall be binding upon each of the Parties,
and it shall benefit each of the Parties and their respective successors and
assigns. This Agreement shall not be assignable by either Party. There are no
third party beneficiaries to this Agreement.
5.7 Headings. The headings to this Agreement are for convenience only; they
form no part of this Agreement and shall not affect its interpretation.
5.8 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute a single instrument.
5.9 Survival of Representations and Warranties. Each covenant, agreement,
representation and warranty of the parties under this Agreement shall survive
for the execution of this Agreement and the performance of each respective
Party's obligations pursuant to this Agreement.
IN WITNESS WHEREOF, this Agreement is executed on the dates set forth below
to be effective as of the Effective Date.
Date: DIGI LINK TECHNOLOGIES, INC.
By: /s/: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman/CEO
Date: COMMUNICATIONS CONCEPTS, INC.
By: /s/: ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
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