EXHIBIT 10.8
220-222 MHz LICENSE PURCHASE
AND LICENSE ASSIGNMENT AGREEMENT
This 220-222 MHz License Purchase and Assignment Agreement (the
"Agreement") is entered into between Digi Link Technologies, Inc., a Delaware
corporation ("Digi Link") ("Purchaser"), and Advanced Business Communications,
LLC, a Delaware limited liability company ("ABC") ("Seller"), to be effective as
of January ___, 2001 (the "Agreement").
WHEREAS, Purchaser is engaged in the ownership, development and management
of 220 MHz specialized mobile radio ("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: (i) twenty-six
mobile communications radio licenses operating or to be operated in the 220-222
MHZ band (the "Systems"), which licenses are evidenced by, and operated or to be
operated pursuant to, an authorization (the "License") issued by the Federal
Communications Commission (the "FCC"), and Licenses are further described in
Exhibit A attached hereto and made a part of this Agreement; and (ii) those
Spectra acquired at Auction 18 and Auction 24, as more fully specified in
Exhibit B hereto.
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 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 twenty-six Licenses (further
described on Exhibit A hereto) 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 Licenses existing on the date of execution
of this Agreement, including those Spectra acquired at Auctions 18 and 24 which
are described in Exhibit B hereto. All Licenses/Assignments shall be delivered
to ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, Esq., Sacher, Zelman, ▇▇▇ ▇▇▇▇, ▇▇▇▇, Beiley, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, P.A., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
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1.2 Purchase Price. Purchaser agrees to pay Seller $7,200,000, which
purchase price shall be paid in the form of: (i) 7,200,000 shares of restricted
common stock of Digi Link.
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 Licenses and Spectra to Purchaser as described
herein, including photocopies of all correspondence and documents exchanged by
Seller and the FCC regarding the License.
(b) Purchaser shall cause to be prepared a stock certificate representing
the shares of Common Stock to be delivered as part of the Purchase Price
("Common Stock") which Common Stock shall be held in escrow by Sacher, Zelman,
▇▇▇ ▇▇▇▇, ▇▇▇▇, Beiley, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A. for ultimate delivery upon the
happening of the events described in paragraph 1.3(c) below.
(c) Final closing is conditioned upon final FCC approval. At such time as
all of the License transfers from Seller to Purchaser are approved by the FCC,
Seller through Escrow Agent shall cause the Common Stock certificate to be
delivered to Purchaser.
1.4 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
and/or has the rights to all such Licenses;
(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;
(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 November 27, 2000;
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(f) Restricted Stock and Limitations on Transactions. ABC understands and
agrees that the issuance of the shares of Digi Link's Common Stock pursuant to
this Agreement has not been and will not be registered under federal and state
securities laws and the shares of Digi Link's Common Stock are "restricted"
securities as defined in Rule 144 under the Securities Act of 1933 ("1933 Act").
ABC may not redistribute these securities and specifically understands and
agrees that no holder of Digi Link's Common Stock may sell, offer for sale,
transfer, pledge or hypothecate the shares of Digi Link Common Stock received
pursuant to this Agreement in the absence of an effective registration statement
covering that transaction, under all applicable federal and state securities
laws, unless that transaction is exempt from registration under all applicable
federal and state securities laws, including an exemption under Rule 144
promulgated under the Securities Act of 1993, or an opinion from Digi Link's
counsel and the written consent of Digi Link.
(g) There are no 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) Authority. Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State in which it is organized.
Purchaser has all requisite power and authority and the legal right to own its
properties and to conduct its business as currently conducted, and to execute,
deliver and perform this Agreement. Purchaser's execution, delivery, and
performance of this Agreement has been duly and validly authorized by all
necessary action on the part of the Purchaser. This Agreement has been duly
executed and delivered by Purchaser and constitutes the valid and binding
obligation of Purchaser enforceable in accordance with its terms against
Purchaser except as may be limited by laws affecting the enforcement of
creditors' rights or equitable principles generally.
(b) 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
(c) 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.
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5. Miscellaneous.
5.1 Entire Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter hereof.
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.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, Esq.
Sacher, Zelman, ▇▇▇ ▇▇▇▇, ▇▇▇▇,
Beiley, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Seller: Advanced Business Communications, LLC
Attn: ▇▇▇▇ Bostom, President
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇ ▇▇▇▇, Esq.
▇▇▇▇▇ & ▇▇▇▇, P.A.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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.
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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.
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 one year 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: 1/22/01 DIGI LINK TECHNOLOGIES, INC.,
a Delaware corporation
By:/s/: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman/CEO
Date: 1/22/01 ADVANCED BUSINESS COMMUNICATIONS, LLC,
a Delaware limited liability company
By:/s/: ▇▇▇▇ Bostom
Name: ▇▇▇▇ Bostom
Title: President/Managing Director
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220 LLC's Tower Lease Insurance Linking fees Monthly Cost
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Albany I, NY 725.00 43.75 271.82 1,040.57
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Albany I, NY 725.00 43.75 314.031 1,082.78
----------------------------------------------------------------------------------------------------------------------------
Albany III, NY 725.00 43.75 768.75
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Binghamton, NY 850.86 43.75 233.54 1,128.15
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Buffalo, NY 983.00 43.75 233.54 1,260.29
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Buffalo II, NY 983.00 43.75 1,026.75
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Cincinnati, OH 1,300.00 43.75 295.68 1,639.43'
----------------------------------------------------------------------------------------------------------------------------
Dayton, OH 325.00 43_.75 282.31 651.06
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Greenville I, SC 550.00 43.75 593.75
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Greenville II, SC 550.00 43.75 593.75
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇.▇▇ 43.75 290.78 784.53
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KY/NE/Bozra, CT 625.00 43.75 280.00 948.75
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Lancaster, PA 810.34 43.75 854.09
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Louisville I, KY 760.44 43.75 804.19
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▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇ 760.44 43.75 804.19
----------------------------------------------------------------------------------------------------------------------------
N E/KY 275.00 43.75 185.00 503.75
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Scranton I, PA 250.00 43.75 293.75
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Scranton II, PA 250.00 43.75 293.75
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Syracuse, NY 955.86 43.75 293.19 1,292.80
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Otisco/Syracuse III, NY 712.00 43.75 755.75
----------------------------------------------------------------------------------------------------------------------------
Rochester, NY/ (Baton Rouge) 745.00 43.75 335.07 1,123.82
----------------------------------------------------------------------------------------------------------------------------
Utica 756.00 43.75 246.90 1,046.65
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York 550.00 43.75 593.751
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Network Hub
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Prudential Center, Boston 742.31 I 1,306.151 2,048.461
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Phase II - Builds
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Manchester, NH 550.00 43.75 268.00 861.75
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Framingham, MA 450.00 43.75 185.00 678.75
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Totals: 17,359.251 1,093.75 5,021.01 I 23,474.011
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Spectrum Acquired Auction 18
1. EAG001 - Group I (10,15,20) Northeast Region
2. BEA003 - Group D (8,19) Boston-Worcester, MA/NH/RI
3. BEA006 - Group B (3,16) Syracuse, NY/PA
4. BEA007 - Group E (171-180) Rochester, NY/PA
5. BEA010 - Group C (5,18) NYC, NY/Northern NJ
6. BEA012 - Group A (2,13) Philadelphia, PA/Wilmington, DE/Atlantic
City, NJ
7. BEA013 - Group A (2,13) Washington, DC/Baltimore, MD
8. BEA015 - Group B (3,16) Richmond - Petersburg, VA
9. BEA019 - Group C (5,18) Raleigh - Durham, NC
10. BEA020 - Group E (171-180) Norfolk - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, VA
11. BEA022 - Group D (8,19) Fayetteville, SC
12. BEA047 - Group D (8,19) Lexington, KY/TN/VA
13. BEA048 - Group C (5,18) Charleston, WV/KY/OH
14. BEA049 - Group A (2,13) Cincinnati - Hamilton, OH
15. BEA050 - Group B (3,16) Dayton - Springfield, OH
16. BEA051 - Group D (8,19) Columbus, OH
17. BEA053 - Group D (8,19) Pittsburgh, PA / WV
18. BEA055 - Group E (171-180) Cleveland - Akron, OH
19. BEA056 - Group D (8,19) Toledo, OH
Spectrum Acquired Auction 24
1. EAG002 - Group F (1,6,11) Mid-Atlantic region
2. EAG004 - Group H (7,12,17) Great Lakes region
3. BEA0055 - Group C (5,19) Albany-Schenectady-Troy, NY
22