PowerPlusWaterMarkObject3 LICENSE PURCHASE AGREEMENT Between SPECTRUM SPECULATORS INC And

powerpluswatermarkobject3 license purchase agreement between spectrum speculators, inc.. and wombat wireless corp.. dated a

PowerPlusWaterMarkObject3
LICENSE PURCHASE AGREEMENT
between
SPECTRUM SPECULATORS, INC..
and
WOMBAT WIRELESS CORP..
Dated as of March __, 2006
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of March __, 2006, between SPECTRUM
SPECULATORS, INC.., a Delaware Corporation (“Purchaser”), and WOMBAT
WIRELESS CORP.., a Delaware corporation. (“Seller”).
WHEREAS, Seller holds the Personal Communications Services (“PCS”)
license issued by the Federal Communications Commission specified in
Schedule I hereto (the “Seller License”);
WHEREAS, Seller desires to assign to Purchaser, and Purchaser desires
to purchase from Seller, the Seller License (i.e., 1900 to 1905 MHz
and 1980 to 1985 MHz), ,all on the terms and subject to the conditions
herein set forth; and,
WHEREAS, the assignment of the Seller License is subject to, and may
not be consummated without the prior consent of the FCC.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, conditions and agreements
hereinafter set forth, the parties hereto agree as follows:
1.
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
set forth or referenced below:
“Affiliate” means, with respect to any Person, any other Person that,
directly or indirectly, alone or through one or more intermediaries,
controls, is controlled by or is under common control with that
Person. For purposes of this definition, “control” (including the
terms “controlling” and “controlled”) means the power to direct or
cause the direction of the management and policies of a Person,
directly or indirectly, whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise.
“Agreement” means this Agreement and all Exhibits and Schedules
hereto, as amended, supplemented or otherwise modified from time to
time in accordance with the terms hereof.
“Business Day” means any day, other than a Saturday or Sunday, on
which commercial banks and foreign exchange markets are open for
business in the county of New York, State of New York.
“Chosen Courts” is defined in Section 9.6.
“Closing” is defined in Section 2.2.
“Closing Date” is defined in Section 2.2.
“Confidential Information” means any and all information regarding the
business, finances, operations, products, services and customers of
the Person specified and its Affiliates, in written or oral form or in
any other medium.
“Consents” means all consents and approvals of Governmental
Authorities or other third parties necessary to authorize, approve or
permit the parties hereto to consummate the Transactions.
“Constituent Documents” means articles or certificates of
incorporation and bylaws of a corporation, or similar constituent
documents for entities that are not corporations, including but not
limited to certificates or articles of formation or organization,
limited liability company agreements and similar documents.
“Escrow Deposit” means the deposit paid by Purchaser simultaneously
with the execution of this Agreement as further described in Section
2.2.
“FCC” means the Federal Communications Commission or any successor
agency thereof.
“FCC Law” is defined in Section 3.5(c).
“Governmental Authority” means a Federal, state or local court,
legislature, governmental agency (including the FCC and the United
States Department of Justice), commission or regulatory or
administrative authority or instrumentality.
“Instrument of Assignment” is defined in Section 6.3(c).
“Law” means applicable common law and any statute, ordinance, code or
other law, rule, permit, permit condition, regulation, order, decree,
technical or other standard, requirement or procedure enacted,
adopted, promulgated, applied or followed by any Governmental
Authority.
“License” means a license, permit, certificate of authority, waiver,
approval, certificate of public convenience and necessity,
registration or other authorization, consent or clearance to construct
and/or operate a facility (or facilities), including any emissions,
discharges or releases therefrom, or to transact an activity or
business, to construct a tower (or towers) or to use an asset or
process, in each case issued or granted by a Governmental Authority.
“Liens and Encumbrances” means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest, pledge, easement,
conditional sale or other title retention agreement, defect in title,
covenant, right of first refusal or right of others therein, incursion
or encumbrance of any nature whatsoever in respect of such asset,
other than liens created by this Agreement or by Purchaser.
“Losses” is defined in Section 8.2.
“PCS” is defined in the first recital.
“Person” means any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business trust,
Governmental Authority, cooperative, association, individual or other
entity, and the heirs, executors, administrators, legal
representatives, successors, and assigns of such person as the context
may require.
“Purchase Price” is defined in Section 2.1.
“Purchaser” is defined in the preamble.
“Purchaser Indemnified Persons” is defined in Section 8.2.
“Seller” is defined in the preamble.
“Seller Indemnified Persons” is defined in Section 8.3.
“Seller License” is defined in the recitals.
“Transactions” means the transactions contemplated by this Agreement.
2.
PURCHASE AND SALE OF LICENSE
1.
Purchase and Sale
Upon the terms and subject to the conditions of this Agreement, at the
Closing, Seller shall sell, transfer, assign, convey, and deliver to
Purchaser, free and clear of all Liens and Encumbrances, and Purchaser
shall purchase from Seller, for a payment of Three Hundred Sixty
Thousand Dollars ($360,000) in cash (“Purchase Price”), all right,
title and interest of Seller in and to the Seller License, including,
without limitation, all right, title and interest of the Seller in, to
and under:
All licenses, permits, permissions and other authorizations relating
to the Seller License-related PCS operations of the Seller issued by
the FCC or any other governmental agency, including but not limited to
those listed on Schedule 1, and all applications for modification,
extension or renewal of the Seller License, and any pending
applications for any new licenses, permits, permissions or
authorizations pending on the Closing Date, including, but not limited
to, those listed on Schedule 1;
Section 2.2 Escrow Deposit Immediately upon the execution of this
Agreement, Purchaser shall wire to an account designated by Seller
Fifty Thousand Dollars. ($50,000.00). This amount (the “Escrow
Deposit”) shall be held by an escrow agent under the terms set forth
in the attached escrow agreement. At Closing, the Escrow Deposit shall
be paid to Seller and credited in full against the Purchase Price,
with any interest earned being paid to Purchaser. In the event that
Closing does not occur for any reason other than the FCC’s failure to
approve the assignment or termination by Purchaser pursuant to the
terms of this Agreement, the Escrow Deposit shall be paid over to
Seller as liquidated damages.
Section 2.3 Closing
Upon the terms and subject to the conditions hereof, the closing of
the sale of the Seller License (the “Closing”) shall take place at
10:00 a.m. Eastern Time by fax no later than five Business Days
following the date on which all conditions under Section 6.1 have been
satisfied or waived, or at such other time and place as the parties
may mutually agree. The date on which the Closing occurs is called the
“Closing Date.”
3.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
1.
Organization
Seller is a Delaware Corporation duly organized, validly existing and
in good standing. Seller has all requisite legal power and authority
(i) to own, lease and operate its properties and carry on its business
as presently conducted and (ii) to execute, deliver and perform its
obligations under this Agreement, and each other instrument, document,
certificate and agreement required or contemplated hereby to be
executed, delivered and performed by Seller. Seller is duly qualified
to do business in each jurisdiction where the character of its
properties owned or leased or the nature of its activities makes such
qualification necessary, other than any such jurisdiction in which the
failure to be so qualified would not materially adversely affect the
Transactions or Seller’s ability to perform its obligations under this
Agreement.
2.
Authorization
The execution and delivery of this Agreement, and the performance by
Seller of its obligations hereunder, have been duly authorized by all
necessary corporate action on the part of Seller and its
stockholders(s) and board of directors.
3.
Enforceability
This Agreement has been duly executed and delivered by Seller and is,
when executed and delivered by Seller, a legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with
its terms.
4.
No Conflicts or Consents
Neither the execution, delivery and performance by Seller of this
Agreement, nor the consummation of the Transactions by Seller, will
(i) conflict with, or result in a breach or violation of, any
provision of Seller’s Constituent Documents; (ii) constitute, with or
without the giving of notice or passage of time or both, a breach,
violation or default by Seller or any of its Affiliates, create a
Lien, or give rise to any right of termination, modification,
cancellation, prepayment or acceleration, under (x) any Law or License
(subject to receipt of Consent of the FCC to the Transactions) or (y)
any note, bond, mortgage, indenture, lease, agreement or other
instrument, in each case which is applicable to or binding upon Seller
or any of its assets; or (iii) require any Consent, other than the
Consent of the FCC, except, in the case of clauses (ii) and (iii),
where such breach, violation, default, Lien, right, or the failure to
obtain or give such Consent would not have a material adverse effect
on Seller or materially adversely affect the Transactions or Seller’s
ability to perform its obligations under this Agreement or to deliver
clear title to the Seller License.
5.
FCC Matters
a.
At the Closing, Seller shall be the authorized and legal
holder of the Seller License and such License shall be valid
and in full force and effect. Prior to the Closing, all
Consents shall have been obtained, and such Consents shall
be in full force and effect, and no person shall have
objected to the grant of the Consents.
b.
Except for proceedings affecting the PCS industry generally,
to the knowledge of Seller and its Affiliates, there is not
pending or threatened against Seller or the Seller License
any application, action, petition, objection or other
pleading, or any proceeding with the FCC or any other
Governmental Authority, which contests the validity of, or
seeks the revocation, forfeiture, non-renewal or suspension
of, the Seller License, or which would adversely affect the
ability of Seller to consummate the Transactions.
c.
Since Seller or its Affiliates became the licensee of the
Seller License, Seller and its Affiliates have complied with
all applicable Laws except for any non-compliance that,
individually or in the aggregate, has not or will not have a
material adverse effect on the Seller License or on Seller’s
ability to consummate the Transactions. Since Seller or its
Affiliates became the licensee of the Seller License, Seller
and its Affiliates have complied in all material respects
with FCC Laws applicable to the Seller License. Since Seller
or its Affiliates became the licensee of the Seller License,
Seller and its Affiliates have complied in all material
respects with all of the terms and conditions of the Seller
License. To Seller’s and its Affiliates’ knowledge, the
Seller License is not subject to any conditions other than
those appearing on its face and those imposed by the
Communications Act of 1934, as amended, and the rules,
regulations and policies of the FCC (“FCC Law”). A copy of
the current license is attached hereto (Schedule1)..
6.
Litigation
There is no action, proceeding or investigation pending or, to
Seller’s knowledge, threatened against Seller or the Seller License
that would be reasonably expected to have an adverse effect on its
ability to consummate the Transactions or which seeks to prevent or
challenge the Transactions.
Section 3.7. Taxes
Seller has paid all taxes and fees presently due and payable with
respect to or as a result of its ownership of the Seller License by
Seller.
7.
Brokers
Seller has not employed any broker or finder or incurred any liability
for any brokerage or finder’s fees or commissions in connection with
the Transactions.
4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
1.
Organization
Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Michigan . Purchaser has
all requisite corporate power and authority (i) to own, lease and
operate its properties and carry on its business as presently
conducted and (ii) to execute, deliver and perform its obligations
under this Agreement and each other instrument, document, certificate
and agreement required or contemplated hereby to be executed,
delivered and performed by Purchaser. Purchaser is duly qualified to
do business in each jurisdiction where the character of its properties
owned or leased or the nature of its activities makes such
qualification necessary, other than any such jurisdiction in which the
failure to be so qualified would not materially adversely affect the
Transactions or Purchaser’s ability to perform its obligations under
this Agreement.
2.
Authorization
The execution and delivery of this Agreement and the performance by
Purchaser of its obligations hereunder, have been duly authorized by
all necessary corporate action on the part of Purchaser and its
stockholders(s) and board of directors.
3.
Enforceability
This Agreement has been duly executed and delivered by Purchaser and
is, when executed and delivered by Purchaser, a legal, valid and
binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and
to general equity principles.
4.
No Conflicts or Consents
Neither the execution, delivery and performance by Purchaser of this
Agreement, nor the consummation of the Transactions by Purchaser, will
(i) conflict with, or result in a breach or violation of, any
provision of Purchaser’s Constituent Documents; (ii) constitute, with
or without the giving of notice or passage of time or both, a breach,
violation or default by Purchaser or any of its Affiliates, create a
Lien, or give rise to any right of termination, modification,
cancellation, prepayment or acceleration, under (x) any Law or License
(subject to receipt of the Consent of the FCC to the Transactions) or
(y) any note, bond, mortgage, indenture, lease, agreement or other
instrument, in each case which is applicable to or binding upon
Purchaser or any of its assets; or (iii) require any Consent, other
than the Consent of the FCC, except, in the case of clauses (ii) and
(iii), where such breach, violation, default, Lien, right, or the
failure to obtain or give such Consent would not have a material
adverse effect on Purchaser or materially adversely affect the
Transactions or Purchaser’s ability to perform its obligations under
this Agreement.
5.
FCC Matters
To the knowledge of Purchaser, Purchaser is legally qualified to (i)
acquire and hold PCS licenses generally, (ii) acquire and hold the
Seller License (and the consummation of the Transactions will not
cause Purchaser to be ineligible to hold the Seller License) and (iii)
obtain any authorization or approval from any Governmental Authority
necessary for Purchaser to acquire the Seller License. Funding
Purchaser has, or has access to, funds sufficient to timely perform
its obligations under this Agreement.
Section 4.7 Litigation
There is no action, proceeding or investigation pending or, to
Purchaser’s knowledge, threatened against Purchaser or any of its
properties or assets that would be reasonably expected to have an
adverse effect on its ability to consummate the Transactions, or which
seeks to prevent or challenge the Transactions.
6.
Brokers
Purchaser has not employed any broker or finder or incurred any
liability for any brokerage or finder’s fees or commissions in
connection with the Transactions.
5.
COVENANTS AND OTHER AGREEMENTS
1.
Consummation of Transactions
Each party shall use its reasonable best efforts to take, or cause to
be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable and consistent with applicable Law to
perform its obligations under this Agreement and to consummate the
Transactions as soon as reasonably practicable.
2.
Compliance with Law
Prior to Closing, Seller shall comply in all material respects with
Laws applicable to the Seller License.
3.
Maintenance of Seller License
a.
From the date Seller becomes the licensee of the Seller
License until Closing, Seller shall take commercially
reasonable steps to maintain in full force and effect the
Seller License and all other Licenses necessary to preserve
Seller’s ability to consummate the Transactions contemplated
by this Agreement.
b.
Neither Seller nor its Affiliates shall enter into any other
agreement, arrangement or understanding to, or otherwise
offer or commit to (i) sell, transfer, assign or dispose of
the spectrum to be covered by the Seller License or any
interest therein or portion thereof, or negotiate therefor,
or (ii) create, incur or suffer to exist any Lien on the
spectrum to be covered by the Seller License or any interest
therein. Nothing in this paragraph shall serve to cause
Seller to abdicate, or Purchaser to assume, control of the
Seller License.
4.
Consents
The parties shall use commercially reasonable efforts to obtain all
Consents as soon as reasonably practicable, and shall cooperate to
prepare and file with Governmental Authorities and other Persons, no
later than five (5) Business Days following the date hereof, complete
applications, notices, petitions and other documents necessary or
advisable to obtain all Consents including an application seeking FCC
consent to assign the Seller License to Purchaser. The parties hereto
will cooperate in the preparation of such applications, notices,
petitions and other documents (including the furnishing to each other
of copies of such applications and requests prior to filing) and will
diligently take, or cooperate in the taking of, all necessary and
desirable steps, to provide any additional information required and
otherwise use their best efforts to prosecute the applications, and to
obtain promptly the requested consent and approval of the FCC to the
assignment of the Seller License to the Purchaser. Each party shall
furnish to the other party all information concerning such party and
its Affiliates reasonably required for inclusion in any application or
filing to be made in connection with the Transactions or to determine
compliance with FCC Law. Each party shall notify the other parties
hereto in the event it becomes aware of any other facts, actions,
communications or occurrences that might directly or indirectly affect
the parties’ intent or ability to effect prompt FCC approval of the
Transactions contemplated by this Agreement. Seller and Purchaser
shall vigorously oppose any petitions to deny or other objections
filed with respect to the application filed with the FCC that are
directed to Seller or Purchaser; provided, however, that neither
Seller nor Purchaser shall have any obligation to participate in any
evidentiary hearing on the application filed with the FCC.
5.
Certain Notices
Each party shall promptly notify the other party in reasonable detail:
a.
upon the commencement of, or the impending or threatened
commencement of, or upon obtaining knowledge of any facts that
would give rise to, any claim, action or proceeding brought to
enjoin the consummation of the Transactions, or against or
relating to (i) the notifying party or its properties or
assets, which could materially adversely affect the
Transactions or such party’s ability to perform its
obligations hereunder, or (ii) the Seller License or their
use, except where such claim, action or proceeding relates to
the PCS industry generally;
b.
upon the occurrence of, or the impending or threatened
occurrence of, or upon obtaining knowledge of any facts that
would give rise to, any event which could cause or constitute
a material breach of any of its representations, warranties,
covenants or agreements contained in this Agreement, and shall
use commercially reasonable efforts to prevent or promptly
remedy such breach; and
c.
upon the occurrence or existence of any event, condition,
circumstance or state of facts known to the notifying party,
which has had or could have a material adverse effect on the
Transactions or such party’s ability to perform its
obligations hereunder, or could materially adversely affect
the Seller License or its use, other than events, conditions,
circumstances or states of facts affecting the PCS industry
generally.
1.
Build-out Requirement
Seller has filed with the FCC its notification of meeting the required
five year build-out requirement, and notification has been accepted by
the FCC. At the Closing, Purchaser shall assume and be solely
responsible for meeting the ten-year build-out requirement imposed by
the FCC with respect to the Seller License.
7.
Confidentiality
Each party shall keep confidential the existence and terms of this
Agreement except as may be otherwise required by Law. Any and all
Confidential Information or other non-public information, written or
oral, provided by one party (or its Affiliates) to the other party (or
its Affiliates) under this Agreement, whether in connection with the
defense of a claim or otherwise, shall be kept confidential by the
receiving party and its Affiliates, and shall not be used or disclosed
by the receiving party or its Affiliates except to the extent required
in connection with the performance of the receiving party’s
obligations under this Agreement or as required by Law, and then only
after the receiving party has provided the disclosing party with a
reasonable opportunity to seek confidential treatment, a protective
order or other limitation on such disclosure. The receiving party
shall cooperate with the disclosing party in seeking such confidential
treatment to the maximum extent permitted by Law.
8.
Further Assurances
Each party shall forthwith upon request execute and deliver such
documents and take such actions as may reasonably be requested by the
other party in order to effectuate the purposes of this Agreement.
6.
CONDITIONS TO CLOSING
1.
Conditions to the Obligations of Both Parties
Each party’s obligation to consummate the Transactions contemplated by
this Agreement is subject to the satisfaction or waiver, on or prior
to the Closing Date, of each of the following conditions, as
applicable to the party specified:
a.
The FCC shall have granted its consent to the application for
consent to the assignment of the Seller License to Purchaser
and all other notices, filings and Consents required to be
made or obtained prior to the Closing by either party or any
of its respective Affiliates with any Governmental Authority
in connection with the execution and delivery of this
Agreement and the consummation of the Transactions shall have
been made or obtained.
b.
No preliminary or permanent injunction or other order, decree
or ruling issued by a Governmental Authority, nor any Law
promulgated or enacted by any Governmental Authority, shall be
in effect that would impose material limitations on the
ability of either party to consummate the Transactions.
1.
Conditions to the Obligations of Seller
Seller’s obligation to consummate the transactions contemplated by
this Agreement are subject to the satisfaction or waiver on or prior
to the Closing Date of each of the following conditions:
a.
The representations and warranties of Purchaser contained
herein shall be true and correct in all material respects
(except for representations and warranties that are qualified
as to materiality, which shall be true and correct) as of the
Closing as if made on and as of the Closing Date (except that
representations and warranties that are made as of a specific
date need be so true and correct only as of such date), and
Seller shall have received a certificate to such effect dated
the Closing Date and executed by a duly authorized officer of
Purchaser.
b.
The covenants and agreements of Purchaser to be performed
under this Agreement on or prior to the Closing shall have
been duly performed in all material respects, and Seller shall
have received a certificate to such effect dated the Closing
Date and executed by a duly authorized officer of Purchaser.
1.
Conditions to the Obligations of Purchaser
Purchaser’s obligation to consummate the transactions contemplated by
this Agreement are subject to the satisfaction or waiver on or prior
to the Closing Date of each of the following conditions:
a.
The representations and warranties of Seller contained herein
shall be true and correct in all material respects (except for
representations and warranties that are qualified as to
materiality, which shall be true and correct) as of the
Closing as if made on and as of the Closing Date (except that
representations and warranties that are made as of a specific
date need be so true and correct only as of such date), and
Purchaser shall have received a certificate to such effect
dated the Closing Date and executed by a duly authorized agent
of Seller.
b.
The covenants and agreements of Seller to be performed under
this Agreement on or prior to the Closing shall have been duly
performed in all material respects, and Purchaser shall have
received a certificate to such effect dated the Closing Date
and executed by a duly authorized agent of Seller.
c.
Seller shall have paid all taxes and fees imposed as a result
of its ownership of the Seller License through the Closing
Date.
d.
Seller shall have executed and delivered to Purchaser an
“Instrument of Assignment” with respect to the Seller License
in the form of Exhibit A.
1.
TERMINATION
1.
Termination
This Agreement may be terminated, and the Transactions abandoned,
without further obligation of either party except as set forth herein,
at any time prior to the Closing Date under the following conditions:
a.
by mutual written consent of the parties;
b.
by either party upon written notice to the other if the
Closing shall not have occurred on or before the first
anniversary of the date hereof, provided, that the terminating
party is not otherwise in breach of its obligations under this
Agreement; or
(c) by either party if the assignment of the Seller License is not
approved by the FCC by June 20, 2006, unless such failure to approve
is the result of the FCC’s inability to find the Purchaser qualified
to hold the Seller License, in which case Seller may terminate but the
Escrow Deposit shall be paid to Seller, or unless such failure to
approve is the result of the FCC’s inability to find the Seller
qualified to hold the Seller License or to assign it, in which case
Purchaser may terminate but Seller shall reimburse Purchaser for legal
fees as provided below.
(d) by either party upon notice to the other if the FCC determines
that it cannot find that the proposed transaction serves the public
interest, convenience and necessity without a hearing and designates
for hearing the application seeking consent to assign the Seller
License to Purchaser to determine whether the proposed assignment will
serve the public interest, convenience and necessity and should be
granted, unless such designation is the result of the FCC’s inability
to find the Purchaser qualified to hold the Seller License, in which
case Seller may terminate but the Escrow Deposit shall be paid to
Seller .
2.
Effect of Termination
In the event of a termination of this Agreement, neither party shall
have any liability or further obligation to the other, except that (a)
nothing herein will relieve a party from liability for any breach by
such party of this Agreement and (b) the provisions of this Article 7,
Article 8 and Article 9 shall survive the termination of this
Agreement. Whether or not Closing occurs, all costs and expenses
incurred in connection with this Agreement and the Transactions shall
be paid by the party incurring such expenses. Breach of a
representation or warranty by either party shall be grounds for
termination by the non-breaching party. In the event that this
Agreement is terminated as a result of breach of this Agreement by
Purchaser, the Escrow Deposit shall be disbursed to Seller. If this
Agreement is terminated as a result of any other factor (except as set
forth in Section 7.1 above), the Escrow Deposit shall be disbursed to
Purchaser. In the event that this Agreement is terminated because the
FCC does not approve the assignment by June 20, 2006 due to a flaw in
the Seller License or the FCC’s inability to find the Seller qualified
to assign the Seller License, Seller shall reimburse Purchaser for its
legal fees incurred in the entry into this Agreement and the
prosecution of the FCC application not to exceed Five Thousand Dollars
($5,000.00).
8.
SURVIVAL AND INDEMNIFICATION
1.
Survival
The representations and warranties contained in this Agreement shall
survive the Closing until twenty-four months after the Closing Date
and shall expire at such time. The covenants and other agreements
contained in this Agreement shall survive the Closing until the date
or dates specified therein or the expiration of the applicable statute
of limitations (including any waivers or extensions thereof) with
respect to such matters, whichever is later.
2.
Indemnification by Seller
Seller shall indemnify and hold harmless Purchaser and its Affiliates,
and their respective successors and assigns, and the shareholders,
directors, officers, employees and agents of any and all of the
foregoing (the “Purchaser Indemnified Persons”), from and against any
and all demands, claims, losses, liabilities, actions or causes of
action, assessments, damages, fines, taxes, penalties, and reasonable
costs and expenses (whether such costs and expenses relate to claims
asserted by Persons indemnified under this Agreement or by third
parties), including, without limitation, interest, reasonable expenses
of investigation, and reasonable fees and disbursements of counsel,
accountants and other experts (collectively “Losses”), incurred or
suffered by any Purchaser Indemnified Person arising out of, in
connection with or relating to (a) any breach of any of the
representations or warranties made by Seller in this Agreement or, (b)
any failure by Seller to perform any of its covenants or agreements
contained in this Agreement, or (c) any claims by third parties
arising out of, in connection with or relating to the ownership or
operation of the Seller License by Seller or its Affiliates prior to
the Closing.
3.
Indemnification by Purchaser
Purchaser shall indemnify and hold harmless Seller and its Affiliates,
and their respective successors and assigns, and the shareholders,
directors, officers, employees and agents of any and all of the
foregoing (the “Seller Indemnified Persons”), from and against any and
all Losses incurred or suffered by any Seller Indemnified Person
arising out of, in connection with or relating to (a) any breach prior
to Closing of any of the representations or warranties made by
Purchaser in this Agreement, (b) any failure by Purchaser to perform
any of its covenants or agreements contained in this Agreement, or (c)
any claims by third parties arising out of, in connection with or
relating to the use of the Seller License by Purchaser or its
Affiliates after the Closing.
4.
Remedies
a.
Each party acknowledges and agrees that, from and after the
Closing, its sole and exclusive remedy with respect to
claims for breach of representations or warranties contained
in this Agreement shall be pursuant to the indemnification
provisions set forth in this Article 8.
b.
In no event shall any party be liable for indirect, special,
consequential or punitive damages arising out of a breach of
this Agreement, even if advised at the time of breach of the
possibility of such damages.
c.
Notwithstanding the foregoing, the parties acknowledge that
the spectrum whose use is governed by the Seller License is
a unique property for which no monetary damages could
substitute. Accordingly, in the event that Seller breaches
this Agreement, in addition to any other remedies or damages
available at law, Purchaser shall be entitled to specific
performance of the Agreement.
1.
MISCELLANEOUS
1.
Entire Agreement
This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof and thereof and supersedes all
prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the parties with respect to
the subject matter hereof and thereof.
2.
Amendments and Waivers
Any provision of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and signed (in the case of
an amendment) by Seller and Purchaser or (in the case of a waiver) by
the party against whom the waiver is to be effective. No failure or
delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
3.
Remedies Cumulative
Except as otherwise provided herein, all rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative, and the
exercise or beginning of the exercise of any thereof by a party shall
not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
4.
Assignment
This Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective successors and permitted assigns.
This Agreement may not be assigned by either party without the prior
written consent of the other party, except that the Purchaser may
assign its interest in the Agreement to a wholly owned subsidiary or
other Affiliate of Purchaser.
5.
Notices
All notices or other communications hereunder shall be in writing and
shall be deemed to have been duly given or made (i) upon delivery if
delivered personally (by courier service or otherwise), as evidenced
by written receipt or other written proof of delivery (which may be a
printout of the tracking information of a courier service that made
such delivery), or (ii) upon confirmation of dispatch if sent by
facsimile transmission (which confirmation shall be sufficient if
shown by evidence produced by the facsimile machine used for such
transmission), in each case to the applicable addresses set forth
below (or such other address which either party may from time to time
specify):
If to Purchaser:
Spectrum Speculators, Inc.
12345 ABC Road
Hawthorone CA 90251
Attn: Juan Valdez
With copies (which shall not alone constitute notice) to:
Brand, Cassell, Kaman, Livingston, and Maggette
1600 Pennsylvania Ave
Washington, DC 20037
Attn: Vlade Radmonivic
If to Seller:
WOMBAT WIRELESS CORP..
90002 Aviation Blvd..
Redondo Beach, CA 90278
Attention: George Mason
Facsimile: (310) 937-4863
with a copy (which shall not alone constitute notice) to:
Leinart, Bush and White
1100 North 13th Street 11th Floor
Arlington, VA 22209
Attention: David Kirtman
Facsimile: (703) 812-8844
6.
Governing Law; Jurisdiction; Forum; Waiver of Jury Trial
a.
This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of
California without reference to the choice of law principles
thereof. Each party agrees that it shall bring any action or
proceeding in respect of any claim arising out of or related
to this Agreement or the Transactions, whether in tort or
contract or at law or in equity, exclusively in the State of
California and (i) irrevocably submits to the exclusive
jurisdiction of the Chosen Court, (ii) waives any objection
to laying venue in any such action or proceeding in the
Chosen Court for purposes of any such action or proceeding,
(iii) waives any objection that the Chosen Court is an
inconvenient forum or does not have jurisdiction over any
party and (iv) agrees that service of process upon such
party in any such action or proceeding shall be effective if
notice, including the original or a copy of such process, is
given and receipt thereof evidenced in accordance with
Section 9.5; provided, that nothing contained in this
paragraph shall be deemed to constitute a waiver of any
objection to subject matter jurisdiction.
b.
The parties hereby irrevocably waive any and all right to
trial by jury in any legal proceeding arising out of or
related to this Agreement or the Transactions.
7.
Expenses
Except as otherwise expressly provided in this Agreement, whether or
not the Transactions are consummated, the parties shall bear their
respective expenses (including, but not limited to, all compensation
and expenses of counsel, financial advisors, consultants, actuaries
and independent accountants) incurred in connection with this
Agreement and the Transactions. All filing fees required to be paid to
any Governmental Authority in connection with satisfying the
conditions set forth in Section 6.1(a) will be borne equally by
Purchaser and Seller.
8.
Invalidity
In the event that any of the provisions contained in this Agreement or
in any other instrument referred to herein, shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement or such other instrument and such
provision will be ineffective only to the extent of such invalidity,
illegality or unenforceability, unless the consummation of the
Transactions is impaired thereby.
9.
Counterparts
This Agreement may be executed and delivered (including by facsimile
transmission) in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and
the same instrument.
10.
Headings
The headings of the Articles and Sections herein are inserted for
convenience of reference only and are not intended to be a part of or
to affect the meaning or interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
SPECTRUM SPECULATORS, INC..
By_________________________________
Name: ________________
WOMBAT WIRELESS CORP.
By_________________________________
Name: George Mason
Title: President
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS 1
ARTICLE 2 PURCHASE AND SALE OF LICENSE 3
Section 2.1. Purchase and Sale 3
Section 2.3 Closing 4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER 4
Section 3.1. Organization 4
Section 3.2. Authorization 4
Section 3.3. Enforceability 4
Section 3.4. No Conflicts or Consents 4
Section 3.5. FCC Matters 5
Section 3.6. Litigation 5
Section 3.7. Brokers 6
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER 6
Section 4.1. Organization 6
Section 4.2. Authorization 6
Section 4.3. Enforceability 6
Section 4.4. No Conflicts or Consents 7
Section 4.5. FCC Matters 7
Section 4.6. Brokers 7
ARTICLE 5 COVENANTS AND OTHER AGREEMENTS 7
Section 5.1. Consummation of Transactions 8
Section 5.2. Compliance with Law 8
Section 5.3. Maintenance of Seller License 8
Section 5.4. Consents 8
Section 5.5. Certain Notices 9
Section 5.6. Build-out Requirement 9
Seller has filed with the FCC its notification of meeting the required
five year build-out requirement, and notification has been accepted by
the FCC. At the Closing, Purchaser shall assume and be solely
responsible for meeting the ten-year build-out requirement imposed by
the FCC with respect to the Seller License. 9
Section 5.7. Confidentiality 9
Section 5.8. Further Assurances 10
ARTICLE 6 CONDITIONS TO CLOSING 10
Section 6.1. Conditions to the Obligations of Both Parties 10
Section 6.2. Conditions to the Obligations of Seller 10
Section 6.3. Conditions to the Obligations of Purchaser 11
ARTICLE 7 TERMINATION 11
Section 7.1. Termination 11
Section 7.2. Effect of Termination 12
ARTICLE 8 SURVIVAL AND INDEMNIFICATION 12
Section 8.1. Survival 12
Section 8.2. Indemnification by Seller 12
Section 8.3. Indemnification by Purchaser 13
Section 8.4. Remedies 13
ARTICLE 9 MISCELLANEOUS 13
Section 9.1. Entire Agreement 13
Section 9.2. Amendments and Waivers 14
Section 9.3. Remedies Cumulative 14
Section 9.4. Assignment 14
Section 9.5. Notices 14
Section 9.6. Governing Law; Jurisdiction; Forum; Waiver of Jury Trial
15
Section 9.7. Expenses 16
Section 9.8. Invalidity 16
Section 9.9. Counterparts 16
Section 9.10. Headings 16
SCHEDULES AND EXHIBITS
Schedule I Seller License
Exhibit A Form of Instrument of Assignment
SCHEDULE I
LICENSES
Seller License-Also see attached copy of License printed from the FCC
ULS.
Call Sign
Block
Spectrum
Market Name
Market Area
ZANY100
C4
1900 to 1905 MHz and 1980 to 1985 MHz
Crossroads, MS
BTA954
Exhibit A
INSTRUMENT OF ASSIGNMENT
INSTRUMENT OF ASSIGNMENT (the “Instrument of Assignment”), dated as of
[_________], 2006, by and between WOMBAT WIRELESS CORP.., a Delaware
Corporation (“Assignor”) and SPECTRUM SPECULATORS, INC.. [Delaware
corporation (“Assignee”). Capitalized terms used herein without
definition shall have the respective meanings assigned to them in the
Purchase Agreement (as defined below).
WHEREAS, Assignor and Assignee have entered into a Purchase Agreement
(the “Purchase Agreement”), dated as of March [__], 2006, pursuant to
which Assignor agreed to convey to Assignee, and Assignee agreed to
acquire, the Seller License;
WHEREAS, Assignor and Assignee have filed an application with the FCC
requesting consent to the assignment of the Seller License to
Assignee; and
WHEREAS, the FCC has granted its consent to such application.
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants, conditions, and agreements
hereinafter set forth, the parties agree as follows:
1.
Assignment. Pursuant to Section 2.1 of the Purchase Agreement, for
valuable consideration, receipt of which is hereby acknowledged,
Assignor, intending to be legally bound, does hereby sell, assign,
transfer, convey, and deliver to Assignee, its successors and
assigns forever, all right and interest of Assignor in and to the
Seller License, free and clear of all Liens and Encumbrances.
2.
Terms of Purchase Agreement Control. Nothing contained in this
Instrument of Assignment shall in any way supersede, modify,
replace, amend, change, rescind, waive, exceed, expand, enlarge,
or in any way affect the provisions of the Purchase Agreement,
including the warranties, covenants, agreements, conditions and
representations contained in the Purchase Agreement and, in
general, any of the rights and remedies, and any of the
obligations and indemnifications, of Assignor or Assignee set
forth in the Purchase Agreement.
3.
Power of Attorney. Assignor hereby grants its power-of-attorney to
Assignee as Assignor’s attorney-in-fact to take any appropriate
action in connection with the Seller License, in the name of
Assignor or in its own or any other name, it being understood that
this authorization and power-of-attorney are coupled with an
interest and are irrevocable.
4.
Further Assurances. Assignor covenants and agrees, in connection
with the Purchase Agreement and this Instrument of Assignment,
promptly to execute and deliver any additional documents and
instruments and perform any additional acts that may be reasonably
necessary or desirable to effectuate and perform more fully the
provisions of this Instrument of Assignment and the assignments
provided for in Section 1 hereof.
5.
Miscellaneous. This Instrument of Assignment (a) is executed
pursuant to the Purchase Agreement and may be executed in
counterparts, each of which as so executed shall be deemed to be
an original, but all of which together shall constitute one
instrument, (b) shall be governed by and in accordance with the
internal laws of the State of California without regard to the
principles of conflicts of law thereof and (c) shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
IN WITNESS WHEREOF, Assignor and Assignee have each caused this
Instrument of Assignment to be duly executed and delivered as of the
date first above written.
SPECTRUM SPECULATORS, INC..
By: ___________________________
Name:
Title:
WOMBAT WIRELESS CORP..
By: ___________________________
Name: George Mason
Title: President