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EXHIBIT 10.8
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ("AGREEMENT") is effective as of
the 23rd day of September, 1998 between XXXXXXXX XXXXXXXXXXXX, a Delaware
corporation ("TRANSFEROR"), and LEAP WIRELESS INTERNATIONAL, INC., a Delaware
corporation ("TRANSFEREE").
WHEREAS, Transferor wishes to transfer, assign and delegate (i) all of its
right, title and interest in and to certain of its assets as specifically listed
on Schedules A-1 through A-8 to that certain Separation and Distribution
Agreement (the "SEPARATION AGREEMENT"), dated as of even date herewith, by and
among Transferor and Transferee, except for the assets specifically listed on
Schedule A-7, which may be transferred and assigned following the Distribution
(as defined in the Separation Agreement) pursuant to the Separation Agreement
(the "ASSUMED ASSETS"), and (ii) all of its duties and obligations under certain
of its liabilities and obligations relating to the Assumed Assets listed on
Schedules B-1 through B-8 to the Separation Agreement, except for the
liabilities listed on Schedule B-7, which may be transferred and delegated
following the Distribution pursuant to the Separation Agreement (the "ASSUMED
LIABILITIES"), and the Transferee wishes to accept such transfer, assignment and
delegation, on the terms set forth in this Agreement and the Separation
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and conditions set forth below, and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties to this Agreement agree
as follows:
1. TRANSFER OF ASSUMED ASSETS. Transferor hereby grants, sells, conveys,
transfers, assigns, releases and delivers to Transferee all right, title and
interest of Transferor in and to all of the Assumed Assets, to have and hold the
same unto itself, its successors and assigns, and Transferee hereby acknowledges
and accepts such transfer, including without limitation, receipt of $10,000,000
in cash in accordance with Schedule A-8 of the Separation Agreement; provided,
however, that nothing in this Agreement shall be deemed to be an assignment by
Transferor to Transferee of any contract to be assigned to Transferee hereunder
that requires the consent of any party thereto to the assignment of the contract
until and unless such consent is obtained. Schedules A-1 through A-8 and B-1
through B-8 to the Separation Agreement are attached as Schedules hereto and are
incorporated herein by this reference.
2. ASSUMPTION OF LIABILITIES.
Transferor hereby transfers, assigns and delegates to Transferee all of the
Assumed Liabilities relating to the Assumed Assets and Transferee hereby accepts
such transfer, assignment and delegation and assumes and undertakes to become
liable for such Assumed Liabilities and agrees to faithfully pay, perform and
discharge such Assumed Liabilities when due.
3. FURTHER ASSURANCES.
It is the intent of the parties that all of the Assumed Assets and Assumed
Liabilities be transferred, assigned and delegated to the Transferee as
aforesaid. Each party agrees to execute, acknowledge and deliver any further
deeds, assignments, conveyances and other assurances, documents and instruments
of transfer and take such other actions consistent with the foregoing as may be
necessary to carry out the intent of this Agreement.
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4. MISCELLANEOUS.
This Agreement may be executed in any number of counterparts, all of which
together shall be deemed to one and the same instrument. This Agreement shall be
interpreted under the laws of the State of California as applied to contracts
entered into and performed entirely among California residents.
IN WITNESS WHEREOF, this Agreement has been duly executed on behalf of the
parties hereto as of the date first written above.
TRANSFEROR:
XXXXXXXX XXXXXXXXXXXX
/s/ XXXXXXX X. XXXXXXXX
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By: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
TRANSFEREE:
LEAP WIRELESS INTERNATIONAL, INC.
/s/ XXXXXX X. XXXXX
-----------------------------------
By: Xxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
2.
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SCHEDULE A-1
(ASSETS RELATED TO CHASE TELECOMMUNICATIONS HOLDINGS, INC.)
449,340 Class B Common Shares of Chase Telecommunications Holdings, Inc.
Warrant rights to purchase 526,973 Class B Common Shares (subject to vesting) of
Chase Telecommunications, Inc. (the right to purchase 208,568 of such shares is
vested and the right to the balance of such shares is subject to the vesting
schedule set forth in the Warrant Agreement, as to which Leap shall be entitled
to receive 5/18ths of the amount of all rights vested in the future).
Investor Rights Agreement, dated December 18, 1996, between Chase
Telecommunications, Inc. and XXXXXXXX Xxxxxxxxxxxx, as amended (excluding any
rights and benefits retained by XXXXXXXX Xxxxxxxxxxxx as a prospective
shareholder, if any, with respect to registration rights and similar rights).
Class B Common Stock Purchase Agreement, dated December 18, 1996, by and among
Chase Telecommunications, Inc., Xxxxxxx X. Xxxxx, Xxxxxxx X. XxXxxxxx and
XXXXXXXX Xxxxxxxxxxxx, as amended.
All outstanding Working Capital Loans (and accrued but unpaid interest on such
Working Capital Loans) outstanding under that certain Credit Agreement, entered
into as of June 26, 1998, by and among Chase Telecommunications, Inc., as
borrower, XXXXXXXX Xxxxxxxxxxxx, as a Lender, any Affiliate of QUALCOMM or such
other Persons as shall from time to time become Lenders thereunder, and
QUALCOMM, as Collateral Agent, and all rights and benefits associated therewith
as the holder of such Working Capital Loans. Any promissory notes evidencing any
such Working Capital Loans shall be endorsed, without recourse, to Leap.
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SCHEDULE A-2
(ASSETS RELATED TO CHILESAT)
10,999,900 shares of stock in Inversiones QUALCOMM Chile, S.A.
Beneficial interest in 100 shares of stock of Inversiones QUALCOMM Chile,
S.A. currently held by Xxxxxxx Xxxxxx.
Subscription and Shareholders Agreement, dated as of February 27, 1997 and
effective as of March 4, 1997, by and among Telex-Chile S.A., Chilesat S.A.,
XXXXXXXX Xxxxxxxxxxxx and Chilesat PCS, as amended.
Reimbursement Agreement, dated as of November 7, 1996, by and between Chilesat
PCS and Bank of America, as amended (but not including any obligations therein
related to forfeiture of any bonds as a result of XXXXXXXX Xxxxxxxxxxxx failing
to perform as a vendor).
All principal amounts (and accrued but unpaid interest thereon) outstanding
under the "Additional Commitment" under that certain Amended and Restated
Deferred Payment Agreement, entered into as of June 24, 1998, together with all
forebearances outstanding under such Additional Commitment, and all rights to
convert such amounts outstanding under the Additional Commitment into equity,
and all rights and benefits associated therewith as the holder of such
principal. Any promissory notes evidencing any such outstanding principal
amounts shall be endorsed, without recourse, to Leap.
Foreign investment contract (DL-600).
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SCHEDULE A-3
(ASSETS RELATED TO METROSVYAZ/RUSSIA)
2,240 Shares of QUALCOMM Telecommunications, Ltd. (Cayman Islands).
70 Shares of QUALCOMM Telecommunications Limited (Isle of Xxxx); provided,
however, if as of the date of the Distribution XXXXXXXX Xxxxxxxxxxxx has not
already transferred to Tiller International Limited 30 Shares of QUALCOMM
Telecommunications, Ltd. (Isle of Xxxx), then XXXXXXXX Xxxxxxxxxxxx shall
transfer such 30 Shares to Leap and Leap shall assume all obligations of
XXXXXXXX Xxxxxxxxxxxx to transfer such 30 Shares to Tiller International
Limited.
Joint Venture Agreement, dated September 25, 1997, by and between XXXXXXXX
Xxxxxxxxxxxx and Xxxxxx International Limited (but specifically excluding 50%,
pro rata, of the obligation under Section 2.3 of the Agreement to make payments
thereunder, such excluded 50% obligation remaining with QUALCOMM).
Development Agreement, dated September 25, 1997, by and between XXXXXXXX
Xxxxxxxxxxxx and Tiller International Limited.
All principal amounts (and accrued but unpaid interest thereon) outstanding
under that certain Loan Agreement, dated as of August 14, 1998, by and among
Metrosvyaz Limited, as Borrower, XXXXXXXX Xxxxxxxxxxxx, as a Lender and
Collateral Agent, and any other parties thereto, to the extent such amounts
relate to financing the working capital needs of Metrosvyaz Limited, and all
rights and benefits associated therewith as the holder of such principal
amounts. Any promissory notes evidencing any such principal amounts shall be
endorsed, without recourse, to Leap.
A receivable in the amount of $1.7 million owed by QUALCOMM Telecommunications,
Ltd. (Cayman Islands) to XXXXXXXX Xxxxxxxxxxxx.
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SCHEDULE A-4
(ASSETS RELATED TO OZPHONE)
8 Ordinary Shares of OzPhone Pty. Ltd.
Share Purchase Agreement, dated 18 April 1998, by and among Xxxxxxxxxxx Xxxxx,
Bloggs Pty Limited, Xxxxxxxxxxx Xxxxx and Xxxx Xxxxxx Xxxxx as trustees for the
CXR Superannuation Fund, XXXXXXXX Xxxxxxxxxxxx, and OzPhone Pty. Ltd.
Rights under that certain Agreement, dated 24 April 1998, by and between OzPhone
Pty. Ltd., Science Applications International Corporation ("SAIC"), Price
Waterhouse Corporate Finance Pty. Ltd. ("PW"), and XXXXXXXX Xxxxxxxxxxxx (to the
extent such rights relate to arrangements with PW to provide financial advisor
services, but specifically excluding any rights or obligations with respect to
SAIC providing technical and operational services, including system integration
services, which rights and obligations are retained by QUALCOMM). If XXXXXXXX
Xxxxxxxxxxxx, Leap and SAIC reach an agreement on system integration services to
be provided by SAIC, Leap will cause OzPhone Pty. Ltd.
to issue the required shares to SAIC as provided in this Agreement.
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SCHEDULE A-5
(ASSETS RELATED TO PC PHONE)
Agreements, letters of intent and leads, if any, to acquire US PCS spectrum.
All plans, business plans, models, studies, marketing plans, naming efforts,
operational plans, management studies, and work in progress relating to becoming
a terrestrial-based wireless telecommunications PCS operator in the United
States, including but not limited to the following: (i) marketing, strategic
planning, market analysis, competitive analysis, brand name, logo, platform,
retail channel development, market demand, product pricing, and ad agency
selection/contract; (ii) back-office planning, including back office
architecture, systems planning and adjunct systems architecture; (iii)
operations planning, including network deployment; (iv) management planning,
including implementation plan development, spectrum acquisition and legal work
product related thereto, and (v) site acquisition and planning efforts related
thereto.
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SCHEDULE A-6
(ASSETS RELATED TO PEGASO)
1000 Shares of QUALCOMM PCS Mexico, Inc.
Rights under that certain Services Agreement, dated June 10, 1998, between
QUALCOMM Wireless Services (Mexico) S.A. de C.V. ("QWS") (as successor to and
assignee of QUALCOMM International Wireless Technology, Inc.) and Pegaso S.A. de
C.V. (as successor to and assignee of Pegaso Comunicaciones Y Sistemas, S.A. de
C.V.), to the extent such rights allow and/or require QWS, or a related company,
to provide operational or related services pursuant to Section 8.2 of the
Agreement, to Pegaso PCS S.A. de C.V. and its affiliates.
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SCHEDULE A-7
(ASSETS RELATED TO TELESYSTEMS OF UKRAINE)
A 49% equity interest in Telesystems of Ukraine and all other rights
attributable thereto.
Agreement on Joint Investment Activity No 1, by and between XXXXXXXX
Xxxxxxxxxxxx and Telesystems of Ukraine Company, dated 3 April 1997, as amended,
and Additional Agreement No. 2 related thereto, and all rights of XXXXXXXX
Xxxxxxxxxxxx provided for therein.
Application for obtaining the License to use Frequency in the territory of
Ukraine, dated December 14, 1996.
Statute of Limited Liability Company "Telesystems of Ukraine," as amended and
registered on 24 December 1996 under No. 866.
Foundation Agreement on Activity of Limited Liability Company "Telesystems of
Ukraine," regarding the creation and activity of the Limited Liability Company
"Telesystems of Ukraine," as executed by RUTA-FARM Limited Liability Company,
XXXXXXXX Xxxxxxxxxxxx, and Ukrainian Association of Electric Communication
"Ukrtelecom".
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SCHEDULE A-8
(OTHER ASSETS)
Building lease on real property commonly known as 00000 Xxxxxxx Xxxxxx Xxxxx,
Xxx Xxxxx, Xxxxxxxxxx, and leasehold improvements thereon.
The furniture, equipment and supplies (including individual computers but not
including any network equipment) utilized by Leap employees and agreed upon by
XXXXXXXX Xxxxxxxxxxxx, as established by an inventory to be conducted by
XXXXXXXX Xxxxxxxxxxxx as of September 5, 1998.
$10,000,000 in cash
Assets in employee benefits plans delivered to Leap pursuant to the Employee
Benefits Agreement. If such plans do not have trust or other separately
designated assets, a cash amount equal to the value of the subject benefits as
of the Distribution Date, as more specifically set forth in the Employee
Benefits Agreement.
Any and all rights which XXXXXXXX Xxxxxxxxxxxx may have to pursue an opportunity
to enter into a venture with the Ukraine Railroad for fiber optic back-haul and
related services.
All work product and work in process for site acquisition, RF planning and
network planning services related to Tucson, Arizona, Albuquerque, New Mexico
and Hawaii performed by QUALCOMM prior to the date of the Distribution.
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LEAP ASSET INVENTORY SUMMARY*
AS OF SEPTEMBER 5, 1998
ASSET TYPE STATUS
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TENANT IMPROVEMENTS
o Main floor & mezzanine build-out in-process
o Leasehold Improvements purchased
o One copy machine to be ordered
o Misc FF&E (coffee makers, white boards, fax etc.) to be ordered
COMPUTER RELATED
o 80 Laptop computer ThinkPads, monitors, keyboards on-order
o 2 Scanjet printers, 2 color printers, 4 LaserJets on-order
o 4 Compaq servers, server software, desktop software on-order
o Network routers, hubs (Cisco) on-order
o Sun Workstation & plotter on-hand
FURNITURE
o New furniture: 54 desks, 8 leather chairs, 46 desk chairs,
94 side chairs, 58 bookcases, 4 conf tables, 44 conf chairs,
13 credenzas, 13 lobby chairs, 4 end tables, 2 enclosed
white boards, 10 lateral files, 24 round tables,
18 cubicles on-order
TELEPHONE EQUIPMENT
o PBX on-order
o Handsets (new) on-order
o Q-Phones (52 Q-phones, 5 kits) on-order
AUDIO VISUAL EQUIPMENT
o 5-35mm slide projectors, 3 TV's, 3 VCR's, misc. on-order
o Epson projector on-order
FITNESS EQUIPMENT
o 2 stair-climbers, exercise bikes, treadmill, various press
and curl machines, stands to be ordered
OFFICE SUPPLIES
o Misc. supplies on hand on-hand
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* Estimates. Does not include financial assets such as cash, accounts
receivable, notes receivable, intangible assets, etc.
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SCHEDULE B-1
(LIABILITIES RELATED TO CHASE TELECOMMUNICATIONS HOLDINGS, INC.)
Obligations under that certain Investors Rights Agreement, dated December 18,
1996, between Chase Telecommunications, Inc. and XXXXXXXX Xxxxxxxxxxxx, to the
extent relating to the rights and benefits transferred to Leap under such
Investors Rights Agreement.
Class B Common Stock Purchase Agreement, dated December 18, 1996 by, and among
Chase Telecommunications, Inc., Xxxxxxx X. Xxxxx, Xxxxxxx X. XxXxxxxx and
XXXXXXXX Xxxxxxxxxxxx.
The commitment to provide Working Capital Loans under that certain Credit
Agreement, entered into as of June 26, 1998, by and between Chase
Telecommunications, Inc., as borrower, XXXXXXXX Xxxxxxxxxxxx, as a Lender, any
Affiliate of QUALCOMM or such other Persons as shall from time to time become
Lenders hereunder, and QUALCOMM, as Collateral Agent, and all obligations and
liabilities associated with assuming such commitment.
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SCHEDULE B-2
(LIABILITIES RELATED TO CHILESAT)
The commitment to provide funds under the "Additional Commitment" under that
certain Amended and Restated Deferred Payment Agreement, entered into as of June
24, 1998, and all obligations and liabilities associated with assuming such
commitment.
Subscription and Shareholders Agreement, dated as of February 27, 1997 and
effective as of March 4, 1997 by and among Telex-Chile S.A., Chilesat S.A.,
XXXXXXXX Xxxxxxxxxxxx and Chilesat PCS, as amended.
Reimbursement Agreement, dated as of November 7, 1996, by and between Chilesat
PCS and Bank of America, as amended (but not including any obligations therein
related to forfeiture of any bonds as a result of XXXXXXXX Xxxxxxxxxxxx failing
to perform as a vendor), and all liability of QUALCOMM with respect to the
related guaranty of XXXXXXXX Xxxxxxxxxxxx.
Foreign investment contract (DL-600).
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SCHEDULE B-3
(LIABILITIES RELATED TO METROSVYAZ/RUSSIA)
Joint Venture Agreement, dated September 25, 1997, by and between XXXXXXXX
Xxxxxxxxxxxx and Xxxxxx International Limited (but specifically excluding 50%,
pro rata, of the obligation under Section 2.3 of the Agreement to make payments
thereunder, such excluded 50% obligation remaining with QUALCOMM).
Development Agreement, dated September 25, 1997, by and between XXXXXXXX
Xxxxxxxxxxxx and Tiller International Limited.
The commitment to provide working capital loan financing under that certain Loan
Agreement, dated as of August 14, 1998, by and among Metrosvyaz Limited, as
Borrower, XXXXXXXX Xxxxxxxxxxxx, as a Lender and Collateral Agent, and any other
parties thereto, which commitment is in the aggregate amount of approximately
$75 million, and all obligations and liabilities associated with assuming such
commitment.
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SCHEDULE B-4
(LIABILITIES RELATED TO OZPHONE)
Share Purchase Agreement, dated 18 April 1998, by and among Xxxxxxxxxxx Xxxxx,
Bloggs Pty Limited, Xxxxxxxxxxx Xxxxx and Xxxx Xxxxxx Xxxxx as trustees for the
CXR Superannuation Fund, XXXXXXXX Xxxxxxxxxxxx, and OzPhone Pty. Ltd.
Agreement, dated 24 April 1998, by and between OzPhone Pty. Ltd., Science
Applications International Corporation ("SAIC"), Price Waterhouse Corporate
Finance Pty. Ltd. ("PW"), and XXXXXXXX Xxxxxxxxxxxx (specifically excluding any
obligations of XXXXXXXX Xxxxxxxxxxxx with respect to SAIC providing technical
and operational services, including system integration services, which
obligations are retained by QUALCOMM). If XXXXXXXX Xxxxxxxxxxxx, Leap and SAIC
reach an agreement on system integration services by SAIC, Leap will cause
OzPhone to issue the required shares to SAIC as provided in this Agreement.
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SCHEDULE B-5
(LIABILITIES RELATED TO PC PHONE)
Agreements, letters of intent and leads, if any, to acquire US PCS spectrum.
Brokers Agreement with The Cascade Group dated July __, 1998.
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SCHEDULE B-6
(LIABILITIES RELATED TO PEGASO)
Any obligations under that certain Services Agreement, dated June 10, 1998,
between QUALCOMM Wireless Services (Mexico) S.A. de C.V. ("QWS") (as successor
to and assignee of QUALCOMM International Wireless Technology, Inc.) and Pegaso
S.A. de C.V. (as successor to and assignee of Pegaso Comunicaciones Y Sistemas,
S.A. de C.V.) associated with exercising the right to allow and/or require QWS,
or a related company, to provide operational or related services pursuant to
Section 8.2 of the Agreement, to Pegaso PCS S.A. de C.V. and its affiliates.
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SCHEDULE B-7
(LIABILITIES RELATED TO TELESYSTEMS OF UKRAINE)
Agreement on Joint Investment Activity No 1, by and between XXXXXXXX
Xxxxxxxxxxxx and Telesystems of Ukraine Company, dated 3 April 1997, as amended,
and Additional Agreement No. 2 related thereto, and all obligations of XXXXXXXX
Xxxxxxxxxxxx provided for therein.
Application for obtaining the License to use Frequency in the territory of
Ukraine, dated December 14, 1996.
Statute of Limited Liability Company "Telesystems of Ukraine," as amended and
registered on 24 December 1996 under No. 866.
Foundation Agreement on Activity of Limited Liability Company "Telesystems of
Ukraine," regarding the creation and activity of the Limited Liability Company
"Telesystems of Ukraine," as executed by RUTA-FARM Limited Liability Company,
XXXXXXXX Xxxxxxxxxxxx, and Ukrainian Association of Electric Communication
"Ukrtelecom".
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SCHEDULE B-8
(OTHER LIABILITIES)
Building lease on premises at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx
with payments prorated to the Distribution Date.
Liabilities assumed by Leap pursuant to the Employee Benefits Agreement.
