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TRANSFER AND RELEASE AGREEMENT
Effective as of this 26th day of September, 1997 (the "Effective
Date"), Chadmoore Wireless Group, Inc., a Colorado corporation ("CWG"), and LDC
Consulting, Inc., a Delaware corporation ("LDC"), entered into this Transfer
and Release Agreement (this "Release Agreement").
Whereas, each of the thirty-three Federal Communication Commission
call sign licensees identified on Exhibit A hereto (the "Licensees") and the
respective shareholders of such Licensees (the "Shareholders") have granted
CMRS Systems, Inc. and 800 SMR Network, Inc., each a subsidiary of CWG, certain
rights to acquire such Licensees and manage their assets pursuant to certain
SMR Stations Management Agreements, each dated June 3, 1996 (collectively, as
amended, the "Licensee Management Agreements"), and certain Option and Stock
Purchase Agreements, each dated June 14, 1996 (collectively, the "Licensee
Option Agreements", and, together with the Management Agreements, the "Licensee
Agreements"). The call signs held by all such Licensees are referred to herein
as the "Call Signs". The Call Signs set forth in Exhibit A under such
Licensee's name are referred to herein as such Licensee's "Released Call
Signs", and the Call Signs other than the Released Call Signs are referred to
herein as the "Retained Call Signs".
Whereas, CWG seeks to have each of the Licensees and the Shareholders
execute a First Amendment to Option and Stock Purchase Agreement in the form of
Exhibit B attached hereto (an "Option Amendment"), and a Second Amendment to
SMR Stations Management Agreements in the form of Exhibit D attached hereto (a
"Management Agreement Amendment"). The Option Amendment and the Management
Agreement Amendment corresponding to each Licensee are referred to jointly as
the "Amendment" corresponding to such Licensee. Each Amendment will amend the
corresponding (i) Licensee Option Agreement to provide for the grant by the
corresponding Licensee of options under which CWG may acquire the Retained Call
Signs held by such Licensee, and (ii) Management Agreement to provide for the
continuing management by CWG of the Retained Call Signs held by such Licensee.
Whereas, CWG and Libero Limited, a Company organized and existing
under the laws of the Isle of Man ("Libero"), seek to terminate their
respective rights and obligations under certain agreements to which they are
parties, in each case as provided in a Termination of Stock Option Agreement in
the form of Exhibit C attached hereto (the "Termination Agreement").
Transfer and Release Agreement
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Now, therefore, the parties agree as follows:
1 NATURE OF REPRESENTATIONS
1.1 In performing any services pursuant to this Release Agreement,
LDC shall not act as or constitute an agent of CWG; LDC shall only serve in the
limited role as an intermediary or facilitator.
2 RESPONSIBILITIES OF LDC
2.1 LDC shall use its commercially reasonable efforts to obtain
the execution and delivery on behalf of each Licensee and Shareholder of an
Amendment of each Licensee Agreement to which such Licensee and Shareholder
shall be a party, and shall promptly forward by Federal Express courier to CWG
all of the Amendments upon LDC's receipt of Amendments executed by all of the
Licensees and Shareholders. For the avoidance of doubt, the parties understand
that each Licensee and Shareholder is to execute and deliver agreements in the
form of both Exhibit B and D with respect to each Licensee Agreement to which
such Licensee and Shareholder is party.
2.1.1 Upon delivery to CWG of Amendments duly executed and
delivered by the corresponding Licensee and Shareholder which Amendments are,
subject only to execution and delivery thereof by CWG, valid, binding,
indefeasible and in full force and effect with respect to such Licensee and
Shareholder, this Release Agreement shall serve as an automatic release of the
Licensees and Shareholders from the Licensee Agreements with full and complete
regard to the Released Call Signs (the "Release"). The Release shall be
retroactively effective as of the date of execution by the respective Licensees
and Shareholders of the Amendments.
2.1.2 If LDC shall not deliver to CWG the Amendments as
described above within thirty (30) days following the Effective Date of this
Release Agreement, then no Release shall be deemed given.
2.2 LDC shall use its commercially reasonable efforts to obtain
the execution and delivery of the Termination Agreement on behalf of Libero by
the date occurring fourteen (14) days following the Effective Date of this
Release Agreement, (the "Deadline"), and shall promptly forward to CWG such
executed Termination Agreement upon LCD's receipt thereof by Federal Express
courier.
3 RESPONSIBILITIES OF CWG
3.1 Simultaneous with the execution by CWG of this Release
Agreement on the Effective Date hereof, CWG shall execute the Termination
Agreement and deliver it to LDC. LDC is hereby authorized to deliver such
executed Termination Agreement to Libero on behalf of CWG upon Libero's
execution thereof on or before the Deadline.
Transfer and Release Agreement
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4 LIMITATIONS OF OFFER
4.1 Effective November 19, 1996, CWG and LDC entered into that
certain Transfer and Release Agreement involving channels at a site in
Anchorage, AK (the "Anchorage Transaction"). Neither CWG nor LDC shall have
any right to reduce or diminish any of its obligations arising out of or
relating to the Anchorage Transaction (including any reduction by way of set
off, recoupment or otherwise), on account of any obligation of the other party
hereto, including, without limitation, any obligation of such other party
arising out of or relating to this Agreement, all of which rights are hereby
waived; provided, however, notwithstanding the foregoing, LDC shall be entitled
to set off all amounts, not in the aggregate exceeding $32,000, which are (i)
validly and presently owed by CWG to LDC and (ii) third party expenses and fees
incurred by LDC in connection with services performed by LDC on behalf of CWG
which fees and expenses CWG is obligated to reimburse.
5 RESPONSIBILITIES OF THE PARTIES FOR COSTS
5.1 Each party shall be responsible for its own costs and expenses
relating to the transaction contemplated by this Release Agreement.
6 COUNTERPARTS
6.1 This Release Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7 MERGER AND AMENDMENT
7.1 This Release and Agreement constitutes the entire
understanding and agreement among the parties, supersedes any prior
discussions, agreements, and correspondence with regard to the subject matter
hereof. This Release Agreement may not be changed orally by only by an
agreement in writing signed by all the parties hereto.
Effective as of the date first above written, the parties hereby
acknowledge and agree to the terms and conditions of this Release Agreement.
Chadmoore Wireless Group, Inc. LDC Consulting, Inc.
/s/ Xxxxxx Xxxxx /s/ K. Xxxxxx Xxxxxxx
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Xxxxxx Xxxxx, President K. Xxxxxx Xxxxxxx, President
Transfer and Release Agreement
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EXHIBIT B
FIRST AMENDMENT TO
OPTION AND STOCK PURCHASE AGREEMENT
BETWEEN
[CMRS SYSTEMS, INC.][800 SMR NETWORK, INC.] AND [_________________]
This FIRST AMENDMENT TO OPTION AND STOCK PURCHASE AGREEMENT (this
"Amendment") is made and entered into as of the ____ day of September, 1997,
and amends that certain Option and Stock Purchase Agreement, dated as of June
__, 1996 (the "Agreement"), between and among [CMRS Systems, Inc.][800 SMR
NETWORK, INC.] ("Company"), [_________________] ("Shareholder") and
[___________________] ("Licensee").
WHEREAS, Company wishes to acquire the Optioned Assets (as defined
below), rather than to acquire substantially all of the stock of the Licensee,
as now provided by the Agreement.
WHEREAS, Licensee wishes to modify the Agreement to grant an option to
Company to acquire the Optioned Assets.
WHEREAS, Chadmoore Wireless Group, Inc., a Colorado corporation
("CWG"), and LDC Consulting, Inc., a Delaware corporation ("LDC"), have entered
into the Transfer and Release Agreement (the "Release Agreement"), pursuant to
which LDC is, among other things, attempting to obtain the execution and
delivery of this Amendment by the Licensee and the Shareholder, as well similar
amendments from all of the other licensees and shareholders listed on Exhibit A
to such Release Agreement.
NOW THEREFORE, in consideration of the mutual premises and covenants
contained herein, Company, Shareholder and Licensee agree to amend the
Agreement as follow as of the Effective Date:
1. The title of the Agreement shall be changed to "Option and
Asset Purchase Agreement.
2. All references to "Transfer Application" shall be deleted and
replaced with "Assignment Applications."
3. All references to "Shares" in Paragraphs 4(B) and 5 shall be
deleted and replaced with "Optioned Assets."
4. Recitals, Section E, shall be deleted and replaced with the
following:
E. Company wishes to acquire all of the licenses for
the stations described on Schedule A hereto (the
"Optioned Assets"); and
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F. Licensee desires to grant to Company an option to
acquire the Optioned Assets, subject to and consistent with FCC rules,
regulations and policies and upon the terms and conditions set forth
in this Agreement, as amended.
5. Paragraph 1 shall be deleted and replaced with the following:
1. Option, Exercise and Term.
A. Option to Acquire Assets. In consideration of the payment the
sum of One Hundred Dollars ($100) and the promises and covenants made
by Company herein, the receipt and sufficiency of which consideration
is hereby acknowledged, Licensee hereby grants to Company an
exclusive and irrevocable option (the "Option") to acquire all or any
portion of the Optioned Assets, subject to and consistent with FCC
rules, regulations and policies and upon the terms and conditions of
this Agreement; provided that, in further consideration of the grant
of the Option, in the event that the Company exercises the Option
prior to the expiration of the Option Term, the Company shall release
the obligation of Licensee for any and all accrued Lease payments and
future lease obligations with regard to the Stations subject to such
exercise.
B. Exercise of Option. Company may exercise the Option, in whole
or in part, by providing written notice of the exercise of the Option,
specifically identifying the Optioned Assets to which a given notice
relates and for which the Option has been exercised. Within ten (10)
days of the date on which the notice is delivered, the Licensee and
Company jointly shall file with the FCC an application to obtain
assignment of the license or licenses for the station or stations to
which the notice relates and for which the Option has been exercised
("Assignment Application"). Any FCC filing fee associated with the
Assignment Application shall be paid by the Company.
C. Term. The Option shall be in full force and effect until the
earlier of (i) six months after the latest date by which the Licensee
is authorized to construct any of the Stations under the then-existing
applicable FCC rules, regulations or policies or (ii) the date on
which Company has exercised the Option with respect to the last of the
Stations ("Option Term").
D. Partial Exercise. Company may exercise the Option with
respect to some, but not all of the Optioned Assets. If Company does
exercise the Option with respect to some, but not all of the Optioned
Assets, the Option shall remain in full force and effect with respect
to the Stations for which the Option has not been exercised until the
end of the Option Term.
6. Paragraph 4(A) shall be deleted and replaced with the
following:
A. The purchase price to be paid to the Licensee by the Company
for any license or licenses acquired pursuant to any partial or whole
exercise of the Option shall be the number of shares of common stock
of the Company ("Company Stock") as shall be calculated in accordance
with this paragraph (the "Purchase Price"). The number of shares of
Company Stock to be issued to the Licensee shall be that number which
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is the product of the number of shares representing ten percent (10%)
of all of the issued and outstanding Company Shares multiplied by a
fraction, the numerator of which shall be the total number of channels
transferred to the Company pursuant to such exercise of the Option,
and the denominator of which shall be the total number of channels
corresponding to all Retained Call Signs (as defined in the Release
Agreement), or such other number as to which Company and Licensee
shall agree.
7. Paragraphs 12(A)(2) through (5) shall be deleted, and
Paragraph 12(A)(6) renumbered as the new Paragraph 12(A)(2).
8. Any assignment of Company's rights or obligations under the
Agreement which is permitted by the terms thereof shall be fully effective
regardless of whether Company provides notice of such assignment to Licensee.
9. This Amendment amends and modifies the Agreement, and shall
become effective as of the date of the execution and delivery hereof by each
party hereto (the "Effective Date"). To the extent that any provision of the
Agreement conflicts with this Amendment, this Amendment shall control.
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IN WITNESS WHEREOF, Company, Shareholder and Licensee have executed
this Amendment on the day and year first written above.
Company: Licensee:
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[CMRS Systems, Inc.]
[800 SMR Network, Inc.] [________________________]
By: By:
------------------------- ----------------------
Title: Title:
Shareholder:
------------
[________________________]
By:
-------------------------
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EXHIBIT C
TERMINATION OF STOCK OPTION AGREEMENT
This Termination of Stock Option Agreement is made this 22nd day of
September, 1997 (this "Termination Agreement") by and between CHADMOORE
WIRELESS GROUP, INC., a Colorado corporation with its principal offices located
at 0000 Xxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000 ("Chadmoore"), and LIBERO LIMITED,
a Company organized and existing under the laws of the isle of Man, whose
principal office is located at 0 Xxxxx Xxxx, Xxxxxxx, Xxxx xx Xxx, 0X00XX
("Libero").
WITNESSETH
WHEREAS, Chadmoore and Libero have entered into a Stock Purchase
Agreement as of June 14, 1996 (the "Purchase Agreement"), a Stock Option
Agreement as of June 14, 1996 (the "Option Agreement") to purchase all or any
part of an aggregate 8,323,857 shares of Common Stock, par value $0.001 per
share (the "Underlying Shares"), of Chadmoore, and Chadmoore and Libero have
entered into an Offshore Securities Subscription Agreement as of June 14, 1996
(the "Subscription Agreement");
WHEREAS, as to each other, Chadmoore and Libero desire to terminate
the Purchase Agreement, the Option Agreement, and the Subscription Agreement
(collectively, as each shall have been amended, supplemented or otherwise
modified from time to time prior to the date hereof, the "Agreements") which
are incorporated herein by reference;
NOW, THEREFORE, in consideration of the premises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. As of the effective date hereof, Chadmoore and Libero hereby terminate the
Agreements and release each other from any and all further obligations pursuant
to said Agreements. At the discretion of Chadmoore, this Termination Agreement
shall serve as an assignment of all rights of Libero under all or any of the
Agreements, the Option, and/or the rights to the Underlying Shares to third
parties selected in the discretion of Chadmoore.
2. Upon the date that this Termination Agreement shall become effective,
Chadmoore and Libero hereby release each other, and each other's
representatives (including K. Xxxxxx Xxxxxxx, an individual), successors, and
assigns, from and against any and all claims, actions, causes of action, or
proceedings relating to or arising from the Agreement and the transactions
related thereto.
3. This Termination Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this termination of Stock Option Agreement as of the day and year
first written above.
CHADMOORE WIRELESS GROUP, INC. LIBERO LIMITED
By:
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Xxxxxx X. Xxxxx, President K. Xxxxxx Xxxxxxx
Attorney-In-Fact
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EXHIBIT D
SECOND AMENDMENT TO
SMR STATIONS MANAGEMENT AGREEMENT
BETWEEN
[CMRS SYSTEMS, INC.][800 SMR NETWORK, INC.], AND [_________________]
This SECOND AMENDMENT TO SMR STATIONS MANAGEMENT AGREEMENT (this
"Amendment") is made and entered into as of the ____ day of September, 1997,
and amends that certain SMR stations Management Agreement, dated as of June __,
1996 (the "Agreement"), between and among [CMRS Systems, Inc.][800 SMR Network,
Inc.] ("Manager") and [___________________] ("Licensee").
WHEREAS, Manager and Licensee wish to modify the Agreement to restrict
its scope to certain of the Licenses now subject thereto.
WHEREAS, Chadmoore Wireless Group, Inc., a Colorado corporation
("CWG"), and LDC Consulting, Inc., a Delaware corporation ("LDC"), have entered
into the Transfer and Release Agreement (the "Release Agreement"), pursuant to
which LDC is, among other things, attempting to obtain the execution and
delivery of this Amendment by the Licensee as well similar amendment from all
of the other licensees listed on Exhibit A to such Release Agreement.
NOW THEREFORE, in consideration of the mutual premises and covenants
contained herein, Manager, Shareholder and Licensee agree to amend the
Agreement as follow as of the Effective Date:
1. Exhibit A to the Agreement shall be amended so that the only
Licenses and Stations thereon shall be those corresponding to Licensee's
"Retained Call Signs", as such term is defined in the Release Agreement. The
definition of "Stations" shall be amended to indicate only such stations
corresponding to Licensee's Retained Call Signs.
2. The second "Whereas" clause of the Agreement shall be deleted.
3. The first sentence of Paragraph 14(c) shall be deleted and
replaced with the following:
Manager may assign its rights and delegate its duties hereunder in
whole or in part to CWG or a wholly-owned subsidiary of Manager or
CWG without notice to Licensee or any other person. Manager may
assign its rights and delegate its duties hereunder in whole or in
part to any person other than CWG or a wholly-owned subsidiary of
Manager or CWG only with the consent of Licensee, which consent may
not be unreasonably withheld or delayed.
4. This Amendment amends and modified the Agreement, and shall
become effective as of the date of the execution and delivery hereof by each
party hereto (the "Effective Date"). To the extent that any provision of the
Agreement conflicts with this Amendment, this Amendment shall control.
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IN WITNESS WHEREOF, Manager and Licensee have executed this Amendment
on the day and year first written above.
Manager: Licensee:
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[CMRS SYSTEMS, INC.]
[800 SMR NETWORK, INC.] [________________________]
By: By:
------------------------ ------------------------
Title: Title:
