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EXHIBIT 10.83
STOCK PURCHASE AGREEMENT
BY AND AMONG
GLOBAL COMMUNICATIONS OF NY, INC.,
FIDELITY HOLDINGS, INC.
AND
IG2, INC.
Dated March 27, 2001
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made as of March
27, 2001 by and among GLOBAL COMMUNICATIONS OF NY, INC., a New York corporation
(the "PURCHASER"), FIDELITY HOLDINGS, INC., a Nevada corporation (the "SELLER")
and IG2, INC., a Delaware corporation ("IG2").
W I T N E S S E T H :
WHEREAS, the Seller is the owner of 41,873,882 shares (the "SHARES") of
common stock, $.0001 par value per share (the "COMMON STOCK"), of IG2; and
WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller all of the Shares, pursuant to the
provisions of this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
SECTION 1. PURCHASE AND SALE OF THE SHARES
SECTION 1.1 PURCHASE AND SALE OF THE SHARES. Subject to the terms and
conditions herein stated, the Seller agrees to sell, assign, transfer and
deliver to the Purchaser on the Closing Date (as hereafter defined), and the
Purchaser agrees to purchase from the Seller on the Closing Date, the Shares,
for a purchase price equal to: (i) a senior subordinated secured promissory note
(the "NOTE") (as more fully described in Section 1.2.2 herein); (ii) the Global
Shares (as defined in Section 1.2.1 herein); and (iii) the assumption of the
Fidelity Liabilities (as defined in Section 1.2.3 herein). The Note, the Global
Shares and the Fidelity Liabilities are collectively referred to herein as the
"PURCHASE PRICE."
SECTION 1.2 PURCHASE PRICE.
1.2.1 Global Shares. As part of the Purchase Price, at Closing, the
Purchaser shall deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, P.C. (the "ESCROW AGENT"),
pursuant to an escrow agreement among the Seller, the Purchaser and the Escrow
Agent (the "ESCROW AGREEMENT"), in the form attached as Exhibit A, a certificate
representing that certain number of Series A Preferred Stock, at a stated par
value per share, of the Purchaser, with such rights and designations as
described in SCHEDULE 1.2.1 herein, equal to 10% of the capital stock of the
Purchaser, on as "as-converted" basis (the "POSITION") as of the Closing Date
(the "GLOBAL SHARES"). The Seller shall have the right to participate in future
financing of the Purchaser, if any, on the same terms and conditions as offered
to third parties, to maintain the Position. Additionally, at Closing, the Seller
shall deliver the Shares to the Escrow Agent. The Global Shares and the Shares
shall be held by the
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Escrow Agent until the exercise of the Call (as defined in Section 1.4 herein)
or until the achievement of the Effective Date (as defined in Section 1.4
herein).
1.2.2 Note. As part of the Purchase Price, at Closing, the Purchaser
shall deliver to the Seller the Note in the aggregate principal amount equal to
(a) three million dollars ($3,000,000) less (b) an amount equal to the sum of
all IG2 Liabilities (as defined in Section 4.5 herein) as of the Closing Date,
as set forth on SCHEDULE 1.2.2 herein, less (c) any unpaid Fidelity Liabilities
(as defined in Section 1.2.3 herein) less (d) the cost of the Audit (as
described in Section 3.2 herein). Principal on the Note shall bear interest at a
rate of eight and one-half (8 -1/2%) percent per annum. Principal and interest
on the Note shall be payable in equal payments every three months in arrears for
forty-eight (48) months beginning on the first anniversary of the Closing Date,
with such pre-payment provisions as described in the Note. The indebtedness
evidenced by the Note and the payment of the principal and interest thereof
shall be senior to, and have priority in right of payment over, any and all
other indebtedness of the Purchaser, except in connection with any extension of
credit to the Purchaser by equipment vendors (including loans, lines of credit,
guarantees or other financing arrangements) ("SENIOR INDEBTEDNESS"). The
Purchaser shall, and shall have IG2, ▇▇▇▇▇ ▇ ▇▇▇▇ on and security interest in
all of its and IG2's assets, subject to a senior lien by holder(s) of Senior
Indebtedness, as well as pledge the Shares as collateral security for the due
payment and performance of all indebtedness, liabilities and obligations under
the Note, as set forth in a security agreement between the Purchaser and the
Seller, a security agreement between IG2 and the Seller (the "SECURITY
AGREEMENTS"), and a pledge agreement between the Purchaser and Seller (the
"PLEDGE AGREEMENT") and execute one or more financing statements pursuant to the
Uniform Commercial Code thereunder.
1.2.3. Fidelity Liabilities. As part of the Purchase Price, at Closing,
the Purchaser shall assume, pay and discharge certain of the Seller's
liabilities (the "FIDELITY LIABILITIES"), as set forth in SCHEDULE 1.2.3 herein,
and subject to the terms and conditions of that certain Assignment and
Assumption Agreement of even date herewith between the Purchaser and the Seller.
If the Purchaser settles or compromises any of the Fidelity Liabilities, the
Purchaser will use its commercial reasonable efforts to obtain a discharge and
release in favor of the Seller for such liability at such time.
SECTION 1.3 REVIEW PERIOD. Within thirty (30) days of the Closing Date
(the "REVIEW PERIOD"), the Purchaser shall provide the Seller with written
assurance (the "ASSURANCE") that it has obtained bridge financing or a firm
commitment for bridge financing of not less than $500,000 (the "BRIDGE
FINANCING"), on terms reasonably satisfactory to the Seller.
SECTION 1.4 CALL OPTION. The Seller shall have five (5) business days
from delivery of the Assurance to accept or reject the terms of the Bridge
Financing (the "FINANCING REVIEW PERIOD"). If the Seller does not respond to the
Assurance within the Financing Review Period, the Bridge Financing shall be
deemed accepted by the Seller. If the Seller is not reasonably satisfied with
the terms of Bridge Financing, it shall so notify the Purchaser within the
Financing Review Period. The Seller shall then have the right, within thirty
(30) days after the Financing Review Period (the "CALL"), upon giving written
notice thereof to the Purchaser and the Escrow Agent, to purchase back the
Shares from the Purchaser. If the Call is made by the Seller, (i) the Shares
shall
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be returned to the Seller, (ii) the Note shall be canceled and rendered null and
void, (iii) the Escrow Agent shall release the Global Shares to the Purchaser,
(iv) the Purchaser may rescind the assumption of the Fidelity Liabilities
pursuant to the Assumption Agreement and (v) any IG2 Liabilities and/or Fidelity
Liabilities paid by the Purchaser from the Closing Date to a Call shall be
repaid by the Seller. If the Seller does not exercise the Call (the "EFFECTIVE
DATE"), the Escrow Agent shall release the Global Shares to the Seller and the
Call shall expire. If a Call is made by the Seller, all of the directors of IG2
shall resign from their respective positions as members of IG2's board of
directors. The Call shall also expire without any further action by either party
if the entire principal and interest on the Note is paid in full during the
Financing Review Period.
SECTION 2. CLOSING
SECTION 2.1 CLOSING. The Closing under this Agreement (the "CLOSING")
shall take place at 1:00 P.M. on March 27, 2001, at the offices of ▇▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇ P.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or by the
exchange of documents and instruments by mail, courier, telecopy and wire
transfer to the extent mutually acceptable to the parties hereto. Such date is
herein referred to as the "CLOSING DATE."
SECTION 3. ADDITIONAL AGREEMENTS
SECTION 3.1 SEPARATION AND RELEASE AGREEMENT. The Seller and IG2 shall
have entered into a Separation and Release Agreement with ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
pursuant to the terms of that certain memorandum of understanding dated December
28, 2000. Pursuant to the Settlement and Release Agreement, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
shall release the Seller, IG2 and all shareholders, employees, owners,
attorneys, accountants, affiliates, officers, past and present directors,
parents, subsidiaries, agents, successors, assigns, predecessors, heirs,
executors, legatees, administrators and related parties thereof from any and all
claims, charges, complaints, promises, agreements, liens, actions, suits, debts,
demands, controversies, and causes of action, obligations, damages and
liabilities of any nature whatsoever, known or unknown suspected or unsuspected,
fixed or contingent, arising out of her employment with the Seller and its
affiliates.
SECTION 3.2 FINANCIAL STATEMENTS. IG2 shall engage BDO ▇▇▇▇▇▇▇ LLP or
another independent accounting firm to provide, at the Seller's cost, audited
financial statements for IG2 (the "AUDIT"). Upon evidence of payment in full of
the Audit, the cost thereof shall be deducted from the principal amount of the
Note.
SECTION 3.3 FURTHER COOPERATION. Both parties shall use their
commercial reasonable efforts to assist the Purchaser is obtaining consents and
assignments, if any, of the agreements reflected on SCHEDULE 3.3 herein for the
benefit of the Purchaser, and coordinate efforts with respect to any matters
regarding post-Closing insurance coverage of IG2.
SECTION 3.4 SUBSIDIARY TRANSFER AGREEMENT. The Seller shall enter into
an Agreement with IG2, in which IG2 will sell, convey, assign, transfer and
deliver to Fidelity (i) 95% of the total issued and outstanding shares of common
stock of C.B.S. Computer Business Sciences Ltd., an Israeli company, (ii) 100%
of the total issued and outstanding shares of 786710 Ontario Ltd., a
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Canadian company, (iii) 100% of the total issued and outstanding shares of ICS
Globe, Inc., a Delaware corporation, and (iv) 100% of the total issued and
outstanding shares of International Calling Services, a New York corporation.
SECTION 3.5 PEACOCK LIABILITIES. If a dispute arises relating to any
IG2 Liability not included on SCHEDULE 1.2.2 herein (a "DISPUTED LIABILITY")
regarding its classification as an IG2 Liability or a Peacock Liability (as
described in Section 8.2 herein) and whether indemnification pursuant to Section
8 will be afforded, the party disputing the Disputed Liability shall so notify
the other party in writing within ten (10) days following the appearance of a
Disputed Liability and the parties will use all reasonable efforts to resolve
any such dispute. If such dispute cannot be promptly resolved (but in any event
within five (5) days (the "FIRST PERIOD")) after submission of the written
objections by the disputing party, the Purchaser and the Seller shall submit the
matter to an arbitrator mutually acceptable to them and selected within five (5)
days following the First Period (the "SECOND PERIOD") to discern the
classification of the Disputed Liability; provided, however, that if no
arbitrator is selected during the Second Period, then either party may submit a
request to the American Arbitration Association ("AAA") to select an arbitrator
who shall then resolve the dispute within twenty (20) days following the date of
such request. The resolution of the dispute by an arbitrator selected by the
parties or by the AAA, as the case may be, will be conclusive and binding upon
the parties hereto, notwithstanding any later allegation or determination of
error, mistake or miscalculation, whether willful or negligent, by any person,
in connection with the determination made by such arbitrator. Fees and expenses
of such arbitrator selected by the parties or the AAA, as the case may be, will
be paid by the party whose position as to the Disputed Liability is inconsistent
with that of the arbitrator's.
SECTION 4. REPRESENTATIONS OF THE SELLER
The Seller hereby represents, warrants and agrees to and with the
Purchaser as follows:
SECTION 4.1 EXISTENCE AND GOOD STANDING. Based on a good standing
certificate provided by the Delaware Secretary of State, IG2 is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware as of March 19, 2001.
SECTION 4.2 EXECUTION AND VALIDITY OF AGREEMENT. The Seller has the
full corporate power and authority to make, execute, deliver and perform this
Agreement and the transactions contemplated hereby. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all required corporate action on behalf of the
Seller, and this Agreement has been duly and validly executed and delivered by
the Seller and, assuming due authorization, execution and delivery by the
Purchaser, constitutes legal, valid and binding obligation of the Seller,
enforceable against it in accordance with its terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and any other laws of general application affecting enforcement of
creditors' rights generally, and as limited by laws relating to the availability
of a specific performance, injunctive relief, or other equitable remedies, or
(b) to the extent the indemnification provisions contained herein may be limited
by applicable federal or state securities laws.
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SECTION 4.3 SHARE OWNERSHIP. The Seller is the owner of the Shares,
free of Liens and preemptive rights, with no personal liability attaching to the
ownership thereof, except as such liability may be imposed pursuant to
applicable laws.
SECTION 4.4 NO OPTIONS. There are no outstanding subscriptions,
options, rights, warrants, calls, commitments, understandings, arrangements,
plans or other agreements of any kind to acquire the Shares from IG2 or to any
third party and there are no agreements or understandings with respect to the
sale or transfer of any Shares, except as contemplated hereby.
SECTION 4.5 LIABILITIES. Except as reflected on SCHEDULE 1.2.2 attached
hereto, the Seller is unaware of any outstanding claims, liabilities or
indebtedness of any nature whatsoever of IG2 as of the Closing Date (the "IG2
LIABILITIES"), whether accrued, absolute or contingent, determined or
undetermined, asserted or unasserted, and whether due or to become due.
SECTION 4.6 BROKERS' AND FINDERS' FEE. Except for the finders fee to be
paid to ▇▇▇▇▇▇▇ ▇▇▇▇▇ by the Seller, no broker, finder, agent or similar
intermediary has acted on behalf of the Seller in connection with this Agreement
or the transactions contemplated hereby, and no brokerage commissions, finder's
fees or similar fees or commissions are payable by the Seller in connection
therewith based on any agreement, arrangement or understanding with any of them.
SECTION 4.7 ABSENCE OF LITIGATION. Except as reflected on SCHEDULE 4.7
attached hereto, there is no action, suit, proceeding at law or in equity by any
Person, or any arbitration or any administrative or other proceeding by or
before (or to the knowledge of the Seller, any investigation by), any
Governmental or Regulatory Authority pending or, to the knowledge of the Seller,
threatened against IG2 or any of its properties or rights.
SECTION 4.8 CAPITALIZATION. The capitalization of IG2 as of the date
hereof, including the authorized capital stock, the number of shares issued and
outstanding, the number of shares issuable and reserved for issuance pursuant to
convertible securities, the number of shares issuable and reserved for issuance
pursuant to securities exercisable for, or convertible into or exchangeable for
any shares of capital stock is set forth on SCHEDULE 4.8 attached hereto.
SECTION 5. REPRESENTATIONS OF THE PURCHASER
The Purchaser hereby represents, warrants and agrees to and with the
Seller as follows:
SECTION 5.1 EXISTENCE AND GOOD STANDING. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York with full corporate power and authority to own its property
and to carry on its business all as and in the places where such properties are
now owned or operated or such business is now being conducted.
SECTION 5.2 EXECUTION AND VALIDITY OF AGREEMENT. The Purchaser has the
full corporate power and authority to make, execute, deliver and perform this
Agreement and the transactions contemplated hereby. The execution and delivery
of this Agreement and the
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consummation of the transactions contemplated hereby have been duly authorized
by all required corporate action on behalf of the Purchaser, and this Agreement
has been duly and validly executed and delivered by the Purchaser and, assuming
due authorization, execution and delivery by the Seller, constitutes legal,
valid and binding obligations of the Purchaser, enforceable against it in
accordance with its terms.
SECTION 5.3 NO RESTRICTIONS. There is no suit, action, claim,
investigation or inquiry by any court, tribunal, arbitrator, authority, agency,
commission, official or other instrumentality of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision ("GOVERNMENTAL OR REGULATORY AUTHORITY"), and no legal,
administrative or arbitration proceeding pending or, to the Purchaser's
knowledge, threatened against the Purchaser with respect to the execution,
delivery and performance of this Agreement or the transactions contemplated
hereby.
SECTION 5.4 NON-CONTRAVENTION; APPROVALS AND CONSENTS.
5.4.1 Non-Contravention. The execution, delivery and performance by the
Purchaser of its obligations hereunder and the consummation of the transactions
contemplated hereby, will not (a) violate, conflict with or result in the breach
of any provision of the Certificate of Incorporation or By-laws of the
Purchaser, (b) result in the violation by the Seller of any statute, law, rule,
regulation or ordinance (collectively, "LAWS"), or any judgment, decree, order,
writ, permit or license (collectively, "ORDERS") or (c) result in a violation or
breach of, constitute (with or without notice or lapse of time or both) a
default under, or require the Purchaser to obtain any consent, approval or
action of, make any filing with or give any notice to, or result in or give to
any Person any right of payment or reimbursement, termination, cancellation,
modification or acceleration of, or result in the creation or imposition of any
Lien upon any of the assets or properties of the Purchaser, under any of the
terms, conditions or provisions of any agreement, commitment, lease, license,
evidence of indebtedness, mortgage, indenture, security agreement, instrument,
note, bond, franchise, permit, concession, or other instrument, obligation or
agreement of any kind (collectively, "CONTRACTS") to which the Purchaser is a
party or by which the Purchaser or any of its assets or properties are bound.
5.4.2 Approvals and Consents. No consent, approval or action of, filing
with or notice to any Governmental or Regulatory Authority or other public or
private third party is necessary or required under any of the terms, conditions
or provisions of any Law or Order of any Governmental or Regulatory Authority or
any Contract to which the Purchaser is a party or by which the Purchaser or any
of its assets or properties are bound for the Purchaser's execution and delivery
of this Agreement, the performance by the Purchaser of its obligations hereunder
or the Purchaser's consummation of the transactions contemplated hereby.
SECTION 5.5 ABSENCE OF LITIGATION. There is no action, suit, proceeding
at law or in equity by any Person, or any arbitration or any administrative or
other proceeding by or before (or to the knowledge of the Purchaser, any
investigation by), any Governmental or Regulatory Authority pending or, to the
knowledge of the Purchaser, threatened against the Purchaser or any of its
properties or rights with respect to this Agreement or the transactions
contemplated hereby.
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SECTION 5.6 BROKERS' AND FINDERS' FEES. No broker, finder, agent or
similar intermediary has acted on behalf of the Purchaser or any of its
affiliates in connection with this Agreement or the transactions contemplated
hereby, and no brokerage commissions, finders' fees or similar fees or
commissions are payable by the Purchaser or any of its affiliates in connection
therewith based on any agreement, arrangement or understanding with any of them.
SECTION 5.7 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made
in reliance upon the Purchaser's representation to the Seller, which by the
Seller's execution of this Agreement, the Purchaser hereby confirms, that the
Shares to be acquired by the Purchaser will be acquired for investment for the
Purchaser's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that the Purchaser has no
present intention of selling or otherwise distributing the same. The Purchaser
represents that it has full power and authority to enter into this Agreement.
The Purchaser has not been formed for the specific purpose of acquiring the
Shares.
SECTION 5.8 ACCREDITED INVESTOR STATUS. The Purchaser is an accredited
investor as defined in Rule 501(a) of Regulation D promulgated under the
Securities Act of 1933, as amended (the "SECURITIES ACT"). In addition, the
Purchaser (i) has the ability to bear the economic risks of such prospective
investment, including a complete loss of such prospective investment; (ii) has
been furnished with and has had access to such information as the Purchaser has
considered necessary to make a determination as to the purchase of the Shares
together with such additional information as is necessary to verify the accuracy
of the information supplied; (iii) has had all questions which it has asked
satisfactorily answered by the Seller; and (iv) has not been offered the Shares
by any form of advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any such
media.
SECTION 5.9 INFORMATION. The Purchaser and its counsel have been
furnished all materials relating to the business, management, finances and
operations of IG2 and materials which have been specifically requested by the
Purchaser or its counsel. The Purchaser and its counsel have been afforded
access and the opportunity to ask questions of IG2 and have received what the
Purchaser believes to be satisfactory answers to any such inquiries. Although
neither such inquiries nor any other due diligence investigation conducted by
the Purchaser or its counsel or any of its representatives shall modify, amend
or affect the Purchaser's right to rely on the Seller's limited representations
and warranties contained herein, the Purchaser acknowledges and agrees that it
has conducted its own due diligence investigation of IG2. The Purchaser
understands that its investment in the Shares involves a high degree of risk.
SECTION 5.10 KNOWLEDGE OF BUSINESS. Principals of the Purchaser have
been primarily responsible for the operations and business of IG2 since its
inception. The Purchaser fully understands the operations and business of IG2,
including license and technology issues relevant to IG2's business, and has such
knowledge and experience in its operations as to not require any representations
or advice from any parties, including the Seller, as to the business and
operations of IG2.
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SECTION 5.11 GOVERNMENTAL REVIEW. The Purchaser understands that no
United States federal or state agency or any other government or governmental
agency has passed upon or made any recommendation or endorsement of the Shares.
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF CERTAIN STATES AND ARE BEING
OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF
SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER
REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR
ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THIS
AGREEMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
SECTION 5.12 RESTRICTED SECURITIES. The Purchaser understands that the
Shares are characterized as "restricted securities" under the federal securities
laws inasmuch as they are being acquired from the Seller in a transaction not
involving a public offering and that under such laws and applicable regulations
such Shares may be resold without registration under the Securities Act only in
certain limited circumstances. The Purchaser acknowledges that the Shares must
be held indefinitely unless subsequently registered under the Securities Act or
an exemption from such registration is available.
SECTION 5.13 NO PUBLIC MARKET. The Purchaser understands that no public
market now exists for any of the Shares, and that the Seller has made no
assurances that a public market will ever exist for the Shares.
SECTION 5.14 LEGENDS. The Purchaser understands that the Shares shall
bear a restrictive legend in substantially the following form:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
the securities laws of any state of the United States. The
securities represented hereby may not be offered or sold in
the absence of an effective registration statement for the
securities under applicable securities laws unless offered,
sold or transferred under an available exemption from the
registration requirements of those laws.
SECTION 5.15 KNOWLEDGE AND EXPERIENCE. The Purchaser has such knowledge
and experience in financial, tax, and business matters, and, in particular,
investments in securities, so as to enable it to utilize the information made
available to it to evaluate the merits and risks of an
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\investment in the Shares and in IG2 and to make an informed investment decision
with respect thereto. The Purchaser is not relying on the Seller or IG2 or any
of its employees or agents with respect to the legal, tax, economic and related
considerations of an investment in the Shares, and the Purchaser has relied on
the advice of, or has consulted with, only his own advisors. The Purchaser has
significant prior investment experience, including investment in non-listed and
non-registered securities. The Purchaser is knowledgeable about investment
considerations in development-stage companies. The Purchaser has a sufficient
net worth to sustain a loss of its entire investment in the IG2 in the event
such a loss should occur. The Purchaser's overall commitment to investments
which are not readily marketable is not excessive in view of its net worth and
financial circumstances and the purchase of the Shares will not cause such
commitment to become excessive. The investment is a suitable one for the
Purchaser.
SECTION 5.16 NO NEED FOR LIQUIDITY. The Purchaser has adequate means of
providing for its current financial needs and foreseeable contingencies and has
no need for liquidity of the investment in the Shares for an indefinite period
of time.
SECTION 6. CONDITIONS OF PURCHASER'S OBLIGATIONS AT CLOSING
The obligations of the Purchaser under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions,
which conditions may be waived by the Seller:
SECTION 6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser contained herein shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
SECTION 6.2 PERFORMANCE. The Purchaser shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
SECTION 6.3 QUALIFICATIONS. All authorizations, approvals, or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful transfer of the
Shares pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
SECTION 6.4 CERTIFIED RESOLUTIONS. The Purchaser shall have delivered
to the Seller a copy of the resolutions of its Board of Directors, authorizing
the execution, delivery and performance of this Agreement and the transactions
contemplated hereby, certified by one of its officers.
SECTION 6.5 DELIVERY OF NOTE AND GLOBAL SHARES. The Purchaser shall
have delivered the Note to the Seller and Global Shares to the Escrow Agent as
specified in Section 1.
SECTION 6.6 SECURITY AGREEMENTS. The Purchaser shall have entered into
the Security Agreements referred to in Section 1.2.2.
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SECTION 6.7 PLEDGE AGREEMENT. The Purchaser shall have entered into the
Pledge Agreement referred to in Section 1.2.2.
SECTION 6.8 ASSUMPTION AGREEMENT. The Purchaser shall have entered into
the Assumption Agreement referred to in Section 1.2.3.
SECTION 6.9 PROCEEDINGS. All proceedings to be taken in connection with
the transactions contemplated by this Agreement and all documents incident
thereto must be reasonably satisfactory in form and substance to the Seller and
its counsel, and the Seller shall have received copies of all such documents and
other evidences as his counsel reasonably request in order to establish the
consummation of such transactions and the taking of all proceedings in
connection therewith.
SECTION 7. CONDITIONS OF SELLER'S OBLIGATIONS AT CLOSING
The obligations of the Seller under this Agreement is subject to the
fulfillment on or before the Closing, which conditions may be waived by the
Seller:
SECTION 7.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Seller contained herein shall be true on and as of the Closing
with the same effect as though such representations and warranties had been made
on and as of the date of such Closing.
SECTION 7.2 PERFORMANCE. The Seller shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing.
SECTION 7.3 QUALIFICATIONS. All authorizations, approvals, or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful transfer of the
Shares pursuant to this Agreement shall be duly obtained and effective as of the
Closing.
SECTION 7.4 SURRENDER AND ISSUANCE OF CERTIFICATES. The Seller shall
have delivered to the Purchaser certificates representing the Shares, together
with such other documents and instruments, if any, as may be necessary to permit
the Purchaser to acquire the Shares, free and clear of any and all Liens or
voting or other restrictions of any kind whatsoever adverse to the Purchaser.
SECTION 7.5 PROCEEDINGS. All proceedings to be taken in connection with
the transactions contemplated by this Agreement and all documents incident
thereto must be reasonably satisfactory in form and substance to the Purchaser
and its counsel, and the Purchaser shall have received copies of all such
documents and other evidences as it or its counsel reasonably requested in order
to establish the consummation of such transactions and the taking of all
proceedings in connection therewith.
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SECTION 7.6 RESIGNATIONS. The directors of IG2, except for ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, shall resign from the board of directors of IG2.
SECTION 8. SURVIVAL; INDEMNIFICATION
SECTION 8.1 SURVIVAL. Notwithstanding any right of any party hereto
fully to investigate the affairs of any other party, and notwithstanding any
knowledge of facts determined or determinable pursuant to such investigation or
right of investigation, each party hereto shall have the right to rely fully
upon the representations, warranties, covenants and agreements of the other
parties contained in this Agreement and the Schedules, if any, furnished by any
other party pursuant to this Agreement, or in any certificate delivered at the
Closing by any other party. The respective representations, warranties,
covenants and agreements of the Seller and the Purchaser contained in this
Agreement shall survive the Closing.
SECTION 8.2 OBLIGATION OF THE SELLER TO INDEMNIFY. The Seller hereby
agrees, to indemnify the Purchaser and its affiliates, shareholders, officers,
directors, employees, agents, representatives and successors, permitted
assignees of the Purchaser and their affiliates (individually a "PURCHASER
INDEMNIFIED Party" and collectively, the "PURCHASER INDEMNIFIED PARTIES")
against, and to protect, save and keep harmless the Purchaser Indemnified
Parties from, and to pay on behalf of or reimburse the Purchaser Indemnified
Parties as and when incurred for, any obligations, losses, damages, penalties,
demands, claims, actions, suits, judgments, settlements, penalties, interest,
out-of-pocket costs, expenses and disbursements (including reasonable costs of
investigation, and reasonable attorneys', accountants' and expert witnesses'
fees) of whatever kind and nature (collectively, "LOSSES"), that may be imposed
on or incurred by the Purchaser Indemnified Party as a consequence of, in
connection with, incident to, resulting from or arising out of or in any way
related to or by virtue of: (a) any misrepresentation, inaccuracy or breach of
any warranty or representation contained herein or in any certificate delivered
by the Seller at the Closing; (b) any breach or failure by the Seller to comply
with, perform or discharge any obligation, agreement or covenant by the Seller
contained in this Agreement; or (c) any IG2 Liability not included on SCHEDULE
1.2.2 herein, except those IG2 Liabilities not included on SCHEDULE 1.2.2 which
were incurred prior to the Closing Date by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (or incurred by IG2
with her knowledge) on behalf of IG2 (the "PEACOCK LIABILITIES"). The term
"Losses" as used in this Agreement is not limited to matters asserted by third
parties against a Purchaser Indemnified Party, but includes Losses incurred or
sustained by a Purchaser Indemnified Party in the absence of third party claims.
SECTION 8.3 OBLIGATION OF THE PURCHASER TO INDEMNIFY. The Purchaser
hereby agrees to indemnify the Seller and its affiliates, shareholders,
officers, directors, employees, agents, representatives and successors,
permitted assignees of the Seller and their affiliates against, and to protect,
save and keep harmless the Seller from, and to pay on behalf of or reimburse the
Seller as and when incurred for, any and all Losses that may be imposed on or
incurred by the Seller as a consequence of, in connection with, incident to,
resulting from or arising out of or in any way related to or by virtue of: (a)
any misrepresentation, inaccuracy or breach of any warranty or representation of
the Purchaser contained herein or in any certificate delivered by the Purchaser
at the Closing; (b) any breach or failure by the Purchaser to comply with,
perform or discharge any
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obligation, agreement or covenant by the Purchaser contained in this Agreement;
or (c) any unpaid Fidelity Liabilities.
SECTION 8.4 INDEMNIFICATION PROCEDURES.
8.4.1 Non-Third-Party Claims. In the event that any Person entitled to
indemnification under this Agreement (an "INDEMNIFIED PARTY") asserts a claim
for indemnification which does not involve a Third Party Claim (as defined in
Section 8.4.2), against which a Person is required to provide indemnification
under this Agreement (an "INDEMNIFYING PARTY"), the Indemnifying Party may
acknowledge and agree by notice to the Indemnified Party in writing to satisfy
such claim within 30 days of receipt of notice of such claim from the
Indemnified Party. In the event that the Indemnifying Party disputes such claim,
the Indemnifying Party shall provide written notice of such dispute to the
Indemnified Party within 30 days of receipt of written notice of such claim,
setting forth a reasonable basis of such dispute. In the event that the
Indemnifying Party shall fail to provide written notice to the Indemnified Party
within 30 days of receipt of notice from the Indemnified Party that the
Indemnifying Party either acknowledges and agrees to pay such claim or disputes
such claim, the Indemnifying Party shall be deemed to have acknowledged and
agreed to pay such claim in full and to have waived any right to dispute such
claim. Once the Indemnifying Party has acknowledged and agreed to pay any claim
pursuant to this Section 8.4.1, or once any dispute under this Section 8.4.1 has
been finally resolved in favor of indemnification by a court or other tribunal
of competent jurisdiction, subject to the provisions of Section 8.6.1, the
Indemnifying Party shall pay the amount of such claim to the Indemnified Party
within 10 days of the date of acknowledgement or resolution, as the case may be,
to such account and in such manner as is designated in writing by the
Indemnified Party.
8.4.2 Third-Party Claims. (a) In the event that any Indemnified Party
asserts a claim for indemnification or receives notice of the assertion of any
claim or of the commencement of any action or proceeding by any Person who is
not a party to this Agreement or an affiliate of a party to this Agreement (a
"THIRD PARTY CLAIM") against an Indemnifying Party, the Indemnified Party shall
give written notice to the Indemnifying Party (the "CLAIMS NOTICE") within 20
days after learning of such claim (or within such shorter time as may be
necessary to give the Indemnifying Party a reasonable opportunity to respond to
such claim), together with a statement specifying the basis of such Third Party
Claim. The Indemnifying Party shall have the right, upon written notice to the
Indemnified Party (the "DEFENSE NOTICE") within 20 days after receipt from the
Indemnified Party of the Claims Notice, which Defense Notice shall specify the
counsel it will appoint to defend such claim ("DEFENSE COUNSEL"), to conduct at
its expense the defense against such Third Party Claim in its own name, or if
necessary in the name of the Indemnified Party; provided, however, that the
Indemnified Party shall have the right to approve the Defense Counsel, which
approval shall not be unreasonably withheld or delayed.
(b) In the event that the Indemnifying Party within such 20 day period
fails to give the Defense Notice, the Indemnified Party shall have the right to
conduct the defense and to compromise and settle such Third Party Claim without
prior consent of the Indemnifying Party and subject to the provisions of Section
8.6.1, the Indemnifying Party will be liable for all
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reasonable costs, expenses, settlement amounts or other Losses paid or incurred
in connection therewith.
(c) In the event that the Indemnifying Party disputes the claim for
indemnification against it, such Indemnifying Party shall notify the Indemnified
Party to such effect within 20 days after receipt of the Claims Notice (or
within such shorter time as may be necessary to give the Indemnified Party a
reasonable opportunity to respond to such Third Party Claim). In such event the
Indemnified Party shall have the right to conduct the defense and to compromise
and settle such Third Party Claim, with the prior consent of the Indemnifying
Party (which consent will not be unreasonably withheld or delayed), and, once
such dispute has been finally resolved in favor of indemnification by a court or
other tribunal of competent jurisdiction or by mutual agreement of the
Indemnified and Indemnifying Party, subject to the provisions of Section 8.6.1,
the Indemnifying Party shall within 10 days of the date of such resolution or
agreement, pay to the Indemnified Party all reasonable costs, expenses,
settlement amounts or other Losses paid or incurred by the Indemnified Party in
connection with such Third Party Claim.
(d) In the event that the Indemnifying Party does deliver a Defense
Notice and thereby elects to conduct the defense of the Third Party Claim, the
Indemnifying Party shall be entitled to have the exclusive control over the
defense of the Third Party Claim and the Indemnified Party will cooperate in
good faith with and make available to the Indemnifying Party such assistance and
materials as it may reasonably request, all at the expense of the Indemnifying
Party. The Indemnified Party shall have the right at its expense to participate
in the defense assisted by counsel of its own choosing. The Indemnifying Party
will not settle the Third Party Claim or cease to defend against any Third Party
Claim as to which it has delivered a Defense Notice, without the prior written
consent of the Indemnified Party, which consent will not be unreasonably
withheld or delayed; provided, however, such consent may be withheld for any
reason if, as a result of such settlement or cessation of defense, (i)
injunctive relief or specific performance would be imposed against the
Indemnified Party, or (ii) such settlement or cessation would lead to liability
or create any financial or other obligation on the part of the Indemnified Party
for which the Indemnified Party is not entitled to indemnification hereunder.
(e) If an Indemnified Party refuses to consent to a bona fide offer of
settlement which provides for a full release of the Indemnified Party and its
affiliates relating to the claims underlying the offer of settlement and solely
for a monetary payment which the Indemnifying Party wishes to accept, the
Indemnified Party may continue to pursue such matter, free of any participation
by the Indemnifying Party, at the sole expense of the Indemnified Party. In such
an event, the obligation of the Indemnifying Party shall be limited to the
amount of the offer of settlement which the Indemnified Party refused to accept
plus the reasonable costs and expenses of the Indemnified Party incurred prior
to the date the Indemnifying Party notified the Indemnified Party of the offer
of settlement.
(f) Notwithstanding clause (c) above, the Indemnifying Party shall not
be entitled to control, but may participate in, and the Indemnified Party shall
be entitled to have sole control over, the defense or settlement of any Third
Party Claim (i) that seeks a temporary restraining order, a preliminary or
permanent injunction or specific performance against the Indemnified
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Party, (ii) to the extent such claim involves criminal allegations against the
Indemnified Party or (iii) if such Third Party Claim would impose liability on
the part of the Indemnified Party for which the Indemnified Party is not
entitled to indemnification hereunder. In such an event, the Indemnifying Party
will still have all of its obligations hereunder; provided, however, the
Indemnified Party will not settle the Third Party Claim without the prior
written consent of the Indemnifying Party, which consent will not be
unreasonably withheld or delayed.
(g) A failure by an Indemnified Party to give timely, complete or
accurate notice as provided in this Section 8.4 will not affect the rights or
obligations of any party hereunder except and only to the extent that, as a
result of such failure, any party entitled to receive such notice was deprived
of its right to recover any payment under its applicable insurance coverage or
was otherwise directly and materially damaged as a result of such failure to
give timely notice.
SECTION 8.5 LIMITATIONS ON AND OTHER MATTERS REGARDING INDEMNIFICATION.
8.5.1 Indemnity Cushion and Cap. Subject to Section 8.5.2, the Seller
shall not have any liability to any Purchaser Indemnified Party with respect to
Losses arising out of any of the matters referred to in Sections 8.2 until such
time as the amount of such liability shall exceed (i) $75,000 (in which case the
Seller shall be liable for all Losses in excess of such amount). Notwithstanding
anything to the contrary herein, subject to Section 3.5, the maximum aggregate
liability of the Seller for indemnity payments under Sections 8.2 shall be equal
to an amount equal to the IG2 Liabilities as of the Closing Date.
8.5.2 Termination of Indemnification Obligations of the Seller. The
obligation of the Seller to indemnify under Section 8.2 hereof shall terminate
on March 27, 2002, except as to matters as to which the Purchaser Indemnified
Party has made a claim for indemnification on or prior to such date. The
obligation to indemnify referred to in the preceding sentence shall survive the
expiration of such period until such claim for indemnification is finally
resolved and any obligations with respect thereto are fully satisfied.
8.5.3 Termination of Indemnification Obligations of the Purchaser. The
obligation of the Purchaser to indemnify under Section 8.3 hereof shall
terminate on March 27, 2002 except as to matters as to which the Seller has made
a claim for indemnification on or prior to such date, in which case the right to
indemnification with respect thereto shall survive such period until such claim
for indemnification is resolved and any obligations with respect thereto are
fully satisfied and except to any Fidelity Liability, which shall continue to
survive.
8.5.4 Treatment. Any indemnity payments by an Indemnifying Party to an
Indemnified Party under this Section 8 may be treated by the parties as an
adjustment to the Note.
SECTION 9. MISCELLANEOUS
SECTION 9.1 EXPENSES. Except as otherwise provided in this Agreement,
the Purchaser, on the one hand, and the Seller, on the other hand, hereto shall
pay its or his own expenses relating
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to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel, financial
advisors and accountants.
SECTION 9.2 GOVERNING LAW. The interpretation and construction of this
Agreement, and all matters relating hereto (including, without limitation, the
validity or enforcement of this Agreement), shall be governed by the laws of the
State of New York without regard to any conflicts or choice of laws provisions
of the State of New York that would result in the application of the law of any
other jurisdiction.
SECTION 9.3 "PERSON" DEFINED. "PERSON" shall mean and include an
individual, a company, a joint venture, a corporation (including any non-profit
corporation), an estate, an association, a trust, a general or limited
partnership, a limited liability company, a limited liability partnership, an
unincorporated organization and a government or other department or agency
thereof.
SECTION 9.4 "KNOWLEDGE" DEFINED. Where any representation and warranty
contained in this Agreement is expressly qualified by reference to the knowledge
of the Seller, such term shall be limited to the actual knowledge of the
executive officers of Seller and unless otherwise stated such knowledge that
would have been discovered by such executive officers after reasonable inquiry.
Where any representation and warranty contained in this Agreement is expressly
specified by reference to the knowledge of the Purchaser, such term shall be
limited to the actual knowledge of the executive officers of the Purchaser and
unless otherwise stated, such knowledge that would have been discovered by such
executive officers after reasonable inquiry.
SECTION 9.5 "AFFILIATE" DEFINED. As used in this Agreement, an
"AFFILIATE" of any Person, shall mean any Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with such Person.
SECTION 9.6 CAPTIONS. The Section captions used herein are for
reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
SECTION 9.7 PUBLICITY. No party to this Agreement shall issue any press
release or other public document or make any public statement relating to this
Agreement or the matters contained herein without obtaining the prior approval
of the Purchaser and the Seller, except, with respect to the Seller, or required
by federal securities laws.
SECTION 9.8 NOTICES. Unless otherwise provided herein, any notice,
request, instruction or other document to be given hereunder by any party to any
other party shall be in writing and shall be deemed to have been given (a) upon
personal delivery, if delivered by hand or courier, (b) three days after the
date of deposit in the mails, postage prepaid, or (c) the next business day if
sent by facsimile transmission (if receipt is electronically confirmed) or by a
prepaid overnight courier service, and in each case at the respective addresses
or numbers set forth below or such other address or number as such party may
have fixed by notice:
If to the Purchaser, addressed to:
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Global Communications of NY, Inc.
▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Gargill, Sassoon & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Seller, addressed to:
Fidelity Holdings, Inc.
▇▇-▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Krooks & ▇▇▇▇ P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 9.9 PARTIES IN INTEREST. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party hereto, other than by operation
of law. Any purported such transfer, assignment, pledge, or hypothecation (other
than by operation of law) shall be void and ineffective. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and permitted assigns.
SECTION 9.10 SEVERABILITY. In the event any provision of this Agreement
is found to be void and unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall nevertheless be binding upon the
parties with the same effect as though the void or unenforceable part had been
severed and deleted.
SECTION 9.11 COUNTERPARTS. This Agreement may be executed in two or
more counterparts or by facsimile transmission, all of which taken together
shall constitute one instrument.
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SECTION 9.12 ENTIRE AGREEMENT. This Agreement, including the other
documents referred to herein and the Exhibits and Schedules hereto which form a
part hereof, contains the entire understanding of the parties hereto with
respect to the subject matter contained herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
SECTION 9.13 AMENDMENTS. This Agreement may not be amended,
supplemented or modified orally, but only by an agreement in writing signed by
each of the parties hereto.
SECTION 9.14 THIRD PARTY BENEFICIARIES. Each party hereto intends that
this Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person other than the parties hereto and their respective
successors and assigns as permitted under Section 9.9.
SECTION 9.15 USE OF TERMS. Whenever the context so requires or permits,
all references to the masculine herein shall include the feminine and neuter,
all references to the neuter herein shall include the masculine and feminine,
all references to the plural shall include the singular and all references to
the singular shall include the plural.
SECTION 9.16 "LIENS" DEFINED. With respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or
security interest in, on or of such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention
agreement (other than an operating lease) (or any financial lease having
substantially the same economic effect as any of the foregoing) relating to such
asset and (c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
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IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement, on the day and year first above written.
GLOBAL COMMUNICATIONS OF NY, INC.
BY: _________________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CHIEF EXECUTIVE OFFICER
FIDELITY HOLDINGS, INC.
BY: _________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇, CHIEF EXECUTIVE OFFICER
IG2, INC.
BY: _________________________________________
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