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EXHIBIT 10.87
STOCK PURCHASE AGREEMENT
BY AND AMONG
GLOBAL COMMUNICATIONS OF NY, INC.,
THE MAJOR AUTOMOTIVE COMPANIES, INC.
AND
ICS GLOBE, INC.
Dated July 31, 2001
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made as of July 31,
2001 by and among GLOBAL COMMUNICATIONS OF NY, INC., a New York corporation (the
"PURCHASER"), THE MAJOR AUTOMOTIVE COMPANIES, INC., a Nevada corporation (the
"SELLER") and ICS GLOBE, INC., a Delaware corporation ("ICS").
W I T N E S S E T H :
WHEREAS, the Seller is the owner of 100 shares (the "SHARES") of common
stock, $.001 par value per share (the "COMMON STOCK"), of ICS, representing 100%
of the total issued and outstanding shares Common Stock of ICS; and
WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller 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 an aggregate purchase price equal to: (i) $250,000, of which $10,000 shall
be payable no later than August 1, 2001 (the "AUGUST PAYMENT") and $240,000 of
which shall be evidenced by a senior secured promissory note (the "NOTE") (as
more fully described in Section 1.2.1 herein); (ii) an option to purchase that
certain number of shares of capital stock equal up to 10% of ICS (the "ICS
INTEREST") (as more fully described in Section 1.2.2 herein); and (iii) the
assumption of the Major Liabilities (as defined in Section 1.2.4 herein). The
Note, the ICS Interest and the Major Liabilities are collectively referred to
herein as the "PURCHASE PRICE."
SECTION 1.2 PURCHASE PRICE.
1.2.1 Note. The Purchaser shall deliver to Seller the Note in the
aggregate principal amount of $240,000, bearing twelve percent (12%) interest
per annum. Principal and interest on the Note shall be payable in equal
installments of Ten Thousand ($10,000) Dollars every month for five (5) months
beginning thirty (30) days after the Closing Date. Thereafter, principal and
interest on the Note shall be payable in ten equal installments of Twenty
Thousand ($20,000) Dollars and one installment of Thirteen Thousand One Hundred
Seventy Two ($13,172) Dollars, as specified on SCHEDULE 1.2.1 herein. 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,
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any and all other indebtedness of ICS. The Purchaser shall, and shall have ICS,
▇▇▇▇▇ ▇ ▇▇▇▇ on and security interest in all of its and ICS's assets, 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 an
amended and restated security agreement between the Purchaser and the Seller, a
security agreement between ICS and the Seller (collectively, 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.
1.2.2 Option. As part of the Purchase Price, the Seller shall have the
right (the "OPTION"), from the Closing, and upon giving written notice thereof
to the Purchaser, to purchase the ICS Interest for an exercise price equal to
One ($1.00) Dollar (the "INITIAL EXERCISE PRICE") for one year following the
Closing Date and for Twenty Five Thousand ($25,000) Dollars for the next four
years thereafter (the "FINAL EXERCISE PRICE"). If the Option is exercised by the
Seller, the Initial Exercise Price or Final Exercise Price, if any, shall reduce
the final payments of principal and interest due under the Note in inverse order
of due dates. The Option shall expire upon full payment of principal and
interest under the Note.
1.2.3. Major Liabilities. As part of the Purchase Price, at Closing,
the Purchaser shall assume, pay and discharge certain of the Seller's
liabilities (the "MAJOR LIABILITIES"), as set forth as estimated amounts 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 Major
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 2. CLOSING
SECTION 2.1 CLOSING. The Closing under this Agreement (the "CLOSING")
shall take place at 5:00 P.M. on July 31, 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 INTENTIONALLY DELETED.
SECTION 4. REPRESENTATIONS OF THE SELLER
The Seller hereby represents, warrants and agrees to and with the
Purchaser as follows:
SECTION 4.1 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
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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.
SECTION 4.2 SHARE OWNERSHIP. The Seller is the owner of the Shares,
with no personal liability attaching to the ownership thereof, except as such
liability may be imposed pursuant to applicable laws.
SECTION 4.3 BROKERS. 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 4.4 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 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 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 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
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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.
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 INFORMATION. The Purchaser and its counsel have been
furnished all
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materials relating to the business, management, finances and operations of ICS
and materials which have been specifically requested by the Purchaser or its
counsel. The Purchaser and its counsel has been afforded access and the
opportunity to ask questions of ICS 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 Company's representations and warranties
contained hererin. The Purchaser acknowledges and agrees that he has conducted
its own due diligence investigation of ICS. The Purchaser understands that its
investment in the Shares involves a high degree of risk.
SECTION 5.8 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 investment in the Shares
and in ICS and to make an informed investment decision with respect thereto. The
Purchaser is not relying on the Seller or ICS 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 its own advisors. The Purchaser has significant prior
investment experience, including investment in non-listed and non-registered
securities. The Purchaser has a sufficient net worth to sustain a loss of its
entire investment in the ICS 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 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
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performance of this Agreement and the transactions contemplated hereby,
certified by one of its officers.
SECTION 6.5 DELIVERY OF NOTE AND ICS SHARES. The Purchaser shall have
delivered the Note and the ICS Shares to the Seller as specified in Section 1.
SECTION 6.6 SECURITY AGREEMENTS. The Purchaser shall have entered into
the Security Agreements referred to in Section 1.2.1.
SECTION 6.7 PLEDGE AGREEMENT. The Purchaser shall have entered into the
Pledge Agreement referred to in Section 1.2.1.
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.
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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.
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, 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; or (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. 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 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
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with, perform or discharge any obligation, agreement or covenant by the
Purchaser contained in this Agreement; or (c) any unpaid Major 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 reasonable costs, expenses,
settlement amounts or other Losses paid or incurred in connection
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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 Party, (ii)
to the extent such claim involves criminal allegations against the Indemnified
Party or
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(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 8.5.5, 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 $5,000 (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 8.5.5, the maximum aggregate
liability of the Seller for indemnity payments under Sections 8.2 shall be equal
to the principal amount of the Note.
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 July 31, 2003, 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 July 31, 2003 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 Major 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 own expenses relating to the transactions contemplated by this
Agreement, including, without limitation, the fees and expenses of their
respective counsel, financial advisors and accountants.
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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:
Global Communications of NY, Inc.
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▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Gargill, Sassoon & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Seller, addressed to:
The Major Automotive Companies, 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.
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
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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: ______________________________________
Name: ____________________________________
Title: ___________________________________
THE MAJOR AUTOMOTIVE COMPANIES, INC.
By: ______________________________________
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
ICS GLOBE, INC.
By: ______________________________________
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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SCHEDULE 1.2.1
Senior Secured Promissory Note
TERMS
$240,000 at 12.0% with $10,000 repaid per month
for 5 months and $20,000 per month, thereafter
Interest rate = 12.0%
Month # Bal Beg Month Payment Bal End Month
------- ------------- ------- -------------
1 $240,000 $242,400
2 242,400 $ 10,000 234,724
3 234,724 10,000 226,971
4 226,971 10,000 219,141
5 219,141 10,000 211,232
6 211,232 10,000 203,245
7 203,245 20,000 185,077
8 185,077 20,000 166,728
9 166,728 20,000 148,195
10 148,195 20,000 129,477
11 129,477 20,000 110,572
12 110,572 20,000 91,478
13 91,478 20,000 72,192
14 72,192 20,000 52,714
15 52,714 20,000 33,041
16 33,041 20,000 13,172
17 13,172 13,172 (0)
--------
Total Payments $263,172
========
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SCHEDULE 1.2.3
LIABILITIES ESTIMATED AMOUNT*
----------- -----------------
Dr. Nassim Liabilities (▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ $500,000
v. Computer Business Sciences, Inc. and
Fidelity Holdings, Inc.)
Master Agent Liabilities (▇▇. ▇▇▇▇▇▇▇▇▇ $150,000
liabilities)
* FOR ESTIMATION PURPOSES ONLY.
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