MEMORANDUM OF UNDERSTANDING
This memorandum of understanding, made this 9th day of September 1997 by
and among Computer Business Sciences, Inc., a New York Corporation with its
principal place of business located at 00-00 Xxx Xxxxxxx Xxxx, Xxx Xxxxxxx, Xxx
Xxxx 00000 ("CBS"), Nissko Telecom Ltd., a Delaware Corporation with offices
located at 0 Xxxx 00, Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("LTD") and formed by
Xxxxxxx Xxxxxxxxx, an adult individual residing at 000-00 00xx Xxxxx, Xxxxxxxx,
Xxx Xxxx 00000; Xxxxx Xxxxx, an adult individual residing at 000 Xxxxxx Xxxxxx,
Xxx Xxxxxxx, Xxx Xxxx 00000; and Chmuel Livian, an adult individual residing at
00 Xxxxxx Xxxxx, Xxxxxx Xxxxx, Xxx Xxxx 00000 (the individuals to be referred to
as "Investors"), Fidelity Holdings, Inc. ("Fidelity"), a Nevada Corporation with
offices at 00-00 Xxx Xxxxxxx Xxxx, Xxx Xxxxxxx, Xxx Xxxx 00000; and Xxxxxx X.
Xxxxxxx ("Xxxxxxx") an adult individual with offices at 000 Xxxxx Xxxxxx, Xxx
Xxxx,Xxx Xxxx 00000
WITNESSETH THAT:
WHEREAS, a valid agreement dated March 25, 1996 exists among CBS, Fidelity
and Investors;
WHEREAS, CBS now desires to acquire LTD in a tax free reorganization which
shall include Nissko Telecom LP. ("L.P.") in which LTD is the general partner;
WHEREAS, LTD desires to be acquired by CBS in a tax free reorganization;
WHEREAS, Investors agree to the transactions hereby as part of a tax free
reorganization;
NOW THEREFORE, intending to be legally bound, and in consideration of the
mutual promises and covenants confined herein, the parties have agreed as
follows:
CONDITION PRECEDENT
This Memorandum of Understanding and any subsequent final agreement
between the parties shall be null and void if the merger of Major Automotive,
Inc. into Fidelity is not completed.
LEGAL ENTITIES AND OWNERSHIP
1. Nissko Telecom Associates ("Associates") is a general partnership
with CBS and L.P. as the only partners.
2. Nissko Telecom Associates was created under the agreement dated
March 25, 1996 and attached hereto as Exhibit "A".
3. LP owns 55% of Nissko Telecom Associates and CBS owns 45% of Nissko
Telecom Associates.
4. Investors own 55% of LTD and CBS owns 45% of LTD.
5. Investors and Xxxxxx X. Xxxxxxx have a 54% limited partnership
interest in LP.
6. LTD is the general partner of LP with a 1% ownership interest.
PARTNERSHIPS WITH ASSOCIATES
7. A copy of the Nissko-Nassim general partnership agreement between
Nissko Telecom Associates and Xx. Xxxxxx Xxxxxx and dated October
22, 1996 is annexed hereto as Exhibit "B".
8. A copy of the Thai Tel Communication general partnership agreement
between Nissko Telecom Associates and Wentworth and Stone, Inc. and
dated October 17, 1996 is annexed hereto as Exhibit "C".
TRANSACTIONS TO BE COMPLETED
9. A. It is acknowledged and agreed that there are valid business
purposes for L.P. to be dissolved and accordingly, the assets and
liabilities held by L.P. shall be transferred to LTD in a
transaction which shall equal as a tax free event.
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Given the transactions that will be occurring involving Major
Automotive and Fidelity, the parties involved in financing those
transactions have required that L.P. be consolidated into LTD.
Accordingly, this consolidation will take place as soon as
practicable after the execution of a final agreement between the
parties hereto.
B. As part and parcel of the transaction to be completed, CBS shall
control L.P., Associates Nissko-Nassim and Thai-Tel Communications.
C. As consideration for the merger of LTD into CBS, CBS shall cause
shares of common stock in Fidelity to be issued to the shareholders
of LTD in a tax free reorganization under section 368 (a) of the
Internal Revenue Code of 1986 which shall include the following;
(i) Upon execution of this Memorandum of Understanding, 520,750 shares of
common stock in Fidelity that has been paid for by the Investors and shall be
distributed as follows:
Xxxxx Xxxxx or his designee: 173,583
Chmuel Livian or his designee: 173,584
Xxxxxxx Xxxxxxxxx or his designee: 173,583
and 2,250 shares that have been paid for by Rimberg shall be distributed upon
execution of this Agreement to Rimberg during the period of two years that begin
on the date of the signing of a formal Agreement covering the matters in this
memorandum of understanding, none of the above shares shall be transferred in
any manner, otherwise than pursuant to an available exemption from
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registration under the Securities Act of 1933 as amended. Any transfers made in
compliance with this restriction shall made subject to the voting rights of
Xxxxx Xxxxxxx under the proxy referred to in paragraph 14 of this memorandum of
understanding. Certificates representing the above shares may be endorsed with
an appropriate legend reflecting the above restriction. These shares are from
exercising a portion of the warrants referred to in the March 25, 1996 agreement
as "1996-A Warrants";
(ii) Upon execution of the final agreement among the parties, Investors,
or their designee, shall receive 772,500 shares of common stock in Fidelity as
follows:
Xxxxx Xxxxx or his designee: 257,500
Chmuel Livian or his designee: 257,500
Xxxxxxx Xxxxxxxxx or his designee: 257,500
and Rimberg, or his designee, shall receive 27,500 shares of common stock in
Fidelity, the restrictions applicable to the shares in clause (i) of this
paragraph 9.C shall also be applicable to the shares in this clause (ii);
(iii) Upon execution of a final agreement among the parties, Investors, or
their designee, shall each have the right to purchase up to one third of 206,750
warrants of the common stock of Fidelity at $1.25 per share as follows:
Xxxxx Xxxxx or his designee: up to 68,917 warrants
Chmuel Livian or his designee: up to 68,917 warrants
Xxxxxxx Xxxxxxxx or his designee: up to 68,916 warrants
and Rimberg shall have the right to purchase up to 20,250 warrants of the common
stock of Fidelity at $1.25 per share.
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These warrants are the remainder of the warrants referred to in the March 15,
1996 agreement as "1996-A Warrants". All warrants, unless all monies therefor
are paid to Rimberg & Associates, P.C., as escrow agent, shall automatically
expire 30 days after written notification that the Fidelity SB-2 is effective.
The monies for the warrants shall be held in escrow and shall not be paid to
Fidelity until such time as the merger of Major Automotive into Fidelity is
consummated. If, after 180 days following payment for the warrants, the merger
of Major Automotive into Fidelity is not consummated, Investors and Rimberg
shall have the absolute right to receive all monies paid for the warrants
without further delay. The Investors shall have the right to exercise the
warrants in their sole discretion. Notwithstanding the foregoing, if the
Investors do not exercise the warrants, this will not otherwise affect the
transactions contemplated hereby.
(iv) Notwithstanding any provision contained herein, it is agreed that prior to
the issuance of the common stock as provided in 9.C.2 there shall be a full
accounting if any money is owed by any party to any other party in this
Agreement and such monies shall be paid before the issuance of any of the stock.
NISSKO JEWELRY TRADING
10. On various dates and in various agreements, Investors and Nissko
Jewelry Trading, Inc., acting as guarantor and/or principal, executed agreements
that were for the benefit of LTD, L.P. and/or Fidelity. Upon execution of this
Memorandum of Understanding, Fidelity shall cause to be placed into escrow with
Rimberg 200,000 shares of common stock in Fidelity as (the "Escrowed Shares)
security for Nissko Jewelry Trading, Inc. Should any attempt be made to collect
any money against Nissko Jewelry Trading, Inc., or if any suit, action or
proceeding of any nature is commenced against Nissko Jewelry Trading, Inc.,
under the various agreements, the Escrowed Shares shall secure Nissko Jewelry
Trading, Inc.
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Notwithstanding the foregoing, Fidelity and CBS agrees to hold harmless,
indemnify and defend Nissko Jewelry Trading, Inc., from any and all lawsuits,
claims, proceedings, and action that may arise out of the agreements as
described above.
INVESTOR' OBLIGATIONS
11. Investors represent that Xxxxxxx Xxxxxxxxx has agreed to enter into a
partnership with CBS for Moscow, Russia regarding telephony computer equipment.
Investors further represent that Xxxxxxx Xxxxxxxxx has agreed to lend $300,000
for his participation in the partnership with CBS. As security for the loan of
Xxxxxxx Xxxxxxxxx, Investors shall place in escrow with Rimberg & Associates,
P.C. 25,000 shares of Fidelity's stock and Fidelity shall cause Xxxxx Xxxxx and
Xxxxx Xxxxxxx to place in escrow with Rimberg & Associates, P.C. 50,000 shares
of Fidelity's stock.
INDEMNIFICATION
12. To the fullest extent permitted by law, Fidelity and CBS shall
indemnify, defend, protect, and hold harmless Investors and Rimberg from and
against all liabilities, damages, loses, claims, demands, lawsuits, proceedings,
arbitrations, and actions of any nature whatsoever connected with L.P. and/or
LTD.
AGREEMENT DATED MARCH 25, 1996
13. At such time as the final agreement between the parties is executed or
the completion of the merger of Major Automotive, Inc. into Fidelity, whichever
is later, the Agreement dated March 25, 1996 and attached as Exhibit "D" shall
be deemed null and void and all parties shall be released of any and all
obligations, rights by investors to warrants and any stock held as
collateral/security pursuant to the March 25, 1996 agreement shall be released
that may have arisen thereunder.
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PROXY
14. Investors hereby agree that they shall give Xxxxx Xxxxxxx a proxy to
vote up to 500,000 shares of the stock being issued under this Agreement for a
period of not less than two (2) years from the execution of this Agreement.
FINAL AGREEMENT
15. This Memorandum of Understanding shall be replaced within thirty (30)
days of its execution by final agreement executed by all parties in interest.
IN WITNESS WHEREOF the parties have hereunto executed this document the
day and year first above written
Attest: Computer Business Science, Inc.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
By: /s/ Xxxxxxx Xxxxxxxxx
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Attest: Xxxxxxx Xxxxxxxxx
By: /s/ Xxxxx Xxxxx
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Attest: Xxxxx Xxxxx
By: /s/ Chmuel Livian
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Attest: Chmuel Livian
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Fidelity Holdings, Inc.
By: /s/ Xxxxx Xxxxx
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Attest: Xxxxx Xxxxx
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Attest: Nissko Telecom, L.P.
By: Nissko Telecom Ltd.
By: /s/ Avraham Nissarian
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Avraham Nissarian
Attest: Nissko Telecom, Ltd.
By: /s/ Avraham Nissarian
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Avraham Nissarian
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