Exhibit 99.1
EXECUTION COPY
STOCK PURCHASE AND SALE AGREEMENT
This Stock Purchase and Sale Agreement (“Agreement”) is entered into as of
April 26, 2002 by and between CYCH, Inc. (“CYCH” or “Seller”) and Saudi Venture
Development Company (“Buyer”).
WHEREAS, the Seller is the legal record and beneficial owner of 136,952
shares of the common stock of PayPal, Inc. (“Shares”); and
WHEREAS, in connection with its ownership of the Shares, the Seller is
entitled to certain rights and subject to certain restrictions under a related
Investors’ Rights Agreement (“Rights Agreement”); and
WHEREAS, subject to the terms and conditions set forth in this Agreement,
the Seller desires to sell and transfer to the Buyer, and the Buyer desires to
purchase from Seller, the Shares; and
WHEREAS, subject to the terms and conditions set forth in that certain
Assignment and Assumption Agreement by and between the parties, the Seller
shall agree to transfer and the Buyer shall agree to assume such rights and
restrictions as set for the in the Rights Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Seller and the Buyer agree as
follows:
Section 1 – Purchase and Sale; Closing
1.1 Purchase and Sale; Assignment and Transfer of Rights. Subject to the
terms and conditions set forth in this Agreement, the Seller shall sell and
transfer to Buyer and Buyer shall purchase from the Seller the Shares. The
closing of the purchase and the sale shall take place May 1, 2002 or such other
time as the parties shall mutually agree.
1.2 Purchase Price and Escrow. The aggregate Purchase Price for the
Shares shall be $2,875,992. On the date hereof, Buyer shall deposit, into the
escrow account established by the Buyer and Seller pursuant to, and on the
terms and conditions of, an Escrow Agreement of even date herewith by and among
the Buyer, the Seller and Xxxxx Xxxxxxx LLP as Escrow Agent (the “Escrow
Account”), as a credit against the Purchase Price, an aggregate of $400,000
(the “Deposit”). The Deposit shall be refundable to Buyer or released to the
Seller pursuant to the terms of the Escrow Agreement. At the Closing
hereunder, Buyer shall pay the balance of the Purchase Price, $2,475,992 into
the Escrow Account and the aggregate Purchase Price so deposited into the
Escrow Account shall be released to the Seller pursuant to the terms of the
Escrow Agreement.
1.3 Closing Deliveries. At the Closing: (a) the Seller shall deliver to
Buyer (i) stock powers in form sufficient to transfer the Shares to the Buyer,
(ii) an Assignment and Assumption
Agreement executed by the Seller and consented to by PayPal Inc., and (iii) an
opinion of counsel, in form reasonably satisfactory to counsel for the Buyer
and counsel for PayPal, Inc. regarding the ability of the Seller to sell and
transfer the Shares to Buyer without registration under the Securities Act of
1933, as amended; (b) the Seller shall deliver to the Escrow Agent its
certification and evidence pursuant to Section 3 of the Escrow Agreement; (c)
the Buyer shall deliver to PayPal, Inc. executed copies of a lock-up agreement,
in form reasonably acceptable to PayPal, Inc.; (d) the Buyer shall deliver to
Seller an executed Assignment and Assumption Agreement, and (e) the Buyer shall
deliver to the Escrow Agent its certification and evidence pursuant to Section
3 of the Escrow Agreement.
Section 2 – Representations and Warranties of Seller
2.1 Power and Authority. The Seller has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations thereunder. The execution
and delivery of each of this Agreement, the Escrow Agreement and the Assignment
and Assumption Agreement by the Seller and the consummation by it of the
transactions contemplated thereby have been duly authorized by all necessary
action on the part of the Seller. This Agreement, the Escrow Agreement and the
Assignment and Assumption Agreement have been (or upon delivery will be) duly
executed by the Seller and, when delivered in accordance with the terms hereof,
will constitute the valid and binding obligation of the Seller enforceable
against the Seller in accordance with its terms.
2.2 Consents and Approvals. Other than the consent of the U.S. Bankruptcy
Court (which consent the Seller represents and warrants has been obtained), the
Seller is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court or
other federal, state, local or other governmental authority in connection with
the execution, delivery and performance by the Seller of this Agreement, the
Escrow Agreement and the Assignment and Assumption Agreement.
2.3 Ownership of Shares and Rights. The Seller is the record and
beneficial owner of the Shares.
2.4 Transfer of Shares. The transfer of the Shares at Closing pursuant to
this Agreement, assuming performance of this Agreement and the Assignment and
Assumption Agreement by the Buyer, will be sufficient to vest all of Seller’s
right, title and interest in the Buyer.
Section 3 – Representations and Warranties of Buyer
3.1 Power and Authority. Buyer has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations thereunder. The execution
and delivery of each of this Agreement, the Escrow Agreement and the Assignment
and Assumption Agreement by Buyer and the consummation by it of the
transactions contemplated thereby have been duly authorized by all necessary
action on the part of Buyer. This Agreement, the Escrow Agreement and the
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Assignment and Assumption Agreement have been (or upon delivery will be) duly
executed by Buyer and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of Buyer enforceable against Buyer
in accordance with its terms.
3.2 Consents and Approvals. Buyer is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority in connection with the execution, delivery and
performance by Buyer of this Agreement, the Escrow Agreement and the Assignment
and Assumption Agreement.
3.3 Disclosure; Representations and Warranties of Seller. Buyer
acknowledges and agrees that the Seller has made no representations and has
provided no warranties to the Buyer with respect to the Shares, its rights and
obligations under the Rights Agreement or the transactions contemplated by this
Agreement other than those made in Section 2 above, has made no recommendation
to the Buyer concerning the Shares, and has provided no disclosure or other
information to the Buyer about PayPal, Inc.
Section 4 – Conditions to Closing; Termination.
4.1 Conditions to Buyer’s Obligation to Close. The obligation of the Buyer
to close the purchase and sale of the Shares is subject to the fulfillment or
waiver on or before the Closing of each of the following conditions:
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(a) 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; and |
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(b) The Seller shall have performed and complied with all covenants,
agreements, obligations and conditions contained in
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Agreement that are
required to be performed or complied with by it on or before the Closing
(including, without limitation, the Seller’s obligations under Section 1.3). |
4.2 Conditions to Seller’s Obligation to Close. The obligation of the
Seller to close the purchase and sale of the Shares is subject to the
fulfillment or waiver on or before the Closing of each of the following
conditions:
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(a) The representations and warranties of the Buyer contained herein,
shall be true on and as of the Closing with the same
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effect as though such
representations and warranties had been made on and as of the date of such
Closing; and |
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(b) The Buyer shall have performed and complied with all covenants,
agreements, obligations and conditions contained in
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this Agreement that are
required to be performed or complied with by it on or before the Closing
(including, without limitation, the obligations of Buyer under Section 1.3). |
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4.3 Termination. This Agreement may be terminated by either party upon
notice to the other in the event that the Closing fails to occur on or before
May 1, 2002. Such termination shall be without prejudice to either party’s
rights hereunder or under the Escrow Agreement.
Section 5 – Other Provisions.
5.1 Entire Agreement. This Agreement and the related Escrow Agreement and
Assignment and Assumption Agreement, together with any exhibits or schedules
thereto, contain the entire understanding of the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge
have been merged into such documents, exhibits and schedules.
5.2 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered two
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent via a
reputable nationwide overnight courier service, in each case to the intended
recipient as set forth below:
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If to Buyer, to: |
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Saudi Venture Development Company |
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X.X. Xxx 0000 |
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Xxxxxx, Xxxxx Xxxxxx |
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Telephone x000-0-000-0000 |
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Attention: Xx. Xxx Xxxxxxxxx |
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Facsimile No.: x000-0-000-0000 |
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If to the Seller, to: |
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CYCH, Inc. |
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X.X. Xxx 0000 |
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Xxxxxxxxx, XX, 00000 |
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Attn: Xxx XxXxxx |
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Facsimile No.: 0.000.000.0000 |
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With a copy to: |
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Xxxxx Xxxxxxx LLP |
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0000 Xxxxxxxxxx Xxxxxx XX |
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Xxxxxxxxxx, XX 00000-0000 |
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Attention: Xxxxxx X. Xxxxxx, Esquire |
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Facsimile No.: 0-000-000-0000 |
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Any party may give any notice, request, demand, claim, or other communication
hereunder using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail, facsimile, or
electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the party for whom it is intended. Any party may
change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
5.3 Amendments; Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
Buyer and the Seller. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right.
5.4 Construction. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
5.5 Successors and Assigns. No party may, without the prior express
written consent of each other party, assign this Agreement or any of its rights
or obligations under this Agreement in whole or in part. This Agreement will
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
5.6 No Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
5.7 Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the Commonwealth
of Virginia, without regard to the principles of conflicts of law thereof.
Each party agrees that all proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of Alexandria,
Virginia. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in City of Alexandria,
Virginia for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any proceeding, any
claim that it is not personally subject to the jurisdiction of any such court,
that such proceeding is improper.
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5.8 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
5.9 Cooperation. Seller agrees that it will use its commercially
reasonable efforts to cooperate with Buyer following the Closing to resolve any
issues concerning Buyer’s purchase or ownership of the Shares.
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase and Sale
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
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SELLER |
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CYCH, INC |
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By: |
/s/ Xxx XxXxxx
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Name: Title: |
Xxx XxXxxx
Bankruptcy Plan Administrator |
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BUYER |
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Saudi Venture Development Company |
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By: |
/s/ Fahad Xxxxxxx Xxxxx Al-Xxxxx
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Name: Title:
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Fahad Xxxxxxx Xxxxx Al-Xxxxx
Director |
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