EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made as of this 30th day of
June, 2005, by and between Xxxxx X. Xxxxxx, III, both on behalf of himself and
on behalf of each of the respective entities set forth on Schedule A hereto
(collectively, "Seller"), and Dynabazaar, Inc., a Delaware corporation (the
"Company").
R E C I T A L S
WHEREAS, Seller is a significant stockholder and a member of the Board
of Directors of the Company;
WHEREAS, Seller is the beneficial owner of an aggregate of 3,657,988
shares of common stock, par value $0.001 per share, of the Company (the
"Shares");
WHEREAS, Seller desires to sell to the Company, and the Company desires
to purchase from Seller, the Shares in accordance with the terms and subject to
the conditions set forth in this Agreement; and
WHEREAS, this Agreement and the transactions set forth herein have been
approved by the Board of Directors of the Company, including each director of
the Company that has no interest in the transactions.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, agreements, representations and warranties contained herein, the
parties hereto, intending to be legally bound hereby, do hereby agree as
follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 Sale of the Shares. Subject to the terms and conditions hereof,
Seller hereby sells, assigns, transfers, conveys and delivers to the Company,
and the Company hereby purchases and accepts the assignment, transfer,
conveyance and delivery from Seller of, all right, title and interest of Seller
in and to the Shares.
1.2 Consideration for Shares. In consideration of the sale, assignment,
transfer, conveyance and delivery of the Shares pursuant to Section 1.1 hereof,
the Company hereby agrees to pay to Seller a purchase price (the "Purchase
Price") equal to: (a) $0.315 per share, or an aggregate of $1,152,266.22, in
immediately available United States dollars, at the Closing (as defined below)
and (b) 13.6% of any net proceeds distributed to the Company pursuant to the
escrow agreement dated as of September 4, 2003 by and among the Company, eBay,
Inc. and Zions First National Bank in immediately available United States
dollars within 15 days of the Company's receipt of any such proceeds.
1.3 Closing. The transactions contemplated by this Agreement shall be
consummated at a closing (the "Closing"), which shall be held at the offices of
the Company located at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, at
10:00 a.m. on the date the conditions to Closing set forth in Article II hereof
are satisfied. The date on which the Closing occurs is referred to herein as the
"Closing Date."
1.4 Closing Transactions. (a) Seller's Delivery Obligations. Seller
shall (i) deliver to the Company certificates evidencing the Shares, each duly
endorsed in blank or accompanied by a stock power duly endorsed in blank, in
form reasonably satisfactory to the Company and with all required stock transfer
tax stamps affixed; provided that, to the extent that Seller does not maintain
physical possession of the Shares, Seller may effect delivery thereof through
customary book-entry transfers through one or more brokers; and (ii) execute and
deliver or cause to be executed and delivered such other documents or agreements
and take such other action as may be reasonably necessary or appropriate to
consummate the transfer of the Shares to the Company.
(b) The Company's Delivery Obligations. The Company shall
deliver to Seller the Purchase Price by wire transfer of immediately available
funds to such account as is designated by Seller to the Company in writing on or
prior to the Closing Date.
ARTICLE II
CONDITIONS TO CLOSING
2.1 Conditions to Obligations of the Company. The obligations of the
Company under this Agreement, including, without limitation, to pay the Purchase
Price to Seller, are subject to the conditions that (a) Seller's representations
and warranties in this Agreement shall have been true and correct on the date
hereof and on the Closing Date, (b) Seller shall have complied in all material
respects with all covenants required by this Agreement to be complied with by it
on or before the Closing Date and (c) the Company shall have received (i) this
Agreement duly executed on behalf of Seller and (ii) the Shares.
2.2 Conditions to Obligations of the Seller. The obligations of the
Seller under this Agreement, including, without limitation, to sell, assign,
transfer, convey and deliver the Shares to the Company, are subject to the
conditions that (a) the Company's representations and warranties in this
Agreement shall have been true and correct on the date hereof and on the Closing
Date, (b) the Company shall have complied in all material respects with all
covenants required by this Agreement to be complied with by it on or before the
Closing Date and (c) Seller shall have received (i) this Agreement duly executed
on behalf of the Company and (ii) payment of the Purchase Price from the
Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to the Company as of the date of
this Agreement and the Closing Date as follows:
3.1 Due Authorization and Validity. Seller has all requisite power and
authority to enter into this Agreement, to perform Seller's obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by Seller and, subject to the
due execution and delivery by the Company, this Agreement constitutes the legal,
valid and binding obligation of Seller, enforceable against Seller in accordance
with its terms.
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3.2 Ownership. Each Seller entity is the sole beneficial owner of, and
has good and marketable title to, the Shares shown as owned by such Seller
entity on Schedule A hereto. Upon the consummation of the transactions
contemplated by this Agreement, the Company will acquire good, valid and
marketable title to the Shares, free and clear of all security interests, liens,
claims, charges, options or other encumbrance or restriction of any kind
(collectively, a "Lien"), other than Liens on securities held in margin accounts
to be terminated on or prior to the Closing Date and any Liens that may be
created by the Company. Seller has not appointed or granted any proxy with
respect to the Shares, which appointment or grant shall still be effective at
the closing of the transactions contemplated by this Agreement.
3.3 Government and Other Consents. No consent, declaration, filing,
approval, authorization or order of, notice to, or registration with, any court
or federal, state, provincial, municipal, foreign or other governmental
department, commission, board, bureau, agency or instrumentality or arbitration
tribunal, wherever located (a "Governmental Authority"), or any third party is
required by Seller in connection with the execution and delivery by Seller of
this Agreement or the consummation of any transactions contemplated hereby,
except for (a) such filings required to amend or supplement Seller's existing
filings with the Securities and Exchange Commission (the "SEC") on Form 4,
Schedule 13D or Schedule 13G, as the case may be, and (b) such consents,
declarations, filings, approvals, authorizations, orders, notices or
registrations the absence of which would not, either individually or in the
aggregate, have a material adverse effect on the transactions contemplated by
this Agreement.
3.4 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by
Seller or on Seller's behalf for which the Company would have any obligation or
liability.
3.5 Information and Experience. Seller has had a preexisting business
relationship with the Company of a nature and duration sufficient to make Seller
aware of the business and financial circumstances of the Company and has had
access to all information regarding the Company and its present and prospective
business, assets, liabilities and financial condition that Seller reasonably
considers important in making the decision to dispose of the Shares. By reason
of Seller's business or financial experience, Seller is capable of evaluating
the merits and risks of the sale of the Shares and has the ability to protect
Seller's own interests in this transaction.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Seller as of the date of
this Agreement and the Closing Date as follows:
4.1 Due Authorization and Validity. The Company is a corporation duly
organized and validly existing under the laws of the State of Delaware and has
all requisite power and authority to enter into this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
This Agreement and the transactions set forth herein have been approved by the
Board of Directors of the Company, including each director of the Company that
has no interest in the transactions. This Agreement has been duly and validly
executed and delivered by the Company and, subject to the due execution and
delivery by Seller, this Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
4.2 Government and Other Consents. No consent, declaration, filing,
approval, authorization or order of, notice to, or registration with, any
Governmental Authority or any third party is required by the Company in
connection with the execution and delivery by the Company of this Agreement or
the consummation of any transactions contemplated hereby, except for (a) such
filings with the SEC as are required to disclose the purchase of the Shares by
the Company and (b) such consents, declarations, filings, approvals,
authorizations, orders, notices or registrations the absence of which would not,
either individually or in the aggregate, have a material adverse effect on the
transactions contemplated by this Agreement.
4.3 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by the
Company or on the Company's behalf for which Seller would have any obligation or
liability.
4.4 Information and Experience. The Company has access to all
information that the Company reasonably considers important in making the
decision to purchase the Shares. The Company is capable of evaluating the merits
and risks of the purchase of the Shares and has the ability to protect its own
interests in this transaction.
ARTICLE V
CERTAIN COVENANTS OF THE COMPANY AND SELLER
5.1 Excluded Information. Each party hereto acknowledges and agrees
that (i) there may now or later exist information that is not known to such
party that may be material to a decision to acquire or dispose of the Shares
("Excluded Information"), (ii) each party hereto has determined to consummate
the transactions contemplated by this Agreement notwithstanding such party's
lack of knowledge of the Excluded Information, if any, and (iii) the other party
shall have no liability to such party, and such party waives and releases any
claims that such party might have against the other party, whether under
applicable securities laws or otherwise, with respect to the nondisclosure of
the Excluded Information, if any, in connection with the transactions
contemplated hereby, provided that the Excluded Information, if any, shall not
and does not affect the truth or accuracy of the representations or warranties
of the other party contained in this Agreement.
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5.2 Reasonable Efforts. Each party hereto agrees to use commercially
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other party or parties in
doing, all things necessary, proper or advisable, consistent with applicable
laws, to consummate and make effective the transactions contemplated by this
Agreement. In addition, from time to time after the date hereof, each of the
parties hereto agrees to execute and deliver, or cause to be executed and
delivered, such documents as the other party or parties may reasonably request
in order to consummate more effectively the transactions contemplated by this
Agreement.
5.3 Release. The Company hereby releases the Seller and the Seller
hereby releases the Company and each of their respective directors, officers,
employees, affiliates, agents, administrators, attorneys and other
representatives, successors and assigns (each such person or entity, a "Related
Person"), fully and finally, from all manner of claims, causes of action, suits,
demands, debts, sums of money, accounts, covenants, contracts, controversies,
agreements and promises on its part of any kind whatsoever, known or unknown,
suspected or unsuspected, direct, indirect or contingent, in law or in equity
(collectively, "Claims"), arising at any time on or prior to the Closing Date
hereof, which result from or arise out of the formation, capitalization,
financing, management or operations of the Company or any of its subsidiaries,
or any action by or omission by the Company or Seller or any Related Person in
connection therewith; provided, however, that this release does not relate to
nor does it release either party hereto from any of its obligations under this
Agreement or any of the transactions contemplated hereby.
5.4 Non-Disparagement. Each party hereto agrees to refrain from taking
actions or making any private or public statement, written or oral, which
denigrates, disparages or defames (whether or not such disparagement legally
constitutes libel or slander) the goodwill or reputation of any other party or
any Related Person.
ARTICLE VI
INDEMNIFICATION
6.1 Survival of Representations, Warranties and Covenants. Except as
otherwise set forth herein, the respective representations and warranties of
Seller contained in Sections 3.1, 3.2, 3.3 and 3.4 and the Company contained in
Sections 4.1, 4.2 and 4.3 shall survive the date hereof for a period of twelve
(12) months. Any such representation or warranty which is the subject of a claim
or dispute asserted prior to such date shall survive with respect to such claim
or dispute until final resolution thereof. This Section 6.1 shall not limit any
covenant or agreement of the parties in this Agreement to the extent such
covenant or agreement contemplates or requires performance after the date
hereof.
6.2 Seller's Indemnification of the Company. Seller hereby agrees to
indemnify, defend and hold the Company, its affiliates and their respective
officers, directors, managers, partners and successors and assignees harmless
from, against and in respect of any and all losses, damages, expenses (including
reasonable attorneys' fees), judgments and other liabilities (collectively,
"Company Damages"), resulting from or arising out of or in connection with (a)
any breach or inaccuracy of any representation or warranty of Seller contained
in Section 3.1, 3.2, 3.3 or 3.4, or any failure to perform any covenants or
agreements of Seller contained in Section 5.2, as such representations,
warranties, covenants and agreements are set forth in this Agreement, and (b)
any actions, suits or proceedings or demands in connection with the foregoing or
the enforcement of the Company's rights under this Agreement.
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6.3 The Company's Indemnification of Seller. The Company hereby agrees
to indemnify, defend and hold Seller, Seller's affiliates and their respective
officers, directors, managers, partners and successors and assigns harmless
from, against and in respect of any and all losses, damages, expenses (including
reasonable attorneys' fees), judgments and other liabilities (collectively,
"Seller Damages") resulting from or arising out of or in connection with (a) any
breach or inaccuracy of any representation or warranty of the Company contained
in Section 4.1, 4.2 or 4.3, or any failure to perform any covenants or
agreements of the Company contained in Section 5.2, as such representations,
warranties, covenants and agreements are set forth in this Agreement, and (b)
any actions, suits, proceedings or demands in connection with the foregoing or
the enforcement of Seller's rights under this Agreement.
6.4 Procedure for Indemnification. Any party seeking indemnification
(an "Indemnified Party") shall provide to the party from which such party is
seeking indemnification (an "Indemnifying Party"), as promptly as practicable
after notice of a claim, all information and documentation necessary to support
and verify the claim asserted, and the Indemnifying Party shall be given
reasonable access to the books and records in the possession or control of the
Indemnified Party which any Indemnifying Party reasonably determines to be
related to such claim. Failure to provide information and documentation as
promptly as practicable as specified in the preceding sentence shall not be
deemed a waiver of the Indemnified Party's right to indemnification, but the
amount of reimbursement to which the Indemnified Party is entitled shall be
reduced by the amount, if any, by which Company Damages or Seller Damages, as
the case may be, would have been less had such information and documentation
been delivered as promptly as practicable.
ARTICLE VII
GENERAL PROVISIONS
7.1 Expenses. Whether or not the transactions contemplated hereby shall
be consummated, Seller, on the one hand, and the Company, on the other hand,
shall each be responsible for the fees, expenses and disbursements of their
respective agents, representatives, accountants and counsel incurred in
connection with the negotiation of this Agreement and the transactions
contemplated in connection herewith, it being specifically agreed that neither
the Company nor Seller shall charge to the other party the expenses of such
party in connection with negotiation of this Agreement and the transactions
contemplated herein.
7.2 Construction; Entire Agreement; Amendment. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
irrespective of such State's conflicts of law principles. This Agreement,
together with schedules attached hereto, and all other documents and instruments
executed and delivered in connection herewith, contains the entire agreement
between Seller and the Company with respect to the transactions contemplated
hereby and supersedes all prior arrangements and understandings among them with
respect thereto. This Agreement may not be amended, modified or changed except
by an instrument in writing signed by Seller and the Company.
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7.3 Notices. (a) All notices, requests, demands, and other
communications required to or permitted to be given under this Agreement shall
be in writing and shall be delivered personally or by overnight courier (with
confirmation of receipt) or by certified or registered mail (postage prepaid and
return receipt requested). Any such notice shall be deemed given when so
delivered personally or if mailed or sent by overnight courier, three days after
the date of deposit in the United States mail or one day after pickup by
overnight courier, if addressed as follows:
if to Seller, to:
Xxxxx X. Xxxxxx, III
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
if to the Company, to:
Dynabazaar, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: President
Telephone: (000) 000-0000
(b) Each party agrees to make a good faith effort to ensure
that such party will accept or receive notices that are given in accordance with
this Section 7.3, and that any person to be given notice actually receives such
notice. A party may change or supplement the addresses given above, or designate
additional addresses for purposes of this Section 7.3, by giving the other party
written notice of the new address in the manner set forth above.
7.4 Severability. If any provision of this Agreement or the application
thereof to any person, entity or circumstance is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof, or the application of such provision to persons, entities or
circumstances other than those as to which it has been held invalid, void or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
7.5 Exercise of Rights; Specific Performance. No failure on the part of
a party to exercise, and no delay in exercising, any right or remedy under this
Agreement shall operate as a waiver hereof by such party, nor shall any single
or partial exercise of any right under this Agreement preclude any other or
further exercise thereof or the exercise of any other right or remedy. Each of
the parties hereto acknowledges and agrees that irreparable damage would occur
in the event any provision of this Agreement were not performed in accordance
with the terms hereof and that the parties shall be entitled to specific
performance of the terms hereof, in addition to any other remedy at law or
equity.
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7.6 Successors and Assigns; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
representatives, successors and assigns. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned or delegated,
directly or indirectly, by any party hereto without the prior written consent of
the other parties.
7.7 Counterparts. This Agreement may be executed in any number of
counterparts and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
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Xxxxx X. Xxxxxx, III, both individually and
on behalf of the entities set forth on
Schedule A hereto
DYNABAZAAR, INC.
By: _________________________
Xxxxxxx Xxx
President and Chief Executive Officer
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