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EXHIBIT 2.3
CALL OPTION AGREEMENT
BETWEEN:
- eBay Inc., a corporation organized under the laws of Delaware, whose
principal offices are located at 0000 Xxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000 U.S.A., represented by Xxxxxxx Xxxxxxx, duly authorized for the
purposes hereof,
hereafter referred to as the "PURCHASER",
AS PARTY OF THE FIRST PART,
AND :
- [Seller's name and address],
hereafter referred to as the "SELLER",
AS PARTY OF THE SECOND PART,
Purchaser and Seller being hereafter, from time to time, referred to as the
"PARTIES".
RECITALS
1. The Seller owns shares of iBazar SA, a French societe anonyme with a
share capital of Euros 2,342,107.70 divided into 46,842,154 shares with
a par value of Euros 0.05 each, whose registered offices are located 0,
xxx xx Xxxxxxx, 00000 Xxxxx, registered with the Registry of Commerce
and Companies of Paris under number B 388 387 425.
2. By virtue of a Contribution Agreement signed between the Parties at the
date hereof, the Seller undertook to contribute all of the shares of
iBazar he owned to a Belgian holding company, eBay Belgium Holdings S.A.
("EBH"), to be set up and wholly owned by the
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Purchaser. As a result of such contribution, the Seller shall own
[Seller's ownership #] shares of EBH (the "EBH SHARES").
3. The Seller hereby irrevocably grants to the Purchaser an option to
purchase all of his EBH shares in consideration for shares of the
Purchaser, under the terms and conditions set forth thereafter.
4. Capitalized items used in this agreement (the "AGREEMENT") and not
otherwise defined shall have the meaning assigned to them in the
Contribution Agreement referred to in paragraph 2 above.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
ARTICLE 1 -- CALL OPTION
Subject to the condition precedent set forth in Article 2 hereafter, the Seller
hereby irrevocably undertakes to allow the Purchaser to proceed with the
exchange of the EBH Shares for a number of shares of common stock to be issued
by Purchaser (the "SHARES") determined in accordance with the formula provide in
Exhibit 1 of this Agreement. The right for the Purchaser to call for delivery of
the EBH Shares held by the Seller in exchange for the Shares shall be hereafter
referred to as the "CALL OPTION".
Should Purchaser elect to exercise the Call Option, it shall exercise it on all
the EBH Shares then held by the Seller.
ARTICLE 2 -- CONDITION PRECEDENT
This Agreement is subject to the completion of the Closing of the Contribution
Agreement referred to in paragraph 2 of the Recitals above, under the terms and
conditions set forth in said Contribution Agreement. Should the Closing of the
Contribution Agreement not be completed, this Agreement would become null and
void.
ARTICLE 3 -- DURATION
The Purchaser shall be entitled to exercise its Call Option at any time during
the period of six (6) months commencing twenty (20) months after the Closing
Date (as this term is defined in the Contribution Agreement) (the "CALL OPTION
PERIOD").
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Upon expiration of the Call Option Period, the Purchaser shall forfeit the right
under this Agreement to request that the EBH shares held by the Seller be
exchanged for the Shares.
Notwithstanding the provisions of the first paragraph of this Article 3,
Purchaser shall have, at any time during the twenty months following the Closing
Date, the right to exercise its Call Option in connection with any of the
following events (the "ACCELERATION EVENTS"): (i) trade sale to an unrelated
party of more than 50% of the stock of the Purchaser or of assets of the
Purchaser representing over 50% of the value of the Purchaser, or (ii) any
merger or split-off of the Purchaser, or any other similar corporate
restructuring of the Purchaser in which Purchaser is not the survivor, or (iii)
winding up of the Purchaser or any other liquidation procedure. The Purchaser
shall notify the Seller that an Acceleration Event is about to occur as soon as
possible after publication of such event and in no event less than thirty (30)
days before the date of said Acceleration Event. The Seller shall in such event
be free to require the exchange of all of the EBH Shares that he may own at that
time, notwithstanding any provision to the contrary or any restriction provided
for in this Agreement.
ARTICLE 4 -- RESTRICTIONS
For a period of two (2) years following the Closing Date, the Seller shall not
sell, assign, transfer, convey or otherwise deliver to any third party, in whole
or in part, the ownership of any of his/its EBH Shares, pledge such shares or
grant any right on such shares to any third party, except as provided for in the
Put Option Agreement between Seller and Purchaser dated February 21, 2001.
ARTICLE 5 -- COMPLETION
The Purchaser will notify the Seller (with copy to EBH and the transfer agent
appointed by Purchaser (the "Transfer Agent")) of Purchaser's decision to
exercise the Call Option. Such notification will confirm: (a) the number of EBH
Shares to be acquired by Purchaser, (b) the number of Shares to be transferred
by Purchaser in exchange for the EBH Shares, and (c) the name of the Transfer
Agent. Within 2 business days after receiving such notification, the Seller will
notify Purchaser (with a copy to the Transfer Agent and EBH) of the name of the
brokerage agent with whom Seller has opened an account, the applicable account
number, and other reference information reasonably requested by Purchaser for
such account.
The exchange of shares shall take place promptly after the Seller's notification
is issued, and upon receiving such notification: (a) Purchaser will instruct
Transfer Agent to issue the appropriate number of Shares and certificates
evidencing such Shares, and the Transfer Agent will transfer such Shares to the
Seller's designated brokerage agent; (b) EBH shall amend its register of shares
to properly reflect the transfer of the exchanged EBH Shares to the Purchaser;
and (c) EBH will immediately notify such transfer to the Purchaser, the Transfer
Agent, and the Seller.
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With respect to any EBH Shares held in escrow, completion will be accomplished
under the provisions set forth in the applicable escrow agreement between the
parties.
The Purchaser and the Seller agree to use their reasonable commercial efforts
prior to the Closing Date (as this term is defined in the Contribution
Agreement) to implement a completion process that will result in an exchange
transaction being completed as quickly as possible and in any event within four
business days from Purchaser's notification.
ARTICLE 6 -- REPRESENTATIONS AND WARRANTIES
6.1. The Purchaser represents and warrants that the Shares, when issued in
accordance with the terms and provisions of this Agreement, will be duly
authorized, validly issued, fully paid and non assessable and will not
be subject to any preemptive or other statutory right of stockholders
and, subject to Seller's representations and warranties set forth below,
will be issued in compliance with applicable United States Federal and
state, and foreign, securities laws. During the term of this Agreement,
the Purchaser will at all times have authorized, and reserved for
issuance and delivery upon exercise of the Call Option, a sufficient
number of shares of its common stock from time to time issuable upon
exercise of the Call Option.
6.2 The Seller represents and warrants that he/it shall have complete and
unrestricted power to enter into and perform this Agreement and
transfer, assign and deliver any EBH Share upon which the Purchaser may
exercise its Call Option, and that such EBH Shares shall be free and
clear from any security interests, liens, encumbrances, restrictions, or
rights to the benefit of any third party.
6.3 (a) Seller is aware (i) that the Shares will not be issued pursuant to a
registration statement under the Securities Act of 1933, as Amended (the
"Act"), but will instead be issued in reliance on the exemption from
registration set forth in Section 4(2) of the Act and in Regulation D
under the Act and (ii) that the issuance of such common stock of
Purchaser has not been approved or reviewed by the SEC or any other
governmental agency.
(j) Seller is aware that the Shares cannot be resold unless registered under
the Act or unless an exemption from registration is available. Seller is
also aware that: (i) except pursuant to the Registration Rights
Agreement, Purchaser is under no obligation to file a registration
statement with respect to the Shares, and (ii) the provisions of Rule
144 under the Act will permit resale of Shares under only limited
circumstances, and such Shares must be held by the Seller for at least
one year before it can be sold pursuant to Rule 144.
(k) The Shares will be acquired by Seller for investment and for his or
its own account, and not with a view to, or for resale in connection
with, any unregistered distribution thereof.
(l) Seller has examined Purchaser's SEC filings, including Purchaser's
Annual Report on Form 10-K and associated definitive proxy statement for
the year ended December 31, 1999, its Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2000, June
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30, 2000, and September 30, 2000, and its Current Report on Form 8-K
filed in January 2001, including the risk factors described therein.
Without limiting the generality of the foregoing, the Seller
specifically acknowledges that the price of Purchaser's common stock has
been, and will likely continue to be, volatile.
(m) Seller has been given the opportunity (i) to ask questions of, and
receive answers from, persons acting on behalf of the Purchaser
concerning the contemplated issuance of the Shares and the business of
Purchaser, and (ii) to obtain additional information necessary to verify
the accuracy of the information set forth in the documents made
available to Seller.
(n) Seller is knowledgeable, sophisticated and experienced in making, and is
qualified to make, decisions with respect to investments in securities
like the Shares.
(o) Seller is an "accredited investor" (as such term is defined in Rule 501
under the Act).
(p) Seller understands that stop transfer instructions will be given to
Purchaser's transfer agent with respect to the Shares, and that there
will be placed on the certificate or certificates representing the
Shares a legend similar in effect to the following:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES AND EXCHANGE ACT OF 1933 (THE
`ACT') AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS REGISTERED UNDER THE ACT
OR UNLESS AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
ACT IS AVAILABLE."
(q) Seller acknowledges that Purchaser will rely upon these representations
and warranties of Seller for purposes of determining the availability of
an exemption from the registration requirements of the Act.
ARTICLE 7 - STOCK SPLIT
All numbers contained in, and all calculations required to be made pursuant to
this Agreement shall be adjusted as appropriate in order to reflect any stock
split, reverse stock split, stock dividend or similar transaction effected by
the Purchaser and/or EBH after the date hereof.
ARTICLE 8 -- MISCELLANEOUS
8.1. AMENDMENT
This Agreement may be amended, modified, or supplemented only by an
instrument in writing executed by the Parties hereto.
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8.2. ASSIGNMENT
The Purchaser may at any time assign all or any part of its rights
and/or obligations under this Agreement to any of its Affiliates or any
other person, and any assignee of the Purchaser shall succeed to and be
possessed of the rights of the Purchaser hereunder to the extent of the
assignment made, provided, however, that any such assignment by the
Purchaser shall not relieve the Purchaser of its obligations hereunder.
8.3. PARTIES IN INTEREST - NO THIRD PARTY BENEFICIARIES
Except as otherwise provided herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the
respective heirs, legal representatives, successors and assigns of the
Parties hereto. Neither this Agreement nor any other agreement
contemplated herein shall be deemed to confer upon any person not a
Party hereto or thereto any rights or remedies hereunder or thereunder.
8.4. WAIVER
No waiver by any Party of any default or breach by the other Party of
any representation, warranty, covenant or condition contained in this
Agreement, or in any exhibit or any document, instrument, or certificate
contemplated herein, shall be deemed to constitute a waiver of any
subsequent default or breach by such Party of the same or any other
representation, warranty, covenant or condition. No act, delay, omission
or course of dealing on the part of any Party in exercising any right,
power, or remedy under this Agreement or at Law shall operate as a
waiver thereof or otherwise prejudice any of such Party's rights, powers
and remedies. All remedies shall be cumulative and the election of any
one or more shall not constitute a waiver of the right to pursue other
available remedies.
8.5. COSTS, EXPENSES AND LEGAL FEES
Whether or not the transactions contemplated herein are consummated,
each Party hereto shall bear its own costs and expenses (including
attorneys' fees), except that each Party hereto agrees to pay the costs
and expenses (including reasonable attorneys' fees and expenses)
incurred by the other Party in successfully (i) enforcing any of the
terms of this Agreement, or (ii) proving that the other Party breached
any of the terms of this Agreement.
8.6. ENTIRE AGREEMENT
This Agreement and the Contribution Agreement executed by the Parties on
the same date constitute the entire agreement of the Parties regarding
the subject matter hereof, and supersede all prior agreements and
understandings, both written and oral, among the Parties, with respect
to the subject matter hereof.
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8.7. SEVERABILITY
If any provision of this Agreement is held to be illegal, invalid, or
unenforceable under present or future Legal Requirements effective
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision was never a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its
severance herefrom.
8.8. NOTICES
Any notice or communication hereunder must be in writing and given (i)
by depositing the same in the mail, addressed to the Party to be
notified, postage prepaid and registered with return receipt requested
and received, (ii) by sending the same by express courier, or (iii) by
delivering the same in person. Such notice shall be deemed received on
the date on which it is hand-delivered or on the second business day
following the date on which it was sent by express courier. If sent by
registered mail, such notice shall be deemed received on the third
business day following the date on which it is so mailed, when mailed
within the same country, or on the tenth business day following the date
on which it is so mailed, when mailed from a country different from the
country of destination.
For purposes of giving notice, the addresses of the Parties shall be:
For the Seller:
The address indicated in the
headings of this Agreement.
For the Purchaser:
eBay Inc.
Attention: General Counsel
0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Any Party may change its address for notice by written notice given to the other
Party in accordance with this Article 3.8.
8.9. CONFIDENTIALITY - PUBLICITY AND DISCLOSURES
8.9.1. Each Party shall keep this Agreement and its terms confidential,
and shall make no press release or public disclosure, either written or
oral, regarding the transactions contemplated herein without the prior
knowledge and written consent of the other Party hereto. The foregoing
shall not prohibit any DISCLOSURE: (i) required by Legal Requirements or
regulatory authorities to be made by one of the Parties, provided that
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the Party required to make such disclosure shall first consult with the
other Party with respect to the form and substance of the proposed
disclosure; (ii) to attorneys, accountants, investment bankers, or other
agents of the Parties assisting the Parties in connection with the
transactions contemplated herein; and (iii) by the Purchaser in order to
comply with the law or the regulations of the Stock Exchange (Nasdaq) on
which the Purchaser is traded.
8.9.2. In the event that the transactions contemplated herein are not
consummated for any reason whatsoever, the Parties hereto agree not to
disclose any confidential, proprietary and/or non public information
they may have concerning the affairs of the other Parties, except for
information that is required by Legal Requirements to be disclosed;
provided that, in the event that the transactions contemplated herein
are not consummated, nothing contained herein shall be construed to
prohibit the Parties hereto from operating businesses in competition
with those of other Party.
8.11 GOVERNING LAW - ARBITRATION
8.10.1 This Agreement and the rights and obligations of the Parties hereto
shall be governed by and construed and enforced in accordance with the
laws of the state of California.
8.10.2 Notwithstanding any provision to the contrary contained in this
Agreement, any dispute, action or proceeding arising out of or relating
to this Agreement shall be made solely in accordance with the
arbitration provision set forth in Article 11 of the Contribution
Agreement.
8.11 SPECIFIC PERFORMANCE.
Notwithstanding any requirement for arbitration proceedings contained herein,
the right of the Purchaser to call for the delivery of Seller's EBH shares in
exchange for Shares is unique, and accordingly, the Parties agree that, in
addition to any other remedies that may be available to Purchaser in law or at
equity or pursuant to the provisions of this Agreement, the Purchaser shall have
the right to seek enforcement of Seller's obligation to deliver such EBH Shares
by an action for specific performance or injunctive relief to the full extent
permitted by law.
IN WITNESS WHEREOF, the Parties have signed this Agreement in 2 originals on
________________, 2001.
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By : By :
eBay Inc [____________]
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