EXHIBIT 10.1
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as of
April 19, 2000 by and between Entrade, Inc., a Pennsylvania company (the
"Seller"), and Internet Capital Group, Inc., a Delaware corporation (the
"Purchaser"). WHEREAS, Seller owns, among others, 6,000,000 shares (the
"Shares") of Class A Common Stock of xxxxXxxxx.xxx, Inc., a Delaware
corporation (the "Company"), par value $.001 per share (the "Common
Stock"); and
WHEREAS, Seller desires to sell, and Purchaser desires to purchase,
the Shares.
In consideration of mutual promises and covenants herein, the receipt
and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
SECTION 1.
PURCHASE AND SALE OF SHARES
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SECTION 1.1. SALE OF SHARES. Subject to the terms and conditions
hereof, at the Closing (as defined below) Seller will sell to Purchaser and
Purchaser will buy from Seller 6,000,000 shares of Common Stock for an
aggregate purchase price of $10,000,000, payable by confirmed wire transfer
of immediate available funds to an account designated by Seller.
SECTION 2.
CLOSING DATE; DELIVERY
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SECTION 2.1. CLOSING. The Closing shall be held at the offices of
Internet Capital, 000 Xxxxx Xxxx Xxxxx, Xxxxxxxx 000, Xxxxx, XX 00000, at
4:00 p.m. on April 19, 2000 (the "Closing") or at such other time and place
upon which Seller and Purchaser shall agree.
SECTION 2.2. DELIVERY. At the Closing, Seller will deliver to
Purchaser a certificate representing the Shares, accompanied by a stock
power duly executed in blank, and Purchaser shall deliver to Seller by wire
transfer the aggregate purchase price of the Shares.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
hereby represents and warrants to the Seller that:
(a) Purchaser has all requisite power and authority to enter
into this Agreement and to carry out the terms hereof. This Agreement has
been duly executed and delivered by Purchaser and constitutes the legal,
valid and binding obligation of Purchaser enforceable against Purchaser in
accordance with its terms subject to (i) applicable bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium or
other similar laws relating to creditors' rights or creditors' remedies
generally; (ii) general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and the
discretion of the court before which any proceeding therefore may be
brought; and (iii) an implied covenant of good faith and fair dealing.
(b) The Shares to be acquired by Purchaser will be acquired by
Purchaser solely for its own account for investment and not with a view to
the distribution thereof in violation of the Securities Act of 1933, as
amended (the "Securities Act").
(c) Purchaser understands that the Shares have not been
registered under the Securities Act and must be held indefinitely unless
subsequently registered under the Securities Act or unless an exception
from such registration is or becomes available.
(d) The execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated by this Agreement and the
compliance with the terms, conditions and provisions of this Agreement by
Purchaser will not (i) conflict with or result in a breach of or constitute
a default (or an event which would, with the passage of time or the giving
of notice or both, constitute a default) under any of the terms, conditions
or provisions of any contract to which Purchaser is a party or by which
Purchaser or any of its assets may be bound or affected, that could have a
material adverse effect on the transactions as contemplated in this
Agreement, or any judgement or order of any court or governmental
department, commission, board agency or instrumentally, domestic or
foreign, or any applicable law, rule or regulation; or (ii) require any
consent, authorization, waiver or approval of any governmental authority,
lender, or any other person.
(e) No consent, approval, or authorization of, or registration
or filing with, any person, including any governmental authority or other
regulatory agency, is required in connection with the execution and
delivery of this Agreement by Purchaser or the consummation by it of the
transaction contemplated hereby.
(f) Purchaser has not made any agreement or taken any other
action causing anyone to become entitled to a broker's fee or commission as
a result or the transactions contemplated hereby.
(g) In consideration of the acceptance of the offer made
hereby, Purchaser hereby agrees to indemnify and hold harmless, Seller from
and against any and all liability, loss, damage, expense and reasonable
attorneys' fees and disbursement of counsel which Seller may hereby incur,
suffer, or be required to pay by reason of the falsity of, or the failure
to Purchaser to comply with, in all material respects, any representations
or agreements contained in this Agreement.
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF SELLER
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SECTION 4.1. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
hereby represents and warrants to Purchaser that:
(a) Seller has (i) title to and is the sole record and
beneficial owner of the Shares, free and clear of any and all liens,
claims, security interest, pledges, charges, equities, options,
restrictions and encumbrances of whatsoever nature, except those arising
under applicable federal and state securities laws; (ii) full legal right,
power and authority to enter into and deliver this Agreement, to transfer
such Shares to Purchaser in accordance with this Agreement and to perform
fully its other obligations hereunder, without the need for the consent of
any other person or entity; and (iii) not entered into any voting trust
agreements or other agreements restricting the voting, dividend rights or
disposition of any of the Shares except for the Amended and Restated
Stockholder Agreement dated as of April 19, 2000 by and among the Company
and the stockholders that are parties thereto and the Amended and Restated
Investor Rights Agreement dated as of April 3, 2000 by and among the
Company and the stockholders that are parties thereto.
(b) Seller has all requisite power and authority to enter into
this Agreement and to carry out the terms hereof. This Agreement has been
duly executed and delivered by Seller and constitutes the legal, valid and
binding obligations of Seller enforceable against Seller in accordance with
its terms subject to (i) applicable bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium or other
similar laws relating to creditors' rights or creditors' remedies
generally; (ii) general principles of equity ( regardless of whether
enforcement is sought in a proceeding at law or in equity) and the
discretion of the court before which any proceeding therefore may be
brought; and (iii) an implied covenant of good faith and fair dealing.
Upon delivery to Purchaser at the Closing of certificates representing
Seller's Shares in accordance herewith, Purchaser will acquire good and
marketable valid title to such Shares, free and clear of all liens, claims,
security interests, pledges, charges, equities, options, restrictions and
encumbrances of whatsoever nature, except those arising under applicable
federal and state securities laws.
(c) The execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated by this Agreement and the
compliance with the terms, conditions and provisions of this Agreement by
Seller will not (i) conflict with or result in a breach of or constitute a
default (or an event which would, with the passage of time or the giving of
notice or both, constitute a default) under any of the terms, conditions or
provisions of any contract to which seller is a party or by which seller or
any of its assets may be bound or affected that could have a material
adverse effect on the transactions as contemplated in this Agreement or the
vesting of good and marketable title to the Shares in Purchaser as set
forth in Section 4.1(b) hereof, or any judgment or order of any court or
governmental department, commission, board, agency or instrumentality,
domestic or foreign, or any applicable law, rule or regulation; or (ii)
require any consent, authorization, waiver or approval of any governmental
authority, lender, or any other person.
(d) No consent, approval or authorization of, or registration
or filing with, any person, including any governmental authority or other
regulatory agency, is required in connection with the execution and
delivery of this Agreement by Seller or the consummation by it of the
transactions contemplated hereby.
(e) Seller has not made any agreement or taken any other
action causing anyone to become entitled to a broker's fee or commission as
a result of the transactions contemplated hereby.
(f) In consideration of the acceptance of the offer made
hereby, Seller hereby agrees to indemnify and hold harmless, Purchaser from
and against any and all liability, loss, damage, expense and reasonable
attorneys' fees which it may hereafter incur, suffer, or be required to pay
by reason of the falsity of, or the failure of Seller to comply with, in
all material respects, any representations or agreements contained in this
Agreement.
SECTION 5.
[INTENTIONALLY OMITTED]
SECTION 6.
CERTAIN COVENANTS
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SECTION 6.1 REQUIRED LEGENDS. the certificates representing the
Shares subject to the provisions of this Agreement shall have endorsed
thereon the following legend:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO
THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RIGHTS
OF FIRST REFUSAL, RIGHTS OF CO-SALE AND VOTING AGREEMENTS AS SET FORTH IN A
STOCKHOLDER AGREEMENT ENTERED INTO BY THE HOLDER OF THESE SHARES AND THE
COMPANY. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF
THE COMPANY. SUCH RIGHTS OF FIRST REFUSAL, RIGHTS OF CO-SALE AND VOTING
AGREEMENTS ARE BINDING UPON CERTAIN TRANSFEREES OF THESE SHARES."
(b) Any legend required to be placed thereon by applicable
blue sky laws of any state.
SECTION 7.
MISCELLANEOUS
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SECTION 7.1. SURVIVAL OF WARRANTIES. All representations,
warranties, covenants and agreements set forth in this Agreement will
survive the execution and delivery of this Agreement, the Closing and the
consummation of the transactions contemplated hereby. Seller acknowledges
that its representations and warranties set forth in this Agreement shall
not be affected or mitigated by any investigation conducted by Purchaser
prior to the Closing or any knowledge of Purchaser.
SECTION 7.2. ENTIRE AGREEMENT; AMENDMENT. This Agreement and all
provisions hereof hall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. This
Agreement constitutes the full and entire understanding and agreement
between the parties with respect to the subject hereof. Neither this
Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against
whom enforcement of any such amendment, waiver, discharge or termination is
sought.
SECTION 7.3. COUNTERPARTS. This Agreement may be executed in two or
more counterparts and by facsimile signature, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
SECTION 7.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable
to contracts entered into and wholly to be performed within the State of
Delaware by Delaware residents.
SECTION 7.5 NOTICES, ETC. All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed by
registered or certified mail, postage prepaid, or otherwise delivered by
facsimile transmission, by hand or by messenger, addressed:
(a) if to Purchaser:
Internet Capital Group, Inc.
000 Xxxxx Xxxx Xxxxx, #000
Xxxxx, XX 00000-0000
Attn: General Counsel
(b) If to Seller:
Entrade, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
or at such other address as Purchaser or Seller may designate by ten (10)
days' advance written notice to the other parties to this Agreement.
SECTION 7.6. HEADINGS. The headings of the sections hereof are
inserted as a matter of convenience and for reference only and in no way
define, limit or describe the scope of this Agreement or the meaning of any
provision hereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have hereunto set their hands as the
date first set forth above.
SELLER: PURCHASER:
ENTRADE INC. INTERNET CAPITAL GROUP, INC.
By: /s/ Xxxx X. Xxxxxxxxxx By: /s/ Xxxxx X. Nassau
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Name: Xxxx X. Xxxxxxxxxx Name: Xxxxx X. Nassau
Title: President and CEO Title: Managing Director
and General Counsel
