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EXHIBIT 2.2
PUT OPTION AGREEMENT
BETWEEN:
- eBay Inc., a corporation organized under the laws of Delaware, whose
principal registered offices are located at 0000 Xxxxxxxx Xxx., Xxx
Xxxx, Xxxxxxxxxx 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 his shares of
iBazar to a Belgian holding company, eBay Belgium Holdings S.A. ("EBH")
wholly owned by the Purchaser. As a result of
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such contribution, the Seller shall own [Seller's ownership #] shares of
EBH (the "EBH Shares").
3. The Purchaser hereby irrevocably undertakes to grant to the Seller the
right to exchange all of his EBH Shares for shares of common stock of
the Purchaser, under the terms and conditions set forth hereafter.
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 -- PUT OPTION
Subject to the condition precedent set forth in Article 2 hereafter, the
Purchaser hereby irrevocably undertakes to allow the Seller to exchange the EBH
Shares for a number of shares of common stock to be issued by Purchaser (the
"SHARES") determined in accordance with the formula provided in Exhibit 1 of
this Agreement. Such option to exchange the EBH Shares for the Shares shall be
hereafter referred to as the "PUT OPTION".
ARTICLE 2 -- CONDITION PRECEDENT
This Agreement is subject to the completion of the Closing as contemplated in
the Contribution Agreement referred to in paragraph 2 of the Recitals above,
under the terms and conditions set forth in said Contribution Agreement. Should
such Closing not be completed, this Agreement would become null and void.
ARTICLE 3 -- DURATION
The Seller shall be entitled to exercise his Put Option during a period which
shall commence immediately after the Closing Date (as this term is defined in
the Contribution Agreement) and expire twenty (20) months after the Closing Date
(the "PUT OPTION PERIOD"). Upon expiration of the Put Option Period, the Seller
shall forfeit the right under this Agreement to request that his/its EBH Shares
be exchanged for the Shares.
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ARTICLE 4 -- RESTRICTIONS
4.1 The Seller may, at his/its sole discretion, exercise his Put Option at
any time within the Put Option Period, in whole or in part. It is
however agreed between the Parties that the Seller may not exercise its
Put Option on any number of EBH Shares which, on an exchanged basis,
would yield fewer than 30,000 Shares (except when the Seller shall
exercise his/its Put Option on the last portion of EBH shares that he/it
shall own).
4.2 The exercise by the Seller of his/its Put Option shall also be subject
to the provisions set forth in the Escrow Agreement.
4.3 The Seller shall be deemed to have irrevocably waived any right under
this Agreement in the event he/it has not entirely exercised his/its Put
Option in advance of 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 or a recapitalization of
the Purchaser or a dividend declaration not subject to adjustment under
Article 7 herein 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 5 -- COMPLETION
The Seller will notify the Purchaser (with copy to EBH and the transfer agent
appointed by Purchaser (the "Transfer Agent")) of Seller's decision to exercise
the Put Option. Such notification will confirm: (a) the number of EBH Shares to
be exchanged, (b) the number of Shares to be received in exchange for the EBH
Shares, and (c) the name of the brokerage agent with whom the Seller has opened
an account, the applicable account number, and other reference information
reasonably requested by Purchaser for such account. Any EBH Shares in the form
of bearer certificates shall be attached to the notification submitted
hereunder.
The exchange of shares shall take place promptly after the notification is
received by the Purchaser, and upon receiving such notification: (i) EBH shall
amend its register of shares to properly reflect the transfer of the exchanged
EBH Shares to the Purchaser, (ii) EBH will immediately notify such transfer to
the Purchaser, the Transfer Agent, and the Seller, and (iii) Purchaser will
instruct the Transfer Agent to issue Shares of common stock and certificates
evidencing such Shares, and the Transfer Agent will transfer such Shares to 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 agrees to use its 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 two business days from
Seller'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 Put Option, a sufficient
number of shares of its common stock from time to time issuable upon
exercise of the Put 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 he/it shall
exercise his/its Put 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) Seller is knowledgeable, sophisticated and experienced in making, and is
qualified to make, decisions with respect to investments in securities
like the Shares.
(g) Seller is an "accredited investor" (as such term is defined in Rule 501
under the Act).
(h) 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."
(i) 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.
8.7. SEVERABILITY
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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.
8.10 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 Seller to receive delivery of the Shares in exchange for EBH
Shares is unique, and accordingly, the Parties agree that, in addition to any
other remedies that may be available to Seller in law or at equity or pursuant
to the provisions of this Agreement, the Seller shall have the right to seek
enforcement of Purchaser's obligation to deliver such 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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