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EXHIBIT 10.14
UNIT PURCHASE AGREEMENT
THIS UNIT PURCHASE AGREEMENT (this "Agreement") is entered into as of this
6th day of March, 2000 between XxxxXxxxxx.xxx, LLC, a Delaware limited liability
company (the "Company"), and eBay, Inc., a Delaware corporation (the
"Purchaser").
RECITALS:
A. Manheim ATC, Inc., ADP, Inc., LTM Company L.P., ATC Holdings, Inc., and
KPCB Holdings, Inc, as nominee, are parties to (i) that certain Amended and
Restated Limited Liability Company Agreement, dated as of August 20, 1999 and as
amended (the "LLC Agreement"), with respect to the Company, and (ii) that
certain Amended and Restated Registration Rights Agreement, dated as of August
20, 1999 (the "Registration Rights Agreement").
B. The Company has authorized the issuance and sale to the Purchaser of
1,207,425 Class A Units (as defined in the LLC Agreement), and the Purchaser
desires to subscribe for and purchase such Class A Units, all on and subject to
the terms and conditions set forth below.
In consideration of the mutual covenants contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. DEFINITIONS
All capitalized terms which are not defined herein shall have the meanings
set forth in the LLC Agreement.
2. ISSUANCE AND SALE OF UNITS; GOVERNING DOCUMENTS
2.1 Sale of Units. Upon the terms and subject to the conditions set forth
herein, the Company hereby issues and sells to the Purchaser, and the Purchaser
hereby purchases from the Company, 1,207,425 Class A Units (the "Purchase
Units") for an aggregate cash purchase price of $9,237,000 (the "Purchase
Price").
2.2 Governing Documents. The Purchaser hereby agrees, for the benefit of
the Company and its Members, to be bound by all of the terms, obligations,
conditions and agreements set forth in the LLC Agreement and the Registration
Rights Agreement that are applicable to the Purchase Units, as if it were a
party to each such agreement.
3. CLOSING; DELIVERY
3.1. Closing. The closing of the purchase and sale of the Purchase Units
hereunder (the "Closing") shall be held at the offices of Dow, Xxxxxx &
Xxxxxxxxx, PLLC, 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X.
00000, at 10:00 A.M. on March 6,
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2000, or at such other time and place as the Company and the Purchaser mutually
agree upon, orally or in writing (the "Closing Date").
3.2. Delivery. At the Closing, the Company will deliver to the Purchaser
such documents as are necessary to effect the admission of the Purchaser as a
"Member" of the Company as such term is defined in the LLC Agreement and to add
the Purchaser as an additional "Holder" as such term is defined in the
Registration Rights Agreement, against payment by the Purchaser by wire transfer
of the Purchase Price to the Company. The Company and the Purchaser shall each
take such additional actions and execute and deliver such additional agreements
and other instruments and documents as are necessary or appropriate to effect
the transactions contemplated by this Agreement in accordance with its terms.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce the Purchaser to enter into this Agreement, the Company
represents and warrants to the Purchaser that the statements in this Article 4
are correct and complete as of the date of this Agreement.
4.1. Organization, Good Standing Qualification and Subsidiaries. The
Company is a limited liability company duly organized, validly existing and in
good standing under the laws of the state of Delaware. The Company has all
requisite limited liability company power and authority (a) to execute and
deliver this Agreement, (b) to issue and sell the Purchase Units, and to carry
out the provisions of this Agreement, and (c) to conduct its business as
presently conducted and as proposed to be conducted. The Company is duly
qualified and is in good standing in each jurisdiction where the failure to be
so qualified would have a material and adverse effect on the business,
properties, operations or financial condition of the Company. The Company has no
subsidiaries, participates in no joint ventures, and does not own or control or
have a commitment to purchase or acquire, directly or indirectly, any equity
interest in any entity.
4.2. Authorization and Binding Obligation. All action on the part of the
Company, its Management Committee and Members necessary for the authorization,
execution, delivery and performance of this Agreement, the performance of all
obligations of the Company hereunder and thereunder, and the authorization,
sale, issuance and delivery of the Purchase Units has been taken. This Agreement
has been duly executed and delivered by the Company and constitutes the valid
and legally binding obligation of the Company enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws from
time to time in effect affecting the enforcement of creditors' rights generally,
and except as enforcement of remedies may be limited by general equitable
principles. The Purchase Units are not subject to any preemptive rights or
rights of first refusal, except for such preemptive rights as have been waived
hereunder solely for purposes of this transaction or as set forth in the LLC
Agreement.
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4.3. Absence of Conflicting Agreements; Noncontravention. The execution,
delivery and performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby (with or without the giving of notice,
the lapse of time or both): (a) will not conflict with or result in any
violation or default of any provision of the Certificate of Formation or LLC
Agreement of the Company; (b) will not conflict with, result in a breach of, or
constitute a default under, any applicable law, rule or regulation, judgment,
order, ordinance, injunction or decree of any court or governmental
instrumentality; and (c) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, or accelerate
or permit the acceleration of any performance required by the terms of, any
material agreement, instrument, franchise, certificate, license or permit to
which the Company is a party or may be bound or by which its business or assets
are affected. Assuming the accuracy of the representations of the Purchaser set
forth in Article 5 hereof, no consent, approval, qualification, order or
authorization of, or filing with, any local, state, or federal governmental
authority is required on the part of the Company in connection with the
Company's valid execution, delivery, or performance of this Agreement, or the
offer, sale or issuance of the Purchase Units.
4.4. Membership Interests and Capital Accounts. Schedule 4.4 is a true and
complete list of the Company's Members and their respective Membership
Interests, Capital Accounts and Unit holdings immediately prior to and
immediately after the Closing. All issued and outstanding Units representing the
Company's Membership Interests (a) have been duly authorized and validly issued
and (b) were issued in compliance with all applicable state and federal laws
concerning the issuance of securities. Except as provided in the LLC Agreement
and the exhibits thereto, the Company is not a party to any outstanding options,
warrants, rights (including conversion or preemptive rights and rights of first
refusal), proxy, voting or member agreements, nor are there any other agreements
of any kind to which the Company is a party or, to its knowledge, which apply to
the purchase or acquisition of any of its securities. Except as provided in the
Registration Rights Agreement, the Company is not presently under any obligation
and has not granted any rights to register under the Securities Act any of its
presently outstanding securities or any of its securities that may subsequently
be issued.
4.5. Financial Statements. The Company has delivered to the Purchaser the
following financial statements (collectively, the "Financial Statements"): (a)
the unaudited balance sheet and statement of operations and cash flows for the
Company as of and for the fiscal year ended December 31, 1998, and (b) the
unaudited balance sheet (the "Balance Sheet") and statement of operations and
cash flows for the Company as of and for the fiscal year ended December 31,
1999. The Financial Statements (a) are in accordance with the books and records
of the Company (which books and records are complete and correct in all material
respects), (b) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated, and (c) fairly present the financial condition and operating results
of the Company as of the dates and during the periods indicated therein, except
that the unaudited Financial Statements may not be in accordance with GAAP
because of the absence of footnotes normally contained therein and are
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subject to normal recurring year-end audit adjustments which are not,
individually or in the aggregate, expected to be material.
4.6. Absence of Undisclosed Liabilities. Except as set forth on Schedule
4.6, the Company has no material liabilities, contingent or otherwise, other
than (a) liabilities shown on the face of the Balance Sheet, (b) liabilities
incurred in the ordinary course of business subsequent to December 31, 1999, and
(c) obligations under contracts and commitments incurred in the ordinary course
of business and not required under generally accepted accounting principles to
be reflected in the Financial Statements, which, in both cases, individually or
in the aggregate, are not material to the financial condition or operating
results of the Company.
4.7. Absence of Certain Changes or Events. Since December 31, 1999, other
than as set forth on Schedule 4.7 hereto and other than as set forth in the LLC
Agreement, there has not been:
(a) any change in the assets, liabilities, condition (financial or
otherwise), affairs, earnings, business, or operations of the Company, except
changes in the ordinary course of business which have not been, either in any
case or in the aggregate, materially adverse;
(b) any change, except in the ordinary course of business, in the
contingent obligations of the Company by way of guaranty or any assurance of
performance or payment, endorsement, indemnity, warranty or otherwise;
(c) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties or business of the
Company, taken as whole;
(d) any waiver by the Company of a valuable right or of a material debt
owed to it;
(e) any loans made by the Company to its employees, officers or
directors other than advances of expenses made in the ordinary course of
business;
(f) any distribution of the assets of the Company or any direct or
indirect redemption, purchase or acquisition of any of the Company's Units;
(g) any labor organization activity or labor trouble;
(h) any other event or condition of any character which has materially
and adversely affected the business, condition, affairs, operations, properties
or assets of the Company;
(i) any material increases in the compensation of any of the Company's
employees, officers or directors;
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(j) any resignation or termination of employment of any officer or key
employee of the Company;
(k) any satisfaction or discharge of any lien, claim or encumbrance or
payment of any obligation by the Company, except in the ordinary course of
business and which is not material to the business, properties or financial
condition of the Company;
(l) any material change to a Material Contract or material arrangement
by which the Company or any of its assets is bound or subject;
(m) any sale, assignment or transfer of any material patents,
trademarks, copyrights, trade secrets or other intangible assets;
(n) any mortgage, pledge, transfer of a security interest in, or lien
created by the Company with respect to any of its material properties or assets;
or
(o) any agreement entered into by the Company to do any of the
foregoing matters covered by Sections 4.7(a) through 4.7(n).
4.8. Title to Properties and Assets; Liens, etc. The Company has good title
to, or a valid leasehold interest in, all its material properties and assets,
including all properties and assets reflected in the Balance Sheet, except those
disposed of since the date thereof in the ordinary course of business, and none
of such properties or assets is subject to any mortgage, pledge, lien,
encumbrance or charge, other than the lien of current taxes, assessments,
governmental charges or levies not yet due and payable and the mortgages,
pledges, liens, encumbrances and charges set forth in Schedule 4.7 ("Permitted
Encumbrances"). The Company does not own, and has never owned, any real
property.
4.9. Intellectual Property.
(a) The Company owns, free and clear of all security interests, liens,
encumbrances or other charges (except for Permitted Encumbrances), or has the
valid right to use, all Intellectual Property (as defined below in this Section
4.9) used by it in its business as currently conducted or as currently proposed
by it to be conducted. Except as set forth on Schedule 4.9, no other person or
entity (other than licensors of software that is generally commercially
available, and their respective other licensees, and licensors of Intellectual
Property under the agreements disclosed pursuant to paragraph (d) below and
their respective other licensees) has any rights to any of the Intellectual
Property owned or used by the Company, and, to the knowledge of the Company, no
other person or entity is infringing, violating or misappropriating any of the
Intellectual Property that the Company owns. For purposes of this Agreement,
"Intellectual Property" means all (i) patents, patent applications, patent
disclosures and all related continuation, continuation-in-part, divisional,
reissue, reexamination, utility model, certificate of invention and design
patents, patent applications, registrations and applications for registrations,
(ii) trademarks, service marks, trade dress, logos, trade names, corporate
names, domain names and URLs, and registrations and applications for
registration thereof, (iii) copyrights and registrations and applications for
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registration thereof, (iv) trade secrets and confidential business information,
whether patentable or unpatentable and whether or not reduced to practice,
know-how, manufacturing and production processes and techniques, research and
development information, copyrightable works, financial marketing and business
data, pricing and cost information, business and marketing plans and customer
and supplier lists and information, and (v) other proprietary rights relating to
any of the foregoing.
(b) None of the activities or business conducted by the Company
infringes, violates or constitutes a misappropriation of any Intellectual
Property of any other person or entity and, to the Company's knowledge, none of
the activities or business currently proposed to be conducted by the Company
infringes, violates or constitutes a misappropriation of any Intellectual
Property of any other person or entity. Other than as set forth on Schedule 4.9,
the Company has not received any complaint, claim or notice alleging any such
infringement, violation or misappropriation, and to the knowledge of the
Company, there is no reasonable basis for any such complaint, claim or notice.
(c) Schedule 4.9(c) identifies (i) each patent that has been issued or
assigned to the Company with respect to any of its Intellectual Property, (ii)
each pending patent application that the Company has made with respect to any of
its Intellectual Property, and (iii) each copyright registration or application,
each trademark registration or application, and each domain name registration or
application with respect to the Company's Intellectual Property. The contracts
designated on Schedule 4.11 as relating to this Section 4.9(c) include all of
the material licenses or other agreements pursuant to which the Company has
granted any rights to any third party with respect to any of its Intellectual
Property.
(d) Schedule 4.9(d) identifies each agreement with third parties
pursuant to which the Company obtains rights to Intellectual Property material
to the business of the Company (other than software that is generally
commercially available) that is owned by a party other than the Company. The
contracts designated on Schedule 4.11 as relating to this Section 4.9(d) include
additional license agreements and distribution agreements with third parties
pursuant to which the Company obtains rights to Intellectual Property material
to the business of the Company that is owned by a party other than the Company.
Other than license fees for software that is generally commercially available or
license fees due to third parties pursuant to the agreements appropriately
designated on Schedule 4.9(d) and Schedule 4.11, the Company is not obligated to
pay any royalties or other compensation to any third party in respect of its
ownership, use or license of any of its Intellectual Property.
(e) The Company has taken reasonable precautions (i) to protect its
rights in its Intellectual Property and (ii) to maintain the confidentiality of
its trade secrets, know-how and other confidential Intellectual Property, and to
the Company's knowledge, there have been no acts or omissions (other than those
made based on reasonable, good faith business decisions) by the officers,
directors, shareholders and employees of the Company the result of which would
be to materially compromise the rights of the Company to apply for or enforce
appropriate legal protection of the Company's Intellectual Property.
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(f) All of the Company's owned Intellectual Property has been created
by employees of the Company within the scope of their employment by the Company
or by independent contractors of the Company who have executed agreements
expressly assigning all right, title and interest in such Intellectual Property
to the Company. Except as set forth on Schedule 4.9(f), no portion of the
Company's owned Intellectual Property was jointly developed with any third
party. The Company does not believe it is or will be necessary to use any
inventions of any of its employees (or persons it currently intends to hire)
made prior to their employment by the Company.
4.10. Compliance with Other Instruments. The Company is not in violation
of any term of its LLC Agreement, or in any material respect of any term or
provision of any material mortgage, evidence of indebtedness, indenture,
contract, agreement, instrument, judgment or decree, order, statute, rule or
regulation applicable to the Company or to which its properties is subject.
4.11. Material Contracts and Obligations. Schedule 4.11 sets forth a list
of all material agreements or commitments of any nature to which the Company is
a party or by which it is bound ("Material Contracts"), including without
limitation:
(a) Any agreement which requires future expenditures by the Company in
excess of $50,000 or which might result in payments to the Company in excess of
$50,000.
(b) Any employment and consulting agreements, employee benefit, bonus,
pension, profit-sharing, stock option, stock purchase and similar plans and
arrangements.
(c) Any material distributor or sales representative agreement.
(d) Any material agreement relating to the acquisition, transfer,
distribution, use, development, sharing or license of any technology or
Intellectual Property.
(e) Any material agreement relating to hyperlinks, co-branded sites,
affiliations, barters, revenue sharing, advertising sales, data distribution or
data acquisition or content.
(f) Any agreement with any current or former member, officer or
director of the Company, or any "affiliate" or "associate" of such persons (as
such terms are defined in the rules and regulations promulgated under the
Securities Act), including without limitation any agreement or other arrangement
providing for the furnishing of services by, rental of real or personal property
from, or otherwise requiring payments to, any such person or entity.
(g) Any agreement under which the Company is restricted or limited in
any material respect from carrying on any business or other services anywhere in
the world.
(h) Any agreement relating to indebtedness for borrowed money or
evidencing a security interest or mortgage in the assets of the Company.
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(i) Any guaranty issued by the Company.
(j) Any agreement relating to the acquisition, issuance or transfer of
any Units or securities of the Company other than the LLC Agreement.
(k) Any agreement relating to the acquisition or disposition of a
material portion of the Company's assets.
(l) Any agreement for the acquisition of the business or shares of
another party.
(m) Any outstanding offer, commitment or obligation to enter into any
agreement of the nature described in subsections (a) through (l) of this Section
4.11.
The Company or its counsel has delivered or made available to the
Purchaser's counsel copies of each of the foregoing agreements. All of such
agreements are valid, binding and in full force and effect. Neither the Company,
nor, to the Company's knowledge, any other party thereto, is in default of any
of its obligations under any of such agreements in a manner which could have a
material adverse effect on the Company.
4.12. Taxes. The amount shown on the Balance Sheet as provision for taxes
is sufficient in all material respects for payment of all accrued and unpaid
federal, state, county, local and foreign taxes for the period then ended and
all prior periods. The Company has filed or has obtained presently effective
extensions with respect to all federal, state, county, local and foreign tax
returns which are required to be filed by it, such returns are true and correct
in all material respects and all taxes shown thereon to be due have been timely
paid with exceptions not material to the Company. Federal income tax returns of
the Company have not been audited by the Internal Revenue Service, and no
controversy with respect to taxes of any type involving or related to the
Company is pending or, to the best of the Company's knowledge, threatened. The
Company has withheld or collected from each payment made to its partners or
employees the amount of all taxes required to be withheld or collected therefrom
and has paid all such amounts to the appropriate taxing authorities when due.
The Company qualifies (and has since the date of its formation qualified) and,
giving effect to the terms of the LLC Agreement, will qualify immediately after
the Closing Date, to be treated as a partnership for federal income tax purposes
and none of the Company or any member or any taxing authority has taken a
position inconsistent with such treatment.
4.13. Claims and Legal Actions. There are no actions, suits, proceedings
or investigations pending against the Company or its properties before any court
or governmental agency (nor to the best of the Company's knowledge, is there any
threat thereof, except for any proceedings generally affecting the Internet
industry). The Company is not a party to or subject to any writ, order,
injunction, decree or judgment and there is no action, suit, proceeding or
investigation by the Company currently pending or which the Company currently
intends to originate.
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4.14. Compliance with Laws; Permits. The Company is not nor has it been in
violation of (nor would any policy, procedure or practice of the Company be
reasonably expected to result in a violation of), or delinquent in respect to,
any statute, rule, regulation, order, restriction, decree, arbitration award, or
any agreement with, or any license or permit from, any domestic or foreign
government or any instrumentality or agency thereof in respect of the conduct of
the Company's business or the ownership of its properties which violation has or
would reasonably be expected to materially and adversely affect the business,
assets, liabilities, financial condition, operations of the Company. Without
limiting the foregoing, the Company is not nor has it been in violation of any
applicable statute, law or regulation relating to the environment or
occupational health and safety, and to its knowledge, no material expenditures
are or will be required in order to comply with any such applicable statute, law
or regulation. The Company has all franchises, permits, licenses and any similar
authority necessary for the conduct of its business as now being conducted by
it, the lack of which could materially and adversely affect the business,
properties or financial condition of the Company, and the Company has no
knowledge or belief that it will not be able to obtain, without undue burden or
expense, any similar authority for the conduct of its business as proposed to be
conducted under the Company's current business plan. The Company is not in
default in any material respect under such franchises, permits, licenses or
other similar authority.
4.15. Employees; Employee Benefits. To the best of the Company's
knowledge, no employee or consultant of the Company is in violation of any
material term of any employment contract or any other contract or agreement
relating to the relationship of any employee or consultant with the Company or
any other party because of the nature of the business conducted by the Company.
The Company does not have any collective bargaining agreements covering any of
its employees and there is no strike or labor dispute or union organization
activities threatened or pending. The Company has not received notice and has no
knowledge otherwise that any key employee of the Company has any plans to
terminate his or her employment with the Company, nor does the Company have a
present intention, except as previously disclosed to the Purchaser by the
Company, to terminate the employment of any key officer. Except as set forth on
Schedule 4.15, the Company does not have any deferred compensation, pension,
profit sharing, bonus, insurance, severance or other similar employee benefit
plan or obligation covering any of its employees or any plan subject to the
Employee Retirement Income Security Act of 1974. The Company has complied in all
material respects with all applicable state and federal equal employment
opportunity and other laws relating to employment. Except for Schedule 4.15, the
Company's obligations to its independent contractors or consultants are limited
to payment of fees for services rendered. Except as may be set forth in Schedule
4.15, subject to the general principles related to wrongful termination, the
employment of each officer and employee of the Company is terminable at the will
of the Company.
4.16. Insurance. The Company maintains or is covered by valid policies of
workers' compensation insurance, directors' and officers' liability insurance,
and of insurance with respect to its properties and business of the kinds and in
the amounts that the Company believes is reasonable, including, without
limitation, insurance against loss, damage, fire, theft, public liability and
other risks.
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4.17. Brokers or Finders; Other Offers. The Company has not incurred, and
will not incur, directly or indirectly, as a result of any action taken by the
Company, any liability for brokerage or finders' fees or agents' commissions or
any similar charges in connection with this Agreement.
4.18. Related-Party Transactions. Except as set forth on Schedule 4.18, to
the Company's knowledge, no member, Broad Affiliate of a member (as defined
below), manager or officer of the Company (each, a "Related Party") has any
direct or indirect ownership interest in any firm or corporation with which the
Company has a material business relationship (or any firm or corporation that
competes with the Company), nor does any such Related Party receive any material
benefit from any material contract with the Company (other than such contracts
as relate to any such person's ownership interest in the Company). For the
purposes of this Section 4.18, "Broad Affiliate" has the meaning given such term
in the LLC Agreement.
4.19. No Bankruptcy. The Company is not bankrupt or insolvent, nor is it a
party to any current or threatened bankruptcy, insolvency or similar proceeding.
4.20. No Guarantees. The Company has not guaranteed the obligations or
liabilities of any other person, firm or corporation.
4.21. Veracity. No representation or warranty of the Company contained in
this Agreement contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
herein, in light of all the circumstances under which they were made, not
misleading, and there is no fact or condition known to the Company which has not
been disclosed in writing to the Purchaser that has had or would reasonably be
likely to have a material adverse effect on the Company's ability to perform its
material obligations under this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
In order to induce the Company to enter into this Agreement, the Purchaser
represents and warrants to the Company that the statements contained in this
Article 5 are correct and complete as of the date of this Agreement.
5.1. Authorization. This Agreement when executed and delivered by the
Purchaser will constitute a valid and legally binding obligation of the
Purchaser, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws from time to time in
effect affecting the enforcement of creditors' rights generally, and except as
enforcement of remedies may be limited by general equitable principles. All
consents necessary, if any, to authorize the Purchaser to enter into this
Agreement have been obtained.
5.2. Experience. The Purchaser has substantial experience in evaluating
and investing in private placement transactions so that the Purchaser is capable
of evaluating the merits and risks of the Purchaser's investment in the Company.
The Purchaser, by reason of
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its business or financial experience or the business or financial experience of
its professional advisors who are unaffiliated with and who are not compensated
by the Company or any affiliate or selling agent of the Company, directly or
indirectly, has the capacity to protect its own interests in connection with the
purchase of the Units hereunder.
5.3. Investment. The Purchaser is acquiring the Purchase Units for
investment for the Purchaser's own account, not as a nominee or agent, and not
with the view to, or for resale in connection with, any distribution thereof.
The Purchaser understands that the Units to be purchased have not been, and may
not be, registered under the Securities Act of 1933 (the "Securities Act") or
the securities laws of any state ("Blue Sky Laws") by reason of a specific
exemption or exemptions from the registration provisions of the Securities Act
or Blue Sky Laws which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Purchaser's representations as
expressed herein.
5.4. Accredited Investor. The Purchaser represents that it is an
"accredited investor" as such term is defined in Rule 501 promulgated under the
Securities Act.
5.5. Rule 144. The Purchaser acknowledges that the Units must be held
indefinitely unless subsequently registered under the Securities Act and
applicable Blue Sky Laws or an exemption from such registration is available.
5.6. Brokers or Finders. The Company has not incurred, and will not incur,
directly or indirectly, as a result of any action taken by the Purchaser any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement.
6. CONDITIONS TO PURCHASER'S OBLIGATIONS.
The Purchaser's obligation to purchase the Purchase Units at the Closing is
subject to the fulfillment as of the Closing of the following conditions:
6.1. Authorization. All action on the part of the Company, its Management
Committee and Members necessary for the authorization, execution, delivery and
performance of this Agreement, the authorization, sale, issuance and delivery of
the Purchase Units, and the performance of all of the Company's obligations
hereunder shall have been taken in accordance with and as required by the
Company's LLC Agreement.
6.2. Representation and Warranties. The representations and warranties
made by the Company in Section 4 hereof shall be true and correct in all
material respects when made, and shall be true and correct in all material
respects on the Closing Date with the same force and effect as if they had been
made on and as of said date. The President of the Company shall deliver to the
Purchaser at the Closing a certificate certifying that the conditions specified
in Sections 6.1 through 6.3 have been fulfilled.
6.3. Covenants. All covenants, agreements and conditions contained in this
Agreement to be performed by Company on or prior to the Closing shall have been
performed or complied with in all material respects.
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6.4. Opinion of Company's Counsel. The Purchaser shall have received from
Dow, Xxxxxx & Xxxxxxxxx, PLLC, an opinion addressed to it dated the Closing, in
the form attached hereto as Exhibit A.
6.5. Consents and Waivers. The Company shall have obtained any and all
material consents (including but not limited to governmental or regulatory
consents or approvals) permits and waivers applicable to the Company necessary
or appropriate for the consummation of the transactions contemplated by this
Agreement.
7. MISCELLANEOUS
7.1. Restrictions on Transfer. The Purchaser acknowledges and agrees that
the Purchase Units shall be subject to the restrictions on sale of Units
contained in Section 11.1 of the LLC Agreement.
7.2. Survival. All representations, warranties and covenants contained in
this Agreement shall be deemed continuing representations, warranties and
covenants and shall survive the Closing; provided that the representations and
warranties shall survive until the earlier of (a) the first anniversary of the
Closing or (b) the date upon which the Securities and Exchange Commission first
declares effective any registration statement with respect to any class of
securities of the Company (or its corporate successor).
7.3. Notices. All notices and other communications hereunder shall be (a)
in writing; (b) delivered by telecopy, by commercial overnight or same-day
delivery service with all delivery costs paid by sender, or by registered or
certified mail with postage prepaid, return receipt requested; (c) deemed given
on the date and at the time shown on the telecopy confirmation of receipt (if
delivered by telecopy), on the date and at the time (if recorded) of delivery by
the commercial delivery service, as shown in the records thereof (if delivered
by commercial overnight or same-day delivery service), or on the date shown on
the return receipt (if delivered by registered or certified mail); and (d)
addressed to the parties at their addresses specified on the signature page to
this Agreement (or at such other address for a party as shall be specified by
like notice).
7.4. Waiver. Any waiver of any terms or conditions of this Agreement shall
be in writing and shall not operate as a waiver of any other breach of such
terms or conditions or any other term or condition, nor shall any failure to
enforce any provision of this Agreement operate as a waiver of such provision or
of any other provision of this Agreement.
7.5. Captions; Partial Invalidity. The captions, section numbers and index
appearing in this Agreement are inserted only as a matter of convenience and in
no way define, limit, construe or describe the scope or intent of such sections
or articles of this Agreement, nor in any way affect this Agreement.
7.6. Counterparts. This Agreement may be executed in counterparts each of
which shall be deemed an original and all of which together shall constitute one
and the same instrument, and in pleading or proving any provision of this
Agreement, it shall not be
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necessary to produce more than one complete set of such counterparts. Any
counterpart of this Agreement which has attached to it separate signature pages,
which together contain the signatures of all parties hereto, shall for all
purposes be deemed a fully executed original.
7.7. Variations of Pronouns; Number; Gender. All pronouns and all
variations thereof shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the person or persons or entity
may require. Whenever used herein the singular number shall include the plural,
the plural shall include the singular, and the use of any gender shall include
all genders.
7.8. Governing Law; Construction. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Delaware
without regard to its conflict of laws provisions. The parties acknowledge and
agree that they have been represented by counsel and that each of the parties
has participated in the drafting of this Agreement. Accordingly, it is the
intention and agreement of the parties that the language, terms and conditions
of this Agreement are not to be construed in any way against or in favor of any
party hereto by reason of the responsibilities in connection with the
preparation of this Agreement.
7.9. Third Parties. None of the provisions of this Agreement shall be for
the benefit of, or enforceable by, any employee or creditor of any party hereto,
nor any other person not a party hereto.
7.10. Entire Agreement. This Agreement and exhibits attached hereto shall
constitute the entire agreement of the parties hereto; all prior agreements
between the parties, whether written or oral, are merged herein and shall be of
no force and effect; and there are no restrictions, agreements, representations,
warranties, arrangements, or undertakings, oral or written, between or among the
parties relating to the transactions contemplated hereby which are not fully
expressed or referred to herein. This Agreement cannot be changed, modified or
discharged orally, but only by an agreement in writing, signed by the party
against whom enforcement of the change, modification or discharge is sought.
7.11. Benefit and Binding Effect. Other than in connection with a pledge,
assignment or other transfer of all or any of its interest in the Company that
is permitted by the LLC Agreement, none of the parties hereto may assign the
rights under or delegate any duties under this Agreement without the prior
written consent of the other parties hereto. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
7.12. Expenses. Except as otherwise expressly provided, the Company and the
Purchaser shall each bear its own expenses incurred on its behalf with respect
to this Agreement and the transactions contemplated thereby.
7.13. Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such
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severability shall be effective if it materially changes the economic benefit of
this Agreement to any party.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the date first above written.
COMPANY:
XXXXXXXXXX.XXX, LLC.
By: /s/ Xxxxxx X. Xxxxx, III
-----------------------------
Name: Xxxxxx X. Xxxxx, III
---------------------------
Title: President and Chief
Executive Officer
--------------------------
Address for Notices:
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, III
Facsimile: (000) 000-0000
PURCHASER:
eBay, Inc.
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
---------------------------
Title: Chief Operating Officer
--------------------------
Address for Notices:
0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
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