EXHIBIT 99.3
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STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
April 12, 2000, by and between Positive Asset Remarketing, Inc. ("PAR"), a
Massachusetts corporation; Positive Asset Remarketing, Inc. ("New PAR"), a
Nevada corporation; Xxxxxx X. Xxxx, Xxxxxxxx Xxxxx and Xxxx Xxxxx, the
individual sole stockholders of PAR and New PAR (each a "Stockholder" and,
together, the "Stockholders"); and Entrade Inc. (the "Buyer"), a
Pennsylvania corporation.
Recitals:
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WHEREAS, New PAR is the owner of 7,350,000 shares of $.001 par value
Class A Common Stock (the "asseTrade Shares") of xxxxXxxxx.xxx, Inc.
("xxxxXxxxx.xxx"), a Delaware corporation, and is the "Seller" hereunder;
and
WHEREAS, the Seller wishes to sell to the Buyer, and the Buyer wishes
to purchase from the Seller, the asseTrade Shares, in accordance with the
terms and provisions of this Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. PURCHASE AND SALE.
(a) NUMBER OF SHARES. At the Closing (as defined), the
Seller will sell to the Buyer, and the Buyer will purchase from the Seller,
7,350,000 asseTrade Shares.
(b) CONSIDERATION FOR THE ASSETRADE SHARES. In consideration
for the purchase of the asseTrade Shares, the Buyer (i) will pay Seller
$3,488,000 for 1,000,000 asseTrade Shares by wire transfer in accordance
with instructions provided by the Seller on the Closing Date, and (ii) will
issue to the Seller at Closing 964,000 shares of the Buyer's no par value
Common Stock (the "Buyer Shares") for 6,350,000 asseTrade Shares.
(c) CLOSING. The purchase and sale (the "Closing") provided
for in this Agreement will take place at the offices of the Buyer as of the
date of this Agreement, or at such other time and place as the parties may
agree (the "Closing Date"). Subject to the provisions of Section 7,
failure to consummate the purchase and sale provided for in this Agreement
on the date and time and at the place determined pursuant to this
Section 1(c) will not result in the termination of this Agreement and will
not relieve any party of any obligation under this Agreement.
(d) DELIVERY OF CERTIFICATES.
(i) At Closing, the Seller will deliver to the Buyer
the stock certificate(s) representing the asseTrade Shares together with a
stock power executed by the Seller transferring the asseTrade Shares to the
Buyer.
(ii) At Closing, the Buyer (i) will pay by wire transfer
$3,488,000 in accordance with the instructions set forth on Exhibit A
hereto; and (ii) will forward to the Buyer's transfer agent a letter of
instructions authorizing and directing the transfer agent to issue a stock
certificate in the name of the Seller representing the Buyer Shares being
issued by the Buyer to the Seller under this Agreement. The certificate
representing the Buyer Shares will be held by Buyer and delivered promptly
to New PAR upon the receipt of the following documentation in the forms
satisfactory to Buyer and its counsel:
(A) Written consent of all directors and
stockholders of PAR authorizing the transfer of the asseTrade Shares to New
PAR.
(B) Written consent of all directors and
stockholders of New PAR authorizing the transactions under this Agreement
and the transfer of the asseTrade Shares from New PAR to Buyer.
(C) A notice certified by an authorized officer
of PAR to the other xxxxXxxxx.xxx stockholders informing them of the
transfer from PAR to New PAR and requesting a waiver of their rights of
first refusal and co-sale rights under the Stockholders Agreement, as
defined in Section 2(c)(iv) of this Agreement.
(D) Copies of each waiver referenced in Section
1(d)(ii)(C) of this Agreement executed by each stockholder of
xxxxXxxxx.xxx.
(E) Evidence of delivery by New PAR to
xxxxXxxxx.xxx and its stockholders of a joinder to the Stockholders
Agreement, as defined in Section 2(c)(iv) of this Agreement.
(F) Evidence of compliance with all Conditions
Precedent under Section 5 and Section 6 of this Agreement, including, but
not limited to, listing approval from the New York Stock Exchange regarding
the Buyer Shares and the delivery of the Addendum to the Stockholder
Agreement by Buyer and the New PAR Notice as referenced in Sections 5(g)
and 6(h), respectively.
2. REPRESENTATIONS AND WARRANTIES OF PAR, NEW PAR AND THE
STOCKHOLDERS. Each of PAR, New PAR and each Stockholder, jointly and
severally, represents and warrants to the Buyer as follows:
(a) ORGANIZATION OF NEW PAR AND PAR. New PAR is a
corporation duly organized and validly existing and in good standing under
the laws of the State of Nevada. PAR is a corporation duly organized and
validly existing and in good standing under the laws of the Commonwealth of
Massachusetts.
(b) AUTHORITY. The Seller has the corporate power and
authority to execute, deliver and carry out the terms and provisions of
this Agreement and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement by the Seller.
Each of PAR and New PAR has the requisite corporate power and authority to
execute and deliver this Agreement and all agreements and documents to be
executed by it as described herein. The consummation by PAR and New PAR of
the transactions described herein has been duly authorized by all requisite
corporate action. This Agreement constitutes, and all agreements and
documents described herein (when executed and delivered pursuant hereto for
value received) will constitute, the valid and binding obligations of PAR,
New PAR and the Stockholders enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, moratorium
or other similar laws relating to creditors' rights and general principles
of equity.
(c) ACQUISITION OF ASSETRADE SHARES BY NEW PAR.
(i) On April 4, 2000, PAR transferred to New PAR the
asseTrade Shares, which transfer was duly authorized and approved by all
necessary corporate action on the part of PAR, including approval of the
directors and shareholders of PAR, a true and correct copy of the stock
certificates representing the asseTrade Shares and the stock power
transferring ownership from PAR to New PAR is attached hereto as
Appendix 2(c).
(ii) the sole shareholders of PAR at the time of
transfer of the asseTrade Shares to New PAR from old PAR were Xxxxxx X.
Xxxx, Xxxxxxxx Xxxxx and Xxxx Xxxxx.
(iii) at the time of transfer from PAR to New PAR, each
of the asseTrade shares were owned by PAR free and clear of all liens,
pledges, security interests, claims or other encumbrances.
(iv) PAR has sent or delivered a notice to the
stockholders of xxxxXxxxx.xxx pursuant to the Stockholders Agreement among
xxxxXxxxx.xxx's stockholders and xxxxXxxxx.xxx dated as of September 14,
1999 (the "Stockholders Agreement"); PAR has received a waiver from each
stockholder of its rights of first refusal under Section 3 of the
Stockholders Agreement and its right of co-sale under Section 4 of the
Stockholder Agreement; and New PAR has agreed and joined as an Initial
Stockholder under the Stockholders Agreement.
(v) Xxxxxx X. Xxxx, Xxxxxxxx Xxxxx and Xxxx Xxxxx
constitute the sole stockholders of New PAR.
(d) NO CONSENT REQUIRED. No authorization, consent or
approval of, or exemption by, any governmental or public body or authority
is required to authorize, or is required in connection with, the execution,
delivery and performance of any of the provisions of this Agreement, or the
taking of any action contemplated hereby, by the Seller, except those that
have been obtained.
(e) ASSETRADE STOCK. The Seller owns the asseTrade Shares
free and clear of all liens, pledges, security interests, claims or other
encumbrances ("Liens"). Each of the asseTrade Shares owned by Seller is
duly authorized, validly issued, fully paid and nonassessable. The parties
acknowledge that the asseTrade Shares are subject to the provisions of the
Stockholders Agreement.
(f) TAXES.
(i) Each of PAR and New PAR has timely filed, and will
timely file, all tax returns and reports required to be filed by it (if
any), or requests for extensions to file such returns or reports have been
timely filed and granted and have not expired, and all tax returns and
reports are and will be complete and accurate in all respects. Each of PAR
and New PAR has paid all Taxes due and owing and will pay all Taxes due and
owing, including, but not limited to, any Taxes resulting from the transfer
of the asseTrade Shares under this Agreement, and no deficiencies for any
Taxes have been proposed, asserted or assessed against PAR or New PAR that
are not adequately reserved for. No requests for waivers of the time to
assess any Taxes against PAR or New PAR have been granted or are pending.
(ii) Each of PAR and New PAR has satisfied all federal,
state, local and foreign tax requirements, including but not limited to
income, social security and employment tax.
(iii) There are no Liens for Taxes on any of PAR's or New
PAR's assets.
(iv) As used in this Section 2(d), "Taxes" shall include
all federal, state, local and foreign income, franchise, property, sales,
use, excise and other taxes, including obligations for withholding taxes
from payments due or made to any other person or entity and any interest,
penalties or additions to tax.
(g) EMPLOYEE BENEFIT PLANS. Neither PAR nor New PAR has any
employee benefit plans or programs of any kind maintained for the benefit
of current or former employees or directors of PAR or New PAR. Neither PAR
nor New PAR has ever had any employees.
(h) OTHER ASSETS OR LIABILITIES. As of the date hereof and
the Closing Date, New PAR has and will have no properties or assets of any
kind other than the asseTrade Shares. As of the date hereof and at the
time of the transfer of the asseTrade Shares to the Buyer, neither PAR nor
New Par has or had any liabilities, obligations or guaranties accrued,
absolute, contingent or otherwise, and PAR and New PAR agree that any
liabilities arising on or after the Closing will be satisfied by them,
respectively, in accordance with the terms of such liabilities.
(i) LITIGATION. There are no actions, suits, audits or
proceedings pending against PAR or New PAR or, to the knowledge of PAR, New
PAR or the Stockholders, threatened against PAR or New Par, at law or in
equity, or before or by any federal or state commission, board, bureau,
agency or instrumentality.
(j) NO VIOLATION. Neither the execution and delivery of this
Agreement, nor compliance with any of the terms and provisions hereof, nor
the consummation of any of the transactions herein contemplated will: (i)
violate any law, regulation, order, writ, injunction or decree of any court
or governmental department, commission, board, bureau, agency or
instrumentality applicable to PAR or New PAR, or (ii) conflict or be
inconsistent with, or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in
the creation or imposition of (or the obligation to create or impose) any
lien, charge or encumbrance upon any of the property or assets of PAR or
New PAR pursuant to the terms of any indenture, mortgage, deed of trust,
agreement or other instrument, to which PAR or New PAR is a party or by
which it may be bound or to which it may be subject, or (iii) violate any
provision of any of the organizational documents of PAR or New PAR.
(k) NO REGISTRATION OF THE SHARES. The Seller understands
that: (i) the Buyer Shares are being sold to the Seller under certain
exemptions from the registration provisions of the Securities Act of 1933
(the "Securities Act"); (ii) the Seller is receiving the Buyer Shares
without being furnished any offering literature or prospectus other than
publicly disseminated information regarding the Buyer and its Common Stock;
and (iii) the sale of the Buyer Shares has not been examined by the
Securities and Exchange Commission or by any agency charged with the
administration of the securities laws of any state or other jurisdiction.
The Seller represents and warrants that it is an "accredited investor" as
defined in Regulation D under the Securities Act and has such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of an investment in the Buyer Shares and
of making an informed investment decision with respect thereto. The Seller
understands that the Buyer is relying on the truth and accuracy of the
representations, declarations and warranties made herein by the Seller in
issuing the Buyer Shares hereunder without having first registered the
Buyer Shares under the Securities Act or under the securities laws of any
state or other jurisdiction.
(l) INVESTMENT INTENT. The Seller confirms that: (i) it
understands that there are substantial restrictions on the transferability
of the Buyer Shares and, accordingly, it may not be possible for it to
liquidate its investment in the Buyer Shares in case of emergency; and (ii)
it is able to bear the economic risk of its investment in the Buyer Shares,
to hold the Buyer Shares for an indefinite period of time, and currently to
afford a complete loss of its investment. The Buyer Shares are being
acquired by it in good faith solely for its own personal account, for
investment purposes only, and are not being purchased with a view to or for
the resale, distribution, subdivision or fractionalization thereof. The
Seller does not have any contract, undertaking, understanding, agreement or
arrangement, formal or informal, with any person to sell, transfer or
pledge to any person the Buyer Shares being acquired hereunder, or any part
thereof, and has no current plan to enter into any such contract,
undertaking, agreement or arrangement. The Seller understands that the
legal consequences of the foregoing representations and warranties are that
it must bear the economic risk of its investment in the Buyer Shares for an
indefinite period of time because the Buyer Shares have not been registered
under the Securities Act.
3. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer
represents and warrants to the Seller as follows:
(a) AUTHORITY. The Buyer has the corporate power and
authority to execute, deliver and carry out the terms and provisions of
this Agreement; provided, however, that if the Buyer is required by the New
York Stock Exchange to obtain the approval of the stockholders of the Buyer
prior to issuance of the Buyer Shares, such approval will be required prior
to the issuance of the Buyer Shares. The Buyer has taken all other
necessary corporate action to authorize the execution, delivery and
performance of this Agreement by the Buyer.
(b) NO CONSENT REQUIRED. Other than New York Stock Exchange
listing approval for the issuance of the Buyer Shares by the Buyer, if
required, no authorization, consent or approval of, or exemption by, any
governmental or public body or authority is required to authorize, or is
required in connection with, the execution, delivery and performance of any
of the provisions of this Agreement, or the taking of any action
contemplated hereby, by the Buyer, except those that have been obtained.
(c) NO VIOLATION. Neither the execution and delivery of this
Agreement, nor compliance with any of the terms and provisions thereof, nor
the consummation of any of the transactions herein contemplated, will: (i)
violate any law, regulation, order, writ, injunction or decree of any court
or governmental department, commission, board, bureau, agency or
instrumentality applicable to the Buyer, or (ii) conflict or be
inconsistent with, or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in
the creation or imposition of (or the obligation to create or impose) any
lien, charge or encumbrance upon any of the property or assets of the Buyer
pursuant to the terms of any indenture, mortgage, deed of trust, agreement
or other instrument, to which the Buyer is a party or by which it may be
bound or to which it may be subject, or (iii) violate any provision of any
of the organizational documents of the Buyer.
(d) VALIDITY OF ISSUANCE. The Buyer Shares being issued to
the Seller hereunder have been duly authorized (subject to any New York
Stock Exchange shareholder approval requirements), and, upon the issuance
of the Buyer Shares to the Seller in accordance with the terms and
provisions of this Agreement, the Buyer Shares will be validly issued,
fully paid and nonassessable.
(e) NO REGISTRATION OF THE SHARES. The Buyer understands
that: (i) the asseTrade Shares are being sold to the Buyer under certain
exemptions from the registration provisions of the Securities Act; and (ii)
the Buyer is purchasing such asseTrade Shares without being furnished any
offering literature or prospectus. The Buyer represents and warrants that
it is an "accredited investor" as defined in Regulation D under the
Securities Act and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
an investment in the asseTrade Shares and of making an informed investment
decision with respect thereto.
(f) INVESTMENT INTENT. The Buyer confirms that: (i) it
understands that there are substantial restrictions on the transferability
of the asseTrade Shares and, accordingly, it may not be possible for the
Buyer to liquidate its investment in the asseTrade Shares in case of
emergency; and (ii) the Buyer is able to bear the economic risk of its
investment in the asseTrade Shares, to hold the asseTrade Shares for an
indefinite period of time, and currently to afford a complete loss of its
investment. The asseTrade Shares being acquired by the Buyer hereunder are
being acquired in good faith solely for its own personal account, for
investment purposes only, and are not being purchased with a view to or for
the resale, distribution, subdivision or fractionalization thereof. The
Buyer does not have any contract, undertaking, understanding, agreement or
arrangement, formal or informal, with any person to sell, transfer or
pledge to any person the asseTrade Shares being acquired hereunder, or any
part thereof, and has no current plan to enter into any such contract,
undertaking, agreement or arrangement. The Buyer understands that the
legal consequences of the foregoing representations and warranties are that
the Buyer must bear the economic risk of its investment in the asseTrade
Shares for an indefinite period of time because the asseTrade Shares have
not been registered under the Securities Act.
4. RESTRICTIVE LEGEND. Each certificate for the asseTrade Shares
and the Buyer Shares, and any shares of capital stock received in respect
thereof, whether by reason of a stock split or share reclassification
thereof, a stock dividend thereon or otherwise, shall be stamped or
otherwise imprinted with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.
5. CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATION TO CLOSE. The
obligation of the Buyer to purchase and pay for the asseTrade Shares being
purchased by it on the Closing Date is, at its option, subject to the
satisfaction, on or before the Closing Date, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT.
The representations and warranties contained in Section 2 shall be true,
complete and correct on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of such
date, and the President of PAR, New PAR and each Stockholder shall have
certified to the Buyer in writing to such effect.
(b) PERFORMANCE. The Seller shall have performed and
complied with all agreements contained herein required to be performed or
complied with by it prior to or at the Closing Date, and the President of
the Seller shall have certified to the Buyer in writing to such effect and
to the further effect that all of the conditions set forth in this Section
5 have been satisfied.
(c) STOCKHOLDER APPROVAL. The Buyer, if required by the New
York Stock Exchange, shall have received approval from its stockholders for
the issuance of the Buyer Shares to the Seller.
(d) PROCEEDINGS TO BE SATISFACTORY. All corporate and other
proceedings to be taken by the Buyer in connection with the transactions
contemplated hereby and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Buyer and its counsel.
(e) DELIVERY OF ASSETRADE SHARES. The Seller shall have
delivered the stock certificate representing the asseTrade Shares together
with a stock power executed by the Seller transferring the asseTrade Shares
to the Buyer.
(f) NEW YORK STOCK EXCHANGE LISTING APPROVAL. The Buyer
shall have received approval from the New York Stock Exchange for the
listing of the Buyer Shares.
(g) ADDENDUM TO STOCKHOLDER AGREEMENT. The Buyer shall have
executed and sent to the persons listed on the Distribution List attached
thereto the Addendum to Stockholder Agreement, substantially in the form
attached to this Agreement.
6. CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATION TO CLOSE. The
obligation of the Seller to sell the asseTrade Shares being sold by it on
the Closing Date is, at its option, subject to the satisfaction, on or
before the Closing Date, of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT.
The representations and warranties contained in Section 3 shall be true,
complete and correct on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as of such
date, and the President of the Buyer shall have certified to the Seller in
writing to such effect.
(b) PERFORMANCE. The Buyer shall have performed and complied
with all agreements contained herein required to be performed or complied
with by it prior to or at the Closing Date, and the President of the Buyer
shall have certified to the Seller in writing to such effect and to the
further effect that all of the conditions set forth in this Section 6 have
been satisfied.
(c) STOCKHOLDER APPROVAL. The Buyer, if required by the New
York Stock Exchange, shall have received approval from its stockholders for
the issuance of the Buyer Shares to the Seller.
(d) PROCEEDINGS TO BE SATISFACTORY. All corporate and other
proceedings to be taken by the Buyer in connection with the transactions
contemplated hereby and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Seller and its counsel.
(e) DELIVERY OF LETTER OF INSTRUCTIONS. The Buyer shall
have forwarded to the Buyer's transfer agent a letter of instructions
authorizing and directing the transfer agent to issue a stock certificate
in the name of the Seller representing the Buyer Shares being issued by the
Buyer to the Seller under this Agreement.
(f) PAYMENT BY WIRE TRANSFER. The Buyer shall have paid by
wire transfer in accordance with the instructions set forth on Exhibit A
$3,488,000 to the Seller.
(g) NEW YORK STOCK EXCHANGE LISTING APPROVAL. The Buyer
shall have received approval from the New York Stock Exchange for the
listing of the Buyer Shares.
(h) NEW PAR NOTICE SENT. New PAR shall have executed and
sent to the persons listed on the Distribution List attached thereto the
New PAR notice regarding the transfer of the asseTrade Shares,
substantially in the form attached to this Agreement.
7. TERMINATION.
(a) ABILITY TO TERMINATE. This Agreement may, by notice
given prior to or at the Closing, be terminated:
(i) by (A) the Buyer, if satisfaction of any condition
in Section 5 is or becomes impossible (other than through the failure of
the Buyer to comply with its obligations under this Agreement) and the
Buyer has not waived such condition; or (B) by the Seller, if satisfaction
of any condition in Section 6 is or becomes impossible (other than through
the failure of the Seller to comply with its obligations under this
Agreement) and the Seller has not waived such condition;
(ii) by mutual consent of the Buyer and the Seller; or
(iii) by either the Buyer or the Seller if the Closing
has not occurred (other than through the failure of any party seeking to
terminate this Agreement to comply fully with its obligations under this
Agreement) on or before April 30, 2000, or such later date as the parties
may agree upon.
(b) EFFECT OF TERMINATION. Each party's right of termination
under Section 7(a) is in addition to any other rights it may have under
this Agreement or otherwise, and the exercise of a right of termination
will not be an election of remedies. If this Agreement is terminated
pursuant to Section 7(a), all further obligations of the parties under this
Agreement will terminate; provided, however, that if this Agreement is
terminated by a party because one or more of the conditions to the
terminating party's obligations under this Agreement is not satisfied as a
result of the other party's failure to comply with its obligations under
this Agreement, the terminating party's right to pursue all legal remedies
will survive such termination unimpaired.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties, covenants, stipulations, certifications,
indemnities and agreements contained herein or in any document delivered
pursuant hereto shall survive the consummation of the transactions
described in this Agreement.
(b) INDEMNIFICATION.
(i) Each of PAR, New PAR and each Stockholder shall
jointly and severally defend, indemnify and hold Buyer harmless from and
against any and all claims, liabilities, damages, losses, deficiencies and
expenses, including reasonable attorneys' fees and expenses and costs of
suit (individually a "Loss" and collectively "Losses") arising out of any
and all inaccurate representations and warranties and out of any and all
breaches of covenants, agreements and certifications made by or on behalf
of PAR, New PAR or any of the Stockholders in this Agreement or in any
document delivered by any of them hereunder.
(ii) Buyer shall defend, indemnify and hold PAR, New PAR
and the Stockholders harmless from and against any and all claims,
liabilities, damages, losses, deficiencies and expenses, including
reasonable attorneys' fees and expenses and costs of suit (individually a
"Loss") and collectively "Losses") arising out of any and all inaccurate
representations and warranties and out of any and all breaches of covenants
and agreements and certifications made by or on behalf of Buyer in this
Agreement or in any document delivered by Entrade hereunder.
(c) PROCEDURE FOR CLAIMS. A party seeking indemnification
under this Section 8 (an "Indemnified Party") shall give notice of the
claim for losses and a brief explanation of the basis thereof to the party
alleged to be responsible for indemnification hereunder (an "Indemnitor").
The Indemnitor shall promptly pay the Indemnified Party any amount due
under this Section 8. The Indemnified Party may pursue whatever legal
remedies may be available for recovery of the losses claimed from any
Indemnitor.
(d) THIRD PARTY CLAIMS. An Indemnified Party shall give any
Indemnitor prompt notice of the institution by a third party of any
actions, suits or other administrative or judicial proceedings if the
Indemnified Party would be entitled to claim indemnification under this
Section 8 in connection with any such action, suit or other proceeding.
After such notice, any Indemnitor may, or if so requested by the
Indemnified Party, any Indemnitor shall, participate in any such action,
suit or other proceeding or assume the defense thereof, with counsel
satisfactory to the Indemnified Party; provided, however, that the
Indemnified Party shall have the right to participate at its own expense in
the defense of any such action, suit or other proceeding; and provided,
further, that the Indemnitor shall not consent to the entry of any judgment
or enter into any settlement, except with the written consent of the
Indemnified Party, that (a) fails to include as an unconditional term
thereof the giving by the claimant or plaintiff to the Indemnified Party of
a release from all liability in respect of any such action, suit or other
proceeding or (b) grants the claimant or plaintiff any injunctive relief
against the Indemnified Party. Any failure to give prompt notice under
this Section 8(d) shall not bar an Indemnified Party's right to claim
indemnification under this Section 8, except to the extent that an
Indemnified Party shall have been harmed by such failure.
9. MISCELLANEOUS.
(a) REGISTRATION OF THE BUYER SHARES. After Closing, the
Buyer shall use reasonable efforts to register for resale the Buyer Shares
under the Securities Act of 1933. Buyer agrees to use reasonable efforts
(i) to file the registration statement (the "Registration Statement")
regarding the resale of the Buyer Shares acquired by New PAR hereunder,
which Registration Statement is intended by Buyer to be the next
registration statement filed by Buyer with respect to resales by
shareholders of Buyer after registration statement (No. 333-96523), by June
12, 2000 and (ii) to cause the Registration Statement to become effective
by August 12, 2000. In the event that (A) the effective date of the
Registration Statement occurs after August 12, 2000 and (B) prior to the
post-August 12, 2000 effective date of such Registration Statement
xxxxXxxxx.xxx shall have completed an initial public offering of its common
stock in which xxxxXxxxx.xxx raises gross proceeds in excess of
$50,000,000, Buyer shall issue to New PAR 200,000 additional shares of
Buyer's common stock; provided, however, that in the event that Buyer
notifies New PAR that it is prepared to file the Registration Statement and
Buyer has not received the items listed in Section 1(d)(ii), then the
foregoing June 12 and August 12 dates shall be extended by the number of
days' delay from the date of such notification to the receipt of such
items.
(b) FURTHER ACTION. Each party hereto shall perform such
further acts and execute such documents as may be reasonably required to
effect the transfer of the asseTrade Shares to the Buyer and the issuance
of the Buyer Shares to the Seller.
(c) TERMINATION OF THE AGREEMENT AND PLAN OF MERGER DATED AS
OF DECEMBER 31, 1999. The parties hereto agree that the Agreement of Plan
of Merger dated as of December 31, 1999 among the Buyer, PAR, New PAR, the
Shareholders and Entrade Merger Subsidiary is hereby terminated and shall
have no further force in effect.
(d) CHOICE OF LAW. This Agreement shall be construed and
enforced in accordance with and pursuant to the laws of the Commonwealth of
Pennsylvania.
(e) BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors, personal representatives and assigns.
(f) NOTICES. All notices, requests or other communications
hereunder shall be in writing and shall be deemed to have been duly given
if delivered in person or by courier; sent by overnight courier, charges
prepaid; or telegraphed, telexed or mailed by certified or registered mail,
postage prepaid, to the address of the respective party set forth below:
If to the PAR, New PAR or any Stockholder:
Positive Asset Remarketing, Inc.
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
If to the Buyer:
Entrade, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx,
President
(g) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original Agreement, and all
of which shall constitute one Agreement to be effective as of the date of
this Agreement.
IN WITNESS WHEREOF, the undersigned have hereunto executed this
Agreement the day and year first above written.
POSITIVE ASSET REMARKETING, INC.,
a Massachusetts corporation
By: /s/ Xxxxxxxx Xxxxx
------------------------------
Title: Vice President and Clerk
-----------------------------
POSITIVE ASSET REMARKETING, INC.,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxx
------------------------------
Title: President
------------------------------
ENTRADE INC.
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------
Title: President
------------------------------
STOCKHOLDERS:
/s/ Xxxxxx X. Xxxx
------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxxxx Xxxxx
------------------------------
Xxxxxxxx Xxxxx
/s/ Xxxx Xxxxx
------------------------------
Xxxx Xxxxx
