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