EXHIBIT 10.13
STOCK PURCHASE AGREEMENT
Dated as of
November 12, 1999
by and among
▇▇▇▇▇▇'▇ TRADING COMPANY, INC.
and
BENCHMARK CAPITAL PARTNERS IV, L.P.
TABLE OF CONTENTS
1. DEFINITIONS.......................................................1
1.1 Definitions..................................................1
2. PURCHASE AND SALE OF STOCK........................................3
2.1 Authorization of Stock.......................................3
2.2 Purchase and Sale of Stock...................................3
3. CLOSING CONDITIONS................................................4
3.1 Conditions to the Obligations of the Purchaser...............4
3.2 Conditions to the Obligations of the Company.................4
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.....................5
4.1 Corporate Existence and Power................................5
4.2 Corporate Authorization......................................6
4.3 Governmental Authorization...................................6
4.4 Non-contravention............................................6
4.5 Capitalization...............................................7
4.6 Transaction Agreement........................................7
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER...................8
5.1 Purchase for Own Account.....................................8
5.2 Accredited Investor..........................................8
5.3 Organization and Existence...................................8
5.4 Authorization................................................8
5.5 Transfer Restrictions........................................9
6. TERMINATION.......................................................9
6.1 Grounds for Termination......................................9
6.2 Effect of Termination........................................9
7. OBLIGATION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇......................................9
7.1 Indemnification..............................................9
8. MISCELLANEOUS....................................................10
8.1 Rules of Construction.......................................10
8.2 Notices.....................................................10
8.3 Survival....................................................11
8.4 Amendments; No Waiver.......................................11
8.5 Successors and Assigns.....................................11
8.6 Counterparts...............................................11
8.7 Headings...................................................11
8.8 Governing Law..............................................11
8.9 Jurisdiction...............................................12
8.10 Waiver of Jury of Trial....................................12
8.11 Captions...................................................12
8.12 Entire Agreement...........................................12
8.13 Severability...............................................12
8.14 Further Assurances.........................................13
8.15 Confidentiality............................................13
APPENDIX I DISCLOSURE SCHEDULE
ANNEX A FORM OF REGISTRATION RIGHTS AGREEMENT
ANNEX B FORM OF STOCKHOLDERS AGREEMENT
ANNEX C TRANSACTION AGREEMENT
ii
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is dated as of November 12, 1999 (this
"Agreement"), and is entered into by and among ▇▇▇▇▇▇'▇ Trading Company, Inc.,
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an Indiana corporation (the "Company"), Benchmark Capital Partners IV, L.P. (the
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"Purchaser"), and, solely for purposes of Section 7.1 hereof, FS Equity Partners
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IV, L.P., a Delaware limited partnership ("▇▇▇▇▇▇▇ ▇▇▇▇▇▇").
R E C I T A L S
WHEREAS, on the terms and conditions set forth in this Agreement, the
Company has authorized the sale and issuance of an aggregate 567,684 shares of
its Class A common stock, without par value (the "Stock");
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WHEREAS, the Purchaser desires to purchase the Stock on the terms and
conditions set forth herein; and
WHEREAS, the Company desires to issue and sell the Stock to the
Purchaser on the term and conditions set forth herein.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing recitals and the
promises, mutual covenants and agreements hereinafter contained and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Company agrees, and the Purchaser agrees as follows:
1. DEFINITIONS
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1.1 Definitions
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Capitalized terms not otherwise defined herein shall have the meanings
ascribed to such terms in this Section 1.1. As used in this Agreement, the
following terms shall have the following meanings:
"Affiliate" means, with respect to any referenced Person, a Person
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which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such referenced Person. When
used herein without reference to any Person, Affiliate means an Affiliate of the
Company. For purposes of this definition, "control" when used with respect to
any Person means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting stock, by agreement or otherwise; and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing. Notwithstanding the foregoing, for purposes of this Agreement, the
Purchaser and its Affiliates shall not be considered Affiliates of the Company
or any of its Affiliates.
"Agreement" shall have the meaning set forth in the introduction to
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this Agreement.
"Business Day" means any day which is not a Legal Holiday.
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"Closing" shall have the meaning set forth in Section 2.2.
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"Closing Date" shall have the meaning set forth in Section 2.2.
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"Company" shall have the meaning set forth in the introduction to this
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Agreement.
"Company Securities" shall have the meaning set forth in Section 4.5.
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"Disclosure Schedule" means the Disclosure Schedule attached as
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Appendix I to this Agreement.
"Documents" means the Stockholders Agreement and the Registration
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Rights Agreement collectively, or each of such documents singularly, and any
documents or instruments contemplated by or executed in connection with any of
them or any of the transactions contemplated hereby or thereby.
"▇▇▇▇▇▇▇ ▇▇▇▇▇▇" shall have the meaning set forth in the introduction
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to this agreement.
"Indemnification Payment" shall have the meaning set forth in Section
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7.1.
"Legal Holiday" means a Saturday, Sunday or day on which banks and
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trust companies in the principal place of business of the Company or in New York
are not required to be open.
"Material Adverse Effect" means a material adverse effect on (a) the
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business, condition (financial or otherwise), assets, liabilities or operations
of the Company, (b) the ability of the Company to perform its obligations under
this Agreement, or (c) the ability of the Purchaser to enforce this Agreement.
"Person" means an individual, partnership, corporation, limited
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liability company, trust or unincorporated organization or a government or
agency or political subdivision thereof.
"Purchaser" shall have the meaning set forth in the introduction to
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this agreement.
"Registration Rights Agreement" means the Amended and Restated
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Registration Rights Agreement to be dated as of the Closing Date, by and among
the Company, the Purchaser and the other parties thereto, substantially in the
form of Annex A attached hereto.
"Responsible Officer" means any of the Chief Executive Officer, the
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President or Chief Financial Officer of a party.
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"Securities Act" means the Securities Act of 1933, as amended.
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"Securities Purchase Agreement" means that certain Securities Purchase
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Agreement dated as of August 31, 1999 by and among the Corporation, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ and The Limited.
"Stock" shall have the meaning set forth in the recitals to this
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Agreement.
"Stockholders Agreement" means the Stockholders Agreement dated as of
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August 31, 1999 by and among the Company, the Purchaser, and the other parties
thereto, in the form attached hereto as Annex B.
"The Limited" means The Limited, Inc., a Delaware corporation.
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"Transaction Agreement" shall have the meaning set forth in Section
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4.6.
2. PURCHASE AND SALE OF STOCK
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2.1 Authorization of Stock
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On or before the Closing (as defined below), the Company shall have
authorized the issue and sale to the Purchaser an aggregate of 567,684 shares of
Stock.
2.2 Purchase and Sale of Stock
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(a) Purchase and Sale. Subject to the terms and conditions set forth
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herein and in reliance on the representations and warranties contained
herein, the Company agrees to issue and sell, and the Purchaser agrees to
purchase, 567,684 shares of Stock at a purchase price of $10.00 per share
for an aggregate purchase price of $5,676,842.
(b) Closing. The purchase and sale of the Stock shall take place at
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a closing (the "Closing") at the offices of O'Melveny & ▇▇▇▇▇ LLP, 153 East
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53rd Street, New York, New York, as soon as possible, but in no event later
than two Business Days after satisfaction or waiver of the conditions set
forth in Article 3, or at such other time or place as the Company and the
Purchaser may agree (the "Closing Date").
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(c) Delivery. At the Closing, subject to the terms and conditions
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set forth herein, the Company will deliver to the Purchaser a certificate
evidencing the number of shares of Stock to be purchased by the Purchaser,
dated the Closing Date, against payment of the purchase price therefor by
intra-bank or federal funds bank wire transfer of same day funds to such
bank account the Company shall designate prior to the Closing.
(d) Fees and Expenses. All costs and expenses incurred in connection
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with this Agreement or the transactions contemplated hereby shall be paid
by the party incurring such cost and expense.
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3. CLOSING CONDITIONS
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3.1 Conditions to the Obligations of the Purchaser
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The obligations of the Purchaser to purchase the Stock to be
delivered to the Purchaser at the Closing shall be subject to the satisfaction
or waiver of each of the following conditions on or before the Closing Date:
(a) Representations and Warranties True. The representations and
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warranties made by the Company in Section 4 hereof shall be true and
correct in all material respects as of the Closing Date with the same force
and effect as if they had been made as of the Closing Date.
(b) Performance Obligations. The Company shall have performed and
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complied with all agreements and conditions herein required to be performed
or complied with on or before the Closing.
(c) Legal Investment. On the Closing Date, the issuance and sale of
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the Stock shall be legally permitted by all laws and regulations to which
the Purchaser and the Company are subject.
(d) Consents, Permits, and Waivers. The Company shall have obtained
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any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by this Agreement and the
other Documents (except for such as may be properly obtained subsequent to
the Closing).
(e) Corporate Documents. The Company shall have delivered to the
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Purchaser or its counsel, copies of all corporate documents of the Company
as the Purchaser shall reasonably request.
(f) Compliance Certificate. The Company shall have delivered to the
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Purchaser a certificate, executed by the President of the Company, dated
the Closing Date, to the effect that the conditions specified in
subsections (a), (b) and (d) of this Section 3.1 have been satisfied.
(g) Other Agreements. The Registration Rights Agreement shall have
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been executed and delivered by the Company.
3.2 Conditions to the Obligations of the Company
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The obligations of the Company to issue and sell the Stock to the
Purchaser at the Closing shall be subject to the satisfaction or waiver of each
of the following conditions on or before the Closing Date:
(a) Representations and Warranties True. The representations and
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warranties made by the Purchaser in Section 5 hereof shall be true and
correct in all material respects as of the Closing Date with the same force
and effect as if they had been made as of the Closing Date.
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(b) Performance of Obligations. The Purchaser shall have performed
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and complied with all agreements and conditions herein required to be
performed or complied with by the Purchaser on or before the Closing.
(c) Legal Investment. On the Closing Date, the sale and issuance of
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the Stock shall be legally permitted by all laws and regulations to which
the Purchaser and the Company are subject.
(d) Consents, Permits, and Waivers. The Purchaser shall have obtained
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any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by this Agreement and the
other Documents (except for such as may be properly obtained subsequent to
the Closing).
(e) Corporate Documents. The Purchaser shall have delivered to the
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Company or its counsel, copies of all corporate documents of the Purchaser
as the Company shall reasonably request.
(f) Compliance Certificate. The Purchaser shall have delivered to the
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Company a certificate, executed by the President of the Purchaser dated the
Closing Date, to the effect that the conditions specified in subsections
(a), (b) and (d) of this Section 3.2 have been satisfied.
(g) Other Agreements. The Registration Rights Agreement shall have
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been executed and delivered by the Purchaser. The Purchaser also shall have
executed and delivered an agreement to be bound by the terms and provisions
of the Stockholders Agreement applicable to "Other Stockholders" (as
defined therein) in a form reasonably acceptable to the Company.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company represents and warrants to the Purchaser, as follows:
4.1 Corporate Existence and Power
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The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation. The
Company has all corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted,
except where the failure to have such licenses, authorizations, consents and
approvals would not constitute a Material Adverse Effect. The Company is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where the character of the property owned or leased by it or
the nature of its activities make such qualification necessary to carry on its
business as now conducted, except where the failure to be so qualified would not
constitute a Material Adverse Effect.
4.2 Corporate Authorization
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The execution, delivery and performance by the Company of this
Agreement and the other Documents, and the consummation by the Company of the
transactions contemplated
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hereby and thereby are within its corporate powers and have been duly authorized
by all necessary corporate action on its part. Except as set forth on the
Disclosure Schedule, no other corporate proceedings on the part of the Company,
or proceedings or approvals by their respective stockholders, are necessary to
authorize (i) the execution and delivery by the Company of this Agreement and
the other Documents, (ii) the consummation of the transactions contemplated
hereby and thereby by the Company or (iii) the performance of the obligations of
the Company hereunder or thereunder. This Agreement and each of the other
Documents constitutes a valid and binding obligation of the Company enforceable
against it in accordance with its respective terms (i) except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect relating to or affecting creditors' rights generally,
including the effect of statutory and other laws concerning fraudulent
conveyances and preferential transfers, and (ii) subject to the limitations
imposed by general equitable principles (regardless of whether such
enforceability is considered in proceeding at law or in equity).
4.3 Governmental Authorization
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The execution, delivery and performance by the Company of this
Agreement and any other document contemplated hereby require no action by or in
respect of, or consent or approval of, or filing with, any federal, state or
foreign governmental body, agency, official or authority other than:
(a) compliance with any applicable requirements of federal or state
securities laws; and
(b) any such action or filing as to which the failure to make or
obtain would not singly or in the aggregate constitute a Material Adverse
Effect.
4.4 Non-contravention
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Except as set forth on the Disclosure Schedule, the execution,
delivery and performance by the Company of this Agreement and the other
Documents contemplated hereby do not and will not (i) contravene or conflict
with the articles of incorporation or bylaws of the Company, (ii) assuming
compliance with the matters referred to in Section 4.3, contravene or conflict
with or constitute a violation of any provision of any law, statute, rule,
regulation, judgment, injunction, writ, order, award or decree binding upon or
applicable to the Company, (iii) with or without the giving of notice or the
lapse of time, or both, constitute a default under or give rise to any right of
termination, cancellation or acceleration of any right or obligation of the
Company, or to a loss of any benefit to which the Company is entitled, under any
provision of any agreement, contract or other instrument binding upon the
Company or (iv) result in the creation or imposition of any lien on any asset of
the Company, except, in the case of clauses (ii) and (iii), for any such
contravention, conflict, violation, default, termination, cancellation,
acceleration or loss that would not constitute a Material Adverse Effect.
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4.5 Capitalization
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The authorized capital stock of the Company, immediately prior to the
Closing, will consist of:
(a) (i) 20,000,000 shares designated as Class A common stock, no par
value, of which 9,101,860 shares are issued and outstanding, 955,000 shares
are reserved for issuance pursuant to the Company's 1999 Stock Option Plan
and 720,000 are reserved for issuance pursuant to warrants issued pursuant
to the Securities Purchase Agreement; (ii) 1,350,000 shares designated as
Class B common stock, no par value, none of which are issued and
outstanding but all of which are reserved for issuance pursuant to a
warrant granted to G Trademark, Inc., a wholly owned subsidiary of The
Limited and (iii) 2,000,000 shares designated as preferred stock, no par
value, none of which are issued and outstanding or reserved for issuance.
(b) All outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable.
When issued in compliance with the provisions of this Agreement, the shares
of Stock to be issued and sold to the Purchaser will be validly issued,
fully paid and non-assessable, and will be free and clear of any liens and
encumbrances created by or imposed upon the Purchaser; provided, however,
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that the Stock may be subject to restrictions on transfer: (i) as set forth
in the Stockholders Agreement, (ii) under the federal and/or state
securities laws as set forth herein or (iii) as otherwise required by such
laws at the time the transfer is proposed.
(c) Except as set forth in this Section 4.5 or on the Disclosure
Schedule, and as contemplated by this Agreement or the other Documents,
there are no outstanding (i) shares of capital stock or voting securities
of the Company, (ii) securities of the Company convertible into or
exchangeable for shares of capital stock or voting securities of the
Company or (iii) options or other rights to acquire from the Company, or
other obligation of the Company to issue, any capital stock, voting
securities or securities convertible into or exchangeable for capital stock
or voting securities of the Company (the items in clauses (c)(i), (c)(ii)
and (c)(iii) of this Section 4.5 being referred to collectively as the
"Company Securities"). There are no outstanding obligations of the Company
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to repurchase, redeem or otherwise acquire any Company Securities.
4.6 Transaction Agreement
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The representations and warranties made by The Limited pursuant to
Article 3 of the Transaction Agreement dated as of May 3, 1999 (the "Transaction
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Agreement") among ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, The Limited and the Company, attached hereto
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as Annex C, were true and correct in all material respects when made and as of
the closing under the Transaction Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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The Purchaser represents and warrants to the Company that:
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5.1 Purchase for Own Account
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The Purchaser is purchasing the Stock to be purchased by it solely for
its own account and not as nominee or agent for any other Person and not with a
view to, or for offer or sale in connection with, any distribution thereof
(within the meaning of the Securities Act) that would be in violation of any
federal or state securities law, without prejudice, however, to its right at all
times to sell or otherwise dispose of all or any part of said Stock pursuant to
a registration statement under the Securities Act or pursuant to an exemption
from the registration requirements of the Securities Act, and subject,
nevertheless, to the disposition of its property being at all times within its
control.
5.2 Accredited Investor
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The Purchaser is knowledgeable, sophisticated and experienced in
business and financial matters; and it acknowledges that the Stock has not been
registered under the Securities Act and understands that the Stock must be held
indefinitely unless it is subsequently registered under the Securities Act or
such sale is permitted pursuant to an available exemption from such registration
requirement; it is able to bear the economic risk of its investment in the Stock
and is presently able to afford the complete loss of such investment; it is an
"accredited investor" as defined in Regulation D promulgated under the
Securities Act; and it has been afforded access to information about the Company
and its financial condition and business sufficient to enable it to evaluate its
investment in the Stock.
5.3 Organization and Existence
--------------------------
The Purchaser is a limited partnership duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization.
5.4 Authorization
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The Purchaser has taken all actions necessary to authorize it to (i)
execute, deliver and perform all of its obligations under this Agreement and the
other Documents and (ii) consummate the transactions contemplated hereby and
thereby. This Agreement and each of the other Documents is a legally valid and
binding obligation of the Purchaser enforceable against it in accordance with
its terms, except for (a) the effect thereon of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting the
rights of creditors generally and (b) limitations imposed by federal or state
law or equitable principles upon the specific enforceability of any of the
remedies, covenants or other provisions thereof and upon the availability of
injunctive relief or other equitable remedies.
5.5 Transfer Restrictions
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The Purchaser acknowledges and agrees that the Stock is subject to
restrictions on transfer as set forth in the Stockholders Agreement.
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6. TERMINATION
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6.1 Grounds for Termination
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This Agreement may be terminated at any time prior to the Closing:
(a) by mutual written agreement of the Company and the Purchaser;
(b) by any party if the Closing shall not have been consummated by
November 30, 1999; provided, however, that no party may terminate this
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Agreement pursuant to this clause if the Closing shall not have been
consummated by November 30, 1999 by reason of the failure of such party or
any of its Affiliates to perform in all material respects any of its or
their respective covenants or agreements contained in this Agreement; or
(c) by any party if there shall be any law or regulation that makes
consummation of the transactions contemplated hereby illegal or otherwise
prohibited or if consummation of the transactions contemplated hereby would
violate any non-appealable final order, decree or judgment of any court or
governmental body having competent jurisdiction.
The party desiring to terminate this Agreement pursuant to clauses
(a)(ii) or (a)(iii) of this Section 6.1 shall give notice of such termination to
the other parties.
6.2 Effect of Termination
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In the event of such termination, this Agreement shall thereafter
become void and have no effect, and no party hereto shall have any liability to
the other parties hereto or their respective stockholders or directors or
officers in respect hereof, except for the obligations of the parties hereto in
Sections 2.2(d) and 8.15, and except that nothing herein will relieve any party
from liability for misrepresentation under or any breach of this Agreement prior
to such termination or be deemed to constitute a waiver of any available remedy
therefor.
7. OBLIGATION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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7.1 Indemnification
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby agrees that, if, and only if, it receives any
indemnification payment from The Limited pursuant to Article 12 of the
Transaction Agreement (an "Indemnification Payment"), it shall pay to the
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Purchaser 9.5% of such Indemnification Payment net of expenses incurred by
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in connection therewith.
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8. MISCELLANEOUS
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8.1 Rules of Construction
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Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) words in the singular include the plural, and words in the plural
include the singular;
(d) provisions apply to successive events and transactions;
(e) words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
(f) "herein," "hereof," "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular
Section or other subdivision; and
(g) references to the "best of the knowledge" of, or words of similar
import in this Agreement shall refer to the knowledge of a
Responsible Officer of the Company or the Purchaser, as the case
may be, after due inquiry.
8.2 Notices
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All notices and other communications provided for or permitted
hereunder shall be made by hand-delivery, first-class mail, telex, telecopier,
or overnight air courier guaranteeing next day delivery:
(a) if to the Company, to ▇▇▇▇▇▇'▇ Trading Company, Inc., ▇▇▇▇ ▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Chief Executive Officer, with a copy to O'Melveny & ▇▇▇▇▇ LLP,
Citicorp Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.;
(b) if to the Purchaser to Benchmark Capital Partners IV, L.P., ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, Telecopy No. (650) 854-
8183, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; or
(c) or to such other address or telecopy number and with such other
copies, as such party may hereafter specify for the purpose by notice to
the other parties.
Each such notice, request or other communication shall be effective
(i) if given by telecopy, when such telecopy is transmitted to the telecopy
number specified in this Section 8.2 and evidence of receipt is received or (ii)
if given by any other means, upon delivery or refusal of delivery at the address
specified in this Section 8.2.
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8.3 Survival
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The representations and warranties made herein shall survive the
Closing indefinitely, except for those contained in Section 4.6 which shall not
survive the Closing.
8.4 Amendments; No Waiver
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(a) Any provision of any Document may be amended or waived prior to
the Closing Date if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by the parties hereto, or in the
case of a waiver, by the party against whom the waiver is to be effective.
After the Closing, except as expressly stated therein, any such Document
may be amended only if such amendment is in writing and signed by all
parties thereto.
(b) No failure or delay by any party in exercising any right, power
or privilege under any Document shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
8.5 Successors and Assigns
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This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties, provided that the Purchaser may
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not assign, delegate or transfer any of its rights or obligations hereunder
without the consent of the Company.
8.6 Counterparts
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This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument, and all of which taken together shall
constitute one and the same agreement.
8.7 Headings
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The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
8.8 Governing Law
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This Agreement shall be construed in accordance with and governed by
the laws of the State of California (without regard to the choice of law
provisions thereto).
8.9 Jurisdiction
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Any suit, action or proceeding seeking to enforce any provision of, or
based on any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby may be brought against any of the parties in
the United States District Court for the Southern District of New York or any
state court sitting in the City of New York, Borough of
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Manhattan, and each of the parties hereby consents to the exclusive jurisdiction
of such court (and of the appropriate appellate courts) in any such suit, action
or proceeding and waives any objection to venue laid therein. Process in any
such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the State of New York. Without limiting the
foregoing, the parties agree that service of process upon such party at the
address referred to in Section 8.2, together with written notice of such service
to such party, shall be deemed effective service of process upon such party.
8.10 Waiver of Jury of Trial
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EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
8.11 Captions
--------
The captions herein are included for convenience of reference only
and shall be ignored in the construction of interpretation hereof.
8.12 Entire Agreement
----------------
This Agreement, together with the other Documents, (and any agreement
between the Company and the Purchaser relating to transfers), is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein and therein. This Agreement,
together with the other Documents, supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
8.13 Severability
------------
In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected, it being
intended that the Purchaser's rights and privileges shall be enforceable to the
fullest extent permitted by law.
8.14 Further Assurances
------------------
Each party shall at its cost and expense, upon request of any other
party, duly execute and deliver, or cause to be duly executed and delivered, to
such other party such further instruments and do or cause to be done such
further acts as may be necessary or proper in the reasonable opinion of such
other party to carry out more effectually the provisions and purposes of this
Agreement and the other Documents.
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8.15 Confidentiality
---------------
Should the Purchaser receive confidential information regarding the
Company hereunder or under any other Document, the Purchaser shall hold such
information in strict confidence, unless compelled to disclose it by judicial or
administrative process or, in the opinion of counsel, by other requirements of
law (except to the extent that such information can be shown to have been (i)
previously known to the Purchaser, (ii) in the public domain through no fault of
the Purchaser, or (iii) later lawfully acquired from other sources by the
Purchaser to which it was furnished; provided, however, that the Purchaser may
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disclose such information to any Affiliate, or to any other Person in connection
with a possible sale of any of the Stock if such Person agrees in writing to
keep such information confidential substantially in accordance with the terms
hereof). The Purchaser shall be deemed to have satisfied its obligation to hold
confidential information received hereunder if it exercised the same care as it
takes to preserve confidentiality with respect to its own similar information
and the same care financial institutions customarily take for similar
information.
[END]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties set forth below as of the date first written above.
THE COMPANY:
▇▇▇▇▇▇'▇ TRADING COMPANY, INC.,
an Indiana corporation
By:
--------------------------------
Name:
Title:
S-1
PURCHASER:
BENCHMARK CAPITAL PARTNERS IV, L.P.
as nominee for
Benchmark Capital Partners IV, L.P.
Benchmark Founders' Fund IV, L.P.
Benchmark Founders' Fund IV-A, L.P.
and related individuals
By: Benchmark Capital Management Co. IV, L.L.C.
Its: General Partner
By:
--------------------------------
Name:
---------------------------
Title: Managing Member
S-2
INDEMNIFYING PARTY (for purposes of Section 7.1 of this Agreement only):
FS EQUITY PARTNERS IV, L.P.,
a Delaware limited partnership
By: FS CAPITAL PARTNERS, LLC
Its: General Partner
By:
--------------------------------
Name:
---------------------------
Title: Managing Member
S-3