Purchase Agreement - Compaq Computer Corp., CMGI Inc. and B2E Solutions LLC
Execution Copy
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PURCHASE AGREEMENT
dated as of
October 29, 2001
among
COMPAQ COMPUTER CORPORATION,
CMGI, INC.
and
B2E SOLUTIONS, LLC
relating to the purchase and sale
of
34,490,140 UNITS
of
B2E SOLUTIONS, LLC
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PURCHASE AGREEMENT
AGREEMENT dated as of October 29, 2001 between Compaq Computer Corporation,
a Delaware corporation ("BUYER"), CMGI, Inc., a Delaware corporation ("SELLER"),
and B2E Solutions, LLC, a Delaware limited liability company (the "COMPANY").
W I T N E S S E T H :
WHEREAS, Buyer and Seller are the sole members of the Company;
WHEREAS, Buyer and Seller, together with NaviSite, Inc., a Delaware
corporation, and AltaVista Company, a Delaware Corporation, Compaq Financial
Services Corporation, a Delaware corporation, Compaq Financial Services Company,
an unlimited liability company having a share capital formed under the laws of
Ireland, and Compaq Financial Services Canada Corporation, a corporation
incorporated under the Nova Scotia Business Corporation Act, have entered into a
transaction agreement dated as of October 29, 2001 (the "TRANSACTION
AGREEMENT");
WHEREAS, Seller has agreed to sell and Buyer has agreed to purchase
membership interests in the Company consisting of 34,490,140 Units (the
"UNITS"), on the terms and subject to the conditions set forth herein and in the
Transaction Agreement.
The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. Capitalized terms used herein without
definition have the meanings assigned to such terms in the Transaction
Agreement. The following term, as used herein, have the following meaning:
"LIEN" means, with respect to any property or asset, any mortgage, lien,
pledge, charge, security interest, encumbrance or other adverse claim of any
kind in respect of such property or asset.
"LLC AGREEMENT" shall mean the Limited Liability Company Agreement of the
Company dated as of June 9, 2000 by and between CPCG Holdings, Inc., a Delaware
corporation ("CPCG HOLDINGS"), and Seller.
"MEMBER" means each Member of the Company, as defined in the LLC Agreement.
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"SECURITYHOLDERS AGREEMENT" shall mean the Securityholders Agreement dated
as of June 8, 2000, as amended by Amendment No. 1 thereto effective as of
November 15, 2000, by and among the Company, Buyer, CPCG Holdings, Inc. and
Seller.
ARTICLE 2
Purchase And Sale
Section 2.01. Purchase And Sale. Upon the terms and subject to the
conditions of this Agreement, Seller agrees to sell to Buyer and Buyer agrees to
purchase from such Seller, the Units (the "PURCHASE"). In consideration for the
Units and for Seller's consummation of the other transactions set forth in
Section 2.01 of the Transaction Agreement (the "CMGI DEBT RESTRUCTURING"), at
the Closing, Buyer shall deliver to Seller the Notes for cancellation thereof
(together with any accrued and unpaid interest thereon), as provided herein and
in the Transaction Agreement.
Section 2.02. Conditions; Closing. The respective obligations of Buyer
and Seller to consummate the Purchase are subject to (i) the satisfaction of the
conditions to the performance of such party's obligations under the Transaction
Agreement and the simultaneous consummation of the CMGI Debt Restructuring and
(ii) the accuracy of the representations and warranties of the other party
hereunder. The closing (the "CLOSING") of the purchase and sale of the Units
hereunder, concurrently with the retirement of the Notes and the consummation of
the other transactions comprising the CMGI Debt Restructuring, shall take place
at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New
York as soon as possible, but in no event later than 10 business days after
satisfaction of the conditions set forth above, or at such other time or place
as Buyer and Sellers may agree. At the Closing,
(a) Buyer shall be and become the record and beneficial owner of the
Units and Seller shall cease to be a Member of the Company as provided in
the LLC Agreement and in Section 18-702 of the Delaware Limited Liability
Company Act, 6 Del. C. (S)(S)18-101 et seq.; and
(b) the Securityholders Agreement shall terminate and be of no further
force and effect and the parties shall have no further rights or
obligations thereunder including, without limitation, the Company shall
have no rights to the intangible assets set forth on Schedule II of the
Securityholders Agreement.
Section 2.03. Waiver of Transfer Restrictions. In furtherance of the
foregoing, each of Buyer, Seller and the Company hereby waives the application
of Section 3.9 of the LLC Agreement and Sections 3.1(a) and (b), 3.2 and 3.3 of
the Securityholders Agreement to the extent necessary to permit the consummation
of the transactions contemplated hereby.
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ARTICLE 3
Representations And Warranties Of Seller
Seller represents and warrants to Buyer as of the date hereof and as of the
Closing that:
Section 3.01. Corporate Existence And Power. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers and all material
governmental licenses, authorizations, permits, consents and approvals required
to carry on its business as now conducted, except where the failure to have such
governmental licenses, authorizations, permits, consents and approvals would not
reasonably be expected to materially impair the ability of Seller to enter into
this Agreement or to consummate the transactions contemplated hereby. Seller
has heretofore made available to Buyer true and complete copies of the
certificate of incorporation and bylaws of Seller as currently in effect.
Section 3.02. Corporate Authorization. The execution, delivery and
performance by Seller of this Agreement are within Seller's corporate powers and
have been duly authorized by all necessary corporate and stockholder action on
the part of Seller. This Agreement constitutes a valid and binding agreement of
Seller.
Section 3.03. Governmental Authorization. The execution, delivery and
performance by Seller of this Agreement require no action by or in respect of,
or filing with, any governmental body, agency, or official.
Section 3.04. Noncontravention. The execution, delivery and performance
by Seller of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) violate the certificate of
incorporation or bylaws of Seller, (ii) violate any applicable, material law,
rule, regulation, judgment, injunction, order or decree, or (iii) require any
consent or other action by any Person under, constitute a default under, or give
rise to any right of termination, cancellation or acceleration of any right or
obligation of Seller to a loss of any material benefit to which Seller is
entitled under any provision of any agreement or other instrument binding upon
Seller.
Section 3.05. Ownership Of Units. Seller is the record and beneficial
owner of the Units, free and clear of any Lien and any other limitation or
restriction (including any restriction on the right to vote, sell or otherwise
dispose of the Units), other than the transfer restrictions set forth in and
waived pursuant to Section 2.03 of this Agreement, and will transfer and deliver
to Buyer at the Closing valid title to the Units, free and clear of any Lien and
any such limitation or restriction.
Section 3.06. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of Seller threatened against or
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affecting, Seller or the Company or any of their respective properties before
any court or arbitrator or any governmental body, agency or official which in
any manner challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by this Agreement.
Section 3.07. Finders' Fees. There is no investment banker, broker,
finder or other intermediary which has been retained by or is authorized to act
on behalf of Seller who might be entitled to any fee or commission from either
Buyer or the Company in connection with the transactions contemplated by this
Agreement.
ARTICLE 4
Representations And Warranties Of Buyer
Buyer represents and warrants to Seller and the Company as of the date
hereof that:
Section 4.01. Corporate Existence And Power. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers and all material
governmental licenses, authorizations, permits, consents and approvals required
to carry on its business as now conducted, except where the failure to have such
governmental licenses, authorizations, permits, consents and approvals would not
reasonably be expected to materially impair the ability of Buyer to enter into
this Agreement or to consummate the transactions contemplated hereby.
Section 4.02. Corporate Authorization. The execution, delivery and
performance by Buyer of this Agreement are within the corporate powers of Buyer
and have been duly authorized by all necessary corporate action on the part of
Buyer. This Agreement constitutes a valid and binding agreement of Buyer.
Section 4.03. Governmental Authorization. The execution, delivery and
performance by Buyer of this Agreement require no material action by or in
respect of, or material filing with, any governmental body, agency or official.
Section 4.04. Non-Contravention. The execution, delivery and performance
by Buyer of this Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) violate the certificate of incorporation or
bylaws of Buyer, (ii) violate any applicable, material law, rule, regulation,
judgment, injunction, order or decree, or (iii) require any consent or other
action by any Person under, constitute a default under, or give rise to any
right of termination, cancellation or acceleration of any right or obligation of
Buyer to a loss of any benefit to which Buyer is entitled under any provision of
any material agreement or other instrument binding upon Buyer.
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Section 4.05. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of Buyer threatened against or
affecting, Buyer or the Company or any of their respective properties before any
court or arbitrator or any governmental body, agency or official which in any
manner challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by this Agreement.
Section 4.06. Finders' Fees. There is no investment banker, broker,
finder or other intermediary which has been retained by or is authorized to act
on behalf of Buyer who might be entitled to any fee or commission from either
Seller or any of its Affiliates upon consummation of the transactions
contemplated by this Agreement.
ARTICLE 5
Miscellaneous
Section 5.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to Buyer, to:
Compaq Computer Corporation
40 Old Bolton Road
Stow, MA 01175-1229
Attention: Paul Henrion, Esq.
Fax: (978) 496-9042
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Christopher Mayer, Esq.
Fax: (212) 450-4800
if to Seller, to:
CMGI, Inc.
100 Brickstone Square
Andover, MA 01810
Attention: General Counsel
Fax: (978) 684-3601
with a copy to:
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Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attention: Mark Borden, Esq.
Fax: (617) 526-5000
if to the Company, to:
B2E Solutions, LLC
Chasewood Technology Park
20333 SH 249 Suite 220
Houston, TX 77070
Attention: General Counsel
Fax: (281) 518-1396
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding business day in the place of receipt.
Section 5.02. Best Efforts. Subject to the terms and conditions of this
Agreement, Buyer, Seller, and the Company will use their respective best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary or desirable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement. Each of Seller,
Buyer, and the Company agrees to execute and deliver such other documents,
certificates, agreements and other writings and to take such other actions as
may be necessary or desirable in order to consummate or implement expeditiously
the transactions contemplated by this Agreement.
Section 5.03. Survival. The representations and warranties of the parties
hereto contained in this Agreement shall survive the Closing.
Section 5.04. Amendments And Waivers. (a) Any provision of this
Agreement may be amended or waived prior to the Closing if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Agreement, or in the case of a waiver, by the party against
whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder 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.
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Section 5.05. Termination. (a) This Agreement may only be terminated at
any time prior to the Closing (i) by mutual written agreement of Seller, Buyer
and the Company or (ii) by either Seller or Buyer if the Transaction Agreement
shall have been terminated pursuant to its terms. The party desiring to
terminate this Agreement shall give notice of such termination to the other
parties.
(b) If this Agreement is terminated as permitted by Section 5.05(a),
termination shall be without liability of any party (or any stockholder,
director, officer, employee, agent, consultant or representative of such party)
to the other parties to this Agreement; provided that if such termination shall
result from the willful failure of any party to fulfill a condition to the
performance of the obligations of the other parties, failure to perform a
covenant of this Agreement or breach by any party hereto of any representation
or warranty or agreement contained herein, such party shall be fully liable for
any and all damages incurred or suffered by the other parties as a result of
such failure or breach.
Section 5.06. Successors And Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that, no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto, except that Buyer may transfer
or assign its rights and obligations contained herein relating to the purchase
of the Units to a Affiliate of Buyer.
Section 5.07. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York, without regard to
the conflicts of law rules of such state.
Section 5.08. Jurisdiction. Except as otherwise expressly provided in
this Agreement, the parties hereto agree that 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 shall be
brought in the United States District Court for the Southern District of New
York or any New York State court sitting in New York City, so long as one of
such courts shall have subject matter jurisdiction over such suit, action or
proceeding, and that any cause of action arising out of this Agreement shall be
deemed to have arisen from a transaction of business in the State of New York,
and each of the parties hereby irrevocably consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection that it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as
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provided in Section 5.01 shall be deemed effective service of process on such
party.
Section 5.09. WAIVER OF JURY TRIAL. 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.
Section 5.10. Counterparts; Third Party Beneficiaries. 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. No provision of this Agreement is intended to confer upon any Person
other than the parties hereto any rights or remedies hereunder.
Section 5.11. Entire Agreement. This Agreement together with the
Transaction Agreement constitutes the entire agreement between the parties with
respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement. No representation, inducement,
promise, understanding, condition or warranty not set forth herein or therein
has been made or relied upon by any party hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
COMPAQ COMPUTER CORPORATION
By: /s/ Ben Wells
---------------------------------
Name: Ben Wells
Title: VP, Corporate Treasurer
CMGI, INC.
By: /s/ George A. McMillan
---------------------------------
Name: George A. McMillan
Title: CFO
B2E SOLUTIONS, LLC
By: /s/ Mia Shernoff
---------------------------------
Name: Mia Shernoff
Title: Chief Executive Officer
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