Purchase Agreement / Leaseback - Internet Pictures Corp. and eBay Inc.
eBay Inc.
2145 HAMILTON AVENUE
SAN JOSE, CA 95125
PURCHASE AGREEMENT - LEASEBACK
THIS AGREEMENT dated as of September 26, 2001 by and between INTERNET
PICTURES CORPORATION, a Delaware corporation, having its principal place of
business at 1009 Commerce Park Drive, Oak Ridge, Tennessee 37830, hereinafter
called SELLER and eBay Inc. a Delaware corporation, having its principal place
of business at 2145 Hamilton Avenue, San Jose, California, 95125, hereinafter
called BUYER.
All capitalized terms used in this Agreement shall have the meanings
ascribed to them in the Visual Content Services Agreement, effective as of
September 7, 2001, Amendment No. 1 to the Visual Content Services Agreement,
effective January 1, 2001, and Amendment No. 2 to the Visual Content Services
Agreement, effective as of the date hereof, in each case by and between the
SELLER and BUYER (collectively, the "VCSA Agreement").
WITNESSETH, that in consideration of the mutual undertaking herein
contained, the parties agree as follows:
1. SALE.
SELLER agrees to sell and BUYER agrees to purchase from SELLER the
equipment listed on Schedule A-1 attached hereto and incorporated by reference
herein together with all additions, attachments, parts or accessories
incorporated or attached therein or associated therewith (referred to as the
"Equipment") in accordance with the terms and conditions specified herein. All
associated licenses to third party software resident on the Equipment (the
"Third Party Licenses") are listed on Schedule A-2.
2. PURCHASE PRICE.
BUYER shall purchase the Equipment for an amount equivalent to two million
four hundred seventy four thousand four hundred forty five dollars and no cents
($2,474,445.00). SELLER shall provide BUYER with all of the purchase
documentation associated with SELLER's purchase of the Equipment from the
vendor(s) (the "Equipment Vendor(s)"), including but not limited to the purchase
documentation, invoices, and bill of sale provided to SELLER. If SELLER has not
yet paid the Equipment Vendor(s) from whom SELLER is purchasing the Equipment,
BUYER shall pay said Purchase Price directly to the Equipment Vendor(s), unless
otherwise agreed.
3. DELIVERY.
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SELLER shall deliver and BUYER shall accept delivery of the Equipment on
the Closing Date at a location designated by BUYER prior to or on the Closing
Date. Irrespective of any other provision hereof, SELLER shall bear all risk of
damage from fire, the elements or otherwise until the full payment of the
purchase price is paid.
4. CLOSING DATE.
The Closing shall take place on September 26, 2001.
5. LEASEBACK.
This Agreement is contingent upon SELLER leasing the Equipment from BUYER
pursuant to Lease Schedule No. 1 to the Master Lease Agreement dated as of the
date hereof between SELLER, as Lessee, and BUYER, as Lessor (collectively, the
"Lease").
SELLER represents and warrants to BUYER that the Equipment has been
installed, tested, inspected and accepted by SELLER from the Equipment Vendor(s)
and that the Equipment is in good working order.
6. MAINTENANCE/WARRANTIES.
(a) SELLER warrants that either (i) the Equipment is under "new" equipment
warranty from the manufacturer or (ii) the Equipment has been continuously under
a maintenance contract and will be eligible for the manufacturer's maintenance
agreement as of the Closing Date and all Equipment is at current manufacturer
release, revision and/or engineering change levels.
(b) SELLER shall and hereby does assign to BUYER the benefit of all rights
applicable to the Equipment in connection with warranties, servicing, training,
patent and copyright indemnities and the like, including the right to use and
possess licensed products associated with the Equipment provided by the
manufacturer or Equipment Vendor(s).
7. SELLER REPRESENTATIONS.
(a) SELLER is a corporation duly existing and in good standing under the
laws of the state of its incorporation and qualified and licensed to do business
in, and is in good standing in, any state in which the conduct of its business
or its ownership of property requires that it be so qualified.
(b) SELLER is duly authorized to execute, deliver and perform its
obligations under this Agreement and all corporate actions required on its part
for the due execution, delivery and performance of the transaction contemplated
herein have been duly and effectively taken.
(c) SELLER's execution, delivery, and performance of its obligations under
this Agreement are not in conflict with nor constitute a breach of any provision
contained in
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SELLER's Certificate of Incorporation or Bylaws, nor will they constitute an
event of default under any agreement to which SELLER is a party or by which
SELLER is bound.
(d) The Equipment, together with the Third Party Licenses, constitutes all
of the materials required to operate the IPIX Technology and to provide the
Services. Each item of Equipment is owned by SELLER free and clear of any liens
and encumbrances of any kind or description. Upon purchase of the Equipment
hereunder, BUYER will acquire good and marketable title in and to the Equipment.
Each item of Equipment (i) is currently located in the State of California and
(ii) has at all times been located in the State of California during SELLER's
ownership of the Equipment. The SELLER has paid in full the Equipment Vendor(s)
from whom SELLER purchased the Equipment. At the time of SELLER's purchase of
the Equipment, SELLER paid in full all sales taxes associated with the
Equipment.
(e) Each item of Equipment is in good condition and repair (ordinary wear
and tear excepted) and is adequate and appropriate for the uses to which it is
currently being put by SELLER.
All representations and warranties herein shall survive the execution of this
Agreement and the purchase of the Equipment.
8. TITLE.
Title shall pass from SELLER to BUYER on the date BUYER tenders payment of
the purchase price. SELLER shall provide BUYER with a Bill of Sale in the form
of Schedule B attached hereto and incorporated by reference herein upon payment
of the full Purchase Price to evidence passage of title to the Equipment from
SELLER to BUYER free and clear of all claims, liens and encumbrances.
9. TAXES AND TAX BENEFITS.
SELLER hereby indemnifies and holds BUYER harmless for any sales or other
tax arising from the transaction between the Equipment Vendor and SELLER. BUYER
hereby agrees that with respect to Equipment, SELLER shall be entitled to all
the tax benefits that are afforded to an owner of equipment under the Internal
Revenue Code of 1986 (the "Code").
10. NOTICES.
Any notice provided for herein shall be in writing and sent by registered
or certified mail, postage prepaid, addressed to the party for which it is
intended at the address set forth in the first paragraph of this Agreement or to
such other address as either party shall from time to time indicate in writing,
and said notice shall be effective upon receipt or three days from the date of
mailing, whichever occurs first.
11. COVENANTS.
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(a) Upon request by BUYER, SELLER shall assist BUYER in obtaining all
licenses necessary or useful to operate the Services (including but not limited
to executing any consents and/or assignments to transfer and/or effectuate such
license(s) to BUYER for no additional incremental fees.
(b) BUYER covenants that it shall pay any applicable California sales
taxes arising from the sale of the Equipment to BUYER pursuant to this
Agreement.
12. MISCELLANEOUS.
(a) This constitutes the entire Agreement between SELLER and BUYER solely
with respect to the purchase and sale of the Equipment and no representation or
statement not contained herein shall be binding upon SELLER or BUYER as a
warranty or otherwise, unless in writing and executed by the party to be bound
thereby.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
(c) This Agreement shall be governed by and construed in accordance with
the laws of the State of California, including all matters of construction,
validity, performance and enforcement. Any disputes arising under this Agreement
may be brought in the state courts and the federal courts located in San Jose,
California, and the parties hereby consent to the personal jurisdiction and
venue of these courts.
(d) This Agreement is subject to acceptance by BUYER at its offices in San
Jose, California, and shall only become effective on the date thereof.
(e) This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original and of equal force and effect.
(f) SELLER agrees to and shall indemnify and hold BUYER harmless from and
against all claims, liens, costs, loss, expenses or damages arising out of the
breach by SELLER of its obligations or out of any misrepresentation by SELLER,
hereunder.
(g) THE PARTIES HERETO EACH HEREBY WAIVE TO THE FULLEST EXTENT PERMITTED
BY LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING UNDER OR
IN CONNECTION WITH THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and do each hereby warrant and represent that its respective signatory whose
signature appears below has been and is on the date of this Agreement duly
authorized by all necessary and appropriate corporate action to execute this
Agreement.
INTERNET PICTURES CORPORATION eBay Inc.,
AS SELLER AS BUYER
By:/s/ Donald Strickland By:/s/ Michael R. Jacobson
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Title: President and CEO Title: Vice President, Legal Affairs
Date: September 26, 2001 Date: September 26, 2001