Exhibit 10.2
NOTE PURCHASE
AGREEMENT
THIS NOTE PURCHASE AGREEMENT, dated
February 12, 2007 (the “Agreement”), is by and
between Sonoma Capital, LP (the “Seller”) and Internet
Capital Group, Inc., a Delaware corporation (the
“Purchaser”). The Seller and the Purchaser are
sometimes referred to herein individually as a “Party”
and collectively as the “Parties.”
Background
A. As of the date hereof, the Seller
currently holds Purchaser’s 5% Senior Convertible Notes due
2009 (the “Senior Convertible Notes”) in the principal
amount of $4,000,000.
B. The Seller desires to sell to the
Purchaser, and the Purchaser desires to purchase from the Seller,
all of the Purchaser’s Senior Convertible Notes held by
Seller on the terms and conditions contained herein.
Terms
In consideration of the mutual
covenants contained herein and intending to be legally bound
hereby, the Parties hereto agree as follows:
ARTICLE I.
PURCHASE AND SALE; PURCHASE
PRICE; CLOSING
1.1. Purchased Notes .
Subject to the terms and conditions hereof, the Seller shall
transfer and sell to the Purchaser, and the Purchaser shall
purchase from the Seller, four million dollars ($4,000,000)
aggregate principal amount of the Senior Convertible Notes plus all
accrued and unpaid interest thereon (the “Purchased
Notes”) for an aggregate purchase price equal to the sum of
(i) five million five hundred and eighty thousand ($5,580,000)
and (ii) all accrued and unpaid interest on the Purchased
Noted through the Closing Date (the “Purchase
Price”).
1.2. Closing . The purchase
and sale of the Purchased Notes shall take place immediately
following satisfaction of all the conditions to closing set forth
in Article IV (the “Closing” and the date of the
Closing, the “Closing Date”).
1.3. Purchase Price . At the
Closing, the Seller shall deliver to the Purchaser the Purchased
Notes, along with duly executed note powers, against delivery by
the Purchaser of the Purchase Price. The cash amount due at Closing
shall be paid by wire transfer of immediately available funds to
the account or accounts designated by the Seller on Schedule
I attached hereto.
ARTICLE II.
REPRESENTATIONS AND
WARRANTIES
OF THE SELLER
2.1. Representations and
Warranties of the Seller . The Seller hereby represents and
warrants to the Purchaser as follows:
(a) The Seller has full corporate,
partnership, limited liability company or similar power and
authority, as the case may be, to make, execute, deliver and
perform this Agreement and to carry out all of the transactions
provided for herein.
(b) The Seller has taken such action
as is necessary or appropriate to enable it to perform its
obligations hereunder, including, but not limited to, the sale and
transfer of the Seller’s Purchased Notes, and this Agreement
constitutes the legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with the terms hereof,
except as such enforceability may be limited by (i) general
principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies and (ii) principles of
public policy.
(c) The execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby will not violate (i) the organizational
documents of Seller or (ii) any applicable laws or orders,
regulations, rules or requirements of a court, public body or
authority by which Seller is bound, except in the case of clause
(ii), for such violations which, individually or in the aggregate,
have not had, and would not reasonably be expected to have, a
material adverse effect on the ability of Seller to perform its
obligations hereunder.
(d) Seller is the sole beneficial
owner of the Purchased Notes to be sold by Seller to the Purchaser
pursuant to this Agreement, free and clear of any and all liens,
claims, security interests, pledges, charges, equities, options,
restrictions and encumbrances of whatever nature, and the Purchased
Notes represent all of the Seller’s beneficial ownership, in
any manner, directly or indirectly, of the Purchaser’s Senior
Convertible Notes.
(e) Seller has the full legal right,
power and authority to enter into this Agreement and to perform its
obligations hereunder, without the need for the consent of any
other person or entity other than those consents which have been
obtained, except for such consents, the failure to obtain which,
individually or in the aggregate, would not reasonably be expected
to have, a material adverse effect on the ability of Seller to
perform its obligations hereunder.
(f) Upon delivery to the Purchaser
at the Closing of Seller’s Purchased Notes in accordance with
the terms hereof, the Purchaser will acquire good and valid title
to such note, free and clear of any and all liens, claims, security
interests, pledges, charges, equities, options, restrictions and
encumbrances, other than such liens, claims, security interests,
pledges, charges, equities, options, restrictions and encumbrances
that arise from acts of the Purchaser.
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ARTICLE III.
REPRESENTATIONS AND
WARRANTIES
OF THE PURCHASER
3.1. Representations and
Warranties of the Purchaser . The Purchaser represents and
warrants to the Seller as follows:
(a) The Purchaser is a corporation
validly existing and in good standing under the laws of the State
of Delaware.
(b) The Purchaser has corporate
power and corporate authority to make, execute, deliver and perform
this Agreement and to carry out all of the transactions provided
for herein.
(c) The Purchaser has taken such
action as is necessary or appropriate to enable it to perform its
obligations hereunder, including, but not limited to, the purchase
of the Purchased Notes from the Seller, and this Agreement
constitutes the legal, valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, except as such enforceability may be limited by
(i) general principles of equity or applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement
of applicable creditors’ rights and remedies and
(ii) principles of public policy.
(d) The execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby will not violate the Purchaser’s
organizational documents or any applicable laws or orders,
regulations, rules or requirements of a court, public body or
authority (including federal and state securities laws and
regulations and the rules and regulations of the Nasdaq National
Market) by which the Purchaser is bound.
(e) The Purchaser has the full legal
right, power and authority to enter into this Agreement and to
perform the Purchaser’s obligations hereunder, without the
need to obtain any consent, authorization or order of, or make any
filing or registration with, any court, governmental agency or any
regulatory or self-regulatory agency or any other person in order
for the Purchaser to execute, deliver or perform any of its
obligations under or contemplated by this Agreement, except any
such any such consents, authorizations, orders, filing or
registrations which have already been obtained or made.
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ARTICLE IV.
CONDITIONS TO
CLOSING
4.1. Conditions to the
Seller’s Obligations . The obligations of the Seller
hereunder are subject to the satisfaction on or prior to the
Closing of the following conditions:
(a) The Purchaser shall have
delivered the Purchase Price to the Seller pursuant to
Section 1.3 hereof.
(b) The representations and
warranties of the Purchaser set forth in Article III shall be true
and correct in all respects at and as of the Closing Date as though
then made, and all covenants of the Purchaser required to be
performed at or prior to the Closing shall ha
