Exhibit 10.1
Execution Version
NOTE PURCHASE
AGREEMENT
THIS NOTE PURCHASE AGREEMENT, dated
October 25, 2005 (the “Agreement”), is by and
among Langley Partners, L.P., Bear Stearns Securities Corp.
Custodian for Jeffrey Thorp IRA Rollover, JMG Capital Partners, LP
and JMG Triton Offshore Fund, Ltd (collectively, the
“Sellers”) and Internet Capital Group, Inc., a Delaware
corporation (the “Purchaser”). The Sellers and the
Purchaser are sometimes referred to herein individually as a
“Party” and collectively as the
“Parties.”
Background
A. Pursuant to a Securities Purchase
Agreement, dated as of March 31, 2004 (the “Securities
Purchase Agreement”), by and among the Purchaser and the
initial holders of the Senior Convertible Notes issued thereunder,
the Sellers each acquired a Senior Convertible Note, as amended,
made by the Purchaser in favor of each of the Sellers (the
“Senior Convertible Notes”).
B. Subsequent to the closing of the
issuance of the Senior Convertible Notes, each of the Sellers
acquired additional Senior Convertible Notes from other holders
thereof.
C. As of the date hereof, each of
the Sellers currently holds Senior Convertible Notes in the
principal amounts set forth opposite such Seller’s name on
Schedule 1 attached hereto under the heading
“Principal Amount Currently Owned”.
D. The Sellers desire to sell to the
Purchaser, and the Purchaser desires to purchase from the Sellers,
the Purchaser’s Senior Convertible Notes in an aggregate
principal amount of $20,000,000.00 (twenty million dollars) 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 Sellers will,
severally and not jointly, transfer and sell to the Purchaser, and
the Purchaser will purchase from each of the Sellers,
$20,000,000.00 (twenty million dollars) 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 $24,746,575.37 (twenty four
million seven hundred thirty-five thousand six hundred sixteen
dollars and forty-three cents) (the “Purchase
Price”). To effectuate the foregoing, each
Seller will, severally and not jointly, transfer and sell to the
Purchaser, and the Purchaser will purchase from each of the
Sellers, the principal amount of Senior Convertible Notes set forth
opposite such Seller’s name on Schedule 1 attached
hereto under the heading “Principal Amount to be
Purchased” for the purchase price set forth opposite such
Seller’s name on Schedule 1 attached hereto under the
heading “Purchase Price”.
1.2. Closing . The purchase
and sale of the Purchased Notes shall take place upon the execution
of this Agreement and 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 Sellers 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 each Seller on Schedule II
attached hereto. The Purchaser shall reissue to each Seller a
replacement note for the balance of the principal amount of such
Seller’s Senior Convertible Note not being purchased
hereunder which amount is set forth opposite such Seller’s
name on Schedule 1 attached hereto under the heading
“Principal Amount of Replacement Note”.
ARTICLE II
REPRESENTATIONS AND
WARRANTIES
OF THE SELLERS
2.1. Representations and
Warranties of the Sellers . Each Seller hereby, severally and
not jointly, represents and warrants to the Purchaser and with
respect only to itself as follows:
(a) Such 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) Such 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 such Seller’s Purchased Note, and this Agreement
constitutes the legal, valid and binding obligation of such Seller,
enforceable against such Seller in accordance with the terms
hereof, except as such enforceability may be limited by
(i) general principles of equity or to 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 such Seller or (ii) any applicable laws or
orders, regulations, rules or requirements of a court,
public
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body or authority by which such 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 such Seller to perform its obligations
hereunder.
(d) Such Seller is the sole
beneficial owner of the Purchased Note to be sold by such 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.
(e) Such 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 such
Seller to perform its obligations hereunder.
(f) Upon delivery to the Purchaser
at the Closing of such Seller’s Purchased Note 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.
ARTICLE III
REPRESENTATIONS, WARRANTIES
AND
COVENANTS OF THE
PURCHASER
3.1. Representations, Warranties
and Covenants of the Purchaser . The Purchaser represents and
warrants to, and covenants and agrees with, the Sellers
that:
(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 Sellers, 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 to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation and other
similar
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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.
(f) Other than with respect to the
purchase of the Purchased Notes contemplated by this Agreement, the
Purchaser confirms that (i) it has not provided any of the
Sellers or their counsel with any information that constitutes or
might constitute material, nonpublic information and that
(ii) no such information exists. All reports required to be
filed by the Purchaser under the Securities Exchange Act of 1934,
as amended, do not contain any untrue statement of material fact or
omit to state a material fact necessary in order to make the
statements made therein, in the light of the circumstances under
which they were made, not misleading. The Purchaser acknowledges
and agrees that no Seller makes or has made any representations or
warranties with respect to the transactions contemplated hereby
other than those specifically set forth in Article II of this
Agreement. The Purchaser understands and confirms that each of the
Sellers will rely on the foregoing representations in effecting
transactions in securities of the Purchaser.
(g) The Purchaser confirms that
nothing in this Agreement shall relieve or amend any of the
Seller’s rights with respect to any Senior Convertible Notes
owned by such Seller (or acquired by such Seller after the date
hereof) including any rights arising under the Securities Purchase
Agreement or any Transaction Document (as defined in the Securities
Purchase Agreement).
ARTICLE IV
CONDITIONS TO
CLOSING
4.1. Conditions to the
Sellers’ Obligations . The obligations of the Sellers
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 Sellers pursuant to
Section 1.3 hereof.
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(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
