Exhibit 10.1
STOCK REPURCHASE
AGREEMENT
THIS STOCK REPURCHASE
AGREEMENT (the “
Agreement ”) is made as of the 19th day of December,
2006, by and among Alloy, Inc. , a Delaware corporation (the
“ Company ”), and Matthew L. Feshbach (“
Feshbach ”) and certain entities controlled by
Feshbach as listed on Schedule I hereto (each, a “
Stockholder ” and collectively, the “
Stockholders ”).
WHEREAS , the Stockholders currently own shares of
common stock, $0.01 par value per share, of the Company (“
Common Stock ”);
WHEREAS , the Stockholders desire for the Company to
repurchase such number of shares of Common Stock owned by the
Stockholders as set forth on Schedule I hereto (hereinafter, the
“ Shares ”) upon the terms set forth
herein;
WHEREAS , subject to the terms set forth herein, the
Company wishes to repurchase the Shares; and
WHEREAS , effective as of the date hereof, Feshbach has
resigned as a director of the Company.
NOW, THEREFORE
, in consideration of the mutual
covenants herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as
follows:
1. Repurchase of the Shares and
Restricted Shares. The Company hereby repurchases from each
Stockholder, and each Stockholder hereby sells, transfers and
conveys to the Company, the number of Shares set forth opposite
such Stockholder’s name on Schedule I hereto (with respect to
each Stockholder, such “ Stockholder’s Shares
”) at a price per share equal to $10.50 for an aggregate
purchase price of ten million dollars and fifty cents
($10,000,000.50) (the “Purchase Price”). Further,
pursuant to those certain restricted stock agreements executed by
the Company and Feshbach, the Company hereby elects to repurchase
from Feshbach, and Feshbach hereby sells, transfers and conveys to
the Company, 6,248 shares of restricted stock granted by the
Company to Feshbach in connection with his services as a board
member of the Company which rights of repurchase by the Company
with respect to such shares has not yet lapsed as of the date
hereof (the “ Restricted Shares ”) at an
aggregate price per share equal to $0.01 (the “ Restricted
Share Purchase Price ”).
2. Settlement.
(a) The repurchase and sale of the
Stockholder’s Shares will take place on the date hereof and
shall be settled by use of the Deposit/Withdrawal at Custodian
(“ DWAC ”) system on Tuesday, December 26,
2006 on which date (i) Stockholder will by 10 AM EST place
for
withdrawal the Stockholder’s Shares by the
Company’s transfer agent American Stock Transfer &
Trust Company (“AST”), DWAC Account # 2941, and
(ii) Company will deliver instructions to AST to withdraw the
Stockholder’s Shares. Upon confirmation that the
Stockholder’s Shares have been received by AST, Company pay
shall pay the Purchase Price and the Restricted Purchase Price by
issuing a wire to the Stockholder in accordance with the
instructions set forth on Exhibit A for the Purchase Price For
purposes of this Agreement, the term “ Business Day
” means any day other than a Saturday, Sunday or other day
that is a statutory holiday under the federal laws of the United
States or the laws of the State of New York.
(b) On the date hereof, the Company
shall take action to repurchase the Restricted Shares, including
without limitation, delivering instructions to Merrill Lynch, the
Company’s stock plan administrator to cancel the Restricted
Shares, and the Company will pay to Feshbach the Restricted Share
Purchase Price therefor by check to be mailed to Feshbach at the
address set forth on Exhibit A.
3. Representations and Warranties of
the Stockholders. The Stockholders, jointly and severally,
represent and warrant to the Company as follows:
(a) Organization and Standing of the
Stockholders. Each Stockholder (if not an individual) is duly
organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation or organization and has full
corporate power and authority to conduct its business as presently
conducted and to own such Stockholder’s Shares and, with
respect to Feshbach, the Restricted Shares.
(b) Ownership of Shares. Each
Stockholder is the record and beneficial owner of such
Stockholder’s Shares and, with respect to Feshbach, the
Restricted Shares, free and clear of any liens, encumbrances,
security interests or restrictions on transfer and has good,
marketable and unencumbered title to such Stockholder’s
Shares and, with respect to Feshbach, the Restricted Shares, and
full legal right, power and authority to enter into this Agreement
and to sell, transfer, convey, assign, and deliver such
Stockholder’s Shares and, with respect to Feshbach, the
Restricted Shares, pursuant to this Agreement.
(c) Authority for Agreement. The
execution and delivery of this Agreement by each Stockholder, and
the consummation by each Stockholder of the transactions
contemplated hereby, have been duly authorized by all necessary
corporate or similar action on the part of such Stockholder (if not
an individual). This Agreement has been duly executed and delivered
by each Stockholder, and constitutes a valid and binding obligation
of each Stockholder, enforceable against each Stockholder in
accordance with its terms.
(d) Conflicts. Neither the execution
and delivery of this Agreement, the consummation of the
transactions contemplated hereby, or the compliance with the
provisions hereof by each Stockholder, will conflict with or result
in any breach of any terms, conditions or provisions of, or
constitute a default under, or require a consent or waiver under,
the organizational documents of any Stockholder (if not an
individual) or any agreement to which any Stockholder is a party or
by which any Stockholder or any of its properties or assets are
subject or bound, or violate any judgment, order, statute, rule,
regulation or other provision of law applicable to any
Stockholder.
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(e) Litigation. There is no action,
proceeding or investigation pending or, to the knowledge of the
Stockholders, threatened against any Stockholder, or any basis
therefor known to any Stockholder, which questions the validity or
legality, or otherwise relates to, this Agreement or any of the
transactions contemplated hereby.
(f) Consents. No consent, approval,
order or authorization of, or registration, qualification,
designation, declaration or filing with, any person, entity or
governmental authority is required on the part of any Stockholder
in connection with the execution and delivery of this Agreement, or
the repurchase of any Stockholder’s Shares and, with respect
to Feshbach, the Restricted Shares, or the other transactions as
contemplated by this Agreement.
(g) Experience and Knowledge. Each
Stockholder acknowledges and agrees that it (i) has extensive
knowledge and experience in financial and business matters,
(ii) has had access to all information as to the Company as
any Stockholder has desired, (iii) has made its own inquiry
and investigation into, and, based thereon, has formed an
independent judgment concerning, the operations of the Company and
its business and (iv) has received sufficient and satisfactory
answers to all questions posed to the Company to evaluate the
merits and risks of the transactions contemplated by this
Agreement.
(h) Disclosure. The Stockholder
represents that it has no knowledge of a material fact about the
operations, affairs, condition or prospects of the business or the
financial condition of the Company that has not been disclosed to
the Company.
4. Representations and Warranties of
the Company. The Company represents and warrants to each
Stockholder as follows:
(a) Organization and Standing of the
Company. The Company is duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation
and has full corporate power and authority to conduct its business
as presently conducted.
(b) Authority for Agreement. The
execution and delivery of this Agreement by the Company, and the
consummation by the Company of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action
on the part of the Company. This Agreement has been duly executed
and delivered by the Company, and constitutes a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms.
(c) Conflicts. Neither the execution
and delivery of this Agreement, the consummation of the
transactions contemplated hereby, or the compliance with the
provisions hereof by the Company, will conflict with or result in
any breach of any terms, conditions or provisions of, or constitute
a default under, or require a consent or waiver under, the
organizational documents of the Company or any agreement to which
the Company is a party or by which Company or any of its properties
or assets are subject or bound, or violate any judgment, order,
statute, rule, regulation or other provision of law applicable to
the Company.
(d) Litigation. There is no action,
proceeding or investigation pending or, to the knowledge of the
Company, threatened against the Company, or any basis therefor
known to the
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Company, which questions the validity or
legality, or otherwise relates to, this Agreement or any of the
transactions contemplated hereby.
(e) Consents. No consent, approval,
order or authorization of, or registration, qualification,
designation, declaration or filing with, any person, entity or
governmental authority is required on the part of the Company in
connection with the execution and delivery of this Agreement or the
consummation of the transactions as contemplated by this Agreement,
other than applicable securities law filings.
(f) Disclosure. The Company
represents that it has no knowledge of a material fact about the
operations, affairs, condition or prospects of the business or the
financial condition of the Company that would be required to be
disclosed to the public, but has not been so disclosed .
5. Survival of Representations,
Warranties and Covenants. All representations, warranties and
covenants contained herein shall survive the execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby.
6. Release. Each of the Stockholders
does hereby remise, release and forever discharge the Company, its
subsidiaries and affiliates, each of their respective successors
and assigns and each of the present and former stockholders,
directors, officers, employees, agents, affiliates and
representatives of each of the foregoing (each a “ Company
Released Party ”) of and from any and all actions, causes
of action, s
