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Exhibit 2.1
PETsMART.COM, INC.
SERIES F PREFERRED STOCK ISSUANCE AND CONTRIBUTION AGREEMENT
This Series F Preferred Stock Issuance and Contribution Agreement (this
"Agreement") is made as of December __, 2000, by and among PETsMART.com, Inc., a
Delaware corporation (the "Company"), PETsMART, Inc., a Delaware corporation
("PETM"), and PETsMART Direct, Inc., a New York corporation ("PDI" and together
with PETM, the "Contributors").
RECITALS
A. The transactions contemplated herein are intended to qualify as
transfers under section 351 of the Internal Revenue Code of 1986, as amended.
B. PETM intends to contribute $20,000,000 to the Company.
C. PDI intends to contribute limited liability company interests to the
Company.
D. PETM and the Company are concurrently entering into a Tax Sharing
Agreement.
AGREEMENT
In consideration of the mutual promises and covenants herein, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
AUTHORIZATION AND ISSUANCE OF PREFERRED STOCK
1.1 AUTHORIZATION. The Company has authorized the issuance to
the Contributors, pursuant to this Agreement, of 87,937,308 shares of its Series
F Preferred Stock, par value $0.001 per share (the "Series F Preferred"), having
the rights, preferences, privileges and restrictions as set forth in the Fourth
Amended and Restated Certificate of Incorporation in substantially the form
attached hereto as Exhibit A (the "Certificate").
1.2 CONTRIBUTIONS.
(a) PETM will contribute to the Company $10,000,000
in cash and a promissory note in the principal amount of $10,000,000.
(b) PDI will contribute all of the limited liability
company interests in PETsMART.com Catalog LLC, a newly formed Delaware limited
liability company ("PC LLC"), which the parties have agreed has a fair market
value of $10,000,000.
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1.3 ISSUANCE OF THE SERIES F PREFERRED. Subject to the terms
and conditions hereof, the Company will issue to PETM and to PDI 58,624,872 and
29,312,436 shares of Series F Preferred, respectively, in exchange for the
contributions described in Section 1.2 hereof. The shares of Series F Preferred
referred to in this Section 1.3 are hereinafter referred to as the "Issued
Shares."
SECTION 2
CLOSING DATE; DELIVERY
2.1 CLOSING DATE. It is anticipated that the contribution and
issuance of the Issued Shares hereunder shall be consummated at a closing (the
"Closing") held at the offices of Skadden, Arps, Slate, Meagher & Flom LLP
("Skadden Arps"), 300 South Grand Avenue, Los Angeles, California 90071 on
December __,2000, at 10 a.m., local time, or at such other date, time and place
upon which the Company and the Contributors shall agree (the date and time of
the closing is hereinafter referred to as the "Closing Date").
2.2 DELIVERY, PAYMENT AND CONTRIBUTION.
(a) At the Closing, the Company will deliver to PETM
a certificate or certificates, registered in PETM's name, representing
58,624,872 shares of Series F Preferred in exchange for (a) payment of
$10,000,000 (i) by check payable to the Company, (ii) by wire transfer of
immediately available funds per the Company's instructions or (iii) by any
combination of (i) and (ii) above and (b) by delivery to the Company of a
promissory note payable to the Company in the principal amount of $10,000,000,
in the form of Exhibit F attached hereto.
(b) At the Closing, the Company will deliver to PDI a
certificate or certificates, registered in PDI's name, representing 29,312,436
shares of Series F Preferred in exchange for delivery to the Company of all of
the limited liability company interest in PC LLC.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the Schedule of Exceptions (the "Schedule of
Exceptions") attached hereto as Exhibit B, the Company represents and warrants
to each Contributor that, as of the Closing:
3.1 ORGANIZATION AND STANDING; CERTIFICATE OF INCORPORATION
AND BYLAWS. The Company is a corporation duly organized and validly existing
under, and by virtue of, the laws of the State of Delaware and is in good
standing under such laws. The Company has
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requisite corporate power and authority to own and operate its properties and
assets and to carry on its business as presently conducted and as proposed to be
conducted. The Company is presently qualified to do business as a foreign
corporation in California and there is no other jurisdiction in which the
failure to be so qualified would have a material adverse effect on the business
or financial condition of the Company. The Company has made available to counsel
for the Contributors copies of the Certificate and its bylaws. Said copies are
true, correct and complete and reflect all amendments now in effect.
3.2 CORPORATE POWER. The Company has all requisite legal and
corporate power and authority to execute and deliver this Agreement, the Third
Amended and Restated Investor Rights Agreement in substantially the form
attached hereto as Exhibit C (the "Investor Rights Agreement") and the Third
Amended and Restated Voting Agreement in substantially the form attached hereto
as Exhibit D (the "Voting Agreement" and together with this Agreement and the
Investor Rights Agreement the "Investment Agreements"), to exchange and issue
the Issued Shares hereunder and thereunder, to issue the Common Stock issuable
upon conversion of the Series F Preferred (the "Conversion Shares") in
accordance with the provisions of the Certificate, and to carry out and perform
its obligations under the terms of the Investment Agreements.
3.3 SUBSIDIARIES. Except as provided in the Schedule of
Exceptions, the Company has no subsidiaries or affiliated companies and does not
otherwise own or control, directly or indirectly, any equity interest in any
corporation, association or business entity.
3.4 CAPITALIZATION. The authorized capital stock of the
Company will, upon the filing of the Certificate, consist of 200,000,000 shares
of Common Stock and 119,134,511 shares of Preferred Stock, 3,300,000 of which
have been designated Series A Preferred Stock, 1,363,636 of which have been
designated Series A-1 Preferred Stock, 1,800,000 of which have been designated
Series B Preferred Stock, 2,805,770 of which have been designated Series C
Preferred Stock, 1,209,530 of which have been designated Series C-1 Preferred
Stock, 11,863,878 of which have been designated Series D Preferred Stock,
8,854,389 of which have been designated Series E Preferred Stock and 87,937,308
of which have been designated Series F Preferred Stock. Concurrent with the
Closing, the Company's 1999 Stock Plan will be terminated. Immediately prior to
the Closing, the number of outstanding shares of the Company's capital stock
and, with respect to convertible securities, the number of shares of Common
Stock such convertible securities are convertible into, is as set forth on
Section 3.4 of the Schedule of Exceptions. Except as set forth above or in
Section 3.4 of the Schedule of Exceptions, there are no options, warrants or
other rights to purchase or acquire any of the Company's authorized and unissued
capital stock.
3.5 AUTHORIZATION. All corporate action on the part of the
Company and its directors necessary for the authorization, execution, delivery
and performance of the Investment Agreements by the Company, the authorization,
exchange, issuance and delivery of the Issued Shares and the Conversion Shares
and the performance of the Company's obligations under the
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Investment Agreements has been taken or will be taken prior to the Closing. The
Investment Agreements, when executed and delivered by the Company, shall
constitute valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable remedies; provided,
however, that the Company makes no representation as to the enforceability of
the indemnification provisions contained in the Investor Rights Agreement. The
Issued Shares when issued in compliance with the provisions of this Agreement,
will be validly issued, fully paid and nonassessable, and will have the rights,
preferences, privileges and restrictions described in the Certificate; the
Conversion Shares have been duly and validly reserved and, when issued in
compliance with the provisions of the Certificate, will be validly issued, fully
paid and nonassessable; and the Issued Shares and the Conversion Shares will be
free of any liens or encumbrances (assuming the Contributors take the Issued
Shares with no notice thereof) other than any liens or encumbrances created by
or imposed upon the holders; provided, however, that the Issued Shares and the
Conversion Shares may be subject to restrictions on transfer under state or
federal securities laws and restrictions set forth in the Investor Rights
Agreement. The issuance of the Issued Shares is not subject to any preemptive
rights or rights of first refusal which have not been complied with or waived.
3.6 PROPRIETARY RIGHTS. The Company has title and ownership
of, or full right to use, all patents, trademarks, service marks, trade names,
copyrights, trade secrets, information, proprietary rights and processes
necessary for its business as now conducted and, to the Company's knowledge,
without any conflict with or infringement of the rights of others. Other than
licenses for off-the-shelf software, or as set forth on Section 3.6 of the
Schedule of Exceptions, there are no material options, licenses, or agreements
of any kind relating to the foregoing, nor is the Company bound by or a party to
any options, licenses or agreements of any kind with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, proprietary rights and processes of any other person or entity. The
Company has not received any communications alleging that the Company has
violated or, by conducting its business as currently conducted, would violate
any of the patents, trademarks, service marks, trade names, copyrights or trade
proprietary rights of any other person or entity. To the knowledge of the
Company, none of its employees is obligated under any contract (including
licenses, covenants or commitments of any nature) or other agreement, or subject
to any judgment, decree or order of any court or administrative agency, that
would interfere with the use of his or her best efforts to promote the interests
of the Company or that would conflict with the Company's business as currently
conducted. Neither the execution and delivery of the Investment Agreements, nor
the carrying on of the Company's business by the employees of the Company, nor
the conduct of the Company's business as currently conducted, will, to the
Company's knowledge, conflict with or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any contract,
covenant or instrument under which any of such employees is now obligated. The
Company does not believe it is or will be necessary to utilize any inventions of
any of its employees (or people it currently intends to hire) made prior to
their employment by the Company.
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3.7 REGISTRATION RIGHTS. Except as set forth in the Investor
Rights Agreement and the Restricted Stock Purchase Agreement between the Company
and Medical Management International, Inc., a Delaware corporation, the Company
is not under any contractual obligation to register under the Securities Act of
1933, as amended (the "Securities Act"), any of its presently outstanding
securities or any of its securities which may hereafter be issued.
3.8 GOVERNMENTAL CONSENT, ETC. No consent, approval order or
authorization of or registration, qualification, designation, declaration or
filing with any governmental authority on the part of the Company is required in
connection with the valid execution and delivery of the Investment Agreements,
or the offer, exchange or issuance of the Issued Shares or the Conversion
Shares, or the consummation of any other transaction contemplated hereby, except
(i) the filing of the Certificate in the office of the Delaware Secretary of
State prior to the Closing and (ii) the qualification (or taking of such action
as may be necessary to secure an exemption from qualification, if available) of
the offer and exchange of the Issued Shares and the Conversion Shares under
applicable Blue Sky laws, which filings and qualifications, if required, will be
accomplished in a timely manner.
3.9 OFFERING. Subject to the accuracy of the Contributors'
representations in Section 4 hereof, the offer, exchange and issuance of the
Issued Shares and the Conversion Shares constitute transactions exempt from the
registration requirements of Section 5 of the Securities Act.
3.10 PERMITS. The Company has all franchises, permits,
licenses, and any similar authority necessary for the conduct of its business as
now being conducted by it, the lack of which could materially and adversely
affect the business, properties, or financial condition of the Company, and the
Company believes it can obtain, without undue burden or expense, any similar
authority for the conduct of its business as planned to be conducted. To its
knowledge, the Company is not in default in any material respect under any of
such franchises, permits, licenses, or other similar authority.
3.11 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in
violation of any term of the Certificate or its bylaws, or in any respect of any
term or provision of any mortgage, indenture, contract, agreement, instrument,
judgment or decree, and to its knowledge, is not in violation of any order,
statute, rule or regulation applicable to the Company, which violation
reasonably would be expected to have a material adverse effect on the Company's
business. The execution, delivery and performance of and compliance with this
Agreement, and the other Investment Agreements and the consummation of the
transactions contemplated hereby and thereby, and the issuance of the Issued
Shares and the Conversion Shares, have not resulted and will not result in any
violation of, or conflict with, or constitute a default under any such term or
provision, or result in the creation of, any mortgage, pledge, lien, encumbrance
or charge upon any of the properties or assets of the Company; and there is no
such violation or default or event which, with the passage of time or giving of
notice or both, would constitute a violation or
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default which would materially and adversely affect the business of the Company
or any of its properties or assets.
3.12 LIABILITIES. The Company has no material liabilities and,
to the best of its knowledge, knows of no material contingent liabilities,
except current liabilities incurred in the ordinary course of business which
have not been, either in any individual case or in the aggregate, materially
adverse.
3.13 LITIGATION. There is no action, suit, proceeding or
investigation pending or, to the Company's knowledge, currently threatened in
writing against the Company that questions the validity of this Agreement, or
the Investment Agreements or the right of the Company to enter into any of such
agreements, or to consummate the transactions contemplated hereby or thereby, or
which would reasonably be expected to result, either individually or in the
aggregate, in any material adverse change in the assets, condition, affairs or
prospects of the Company, financially or otherwise, or any change in the current
equity ownership of the Company, nor is the Company aware that there is any
basis for any of the foregoing. The foregoing includes, without limitation,
actions pending or, to the Company's knowledge, threatened in writing or any
basis therefor known by the Company involving the prior employment of any of the
Company's employees, their use in connection with the Company's business of any
information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers. The
Company is not a party or subject to the provisions of any order, writ,
injunction judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company currently pending or which the Company intends to initiate.
3.14 FULL DISCLOSURE. The Company has provided the
Contributors with all information requested by the Contributors in connection
with their decision to purchase the Issued Shares, including all information the
Company believes is reasonably necessary to make such investment decision.
Neither this Agreement, the exhibits hereto, the Investment Agreements nor any
other document delivered by the Company to Contributors or their attorneys or
agents in connection herewith or therewith or with the transactions contemplated
hereby or thereby, contain any untrue statement of a material fact nor, omit to
state a material fact necessary in order to make the statements contained herein
or therein not misleading. To the Company's knowledge, there are no facts which
(individually or in the aggregate) materially adversely affect the business,
assets, liabilities, financial condition, prospects or operations of the Company
that have not been set forth in the Agreement, the exhibits hereto, the
Investment Agreements, in other documents delivered to Contributors or their
attorneys or agents in connection herewith, or disclosed orally.
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SECTION 4
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTOR
Each Contributor hereby represents and warrants to the Company as
follows:
4.1 BUSINESS AND FINANCIAL EXPERIENCE. It is an accredited
investor within the meaning of Rule 501 of Regulation D promulgated under the
Securities Act. Its knowledge and experience in financial and business matters
are such that its is capable of evaluating the merits and risks of its exchange
of the Issued Shares and the Conversion Shares as contemplated by this Agreement
and the Certificate. Its financial situation is such that it can afford to bear
the economic risk of holding the Issued Shares and the Conversion Shares for an
indefinite period of time and suffer complete loss of its investment.
4.2 INVESTMENT INTENT; BLUE SKY. It is acquiring the Issued
Shares and the Conversion Shares for investment for its own account, not as a
nominee or agent, and not with a view to, or for resale in connection with, any
distribution thereof. It understands that the issuance of the Issued Shares and
the Conversion Shares has not been, and will not be, registered under the
Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends upon, among
other things, the bona fide nature of the Contributor's investment intent and
the accuracy of the Contributor's representations as expressed herein. The
Contributors' address set forth in Section 7.3 hereof represents the
Contributors' true and correct state of domicile, upon which the Company may
rely for the purpose of complying with applicable Blue Sky laws.
4.3 RULE 144. It acknowledges that the Issued Shares and the
Conversion Shares must be held indefinitely unless subsequently registered under
the Securities Act or unless an exemption from such registration is available.
It is aware of the provisions of Rule 144 promulgated under the Securities Act
which permit limited resale of shares purchased in a private placement subject
to the satisfaction of certain conditions, including, among other things, the
existence of a public market for the shares, the availability of certain current
public information about the Company, the resale occurring not less than one
year after a party has purchased and paid for the security to be sold, the sale
being effected through a "broker's transaction" or in a transaction directly
with a "market maker," and the number of shares being sold during any
three-month period not exceeding specified limitations.
4.4 NO PUBLIC MARKET. It understands that no public market now
exists for any of the securities issued by the Company and that the Company has
made no assurances that a public market will ever exist for the Company's
securities.
4.5 RESTRICTIONS ON TRANSFER; RESTRICTIVE LEGENDS. It
understands that the transfer of the Issued Shares and the Conversion Shares is
restricted by applicable state and
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Federal securities laws and by the provisions of the Investor Rights Agreement
and the Voting Agreement, and that the certificates representing the Issued
Shares and the Conversion Shares will be imprinted with legends restricting
transfer except in compliance therewith.
4.6 ACCESS TO DATA. It has had an opportunity to discuss the
Company's business, management and financial affairs with the Company's
management. It has also had an opportunity to ask questions of officers of the
Company. It understands that such discussions, as well as any written
information issued by the Company, were intended to describe the material
aspects of the Company's business and prospects but were not a thorough or
exhaustive description.
4.7 AUTHORIZATION. All action on the part of the Contributors'
partners, board of directors, members and stockholders, as applicable, necessary
for the authorization, execution, delivery and performance of the Investment
Agreements by the Contributors, the purchase of and payment for the Issued
Shares and the Conversion Shares, and the performance of all of the
Contributors' obligations under the Investment Agreements has been taken or will
be taken prior to the Closing. The Investment Agreements, when executed and
delivered by the Contributors, shall constitute valid and binding obligations of
the Contributors, enforceable in accordance with their terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies; provided, however, that the Contributors make no
representation as to the enforceability of the indemnification provisions
contained in the Investor Rights Agreement.
4.8 BROKERS OR FINDERS. The Company has not and will not
incur, directly or indirectly, as a result of any action taken by the
Contributors, any liability for brokerage or finders' fees or agents'
commissions or any similar charges in connection with this Agreement or the
transactions contemplated hereby.
4.9 TAX LIABILITY. It has reviewed with its own tax advisors
the tax consequences of the transactions contemplated by this Agreement. It
relies solely on such advisors and not on any statements or representations of
the Company or any of the Company's agents with respect to such tax
consequences. It understands that it, and not the Company, shall be responsible
for its own tax liability that may arise as a result of the transactions
contemplated by this Agreement.
4.10 LIMITED OPERATING HISTORY. It acknowledges that the
Company was incorporated on May 6, 1999 and has a limited operating history.
4.11 TAX STATUS OF PC LLC. PC LLC is disregarded as an entity
separate from PDI under Treas. Reg. Section 301.7701-3 and has been so
disregarded since its inception.
4.12 ORGANIZATION, STANDING AND POWER. PC LLC is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of
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Delaware. PC LLC is duly qualified or licensed to do business as a foreign
corporation in good standing in the State of New York.
4.13 PC LLC INTERESTS. The limited liability company interests
being contributed to the Company pursuant to this Agreement represent all of the
issued and outstanding limited liability company interests in PC LLC.
4.14 FORMATION DOCUMENTS OF PC LLC. The Company has been
provided with true and complete copies of the Certificate of Formation and the
Limited Liability Company Agreement of PC LLC and the Contribution Agreement,
dated December __, 2000, by and among PETM, PDI and PC LLC (the "Contribution
Agreement"), each of which is in full force and effect, has not been amended or
modified and no provision of which has been waived.
4.15 NO PRIOR ACTIVITIES. PC LLC has no obligations or
liabilities except those assumed by it pursuant to the Contribution Agreement.
Except for the Contribution Agreement, PC LLC has not entered into any
agreements or arrangements with any person or entity.
4.16 PC LLC MANAGER AND OFFICERS. Concurrent with the Closing,
the Manager and officers of PC LLC have resigned.
4.17 COMPLIANCE WITH OTHER INSTRUMENTS. The contribution of
the limited liability company interests pursuant to this Agreement does not
conflict with or violate the Certificate of Formation or Limited Liability
Company Agreement of PC LLC, the Contribution Agreement, or any term or
provisions of any contract, agreement, instrument, order, statute, rule or
regulation applicable to PC LLC. The execution, delivery and performance of and
compliance with this Agreement and the consummation of the transactions
contemplated hereby and thereby, and the contribution of the limited liability
company interests, have not resulted and will not result in any violation of, or
conflict with, or constitute a default under any such term or provision, or
result in the creation of, any mortgage, pledge, lien, encumbrance or charge
upon any of the properties or assets of PC LLC; and there is no such violation
or default or event which, with the passage of time or giving of notice or both,
would constitute a violation or default which would materially and adversely
affect the business of PC LLC or any of its properties or assets.
SECTION 5
CONDITIONS TO CLOSING OF THE CONTRIBUTORS
The Contributors' obligations to exchange the Issued Shares is, unless
waived in writing by the Contributors, subject to the fulfillment as of the
Closing of the following conditions:
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5.1 REPRESENTATIONS AND WARRANTIES CORRECT. The
representations and warranties made in Section 3 hereof by the Company shall be
true and correct in all material respects as of the Closing.
5.2 COVENANTS. All covenants, agreements and conditions
contained in this Agreement to be performed or complied with by the Company on
or prior to the Closing shall have been performed or complied with in all
material respects.
5.3 BLUE SKY. The Company shall have obtained all necessary
Blue Sky law permits and qualifications, or have the availability of exemptions
therefrom, required by any state for the offer and sale of the Issued Shares and
the Conversion Shares.
5.4 CERTIFICATE. The Certificate shall have been properly
filed in the office of the Delaware Secretary of State.
5.5 THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT. The
Company shall have executed and delivered the Investor Rights Agreement in
substantially the form attached hereto as Exhibit C.
5.6 THIRD AMENDED AND RESTATED VOTING AGREEMENT. The Company
and the Contributors shall have executed and delivered the Voting Agreement in
substantially the form attached hereto as Exhibit D.
5.7 COMPLIANCE CERTIFICATE. The Company shall have delivered
to the Contributors a certificate of the Company executed by the President of
the Company, dated as of the Closing Date and certifying to the fulfillment of
the conditions specified in Sections 5.1 and 5.2 of this Agreement.
5.8 LEGAL OPINION. The Contributors shall have received an
opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Company, in
substantially the form attached hereto as Exhibit E.
5.9 STOCK PLAN. The Company's Board of Directors shall have
taken action to terminate the Company's 1999 Stock Plan concurrently with the
Closing.
5.10 GUARANTY. The Company shall have executed and delivered
to the Administrative Lender a Subsidiary Guaranty substantially in the form
attached hereto as Exhibit G (the "Guaranty"). "Administrative Lender" means
Bank of America, N.A., in its capacity as Administrative Lender under the Loan
Agreement, or any successor thereto. "Loan Agreement" shall mean that certain
Fifth and Amended Restated Credit Agreement among PETsMART, Inc., certain
lenders, and Bank of America, N.A., as administrative lender, and Wells Fargo
Bank, N.A., as documentation agent.
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5.11 SECURITY AGREEMENT. The Company shall have executed and
delivered to the Administrative Lender a Security Agreement substantially in the
form attached hereto as Exhibit H (the "Security Agreement");
5.12 OTHER LOAN AGREEMENT DOCUMENTS. The Company shall have
delivered to the Administrative Lender a certificate fully executed by the
Company's secretary, dated as of the Closing Date, certifying (i) that copies of
its certificate of incorporation and bylaws attached thereto are true and
complete, and in full force and effect, without amendment except as shown; (ii)
that a copy of its resolutions authorizing execution and delivery of the
Guaranty and the Security Agreement (and all related instruments, documents, and
agreements) to which the Company is a party are true and complete, and that such
resolutions are in full force and effect, were duly adopted, have not been
amended, modified, or revoked, and constitute all resolutions adopted with
respect to the Loan Agreement and the transaction contemplated therein; and
(iii) to the incumbency, name, and signature of each officer authorized to sign
the Loan Papers (as defined in the Loan Agreement) to which the Company is a
party.
5.13 STANDSTILL AGREEMENT. Certain holders of the Company's
preferred stock shall have entered into such Standstill Agreements with PETM as
PETM deems advisable.
5.14 BOARD OF DIRECTORS. The directors of the Company shall be
Scott Crozier, Robert Moran, Neil Watanabe, Philip Francis, Barbara Fitzgerald,
Robert Kavner, Yves Sisteron, Scott Campbell and Tom McGovern, Jr.
SECTION 6
CONDITIONS TO CLOSING OF THE COMPANY
The Company's obligation to exchange and issue Issued Shares at the
Closing is, unless waived in writing by the Company, subject to the fulfillment
of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES CORRECT. The
representations and warranties made in Section 4 hereof by the Contributors
shall be true and correct in all material respects.
6.2 COVENANTS. All covenants, agreements, and conditions
contained in this Agreement to be performed or complied with by the Contributors
on or prior to the Closing shall have been performed or complied with in all
material respects.
6.3 CERTIFICATE. The Certificate shall have been filed in the
office of the Delaware Secretary of State.
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6.4 THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT. The
Contributors shall have executed and delivered the Investor Rights Agreement in
substantially the form attached hereto as Exhibit C.
6.5 THIRD AMENDED AND RESTATED VOTING AGREEMENT. The
Contributors shall have executed and delivered the Voting Agreement in
substantially the form attached hereto as Exhibit D.
6.6 INVESTMENT. The Contributors shall not have defaulted in
their obligation to contribute to the Company at the Closing (i) $10,000,000 in
cash, (ii) a promissory note in favor of the Company in principal amount of
$10,000,000 and (iii) all of the limited liability company interests in PC LLC.
6.7 CONSENTS, WAIVERS AND APPROVALS. The Company shall have
obtained all consents, waivers, approvals or similar documents required to
consummate the transactions contemplated by this Agreement (the "Approvals"),
including, without limitation, approval by the Board of Directors and the
requisite stockholders of the Company of the transactions contemplated by this
Agreement, including authorization of the Certificate, and waivers of the right
of first refusal held by various stockholders for the issuance of the Issued
Shares hereunder.
SECTION 7
MISCELLANEOUS
7.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the internal laws of the State of California without regard to
conflict of laws provisions.
7.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes
the full and entire understanding and agreement among the parties with regard to
the subjects hereof. Except as expressly provided herein, neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
7.3 NOTICES, ETC. All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed by
registered or certified mail, postage prepaid, or otherwise delivered by
facsimile transmission, by hand or by messenger, addressed:
(a) if to the Contributors, to:
PETsMART, Inc.
19601 N. 27th Avenue
Phoenix, AZ 85027
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Attn: Philip L. Francis, Chief Executive Officer
with copies to:
Cooley Godward LLP
Five Palo Alto Square
300 El Camino Road
Palo Alto, CA 94306-2155
Attn: Robert J. Brigham, Esq.
and:
PETsMART, Inc.
19601 N. 27th Avenue
Phoenix, AZ 85027
Attn: Scott Crozier, General Counsel
(b) if to the Company, to:
PETsMART.com, Inc.
35 Hugus Alley, Suite 210
Pasadena, CA 91103
Attn: Jeryl Bowers, General Counsel
Fax: (626) 817-7101
or at such other address as the Company shall have furnished to the
Contributors, with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, California 90071
Attn: Gregg A. Noel, Esq.
Fax: (213) 687-5600
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when received if
delivered personally, if sent by facsimile, the first business day after the
date of confirmation that the facsimile has been successfully transmitted to the
facsimile number for the party notified, or, if sent by mail, at the earlier of
its receipt or 72 hours after the same has been deposited in a regularly
maintained receptacle for the deposit of the United States mail, addressed and
mailed as aforesaid.
7.4 DELAYS OR OMISSIONS. Except as expressly provided herein,
no delay or omission to exercise any right, power or remedy accruing to any
party, upon any breach or default of another party under this Agreement, shall
impair any such right, power or remedy of
13
<PAGE> 14
such party nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any party, shall be cumulative and
not alternative.
7.5 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be an original, and all of which together
shall constitute one instrument.
7.6 SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision, which shall be replaced with an enforceable
provision closest in intent and economic effect as the severed provision;
provided that no such severability shall be effective if it materially changes
the economic benefit of this Agreement to any party.
7.7 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.8 SURVIVAL OF WARRANTIES. The warranties and any
representations of the Company contained in or made pursuant to this Agreement
shall survive execution and delivery of this Agreement and the Closing hereunder
for a period of one hundred eighty (180) days from the date of the Closing and
shall in no way be affected by any investigation of the subject matter thereof
made by or on behalf of the Contributors or the Company.
7.9 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, permitted assigns, heirs, executors and
administrators of the parties hereto.
7.10 FURTHER ASSURANCES. Each party hereto agrees to do all
acts and things, and to make, execute and delivery such written instruments, as
shall from time to time be reasonably required to carry out the terms and
provisions of this Agreement. Each party hereto shall file or cause to be filed
promptly any forms required under applicable laws and regulations. Each party
hereto shall execute all necessary Approvals prior to the Closing Date.
7.11 CONFIDENTIALITY. Unless otherwise agreed in writing by
the parties hereto, none of the parties hereto will disclose any material terms
of the Agreement to anyone other than
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<PAGE> 15
its employees, attorneys, accountants, other professional advisors or general or
limited partners, if applicable, except as such party concludes may be required
by law.
7.12 TRANSACTION TAXES. The Contributors shall pay all sales,
use, registration, stamp, recording, documentary, franchise, property, transfer
and similar taxes, and any interest and penalties thereto, incurred in
connection with the transactions contemplated herein.
15
<PAGE> 16
The foregoing agreement is hereby executed effective as of the date
first set forth above.
"COMPANY"
PETsMART.COM, INC.
/s/ Tom McGovern, Jr.
_________________________________________
Name: Tom McGovern, Jr.
Title: Chief Executive Officer
"CONTRIBUTORS"
PETSMART, INC.
/s/ Neil T. Watanabe
_________________________________________
Name: Neil T. Watanabe
Title: Executive Vice President and
Chief Financial Officer
PETSMART DIRECT, INC.
/s/ Neil T. Watanabe
_________________________________________
Name: Neil T. Watanabe
Title:
[SIGNATURE PAGE TO PURCHASE AGREEMENT]
<PAGE> 17
================================================================================
PETsMART.COM, INC.
SERIES F PREFERRED STOCK ISSUANCE AND CONTRIBUTION AGREEMENT
December __, 2000
================================================================================
<PAGE> 18
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
SECTION 1 AUTHORIZATION AND ISSUANCE OF PREFERRED STOCK..................... 1
1.1 AUTHORIZATION..................................................... 1
1.2 CONTRIBUTIONS..................................................... 1
1.3 ISSUANCE OF THE SERIES F PREFERRED................................ 2
SECTION 2 CLOSING DATE; DELIVERY............................................ 2
2.1 CLOSING DATE...................................................... 2
2.2 DELIVERY, PAYMENT AND CONTRIBUTION................................ 2
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................... 2
3.1 ORGANIZATION AND STANDING; CERTIFICATE OF INCORPORATION AND BYLAWS 2
3.2 CORPORATE POWER................................................... 3
3.3 SUBSIDIARIES...................................................... 3
3.4 CAPITALIZATION.................................................... 3
3.5 AUTHORIZATION..................................................... 3
3.6 PROPRIETARY RIGHTS................................................ 4
3.7 REGISTRATION RIGHTS............................................... 5
3.8 GOVERNMENTAL CONSENT, ETC......................................... 5
3.9 OFFERING.......................................................... 5
3.10 PERMITS........................................................... 5
3.11 COMPLIANCE WITH OTHER INSTRUMENTS................................. 5
3.12 LIABILITIES....................................................... 6
3.13 LITIGATION........................................................ 6
3.14 FULL DISCLOSURE................................................... 6
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTOR................. 7
4.1 BUSINESS AND FINANCIAL EXPERIENCE................................. 7
4.2 INVESTMENT INTENT; BLUE SKY....................................... 7
4.3 RULE 144.......................................................... 7
4.4 NO PUBLIC MARKET.................................................. 7
4.5 RESTRICTIONS ON TRANSFER; RESTRICTIVE LEGENDS..................... 7
4.6 ACCESS TO DATA.................................................... 8
4.7 AUTHORIZATION..................................................... 8
4.8 BROKERS OR FINDERS................................................ 8
4.9 TAX LIABILITY..................................................... 8
4.10 LIMITED OPERATING HISTORY......................................... 8
4.11 TAX STATUS OF PC LLC.............................................. 8
4.12 ORGANIZATION, STANDING AND POWER.................................. 8
4.13 PC LLC INTERESTS.................................................. 9
4.14 FORMATION DOCUMENTS OF PC LLC. .................................. 9
</TABLE>
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
4.15 NO PRIOR ACTIVITIES. ............................................ 9
4.16 PC LLC MANAGER AND OFFICERS....................................... 9
4.17 COMPLIANCE WITH OTHER INSTRUMENTS................................. 9
SECTION 5 CONDITIONS TO CLOSING OF THE CONTRIBUTORS......................... 9
5.1 REPRESENTATIONS AND WARRANTIES CORRECT............................ 10
5.2 COVENANTS......................................................... 10
5.3 BLUE SKY.......................................................... 10
5.4 CERTIFICATE....................................................... 10
5.5 THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT.............. 10
5.6 THIRD AMENDED AND RESTATED VOTING AGREEMENT....................... 10
5.7 COMPLIANCE CERTIFICATE............................................ 10
5.8 LEGAL OPINION..................................................... 10
5.9 STOCK PLAN........................................................ 10
5.10 GUARANTY.......................................................... 10
5.11 SECURITY AGREEMENT................................................ 11
5.12 OTHER LOAN AGREEMENT DOCUMENTS.................................... 11
5.13 STANDSTILL AGREEMENT.............................................. 11
5.14 BOARD OF DIRECTORS................................................ 11
SECTION 6 CONDITIONS TO CLOSING OF THE COMPANY.............................. 11
6.1 REPRESENTATIONS AND WARRANTIES CORRECT............................ 11
6.2 COVENANTS......................................................... 11
6.3 CERTIFICATE....................................................... 11
6.4 THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT.............. 12
6.5 THIRD AMENDED AND RESTATED VOTING AGREEMENT....................... 12
6.6 INVESTMENT........................................................ 12
6.7 CONSENTS, WAIVERS AND APPROVALS................................... 12
SECTION 7 MISCELLANEOUS..................................................... 12
7.1 GOVERNING LAW..................................................... 12
7.2 ENTIRE AGREEMENT; AMENDMENT....................................... 12
7.3 NOTICES, ETC...................................................... 12
7.4 DELAYS OR OMISSIONS............................................... 13
7.5 COUNTERPARTS...................................................... 14
7.6 SEVERABILITY...................................................... 14
7.7 TITLES AND SUBTITLES.............................................. 14
7.8 SURVIVAL OF WARRANTIES............................................ 14
7.9 SUCCESSORS AND ASSIGNS............................................ 14
7.10 FURTHER ASSURANCES................................................ 14
</TABLE>
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<PAGE> 20
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
7.11 CONFIDENTIALITY................................................... 15
7.12 TRANSACTION TAXES................................................. 15
</TABLE>
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