{"id":42731,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/resale-agreement-buy-com-inc-and-ingram-micro-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"resale-agreement-buy-com-inc-and-ingram-micro-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/resale-agreement-buy-com-inc-and-ingram-micro-inc.html","title":{"rendered":"Resale Agreement &#8211; Buy.com Inc. and Ingram Micro Inc."},"content":{"rendered":"<pre>\n                               RESALE AGREEMENT\n\nThis Agreement (\"Agreement\") is by and between Buy.com Inc. (\"Buy.com\"), with\nits principal place of business at 21 Brookline, Aliso Viejo, California 92656,\nand Ingram Micro Inc. (\"Ingram\") excluding its subsidiaries, with its principal\nplace of business at 1600 East St. Andrew Place, Santa Ana, California 92705.\nThis Agreement will include shipments to Buy.com's locations in the United\nStates only.\n\n1.   Purpose\n\n     The purpose of this Agreement is to provide the terms and conditions for\n     the purchase and resale by Buy.com and the sale by Ingram to Buy.com of\n     various computer products including both hardware and software offered by\n     Ingram to its customers (\"Product\"), excluding electronic software\n     distribution (ESD) product.\n\n2.   Terms of Sale\n\n     A.   Buy.com will source all of its Product requirements from Ingram during\n     the term of this Agreement, provided that the Product is available at the\n     time Buy.com places its order. In the even the Product is not available or\n     is not offered to Buy.com by Ingram, Buy.com shall have the right to source\n     such Product from another source.\n\n     B.   If authorization for resale is required by the vendor of any Product,\n     then Ingram will not be obligated to sell such Product to Buy.com unless\n     Ingram has received such required authorization. If any vendor prohibits\n     Ingram from selling a specific Product to Buy.com, then Ingram reserves the\n     right not to sell said Product to Buy.com.\n\n     C.   Ingram and Buy.com will work towards the implementation of Inside Line\n     which provides pricing and on-line availability.\n\n3.   Ordering\n\n     A.   Buy.com will compile, update, and provide Ingram with Product order\n     information. The Product order information will include the (i) Product\n     type(s), (ii) unit quantity, (iii) Ingram SKU number and\/or vendor part\n     number, (iv) Buy.com purchase price from Ingram, and (v) correct shipping\n     address. For government orders, Buy.com will compile the above Product\n     order information as well as (i) end user name and zip code and (ii)\n     government contract number. Buy.com personnel will identify, for each\n     Product order, the ship-to destination as either Buy.com, Buy.com's\n     customer, or to some other specified third party. Ingram will, subject to\n     Product availability, use its best efforts to fill and ship all Product\n     orders placed by Buy.com within one (1) business day of order receipt.\n\n     B.   Ingram will accept orders over telephone, via facsimile, and via\n     Ingram approved electronic ordering methods as defined in Ingram's Catalog\n     only from those who identify themselves as Buy.com personnel and provide\n     the Ingram customer number prior to placing the order. Ingram will have no\n     obligation to confirm the validity of any order\n\n________________________________________________________________________________\nBuy.com                             Page 1                                3\/9\/99\nAccount #23\/10\/086930                                               Confidential\n\n \nplaced or the authority of the person placing an order in this manner. Buy.com\nwill disclose its Ingram customer number only to its personnel with a need to\nknow.\n\n     C.   Ingram will [***] for all of Buy.com's Product orders.\n                       ---                                      \n\n4.   Volume Commitment\n\n     Buy.com agrees that its annual Ingram purchases will meet or exceed [***]\n                                                                          --- \n     for the term of this Agreement.  This annual purchase goal may be reviewed\n     and adjusted quarterly.  If Buy.com fails to achieve this run rate within\n     six (6) months from the effective date of this Agreement, Ingram reserves\n     the right to review and adjust the pricing as stated in Section 5.\n\n5.   Pricing\n\n     A.   Buy.com's prices for Product purchases, excluding those listed in\n     Exhibit A, [***]. Exhibit A provides a list of vendors for which the\n                 ---\n     pricing is adjusted individually and separately from the pricing listed\n     below.\n\n               ---------------------------------------------------\n               Product Type                       Cost Plus %\n               ---------------------------------------------------\n               Software                             [***]\n                                                     ---\n               ---------------------------------------------------\n               Hardware                             [***]\n                                                     ---\n               ---------------------------------------------------\n               Accessory                            [***]\n                                                     ---\n               ---------------------------------------------------\n               Technical                            [***]\n                                                     ---\n               ---------------------------------------------------\n\n     NOTE:   Certain Product purchases, including but not limited to [***], may\n                                                                      ---\n     not be included in the above pricing.\n\n     B.   As Ingram's costs change, prices to Buy.com may be adjusted to reflect\n     those changes.\n          \n     C.   Ingram represents to Buy.com that it believes that the [***] being\n                                                                  ---\n     offered to Buy.com pursuant to this Agreement, when considered in the\n     aggregate, [***]. On a quarterly basis during the term of this Agreement,\n                 ---\n     Ingram and Buy.com will meet to review current market prices and terms for\n     the Products and services being offered by Ingram to Buy.com pursuant to\n     this Agreement. At such meetings, the parties will discuss in good faith\n     amendments to such prices and terms, if necessary, in order to render the\n     [***] provided by Ingram to Buy.com, when considered in the aggregate\n      ---\n     [***].\n      ---\n\n________________\n\n     [***] Confidential treatment has been requested for the bracketed portions.\n      ---  \n     The confidential redacted portion has been omitted and filed separately\n     with the Securities and Exchange Commission.\n\n________________________________________________________________________________\nBuy.com                             Page 2                                3\/9\/99\nAccount #23\/10\/086930                                               Confidential\n\n \n6.   Payment Terms\n\n     A.   Buy.com shall furnish to Ingram all financial information reasonably\n     requested by Ingram from time to time for the purpose of establishing or\n     continuing Buy.com's credit limit, it being understood that Ingram shall\n     have the right to decline to extend credit to Buy.com and to require that\n     the applicable purchase price be paid prior to shipment. Ingram shall have\n     the right from time to time, without notice, to change or revoke Buy.com's\n     credit limit on the basis of changes in Ingram's credit policies or\n     Buy.com's financial condition and\/or payment record.\n\n     B.   Ingram will invoice Buy.com upon Product shipment, and all invoices\n     will be due and payable net [***] ([***]) days from the invoice date.\n                                  ---    --- \n     Ingram will provide an Early Pay Discount of [***] ([***]) on all invoices\n                                                   ---    ---\n     for which payment is received by wire transfer within three (3) days of\n     invoice date. A service charge of the lesser of [***] ([***]) per month or\n                                                      ---    ---\n     the maximum amount allowed by law will be charged on all past due balances\n     to defray Ingram's costs of carrying such balance. Credit cards\n     (MasterCard, VISA and Discover Card) will only be accepted at the time of\n     order or purchase. Payment for all other orders must be made in accordance\n     with the terms in effect at the time the order was placed.\n\n     C.   In the event Buy.com fails to make timely payment of any amount\n     invoiced hereunder, Ingram shall have the right, in addition to any and all\n     other rights and remedies available to Ingram, at law or in equity, to\n     immediately revoke any or all credit extended, to delay or cancel future\n     deliveries and\/or to reduce or cancel any or all quantity discounts\n     extended to Buy.com. Buy.com shall pay all costs of collection, including\n     reasonable attorneys' fees.\n\n     D.   Any obligation of Ingram under these terms and conditions to deliver\n     Products on credit terms shall terminate without notice if Buy.com files a\n     voluntary petition under a bankruptcy statute, or makes an assignment for\n     the benefit of creditors, or if an involuntary petition under a bankruptcy\n     statute is filed against Buy.com, or if a receiver or trustee is appointed\n     to take possession of the assets of Buy.com.\n\n7.   Shipping\n\n     A.   All orders will be shipped F.O.B. origin, Ingram's carrier of choice,\n     with all ground freight charges paid by Ingram for shippable Product orders\n     over [***] ([***]). In the event an authorized Buy.com representative\n           ---    ---\n     requests a priority shipping method, Buy.com agrees to use an Ingram\n     authorized carrier and to pay all such freight costs.\n\n     B.   For fulfillment orders all Product shipped directly to Buy.com's\n     customers will be packaged with no reference to Ingram. Specifically, the\n     packaging will not display any Ingram trademark, service mark, logo, or\n     trade name. If the carrier requires a return \n\n____________________\n\n     [***] Confidential treatment has been requested for the bracketed portions.\n      ---     \nThe confidential redacted portion has been omitted and filed separately with the\nSecurities and Exchange Commission.\n\n________________________________________________________________________________\nBuy.com                             Page 3                                3\/9\/99\nAccount #23\/10\/086930                                               Confidential\n\n \n     address, Ingram may use its warehouse address, without its company name on\n     such shipment.\n\n     C.   Buy.com or its customer shall examine all Products promptly upon\n     receipt thereof. No later than thirty (30) days after receipt, Buy.com\n     shall notify Ingram of all claimed shortages or damaged Products or if\n     rejection is intended, shall specify all grounds therefor. Failure to give\n     such notice shall be deemed an acceptance of the Products as of the date of\n     shipment.\n\n8.   Returns\n\n     A.   Buy.com agrees to make separate requests for stock balance and\n     defective returns. All returns must be accompanied by a valid Ingram Return\n     Material Authorization (\"RMA\") number. Each return must be packaged\n     separately for each RMA and contain only Product specified on that RMA. All\n     RMA's are valid for thirty (30) days from the date of issuance.\n\n     B.   Stock Balancing\n\n          1.   For systems vendor returns, Ingram will allow Buy.com stock\n          balance returns for up to [***] ([***]) days from the date of invoice,\n                                     ---    ---\n          subject to vendor requirements or restrictions. Buy.com will have\n          Product return privileges on overstocked resalable Products purchased\n          from Ingram of up to [***] ([***]) of its previous [***] ([***]) days\n                                ---    ---                    ---    --- \n          purchases, less any stock balance returns. Credit for returns is\n          calculated at the last purchase price or the current price, whichever\n          is lower.\n\n          2.   For non-systems vendor returns, Ingram will allow Buy.com stock\n          balance returns for up to [***] ([***]) days from the date of invoice,\n                                     ---    --- \n          subject to vendor requirements or restrictions. Buy.com will have\n          Product return privileges on overstocked Product purchased from Ingram\n          of up to [***], less any stock balance returns.  Credit for returns is\n                    ---                         \n          calculated at the last purchase price or the current price, whichever\n          is lower.\n\n          3.   Ingram reserves the right not to accept Products which are (a) no\n          longer in production or (b) are being produced or published by a\n          manufacturer which is insolvent or which has declared bankruptcy or\n          (c) subject to more restrictive stock balancing policies issued by the\n          Product's manufacturer or publisher. Buy.com shall pay all costs and\n          bear all risks of loss when returning Products to Ingram. Configured\n          Products may not be stock balanced.\n\n_________________\n\n     [***] Confidential treatment has been requested for the bracketed portions.\n      ---     \nThe confidential redacted portion has been omitted and filed separately with the\nSecurities and Exchange Commission.\n\n________________________________________________________________________________\nBuy.com                             Page 4                                3\/9\/99\nAccount #23\/10\/086930                                               Confidential\n\n \n     C.   Defective Returns\n\n          1.   Buy.com may return to Ingram for replacement or credit any\n          Products (other than Configured Products) found to be defective within\n          ninety (90) days of purchase or any Configured Products which are\n          found to be defective within thirty (30) days of purchase. Buy.com\n          must obtain Ingram's approval prior to returning the Products. Ingram\n          reserves the right to require Buy.com to return defective Products\n          directly to the Products' manufacturer for replacement according to\n          the manufacturer's defective Products return policy.\n\n          2.   Ingram shall not be obligated to repair or replace Products\n          rendered defective, in whole or in part, by causes external to the\n          Products, such as, but not limited to catastrophe, power failure or\n          transients, overvoltage on interface, environment extremes, improper\n          use, maintenance and application of the Products or use of\n          unauthorized parts.\n\n9.   Marketing Funds\n\n     [***].\n      ---  \n\n10.  Confidentiality\n\n     A.   For a period of two (2) years from the date of disclosure to the other\n     party, both parties agree that they will not disclose to third parties the\n     Confidential Information, as hereafter defined, of the other without the\n     other party's prior written permission. Confidential Information shall mean\n     all proprietary information and\/or trade secrets (including but not limited\n     to Buy.com customer information) regardless of the form in which it is\n     transmitted, which (a) if disclosed in tangible form bears a legend\n     indicating that it is confidential or proprietary; or (b) if disclosed\n     orally or visually only, is identified as confidential or proprietary at\n     the time of disclosure and is documented as such in writing and a non-\n     confidential written summary of the disclosure is provided to the other\n     party within thirty (30) days of the date of disclosure. Confidential\n     Information will only be used by the parties in furtherance of this\n     business relationship. Ingram agrees not to use Buy.com's Confidential\n     Information to solicit or develop business directly with Buy.com's\n     customers.\n\n     B.   The foregoing obligations not to disclose Confidential Information\n     shall not apply with respect to a party's Confidential Information that:\n     (i) was in the possession of or known by the other party without an\n     obligation of confidentiality prior to receipt from the disclosing party;\n     (ii) is or becomes general public knowledge through no fault or acts of the\n     other party; (iii) is or becomes lawfully available to the other party from\n     a third party which, to the other party's knowledge, is not subject to an\n     obligation of confidentiality; (iv) in independently developed by the other\n     party without use of any Confidential Information; or (v) the other party\n     is advised by counsel is required to be disclosed by\n\n______________\n\n     [***] Confidential treatment has been requested for the bracketed portions.\n      ---  \nThe confidential redacted portion has been omitted and filed separately with the\nSecurities and Exchange Commission.\n\n________________________________________________________________________________\nBuy.com                             Page 5                                3\/9\/99\nAccount #23\/10\/086930                                               Confidential\n\n \n     any governmental agency or pursuant to any law, code or regulation,\n     provided the disclosing party notifies the other party in writing as soon\n     as it becomes aware of the disclosure requirement so as to afford the other\n     party every opportunity to take whatever steps it deems necessary to\n     protect the confidentiality of the information. In the event that Buy.com\n     determines that it must file this Agreement as an exhibit to any\n     registration statement it files with the U.S. Securities and Exchange\n     Commission (the \"SEC\"), confidential treatment for the filing will permit\n     Ingram to review and approve the portions of this Agreement for which\n     confidential treatment is requested at least seventy-two (72) hours prior\n     to the filing, and will permit Ingram to participate in any discussions it\n     or its representatives may have with the SEC with respect to such request.\n\n11.  Taxes\n\n     Buy.com shall bear applicable federal, state, municipal, and other\n     government taxes (such as sales, use, etc.).  Unless otherwise specified,\n     list prices do not include such expenses, and they will appear, if\n     applicable, as separate, additional items on the invoice.  Exemption\n     certificates, valid in the place of delivery, must be presented to Ingram\n     prior to shipment if they are to be honored.\n\n12.  Warranty\n\n     Product warranties, if any, are provided by the manufacturer\/publisher of\n     the Products.  Ingram makes no warranties whatsoever.  Ingram's sole\n     obligation (and Buy.com's sole remedy) in the event of breach of any\n     warranty shall be the repair or replacement of defective Products.  IN NO\n     EVENT SHALL INGRAM BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR DAMAGES OF\n     ANY KIND OR NATURE ALLEGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY.\n     INGRAM DOES NOT WARRANT THE MERCHANTABILITY OF THE PRODUCTS OR THEIR\n     FITNESS FOR ANY PARTICULAR PURPOSE.  INGRAM MAKES NO WARRANTY, EXPRESS OR\n     IMPLIED, OTHER THAN THOSE SPECIFICALLY SET FORTH HEREIN.\n\n13.  Patent and Trademark Indemnity\n\n     INGRAM SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, AND HOLD HARMLESS BUY.COM\n     FROM AND AGAINST ANY OR ALL DAMAGES AND COST INCURRED BY BUY.COM ARISING\n     FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF\n     COPYRIGHTS BY PRODUCTS. NOTWITHSTANDING ANY OTHER TERMS OR CONDITIONS TO\n     THE CONTRARY, INGRAM'S LIABILITY UNDER THIS SECTION SHALL NOT EXCEED THE\n     PURCHASE PRICE OF THE INFRINGING PRODUCT.\n\n14.  Limitation of Liability\n\n     INGRAM SHALL NOT BE LIABLE TO BUY.COM, BUY.COM'S CUSTOMERS, OR OTHER PARTY\n     FOR ANY LOSS, DAMAGE, OR INJURY WHICH RESULTS FROM THE USE OR APPLICATION\n     BY BUY.COM, BUY.COM'S CUSTOMER, OR \n\n________________________________________________________________________________\nBuy.com                             Page 6                                3\/9\/99\nAccount #23\/10\/086930                                               Confidential\n\n \n     ANY OTHER PARTY OF PRODUCTS DELIVERED TO BUY.COM, UNLESS THE LOSS OR DAMAGE\n     RESULTS DIRECTLY FROM THE INTENTIONALLY TORTIOUS OR FRAUDULENT ACTS OR\n     OMISSIONS OF INGRAM. IN NO EVENT SHALL INGRAM BE LIABLE TO BUY.COM OR ANY\n     THIRD PARTY FOR LOSS, DAMAGE, OR INJURY OF ANY KIND OR NATURE ARISING OUT\n     OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, OR ANY AGREEMENT INTO\n     WHICH THEY ARE INCORPORATED, OR ANY PERFORMANCE OR NONPERFORMANCE UNDER\n     THESE TERMS AND CONDITIONS BY INGRAM, ITS EMPLOYEES, AGENTS OR\n     SUBCONTRACTORS, IN EXCESS OF THE NET PURCHASE PRICE OF THE PRODUCTS\n     ACTUALLY DELIVERED TO BUY.COM HEREUNDER. IN NO EVENT SHALL EITHER PARTY BE\n     LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, SPECIAL OR\n     CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF GOOD WILL,\n     LOSS OF ANTICIPATED PROFITS, OR OTHER ECONOMIC LOSS ARISING OUT OF OR IN\n     CONNECTION WITH EITHER PARTY'S BREACH OF, OR FAILURE TO PERFORM IN\n     ACCORDANCE WITH ANY OF THESE TERMS AND CONDITIONS, OR THE FURNISHING,\n     INSTALLATION, SERVICING, USE OR PERFORMANCE OF ANY PRODUCTS PROVIDED\n     HEREUNDER, EVEN IF NOTIFICATION HAS BEEN GIVEN AS TO THE POSSIBILITY OF\n     SUCH DAMAGES. BOTH PARTIES HEREBY EXPRESSLY WAIVE ANY AND ALL CLAIMS FOR\n     SUCH DAMAGES. IN NO EVENT SHALL INGRAM HAVE ANY LIABILITY FOR ANY PRODUCTS\n     USED FOR AVIATION, MEDICAL, LIFESAVING, LIFE SUSTAINING OR NUCLEAR\n     APPLICATIONS.\n\n15.  Compliance with U.S. Export Laws\n\n     The Products are sold to Buy.com for resale in the United States only.  In\n     the event Buy.com delivers the Products to a customer who may use the\n     Products outside the United States, Buy.com acknowledges and shall advise\n     its customers that the Products are controlled for export by the U.S.\n     Department of Commerce and that the Products may require authorization\n     prior to export from the United States or re-export.  Buy.com agrees that\n     it will not export, re-export, or otherwise distribute Products, or direct\n     products thereof, in violation of any export control laws or regulations of\n     the United States.  Buy.com warrants that it will not export or re-export\n     any Products with knowledge that will be used in the design, development,\n     production, or use of chemical, biological, nuclear, or ballistic weapons,\n     or in a facility engaged in such activities, unless Buy.com has obtained\n     prior approval from the Department of Commerce.  Buy.com further warrants\n     that it will not export or re-export, directly or indirectly, any Products\n     to embargoed countries, including, but not limited to, Cuba, Libya, North\n     Korea, Iran, Iraq, Sudan and Syria.  Diversion of Products contrary to U.S.\n     law is prohibited.\n\n16.  Manufacturer\/Publisher Restrictions\n\n     All Products delivered by Buy.com hereunder may have additional\n     restrictions on their use required by manufacturer\/publisher.  Buy.com is\n     solely responsible for ensuring its adherence to any and all such\n     restrictions or requirements.\n\n________________________________________________________________________________\nBuy.com                             Page 7                                3\/9\/99\nAccount #23\/10\/086930                                               Confidential\n\n \n17.  Severability\n\n     A judicial determination that any provision hereunder is invalid in whole\n     or in part shall not affect the enforceability of those provisions not\n     found to be invalid.\n\n18.  Reconciliation\n\n     Both parties mutually agree to reconcile Buy.com's account every ninety\n     (90) days from the effective date of this Agreement.  In order to allow\n     appropriate credits to be applied, Buy.com agrees to provide appropriate\n     documentation as listed in Exhibit C to Ingram and wait thirty (30) days\n     from the date of the disputed claim before debiting Ingram for any reason.\n\n19.  Notices\n\n     All notices and other communications relating to this Agreement or its\n     terms will be in writing and mailed via first class United States Postal\n     Service, certified or registered with return receipt requested or via\n     facsimile.  All notices so mailed will be deemed received two (2) days\n     after postmark date and facsimile will be deemed received upon notification\n     of successful transmission.\n\n20.  Choice of Law\/Choice of Forum\n\n     This Agreement shall be deemed to have been executed and delivered in Santa\n     Ana, California, and shall be construed, interpreted and enforced under and\n     in accordance with the internal laws of the State of California, excluding\n     its conflicts or choice of law rule or principles which might refer to the\n     law of another jurisdiction.  The parties agree to exercise any right or\n     remedy in connection with this Agreement exclusively in, and hereby submit\n     to the jurisdiction of the State of California, Courts of Orange County,\n     California, or the United States District Court at Santa Ana, California.\n     The state and federal courts situated in Orange County, California will\n     have non-exclusive jurisdiction and venue over any dispute or controversy,\n     which arises out of this Agreement.\n\n21.  Binding Effect\/Assignment\n\n     This Agreement shall be binding upon and shall inure to the benefit of the\n     parties hereto, and their respective representatives, successors and\n     permitted assigns.  Neither party may assign its rights and\/or duties under\n     this Agreement without prior written consent of the other party given at\n     the other party's sole option; except that Ingram may assign this Agreement\n     to a subsidiary or affiliate upon notice to Buy.com.  Any such attempted\n     assignment shall be void.\n\n22.  Headings\n\n     This Agreement may be executed in any number of original counterparts, each\n     of which when executed and delivered will be deemed to be an original and\n     all of which taken together will constitute but one and the same\n     instrument.  Headings in this Agreement are \n\n________________________________________________________________________________\nBuy.com                             Page 8                                3\/9\/99\nAccount #23\/10\/086930                                               Confidential\n\n \n     included for convenience of reference only and will not constitute a part\n     of this Agreement for any other purpose.\n\n23.  Attorneys Fees\n\n     In the event there is any dispute concerning the terms of this Agreement or\n     the performance of any party hereto pursuant to the terms of this\n     Agreement, and any party hereto retains counsel for the purpose of\n     enforcing any of the provisions of this Agreement or asserting the terms of\n     this Agreement in defense of any suit filed against said party, each party\n     shall be solely responsible for its own costs and attorney's fees incurred\n     in connection with the dispute irrespective of whether or not a lawsuit is\n     actually commenced or prosecuted to conclusion.\n\n24.  Term and Termination\n\n     This Agreement will commence on the date of the last signature set forth\n     below an will continue for one (1) year.  Either party may terminate this\n     Agreement without cause by giving one hundred twenty (120) days advance\n     written notice to the other party.  The termination provisions in Exhibit B\n     shall apply only to Exhibit B and Clause 9 of this Agreement.  Ingram may\n     terminate this Agreement immediately for cause upon written notice, which\n     notice will include a ten (10) day opportunity to cure.\n\n25.  Entire Agreement\n\n     This Agreement (including any Exhibits and Addenda) constitutes the entire\n     Agreement between the parties pertaining to the subject matter hereof, and\n     will cancel, terminate, and supersede any and all previous agreements,\n     proposals, representations, or statements, whether oral or written.  The\n     terms of this Agreement will supersede the terms of any invoice or purchase\n     order issued by either party.  Any modifications of this Agreement must be\n     in writing and signed by an authorized representative of each party.\n\nThis Agreement will become effective as of the last date of signature by the\nauthorized parties below.\n\n\"Buy.com\"                               \"Ingram\"\n\nBy:_____________________________        By:___________________________________\n     (Officer of the Company)                  (Officer of the Company)\n\nName:___________________________        Name:_________________________________\n     (Please print or type)                    (Please print or type)\n\nTitle:__________________________        Title:________________________________\n\nDate:___________________________        Date:_________________________________\n\n________________________________________________________________________________\nBuy.com                             Page 9                                3\/9\/99\nAccount #23\/10\/086930                                               Confidential\n\n \nAugust  11, 1999\n\nDebbie Tibey\nSenior Vice President of Sales\nIngram Micro, Inc.\n1600 East St. Andrew Place\nSanta Ana, CA 92705\n\nRe:  Amendment to Resale Agreement\n\nDear Debbie:\n\nThis will amend the Resale Agreement between Ingram Micro, Inc. and BUY.COM Inc.\ndated March 10, 1999 (the \"Resale Agreement\").  When signed on behalf of Ingram\nMicro Inc., Section 24 of the Resale Agreement will be replaced with the\nfollowing:\n\n                           24. Term and Termination\n\nThis Agreement will commence on the date of the last signature set forth below\nand will continue for one (1) year, Either party may terminate this Agreement\nwithout cause by giving one hundred twenty (120) days advance written notice to\nthe other party. The termination provisions in Exhibit B shall apply only to\nExhibit B and Clause 9 of this Agreement. Ingram may terminate this Agreement\nimmediately for cause upon written notice, which notice will include a ten (10)\nday opportunity to cure. Unless and until either party provides at least 120\ndays prior written notice of its intention not to extend the term of this\nAgreement, this Agreement shall automatically renew for additional one (1) year\nterm.\n\nExcept as amended by this letter agreement, the Resale Agreement will remain in\nfull force and effect between our companies.\n\nSincerely,\n\n\nGreg Hawkins\nChief Executive Officer\n\nAccepted and Agreed this\n______ day of ______, 1999.\nIngram Micro, Inc.\n\nBy:_____________________________\n     Debbie Tibey\n     Senior V.P. of Sales\n\n________________________________________________________________________________\nBuy.com                             Page 10                               3\/9\/99\nAccount #23\/10\/086930                                               Confidential\n\n \nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF\nTHIS AGREEMENT.  THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS\nENCLOSED BY BRACKETS AND UNDERLINED.  THE CONFIDENTIAL PORTION HAS BEEN FILED\nSEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\n\n________________________________________________________________________________\nBuy.com                             Page 1                                3\/9\/99\nAccount #23\/10\/086930                                               Confidential\n\n\n\n TYPE:  EX-10.24\n SEQUENCE:  9\n DESCRIPTION:  SERIES A CONVERTIBLE PARTICIPATING STOCK AGREEMENT\n\n\n\n \n                                                                   EXHIBIT 10.24\n\n                                                                  Execution Copy\n\n\n                                   BUY CORP.\n\n\n                      SERIES A CONVERTIBLE PARTICIPATING\n                      PREFERRED STOCK PURCHASE AGREEMENT\n\n                                AUGUST 18, 1998\n\n \n                               Index of Exhibits\n                               -----------------\n\nSchedule of Purchasers            Exhibit A\n\nCertificate of Amendment to\nCertificate of Incorporation      Exhibit B\n\nInvestors' Rights Agreement       Exhibit C\n\nStockholders' Agreement           Exhibit D\n\nEmployee NonDisclosure and        Exhibit E\nDevelopments Agreement and\nNon-Competition Agreement\n \n\nForm of Legal Opinion             Exhibit F\n\n \n                                   BUY CORP.\n\n              SERIES A CONVERTIBLE PARTICIPATING PREFERRED STOCK\n                              PURCHASE AGREEMENT\n\n\n     This Series A Convertible Participating Preferred Stock Purchase Agreement\n(the \"Agreement\") is entered into as of this 18th day of August, 1998, by and\namong BUY CORP., a Delaware corporation (the \"Company\"), and each of those\nentities, severally and not jointly, whose names are set forth on the Schedule\nof Purchasers attached hereto as Exhibit A (which entities are hereinafter\n                                 ---------                                \ncollectively referred to as \"Purchasers\" and each individually as a\n\"Purchaser\").\n\n                                   Recitals\n\n     Whereas, the Company has authorized the sale and issuance of an aggregate\nof one million two hundred ninety eight thousand seven hundred forty two\n(1,298,742) shares of its Series A Convertible Participating Preferred Stock\n(the \"Shares\");\n\n     Whereas, Purchasers desire to purchase the Shares on the terms and\nconditions set forth herein; and\n\n     Whereas, the Company desires to issue and sell the Shares to Purchasers on\nthe terms and conditions set forth herein.\n\n     Now, Therefore, in consideration of the foregoing recitals and the mutual\npromises hereinafter set forth, the parties hereto agree as follows:\n\nSection 1. Agreement to Sell and Purchase\n\n     1.1   Authorization of Shares.  On or prior to the Closing (as defined in\nSection 2 below), the Company shall have authorized (i) the sale and issuance to\nPurchasers of the Shares and (ii) the issuance of such shares of common stock of\nthe Company, $.0001 par value (the \"Common Stock\"), to be issued upon conversion\nof the Shares (the \"Conversion Shares\").  The Shares and the Conversion Shares\nshall have the rights, preferences, privileges and restrictions set forth in the\nCertificate of Amendment to the Certificate of Incorporation of the Company, in\nthe form attached hereto as Exhibit B (the \"Certificate\").\n                            ---------                     \n\n     1.2   Sale and Purchase.  Subject to the terms and conditions hereof, at\nthe Closing (as hereinafter defined), the Company hereby agrees to issue and\nsell to each Purchaser, severally and not jointly, and each Purchaser agrees to\npurchase from the Company, severally and not jointly, the number of Shares set\nforth opposite such Purchaser's name on Exhibit A at a purchase price of\n                                        ---------                       \n$15.3995 per share.\n\nSection 2. Closing, Delivery and Payment\n\n     2.1   Closing.  The closing of the sale and purchase of the Shares under\nthis Agreement (the \"Closing\") shall take place on the date hereof, at the\noffices of Testa, Hurwitz &amp; Thibeault, \n\n                                      -1-\n\n \nLLP, High Street Tower, 125 High Street, Boston, Massachusetts 02110 or at such\nother time or place as the Company and Purchasers may mutually agree (such date\nis hereinafter referred to as a \"Closing Date\").\n\n     2.2   Delivery. At the Closing, subject to the terms and conditions hereof,\nthe Company will deliver to the Purchasers certificates representing the number\nof Shares to be purchased at the Closing by each Purchaser, against payment of\nthe purchase price therefor, by check or wire transfer made payable to the order\nof the Company.\n\nSection 3. Representations and Warranties of the Company\n\n     Except as set forth on the Schedule of Exceptions delivered to the\nPurchasers, the Company and Scott A. Blum hereby represent and warrant to each\nPurchaser as follows:\n\n     3.1   Organization, Good Standing and Qualification.  The Company is a\ncorporation duly organized, validly existing and in good standing under the laws\nof the State of Delaware.  The Company has all requisite corporate power and\nauthority to own and operate its properties and assets, to execute and deliver\nthis Agreement, the Investors' Rights Agreement, in the form attached hereto as\nExhibit C (the \"Investors' Rights Agreement\"), and the Stockholders' Agreement,\n---------                                                                      \nin the form attached hereto as Exhibit D (the \"Stockholders' Agreement\"), to\n                               ---------                                    \nissue and sell the Shares and the Conversion Shares and to carry out the\nprovisions of this Agreement, the Investors' Rights Agreement, the Stockholders'\nAgreement and the Certificate and to carry on its business as presently\nconducted and as presently proposed to be conducted.  The Company is duly\nqualified and is authorized to do business and is in good standing as a foreign\ncorporation in all jurisdictions in which the nature of its activities and of\nits properties (both owned and leased) make such qualifications necessary,\nexcept for those jurisdictions in which failure to do so would not have a\nmaterial adverse effect on the Company or its business.  The Company owns no\nequity securities of any other corporation, limited partnership or similar\nentity.  The Company is not a participant in any joint venture, partnership or\nsimilar arrangement.  The Company has made available to the Purchasers true,\ncorrect and complete copies of the Company's Certificate of Incorporation and\nBylaws, each as amended to date.\n\n     3.2  Capitalization; Voting Rights.  The authorized capital stock of the\nCompany, immediately prior to the Closing, will consist of (a) twelve million\nsix hundred sixty six thousand five hundred forty two (12,666,542) shares of\nCommon Stock, eight million six hundred seventy five thousand three hundred\nfifteen (8,675,315) shares of which are issued and outstanding, one million one\nhundred seventy two thousand five hundred (1,172,500) shares of which are\ncurrently reserved for issuance pursuant to outstanding option agreements, and\none million five hundred nineteen thousand nine hundred eighty five (1,519,985)\nshares of which will be reserved in the future for issuance to key employees,\nconsultants and others affiliated with the Company pursuant to stock grant,\nstock purchase and\/or option plans or any other stock incentive program,\narrangement or agreement approved by the Company's Board of Directors and (b)\none million two hundred ninety eight thousand seven hundred forty two\n(1,298,742) shares of Preferred Stock, all of which are designated Series A\nConvertible Participating Preferred Stock, none of which are issued and\noutstanding.  All issued and outstanding shares of \n\n                                      -2-\n\n \nthe Company's Common Stock (i) have been duly authorized and validly issued,\n(ii) are fully paid and nonassessable and (iii) were issued in compliance with\nall applicable state and federal laws concerning the issuance of securities. The\nrights, preferences, privileges and restrictions of the Shares are as stated in\nthe Certificate. The Conversion Shares have been duly and validly reserved for\nissuance. Except as may be granted pursuant to this Agreement and except as set\nforth above, there are no outstanding options, warrants, rights (including\nconversion or preemptive rights and rights of first refusal), proxy or\nstockholder agreements, or agreements of any kind for the purchase or\nacquisition from the Company of any of its securities. The Shares and the\nConversion Shares have been duly authorized and, when issued in compliance with\nthe provisions of this Agreement and the Certificate, will be validly issued\n(including, without limitation, issued in compliance with applicable state and\nfederal securities laws), fully paid and nonassessable and will be free of any\nliens or encumbrances; provided, however, that the Shares and the Conversion\nShares may be subject to restrictions on transfer under state and\/or federal\nsecurities laws as set forth herein or as otherwise required by such laws at the\ntime transfer is proposed.\n\n     3.3   Authorization; Binding Obligations. All corporate action on the part\nof the Company, its officers, directors and stockholders necessary for the\nauthorization of this Agreement, the Investors' Rights Agreement and the\nStockholders' Agreement, the performance of all obligations of the Company\nhereunder and thereunder at the Closing and the authorization, sale, issuance\nand delivery of the Shares pursuant hereto and the Conversion Shares pursuant to\nthe Certificate has been taken or will be taken prior to the Closing. The\nAgreement, the Investors' Rights Agreement and the Stockholders' Agreement, when\nexecuted and delivered, will be valid and binding obligations of the Company\nenforceable against the Company, in accordance with their terms, except (i) as\nlimited by applicable bankruptcy, insolvency, reorganization, moratorium or\nother laws of general application affecting enforcement of creditors' rights;\n(ii) as limited by general principles of equity that restrict the availability\nof specific performance, injunctive relief or other equitable remedies; and\n(iii) to the extent that the enforceability of the indemnification provisions of\nthe Investors' Rights Agreement may be limited by applicable federal and state\nsecurities laws. The sale of the Shares and the subsequent conversion of the\nShares into Conversion Shares are not and will not be subject to any preemptive\nrights or rights of first refusal that have not been properly waived or complied\nwith.\n\n     3.4   Financial Statements; Subsidiaries. The Company's un-audited balance\nsheet as of December 31, 1997 and un-audited statements of operations and cash\nflows of the Company for the 12-month period ended December 31, 1997 and the\nCompany's unaudited balance sheet as of June 30, 1998 (the \"Latest Balance\nSheet\") and unaudited statements of operations and cash flows of the Company for\nthe six month period ending June 30, 1998 (the \"Financial Statements\") delivered\nto the Purchasers in connection with the investment contemplated hereby have\nbeen prepared in accordance with generally accepted accounting principles\nconsistently applied (subject to normal year-end adjustments and the absence of\nfootnote disclosures) and fairly present in all material respects the financial\nposition and the results of operations of the Company for the period covered\nthereby, and the Company has no material liabilities or obligations of any\nnature (absolute, accrued, contingent or otherwise) that are not either\nreflected or fully reserved against on the Latest Balance Sheet or incurred in\nthe ordinary course of the business of the Company subsequent to the date\nthereof.  Since the date of the Latest Balance Sheet, there has not been any\nmaterial adverse change in the business, operations, financial \n\n                                      -3-\n\n \ncondition or business as presently proposed to be conducted by the Company. The\nCompany has no subsidiaries.\n\n     3.5   Agreements; Action.\n\n           (a) Except for agreements explicitly contemplated hereby, there are\nno agreements, understandings or proposed transactions between the Company and\nany of its officers, directors, affiliates or any affiliate thereof.\n\n           (b) There are no agreements, understandings, instruments, contracts,\nproposed transactions, judgments, orders, writs or decrees to which the Company\nis a party or to its knowledge by which it is bound which may involve (i)\nobligations (contingent or otherwise) of, or payments to, the Company (other\nthan obligations of, or payments to, the Company arising in the ordinary course\nof business), or (ii) the license of any patent, copyright, trade secret or\nother proprietary right to or from the Company (other than licenses arising from\nthe purchase of \"off the shelf\" or other standard products), or (iii) provisions\nrestricting or affecting the development, manufacture or distribution of the\nCompany's products or services, or (iv) indemnification by the Company with\nrespect to infringements of proprietary rights.\n\n           (c) The Company has not (i) declared or paid any dividends, or\nauthorized or made any distribution upon or with respect to any class or series\nof its capital stock, (ii) incurred any indebtedness for money borrowed or any\nother liabilities (other than with respect to dividend obligations,\ndistributions, indebtedness and other obligations incurred in the ordinary\ncourse of business or as disclosed in the Financial Statements), (iii) made any\nloans or advances to any person, other than ordinary advances for travel\nexpenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or\nrights, other than the sale of its inventory in the ordinary course of business.\n\n     3.6   Obligations to Related Parties.  There are no obligations of the\nCompany to officers, directors, stockholders, or employees of the Company other\nthan (a) for payment of salary for services rendered, (b) reimbursement for\nreasonable expenses incurred on behalf of the Company and (c) for other standard\nemployee benefits made generally available to all employees (including stock\noption agreements outstanding under any stock option plan approved by the Board\nof Directors of the Company).  No officer, director or, to the best of the\nCompany's knowledge, stockholder, or any member of their immediate families, are\nindebted to the Company or have any direct or indirect ownership interest in any\nfirm or corporation with which the Company is affiliated or with which the\nCompany has a business relationship, or any firm or corporation which competes\nwith the Company, except that officers, directors and\/or stockholders of the\nCompany may own stock in publicly traded companies which may compete with the\nCompany.  No such officer, director or stockholder, or any member of their\nimmediate families is, directly or indirectly, interested in any material\ncontract with the Company (other than such contracts as relate to any such\nperson's ownership of capital stock or other securities of the Company).  The\nCompany is not a guarantor or indemnitor of any indebtedness of any other\nperson, firm or corporation.\n\n     3.7   Title to Properties and Assets; Liens, Etc.  The Company has good\nand marketable title to its properties and assets, and good title to its\nleasehold estates, in each case \n\n                                      -4-\n\n \nsubject to no mortgage, pledge, lien, lease, encumbrance or charge, other than\n(i) those resulting from taxes which have not yet become delinquent, (ii) minor\nliens and encumbrances which do not materially detract from the value of the\nproperty subject thereto or materially impair the operations of the Company and\n(iii) those that have otherwise arisen in the ordinary course of business. All\nfacilities, machinery, equipment, fixtures, vehicles and other properties owned,\nleased or used by the Company are in good operating condition and repair and are\nreasonably fit and usable for the purposes for which they are being used. The\nCompany is in compliance with all material terms of each lease to which it is a\nparty or is otherwise bound.\n\n     3.8   Patents and Trademarks.  The Company owns or possesses sufficient\nlegal rights to all patents, trademarks, service marks, trade names, copyrights,\ntrade secrets, information and other proprietary rights and processes necessary\nfor its business as now conducted and as proposed to be conducted, without any\nknown infringement of the rights of others. There are no outstanding options,\nlicenses or agreements of any kind relating to the foregoing, nor is the Company\nbound by or a party to any options, licenses or agreements of any kind with\nrespect to the patents, trademarks, service marks, trade names, copyrights,\ntrade secrets, licenses, information and other proprietary rights and processes\nof any other person or entity other than such licenses or agreements arising\nfrom the purchase of \"off the shelf\" or standard products. The Company has not\nreceived any communications alleging that the Company has violated or, by\nconducting its business as proposed, would violate any of the patents,\ntrademarks, service marks, trade names, copyrights or trade secrets or other\nproprietary rights of any other person or entity. The Company is not aware that\nany of its employees is obligated under any contract (including licenses,\ncovenants or commitments or any nature) or other agreement, or subject to any\njudgment, decree or order of any court or administrative agency, that would\ninterfere with their duties to the Company's business by the employees of the\nCompany, nor the conduct of the Company's business as proposed, will, to the\nCompany's knowledge, conflict with or result in a breach of the terms,\nconditions or provisions of, or constitute a default under, any contract,\ncovenant or instrument under which any employee is now obligated. The Company\ndoes not believe it is or will be necessary to utilize any inventions, trade\nsecrets or proprietary information of any of its employees made prior to their\nemployment by the Company, except for inventions, trade secrets or proprietary\ninformation that have been assigned to the Company.\n\n     3.9   Compliance with Other Instruments.  The Company is not in violation\nor default of any term of its Certificate of Incorporation or Bylaws, or of any\nprovision of any mortgage, indenture, contract, agreement, instrument or\ncontract to which it is party or by which it is bound or of any judgment,\ndecree, order, writ or, to its knowledge, any statute, rule or regulation\napplicable to the Company which would materially and adversely affect the\nbusiness, assets, liabilities, financial condition, operations or prospects of\nthe Company.  The execution, delivery, and performance of and compliance with\nthis Agreement and the related agreements, and the issuance and sale of the\nShares pursuant hereto and of the Conversion Shares pursuant to the Restated\nCertificate, will not, with or without the passage of time or giving of notice,\nresult in any such material violation, or be in conflict with or constitute a\ndefault under any such term, or result in the creation of any mortgage, pledge,\nlien, encumbrance or charge upon any of the properties or assets of the Company\nor the suspension, revocation, impairment, forfeiture or nonrenewal of any\npermit, license, authorization or approval applicable to the Company, its\nbusiness or operations or any of its assets or properties.\n\n                                      -5-\n\n \n     3.10  Litigation.  There is no action, suit, proceeding or investigation\npending or to the Company's knowledge currently threatened against the Company\nthat questions the validity of this Agreement, the Investors' Rights Agreement\nor the Stockholders' Agreement or the right of the Company to enter into any of\nsuch agreements, or to consummate the transactions contemplated hereby or\nthereby, or which might result, either individually or in the aggregate, in any\nmaterial adverse change in the assets, condition, affairs or prospects of the\nCompany, financially or otherwise, or any change in the current equity ownership\nof the Company, nor is the Company aware that there is any basis for the\nforegoing.  The foregoing includes, without limitation, actions pending or\nthreatened (or any basis therefor known to the Company) involving the prior\nemployment of any of the Company's employees, their use in connection with the\nCompany's business of any information or techniques allegedly proprietary to any\nof their former employers, or their obligations under any agreements with prior\nemployers.  The Company is not a party or subject to the provisions of any\norder, writ, injunction, judgment or decree of any court or government agency or\ninstrumentality.  There is no action, suit, proceeding or investigation by the\nCompany currently pending or which the Company intends to initiate.\n\n     3.11  Tax Returns and Payments. The Company has timely filed all tax\nreturns (federal, state and local) required to be filed by it. All taxes shown\nto be due and payable on such returns, any assessments imposed, and to the\nCompany's knowledge all other taxes due and payable by the Company on or before\nthe Closing have been paid or will be paid prior to the time they become\ndelinquent. The Company has not been advised (i) that any of its returns,\nfederal, state or other, have been or are being audited as of the date hereof,\nor (ii) of any deficiency in assessment or proposed judgment to its federal,\nstate or other taxes. The Company has no knowledge of any liability of any tax\nto be imposed upon its properties or assets as of the date of this Agreement\nthat is not adequately provided for.\n\n     3.12  Employees. The Company has no collective bargaining agreements with\nany of its employees. There is no labor union organizing activity pending or, to\nthe Company's knowledge, threatened with respect to the Company. No employee has\nany agreement or contract, written or verbal, regarding his employment. To the\nCompany's knowledge, no employee of the Company, nor any consultant with whom\nthe Company has contracted, is in violation of any term of any employment\ncontract, proprietary information agreement or any other agreement relating to\nthe right of any such individual to be employed by, or to contract with, the\nCompany because of the nature of the business to be conducted by the Company;\nand to the Company's knowledge the continued employment by the Company of its\npresent employees, and the performance of the Company's contracts with its\nindependent contractors, will not result in any such violation. The Company has\nnot received any notice alleging that any such violation has occurred. No\nemployee of the Company has been granted the right to continued employment by\nthe Company or to any material compensation following termination of employment\nwith the Company. The Company is not aware that any officer or key employee, or\nthat any group of key employees, intends to terminate their employment with the\nCompany, nor does the Company have a present intention to terminate the\nemployment of any officer, key employee or group of key employees.\n\n     3.13  NonDisclosure and Developments Agreements. Each current employee,\nofficer and consultant of the Company has executed, or will execute prior to or\nat Closing, an Employee\n\n                                      -6-\n\n \nNonDisclosure and Developments Agreement and Non-Competition Agreement, in the\nforms attached hereto as Exhibit E. No current employee, officer or consultant\n                         ---------\nof the Company has excluded works or inventions made prior to his or her\nemployment with the Company from his or her assignment of inventions pursuant to\nsuch employee, officer or consultant's agreement. The Company, after reasonable\ninvestigation, is not aware that any of its employees, officers or consultants\nis in violation thereof and the Company will use its best efforts to prevent any\nsuch violation.\n\n     3.14  Obligations of Management. Each officer of the Company is currently\ndevoting one hundred percent (100%) of his business time to the conduct of the\nbusiness of the Company. The Company is not aware of any officer or key employee\nof the Company planning to work less than full time at the Company in the\nfuture.\n\n     3.15  Registration Rights. Except as required pursuant to the Investors'\nRights Agreement, the Company is presently not under any obligation, and has not\ngranted any rights, to register (as defined in Section 1 of the Investors'\nRights Agreement) any of the Company's presently outstanding securities or any\nof its securities that may hereafter be issued.\n\n     3.16  Compliance with Laws; Permits. The Company is not in violation of any\napplicable statute, rule, regulation, order or restriction of any domestic or\nforeign government or any instrumentality or agency thereof in respect of the\nconduct of its business or the ownership of its properties which violation would\nmaterially and adversely affect the business, assets, liabilities, financial\ncondition, operations or prospects of the Company. No governmental orders,\npermissions, consents, approvals or authorizations are required to be obtained\nand no registrations or declarations are required to be filed in connection with\nthe execution and delivery of this Agreement and the issuance of the Shares or\nthe Conversion Shares, except such as has been duly and validly obtained or\nfiled, or with respect to any filings that must be made after the Closing, as\nwill be filed in a timely manner. The Company has all franchises, permits,\nlicenses and any similar authority necessary for the conduct of its business as\nnow being conducted by it, the lack of which could materially and adversely\naffect the business, properties, prospects or financial condition of the Company\nand believes it can obtain, without undue burden or expense, any similar\nauthority for the conduct of its business as planned to be conducted.\n\n     3.17  Environmental and Safety Laws. The Company is not in violation of any\napplicable statute, law or regulation relating to the environment or\noccupational health and safety, and to its knowledge, no material expenditures\nare or will be required in order to comply with any such existing statute, law\nor regulation.\n\n     3.18  Offering Valid. Assuming the accuracy of the representations and\nwarranties of the Purchasers contained in Section 4.2 hereof, the offer, sale\nand issuance of the Shares and the Conversion Shares will be exempt from the\nregistration requirements of the Securities Act of 1933, as amended (the\n\"Securities Act\"), and will have been registered or qualified (or are exempt\nfrom registration and qualification) under the registration, permit or\nqualification requirements of all applicable state securities laws. Neither the\nCompany nor any agent on its behalf has solicited or will solicit any offers to\nsell or has offered to sell or will offer to sell all or any part of the Shares\nto any person or persons so as to bring the sale of such Shares by the Company\nwithin the registration provisions of the Securities Act or any state securities\nlaws.\n\n                                      -7-\n\n \n     3.19  Minute Books. The minute books of the Company provided to counsel for\nthe Purchasers contain a complete summary of all meetings of, and any actions\ntaken by, the directors and stockholders of the Company since the date of the\nCompany's incorporation.\n\n     A.    3.20  Disclosure. The Company has fully provided the Purchasers with\nall the information the Purchasers have requested for deciding whether to\nacquire the Shares and the Conversion Shares and all the information that the\nCompany believes is reasonably necessary to enable the Purchasers to make such a\ndecision. The Certificate of Incorporation and Bylaws of the Company are in the\nform provided to counsel for the Purchasers.\n\n     3.21  Year 2000 Compliance. The Company has reviewed the areas within its\nbusiness and operations which could be adversely affected by Year 2000 issues\nand evaluated the costs associated with modifying and testing its systems for\nthe Year 2000. The Company does not believe that the cost of Year 2000\ncompliance for its internal information systems will be material to the Company\nor that it will have a material adverse effect on the Company's business,\nfinancial condition or results of operations.\n\n     3.22  Qualified Small Business. The Company qualifies as a \"Qualified Small\nBusiness\" as defined in Section 1202(d) of the Code and covenants that so long\nas its shares are held by the Purchasers (or a transferee in whose hands the\nshares are eligible to qualify as Qualified Small Business Stock as defined in\nSection 1202(c) of the Code), it will use its best efforts to cause the shares\nto qualify as Qualified Small Business Stock.\n\nSection 4. Representations and Warranties of the Purchasers\n\n     Each Purchaser hereby represents and warrants to the Company as follows\n(such representations and warranties do not lessen or obviate the\nrepresentations and warranties of the Company set forth in this Agreement):\n\n     4.1   Requisite Power and Authority. Purchaser has all necessary power and\nauthority under all applicable provisions of law to execute and deliver this\nAgreement, the Investors' Rights Agreement and the Stockholders' Agreement and\nto carry out their provisions. All actions on the part of the Purchaser required\nfor the lawful execution and delivery of this Agreement, the Investors' Rights\nAgreement and the Stockholders' Agreement have been or will be effectively taken\nprior to the Closing. Upon their execution and delivery, this Agreement, the\nInvestors' Rights Agreement and the Stockholders' Agreement will be valid and\nbinding obligations of Purchaser, enforceable in accordance with their terms,\nexcept (i) as limited by applicable bankruptcy, insolvency, reorganization,\nmoratorium or other laws of general application affecting enforcement of\ncreditors' rights, (ii) as limited by general principles of equity that restrict\nthe availability of specific performance, injunctive relief or other equitable\nremedies and (iii) to the extent that the enforceability of the indemnification\nprovisions of the Investors' Rights Agreement may be limited by applicable laws.\n\n     4.2   Investment Representations. Purchaser understands that neither the\nShares nor the Conversion Shares have been registered under the Securities Act.\nPurchaser also understands that the Shares are being offered and sold pursuant\nto an exemption from registration contained \n\n                                      -8-\n\n \nin the Securities Act based in part upon Purchaser's representations contained\nin the Agreement. Purchaser hereby represents and warrants as follows:\n\n           (a) Purchaser Bears Economic Risk. Purchaser has substantial\nexperience in evaluating and investing in private placement transactions of\nsecurities in companies similar to the Company so that it is capable of\nevaluating the merits and risks of its investment in the Company and has the\ncapacity to protect its own interests. Purchaser must bear the economic risk of\nthis investment indefinitely unless the Shares (or the Conversion Shares) are\nregistered pursuant to the Securities Act, or an exemption from registration is\navailable. Purchaser understands that the Company has no present intention of\nregistering the Shares, the Conversion Shares or any shares of its Common Stock.\nPurchaser also understands that there is no assurance that any exemption from\nregistration under the Securities Act will be available and that, even if\navailable, such exemption may not allow Purchaser to transfer all or any portion\nof the Shares or the Conversion Shares under the circumstances, in the amounts\nor at the times Purchaser might propose.\n\n           (b) Acquisition for Own Account. Purchaser is acquiring the Shares\nand the Conversion Shares for Purchaser's own account for investment only, and\nnot with a view towards their distribution.\n\n           (c) Purchaser Can Protect Its Interest. Purchaser represents that by\nreason of its, or of its management's, business or financial experience,\nPurchaser has the capacity to protect its own interests in connection with the\ntransactions contemplated in this Agreement. Further, Purchaser is aware of no\npublication of any advertisement in connection with the transactions\ncontemplated in the Agreement.\n\n           (d) Accredited Investor. Purchaser represents that it is an\naccredited investor within the meaning of Regulation D under the Securities Act.\n\n           (e) Rule 144. Purchaser acknowledges and agrees that the Shares, and,\nif issued, the Conversion Shares must be held indefinitely unless they are\nsubsequently registered under the Securities Act or an exemption from such\nregistration is available. Purchaser has been advised or is aware of the\nprovisions of Rule 144 promulgated under the Securities Act, which permits\nlimited resale of shares purchased in a private placement subject to the\nsatisfaction of certain conditions, including, among other things: the\navailability of certain current public information about the Company, the resale\noccurring not less than one year after a party has purchased and paid for the\nsecurity to be sold, the sale being through an unsolicited \"broker's\ntransaction\" or in transactions directly with a market maker (as said term is\ndefined under the Securities Exchange Act of 1934, as amended) and the number of\nshares being sold during any three-month period not exceeding specified\nlimitations.\n\n           (f) Company Information.  Such Purchaser has had an opportunity to\n               -------------------                                           \ndiscuss the Company's business, management and financial affairs with directors,\nofficers and management of the Company and believes that such Purchaser has\nreceived all of the information such Purchaser considers necessary or\nappropriate for deciding whether to purchase the Shares.  Such Purchaser has\nalso had the opportunity to ask questions of, and receive answers from, the\nCompany and its management regarding the terms and conditions of this\ninvestment.\n\n                                      -9-\n\n \n          (g)  Legends.  It is understood that the certificates evidencing the\n               -------                                                        \nPreferred Stock (and the Conversion Stock) may bear the following legend:\n\n\"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.\nTHEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE\nOF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH\nACT AND APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION BEING\nAVAILABLE UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.\"\n\nSection 5.  Conditions to Closing; Covenants\n\n     5.1    Conditions to Purchasers' Obligations at the Closing.  Purchasers'\nobligations to purchase the Shares at each Closing are subject to the\nsatisfaction, at or prior to each Closing, of the following conditions:\n\n            (a)  Representations and Warranties True; Performance of\nObligations. The representations and warranties made by the Company in Section 3\nhereof shall be true and correct in all material respects as of the Closing\nDate.\n\n            (b)  Performance of Obligations.    The Company shall have performed\nand complied with all agreements and conditions herein required to be performed\nor complied with by the Company on or before the Closing.\n\n            (c)  Legal Investment. On the Closing Date, the sale and issuance of\nthe Shares and the proposed issuance of the Conversion Shares shall be legally\npermitted by all laws and regulations to which Purchasers and the Company are\nsubject.\n\n            (d)  Consents, Permits, and Waivers. The Company shall have obtained\nany and all consents, permits and waivers necessary or appropriate for\nconsummation of the transactions contemplated by the Agreement, the Investors'\nRights Agreement and the Stockholders' Agreement (except for such as may be\nproperly obtained subsequent to the Closing).\n\n            (e)  Filing of Certificate. The Certificate shall have been filed\nwith the Secretary of State of the State of Delaware.\n\n            (f)  Investors' Rights Agreement. An Investors' Rights Agreement,\nsubstantially in the form attached hereto as Exhibit C, shall have been executed\n                                             ---------                          \nand delivered by the parties thereto.\n\n            (g)  Stockholders' Agreement.  A Stockholders' Agreement,\nsubstantially in the form attached hereto as Exhibit D, shall have been executed\n                                             ---------                          \nand delivered by the parties thereto.\n\n            (h)  Employee NonDisclosure and Developments Agreement and Non-\nCompetition Agreement. An Employee NonDisclosure and Developments Agreement and\nNon-Competition Agreement, substantially in the forms attached hereto as \nExhibit E, shall have \n---------\n\n                                     -10-\n\n \nbeen executed and delivered by each officers or employee of the Company.\n\n            (i)  Board of Directors. Upon the Closing, the authorized size of\nthe Board of Directors of the Company shall be eight (8) members and the Board\nshall consist of a representative of SOFTBANK Technology Ventures IV L.P. and\n__________ and __________.  The Company agrees to pay all reasonable travel\nexpenses associated with the attendance by members of the Board of Directors at\nall meetings of the Board or committee thereof.\n\n            (j)  Legal Opinion. The Purchasers shall have received from legal\ncounsel to the Company an opinion addressed to them, dated as of the Closing\nDate, in substantially the form attached hereto as Exhibit F.\n                                                   --------- \n\n            (k)  Proceedings and Documents.  All corporate and other proceedings\nin connection with the transactions contemplated at the Closing hereby, all\ndocuments and instruments incident to such transactions and all documents,\ninstruments and proceedings related to the Purchasers' business, technical and\nlegal due diligence shall be reasonably satisfactory in substance and form to\nthe Purchasers and their counsel, and the Purchasers and their counsel shall\nhave received all such counterpart originals or certified or other copies of\nsuch documents as they may reasonably request.\n\n     5.2    Conditions to Obligations of the Company. The Company's obligation\nto issue and sell the Shares at each Closing is subject to the satisfaction, on\nor prior to such Closing, of the following conditions:\n\n            (a)  Representations and Warranties True.  The representations and\nwarranties made by the Purchasers in Section 4 hereof shall be true and correct\nin all material respects at the date of each Closing, with the same force and\neffect as if they had been made on and as of said date.\n\n            (b)  Performance of Obligations. Purchasers shall have performed and\ncomplied with all agreements and conditions herein required to be performed or\ncomplied with by Purchasers on or before the Closing.\n\n            (c)  Filing of Certificate. The Certificate shall have been filed\nwith the Secretary of State of the State of Delaware.\n\n            (d)  Investors' Rights Agreement. An Investors' Rights Agreement,\nsubstantially in the form attached hereto as Exhibit C, shall have been executed\n                                             ---------                         \nand delivered by the Purchasers.\n\n            (e)  Stockholders' Agreement.  A Stockholders' Agreement,\nsubstantially in the form attached hereto as Exhibit D, shall have been executed\n                                             ---------                          \nand delivered by the parties thereto.\n\n            (f)  Consents, Permits, and Waivers. The Company shall have obtained\nany and all consents, permits and waivers necessary or appropriate for\nconsummation of the transactions contemplated by the Agreement, the Investors'\nRights Agreement and the \n\n                                     -11-\n\n \nStockholders' Agreement (except for such as may be properly obtained subsequent\nto the Closing).\n\n     5.3    Covenants of the Company.\n\n            (a)  Insurance.  The Company, within 30 days after the Closing Date,\nshall obtain from financially sound and reputable insurers a key person life\ninsurance policy on Scott Blum in the amount of $5,000,000, which policy shall\nname the Company as the beneficiary and be satisfactory in form and substance to\nthe Purchasers.\n\n            (b)  Proceeds. The proceeds from the sale by the Company of the\nShares shall be used for the working capital needs of the Company.\n\nSection 6.  Miscellaneous\n\n     6.1    Governing Law. This Agreement shall be governed in all respects by\nthe laws of the State of Delaware without regard to principles of conflict of\nlaws.\n\n     6.2    Survival. The representations, warranties, covenants and agreements\nmade herein shall survive for a period of four (4) years any investigation made\nby any Purchaser and the closing of the transactions contemplated hereby. All\nstatements as to factual matters contained in any certificate or other\ninstrument delivered by or on behalf of the Company pursuant hereto in\nconnection with the transactions contemplated hereby shall be deemed to be\nrepresentations and warranties by the Company hereunder solely as of the date of\nsuch certificate or instrument.\n\n     6.3    Successors and Assigns. Except as otherwise expressly provided\nherein, the provisions hereof shall inure to the benefit of, and be binding\nupon, the successors, assigns, heirs, executors and administrators of the\nparties hereto and shall inure to the benefit of and be enforceable by each\nperson who shall be a holder of the Shares from time to time.\n\n     6.4    Entire Agreement. This Agreement, the Exhibits and Schedules hereto,\nincluding the Investors' Rights Agreement and the Stockholders' Agreement, and\nthe other documents delivered pursuant hereto constitute the full and entire\nunderstanding and agreement between the parties with regard to the subjects\nhereof and no party shall be liable or bound to any other in any manner by any\nrepresentations, warranties, covenants and agreements except as specifically set\nforth herein and therein.\n\n     6.5    Severability. In case any provision of the Agreement shall be\ninvalid, illegal or unenforceable, the validity, legality and enforceability of\nthe remaining provisions shall not in any way be affected or impaired thereby.\n\n     6.6    Amendment and Waiver.\n\n            (a)  This Agreement may be amended or modified only upon the written\nconsent of the Company and holders of at least a majority of the Shares (treated\nas if converted and including any Conversion Shares into which the Shares have\nbeen converted that have not been sold to the public).\n\n                                     -12-\n\n \n            (b)  The obligations of the Company and the rights of the holders of\nthe Shares and the Conversion Shares under the Agreement may be waived only with\nthe written consent of the holders of at least a majority of the Shares (treated\nas if converted and including any Conversion Shares into which the Shares have\nbeen converted that have not been sold to the public).\n\n     6.7    Delays or Omissions.  It is agreed that no delay or omission to\nexercise any right, power or remedy accruing to any party, upon any breach,\ndefault or noncompliance by another party under this Agreement, the Investors'\nRights Agreement, the Stockholders' Agreement or the Certificate, shall impair\nany such right, power or remedy, nor shall it be construed to be a waiver of any\nsuch breach, default or noncompliance thereafter occurring.  It is further\nagreed that any waiver, permit, consent or approval of any kind of character on\nany Purchaser's part of any breach, default or noncompliance under this\nAgreement, the Investors' Rights Agreement, the Stockholders' Agreement or under\nthe Certificate or any waiver on such party's part of any provisions or\nconditions of the Agreement, the Investors' Rights Agreement, the Stockholders'\nAgreement, or the Certificate must be in writing and shall be effective only to\nthe extent specifically set forth in such writing.  All remedies, either under\nthis Agreement, the Investors' Rights Agreement, the Stockholders' Agreement,\nthe Certificate, by law, or otherwise afforded to any party, shall be cumulative\nand not alternative.\n\n     6.8    Notices. All notices required or permitted hereunder shall be in\nwriting and shall be deemed effectively given: (i) upon personal delivery to the\nparty to be notified; (ii) when sent by confirmed telex or facsimile if sent\nduring normal business hours of the recipient, if not, then on the next business\nday; (iii) five (5) days after having been sent by registered or certified mail,\nreturn receipt requested, postage prepaid; or (iv) one (1) day after deposit\nwith a nationally recognized overnight courier, specifying next day delivery,\nwith written verification of receipt. All communications shall be sent to the\nCompany at the address as set forth on the signature page hereof and to\nPurchaser at the address set forth on Exhibit A attached hereto or at such other\n                                      ---------                                 \naddress as the Company or Purchaser may designate by ten (10) days advance\nwritten notice to the other parties hereto.\n\n     6.9    Titles and Subtitles. The titles of the sections and subsections of\nthe Agreement are for convenience of reference only and are not to be considered\nin construing this Agreement.\n\n     6.10   Counterparts. This Agreement may be executed in any number of\ncounterparts, each of which shall be an original, but all of which together\nshall constitute one instrument.\n\n     6.11   Broker's Fees.  Each party hereto represents and warrants that no\nagent, broker, investment banker, person or firm acting on behalf of or under\nthe authority of such party hereto is or will be entitled to any broker's or\nfinder's fee or any other commission directly or indirectly in connection with\nthe transactions contemplated herein. Each party hereto further agrees to\nindemnify each other party for any claims, losses or expenses incurred by such\nother party as a result of the representation in this Section 6.11 being untrue.\n\n     6.12   Expenses. The Company shall pay all costs and expenses that it\nincurs with respect to the negotiation, execution, delivery and performance of\nthe Agreement. The Company shall reimburse the reasonable fees and expenses of\ncounsel to the Purchasers, not to exceed \n\n                                     -13-\n\n \n$20,000 in the aggregate, incurred in connection with the negotiation,\nexecution, delivery and performance of this Agreement.\n\n     6.13   Exculpation Among Purchasers. Each Purchaser acknowledges that it is\nnot relying upon any person, firm, or corporation, other than the Company and\nits officers and directors, in making its investment or decision to invest in\nthe Company. Each Purchaser agrees that no Purchaser nor the respective\ncontrolling persons, officers, directors, partners, agents, or employees of any\nPurchaser shall be liable for any action heretofore or hereafter taken or\nomitted to be taken by any of them in connection with the Shares and Conversion\nShares.\n\n     6.14   Specific Enforcement. Any Purchaser shall be entitled to specific\nenforcement of its rights under this Agreement. Then Company acknowledges that\nmoney damages would be an inadequate remedy for its breach of this Agreement and\nconsents to an action for specific performance or other injunctive relief in the\nevent of any such breach.\n\n     6.15   Attorney's Fees.  If any action at law or in equity is necessary to\nenforce or interpret the terms of this Agreement, the prevailing party shall be\nentitled to reasonable attorneys' fees, costs and necessary disbursements in\naddition to any other relief to which such party may be entitled.\n\n     [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\n\n                                     -14-\n\n \n     In Witness Whereof, the parties hereto have executed the Series A\nConvertible Participating Preferred Stock Purchase Agreement as of the date set\nforth in the first paragraph hereof.\n\n\n                                    COMPANY:\n\n                                    BUY CORP.\n                                    Address: ____________________\n                                             ____________________\n                                             ____________________\n\n\n                                    By:______________________________________\n                                    Name:\n                                    Title:\n \n\n                                    _________________________________________\n                                    Scott A. Blum\n\n                                    PURCHASERS:\n\n                                    SOFTBANK Technology Ventures IV L.P.\n\n                                    By:  STV IV LLC\n                                          Its General Partner\n\n\n                                    By:______________________________________\n                                    Name:\n                                    Title:\n\n\n                                    SOFTBANK Technology Advisors Fund L.P.\n\n                                    By:  STV IV LLC\n                                          Its General Partner\n\n\n                                    By:______________________________________\n                                    Name:\n                                    Title:\n\n\n                  CLASS A PREFERRED STOCK PURCHASE AGREEMENT\n\n \n                                   Exhibit A\n\n     Series A Convertible Participating Preferred Stock Purchase Agreement\n\n\n\n\n                                                                     Aggregate\nName and Address                                Shares            Purchase Price\n---------------------------------------       ----------          --------------\n                                                            \nSOFTBANK Technology Ventures IV L.P             955,745           $14,717,995.13\nc\/o STV IV LLC\n333 W. San Carlos\nSan Jose, CA  95110\n\nSOFTBANK Technology Advisors Fund L.P.           18,312           $   281,995.64\nc\/o STV IV LLC\n333 W. San Carlos\nSan Jose, CA  95110\n                                              ----------          --------------\n\nTotal:                                          974,057           $14,999,990.77\n======                                        ==========          ==============\n \n\n \n                                   Exhibit B\n\n           Certificate of Amendment of Certificate of Incorporation\n\n \n                                   Exhibit C\n\n                          Investors' Rights Agreement\n\n \n                                   Exhibit D\n\n                            Stockholders' Agreement\n\n \n                                   Exhibit E\n\n             Employee Nondisclosure and Developments Agreement and\n                           Non-Competition Agreement\n\n \n                                   Exhibit F\n\n                                 Legal Opinion\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7858],"corporate_contracts_industries":[],"corporate_contracts_types":[9613,9619],"class_list":["post-42731","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-ingram-micro-inc","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42731","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42731"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42731"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42731"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42731"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}