{"id":43508,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/purchase-agreement-compaq-computer-corp-cmgi-inc-and-b2e.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"purchase-agreement-compaq-computer-corp-cmgi-inc-and-b2e","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/purchase-agreement-compaq-computer-corp-cmgi-inc-and-b2e.html","title":{"rendered":"Purchase Agreement &#8211; Compaq Computer Corp., CMGI Inc. and B2E Solutions LLC."},"content":{"rendered":"<pre>\n                                                                  Execution Copy\n                                                                  --------------\n\n                               PURCHASE AGREEMENT\n\n                                  dated as of\n\n                                October 29, 2001\n\n                                     among\n\n                          COMPAQ COMPUTER CORPORATION,\n\n                                   CMGI, INC.\n                                        \n                                      and\n\n                               B2E SOLUTIONS, LLC\n\n                       relating to the purchase and sale\n\n                                       of\n\n                                34,490,140 UNITS\n\n                                       of\n\n                               B2E SOLUTIONS, LLC\n\n \n                               PURCHASE AGREEMENT\n\n\n     AGREEMENT dated as of October 29, 2001 between Compaq Computer Corporation,\na Delaware corporation (\"BUYER\"), CMGI, Inc., a Delaware corporation (\"SELLER\"),\nand B2E Solutions, LLC, a Delaware limited liability company (the \"COMPANY\").\n\n                             W I T N E S S E T H :\n\n     WHEREAS, Buyer and Seller are the sole members of the Company;\n\n     WHEREAS, Buyer and Seller, together with NaviSite, Inc., a Delaware\ncorporation, and AltaVista Company, a Delaware Corporation, Compaq Financial\nServices Corporation, a Delaware corporation, Compaq Financial Services Company,\nan unlimited liability company having a share capital formed under the laws of\nIreland, and Compaq Financial Services Canada Corporation, a corporation\nincorporated under the Nova Scotia Business Corporation Act, have entered into a\ntransaction agreement dated as of October 29, 2001 (the \"TRANSACTION\nAGREEMENT\");\n\n     WHEREAS, Seller has agreed to sell and Buyer has agreed to purchase\nmembership interests in the Company consisting of 34,490,140 Units (the\n\"UNITS\"), on the terms and subject to the conditions set forth herein and in the\nTransaction Agreement.\n\n     The parties hereto agree as follows:\n\n                                   ARTICLE 1\n\n                                  Definitions\n\n     Section 1.01.  Definitions.  Capitalized terms used herein without\ndefinition have the meanings assigned to such terms in the Transaction\nAgreement.  The following term, as used herein, have the following meaning:\n\n     \"LIEN\" means, with respect to any property or asset, any mortgage, lien,\npledge, charge, security interest, encumbrance or other adverse claim of any\nkind in respect of such property or asset.\n\n     \"LLC AGREEMENT\" shall mean the Limited Liability Company Agreement of the\nCompany dated as of June 9, 2000 by and between CPCG Holdings, Inc., a Delaware\ncorporation (\"CPCG HOLDINGS\"), and Seller.\n\n     \"MEMBER\" means each Member of the Company, as defined in the LLC Agreement.\n\n\n \n     \"SECURITYHOLDERS AGREEMENT\" shall mean the Securityholders Agreement dated\nas of June 8, 2000, as amended by Amendment No. 1 thereto effective as of\nNovember 15, 2000, by and among the Company, Buyer, CPCG Holdings, Inc. and\nSeller.\n\n                                   ARTICLE 2\n\n                               Purchase And Sale\n\n     Section 2.01.  Purchase And Sale.  Upon the terms and subject to the\nconditions of this Agreement, Seller agrees to sell to Buyer and Buyer agrees to\npurchase from such Seller, the Units (the \"PURCHASE\").  In consideration for the\nUnits and for Seller's consummation of the other transactions set forth in\nSection 2.01 of the Transaction Agreement (the \"CMGI DEBT RESTRUCTURING\"), at\nthe Closing, Buyer shall deliver to Seller the Notes for cancellation thereof\n(together with any accrued and unpaid interest thereon), as provided herein and\nin the Transaction Agreement.\n\n     Section 2.02.  Conditions; Closing.  The respective obligations of Buyer\nand Seller to consummate the Purchase are subject to (i) the satisfaction of the\nconditions to the performance of such party's obligations under the Transaction\nAgreement and the simultaneous consummation of the CMGI Debt Restructuring and\n(ii) the accuracy of the representations and warranties of the other party\nhereunder.  The closing (the \"CLOSING\") of the purchase and sale of the Units\nhereunder, concurrently with the retirement of the Notes and the consummation of\nthe other transactions comprising the CMGI Debt Restructuring, shall take place\nat the offices of Davis Polk &amp; Wardwell, 450 Lexington Avenue, New York, New\nYork as soon as possible, but in no event later than 10 business days after\nsatisfaction of the conditions set forth above, or at such other time or place\nas Buyer and Sellers may agree.  At the Closing,\n\n          (a)  Buyer shall be and become the record and beneficial owner of the\n     Units and Seller shall cease to be a Member of the Company as provided in\n     the LLC Agreement and in Section 18-702 of the Delaware Limited Liability\n     Company Act, 6 Del. C. (S)(S)18-101 et seq.; and\n\n          (b) the Securityholders Agreement shall terminate and be of no further\n     force and effect and the parties shall have no further rights or\n     obligations thereunder including, without limitation, the Company shall\n     have no rights to the intangible assets set forth on Schedule II of the\n     Securityholders Agreement.\n\n     Section 2.03.  Waiver of Transfer Restrictions.  In furtherance of the\nforegoing, each of Buyer, Seller and the Company hereby waives the application\nof Section 3.9 of the LLC Agreement and Sections 3.1(a) and (b), 3.2 and 3.3 of\nthe Securityholders Agreement to the extent necessary to permit the consummation\nof the transactions contemplated hereby.\n\n                                       2\n\n \n                                   ARTICLE 3\n\n                    Representations And Warranties Of Seller\n\n     Seller represents and warrants to Buyer as of the date hereof and as of the\nClosing that:\n\n     Section 3.01.  Corporate Existence And Power.  Seller is a corporation duly\nincorporated, validly existing and in good standing under the laws of its\njurisdiction of incorporation and has all corporate powers and all material\ngovernmental licenses, authorizations, permits, consents and approvals required\nto carry on its business as now conducted, except where the failure to have such\ngovernmental licenses, authorizations, permits, consents and approvals would not\nreasonably be expected to materially impair the ability of Seller to enter into\nthis Agreement or to consummate the transactions contemplated hereby.  Seller\nhas heretofore made available to Buyer true and complete copies of the\ncertificate of incorporation and bylaws of Seller as currently in effect.\n\n     Section 3.02.  Corporate Authorization.  The execution, delivery and\nperformance by Seller of this Agreement are within Seller's corporate powers and\nhave been duly authorized by all necessary corporate and stockholder action on\nthe part of Seller.  This Agreement constitutes a valid and binding agreement of\nSeller.\n\n     Section 3.03.  Governmental Authorization.  The execution, delivery and\nperformance by Seller of this Agreement require no action by or in respect of,\nor filing with, any governmental body, agency, or official.\n\n     Section 3.04.  Noncontravention.  The execution, delivery and performance\nby Seller of this Agreement and the consummation of the transactions\ncontemplated hereby do not and will not (i) violate the certificate of\nincorporation or bylaws of Seller, (ii) violate any applicable, material law,\nrule, regulation, judgment, injunction, order or decree, or (iii) require any\nconsent or other action by any Person under, constitute a default under, or give\nrise to any right of termination, cancellation or acceleration of any right or\nobligation of Seller to a loss of any material benefit to which Seller is\nentitled under any provision of any agreement or other instrument binding upon\nSeller.\n\n     Section 3.05.  Ownership Of Units.  Seller is the record and beneficial\nowner of the Units, free and clear of any Lien and any other limitation or\nrestriction (including any restriction on the right to vote, sell or otherwise\ndispose of the Units), other than the transfer restrictions set forth in and\nwaived pursuant to Section 2.03 of this Agreement, and will transfer and deliver\nto Buyer at the Closing valid title to the Units, free and clear of any Lien and\nany such limitation or restriction.\n\n     Section 3.06.  Litigation.  There is no action, suit, investigation or\nproceeding pending against, or to the knowledge of Seller threatened against or\n\n                                       3\n\n \naffecting, Seller or the Company or any of their respective properties before\nany court or arbitrator or any governmental body, agency or official which in\nany manner challenges or seeks to prevent, enjoin, alter or materially delay the\ntransactions contemplated by this Agreement.\n\n     Section 3.07.  Finders' Fees.  There is no investment banker, broker,\nfinder or other intermediary which has been retained by or is authorized to act\non behalf of Seller who might be entitled to any fee or commission from either\nBuyer or the Company in connection with the transactions contemplated by this\nAgreement.\n\n                                   ARTICLE 4\n\n                    Representations And Warranties Of Buyer\n\n     Buyer represents and warrants to Seller and the Company as of the date\nhereof that:\n\n     Section 4.01.  Corporate Existence And Power.  Buyer is a corporation duly\nincorporated, validly existing and in good standing under the laws of its\njurisdiction of incorporation and has all corporate powers and all material\ngovernmental licenses, authorizations, permits, consents and approvals required\nto carry on its business as now conducted, except where the failure to have such\ngovernmental licenses, authorizations, permits, consents and approvals would not\nreasonably be expected to materially impair the ability of Buyer to enter into\nthis Agreement or to consummate the transactions contemplated hereby.\n\n     Section 4.02.  Corporate Authorization.  The execution, delivery and\nperformance by Buyer of this Agreement are within the corporate powers of Buyer\nand have been duly authorized by all necessary corporate action on the part of\nBuyer.  This Agreement constitutes a valid and binding agreement of Buyer.\n\n     Section 4.03.  Governmental Authorization.  The execution, delivery and\nperformance by Buyer of this Agreement require no material action by or in\nrespect of, or material filing with, any governmental body, agency or official.\n\n     Section 4.04.  Non-Contravention.  The execution, delivery and performance\nby Buyer of this Agreement and the consummation of the transactions contemplated\nhereby do not and will not (i) violate the certificate of incorporation or\nbylaws of Buyer, (ii) violate any applicable, material law, rule, regulation,\njudgment, injunction, order or decree, or (iii) require any consent or other\naction by any Person under, constitute a default under, or give rise to any\nright of termination, cancellation or acceleration of any right or obligation of\nBuyer to a loss of any benefit to which Buyer is entitled under any provision of\nany material agreement or other instrument binding upon Buyer.\n\n                                       4\n\n \n     Section 4.05.  Litigation.  There is no action, suit, investigation or\nproceeding pending against, or to the knowledge of Buyer threatened against or\naffecting, Buyer or the Company or any of their respective properties before any\ncourt or arbitrator or any governmental body, agency or official which in any\nmanner challenges or seeks to prevent, enjoin, alter or materially delay the\ntransactions contemplated by this Agreement.\n\n     Section 4.06.  Finders' Fees.  There is no investment banker, broker,\nfinder or other intermediary which has been retained by or is authorized to act\non behalf of Buyer who might be entitled to any fee or commission from either\nSeller or any of its Affiliates upon consummation of the transactions\ncontemplated by this Agreement.\n\n                                   ARTICLE 5\n\n                                 Miscellaneous\n\n     Section 5.01.  Notices.  All notices, requests and other communications to\nany party hereunder shall be in writing (including facsimile transmission) and\nshall be given,\n\n     if to Buyer, to:\n\n           Compaq Computer Corporation\n           40 Old Bolton Road\n           Stow, MA 01175-1229\n           Attention:  Paul Henrion, Esq.\n           Fax:  (978) 496-9042\n\n           with a copy to:\n\n                 Davis Polk &amp; Wardwell\n                 450 Lexington Avenue\n                 New York, New York  10017\n                 Attention:  Christopher Mayer, Esq.\n                 Fax:  (212) 450-4800\n\n     if to Seller, to:\n\n           CMGI, Inc.\n           100 Brickstone Square\n           Andover, MA 01810\n           Attention:  General Counsel\n           Fax:  (978) 684-3601\n\n           with a copy to:\n\n                                       5\n\n \n                 Hale and Dorr LLP\n                 60 State Street\n                 Boston, MA 02109\n                 Attention:  Mark Borden, Esq.\n                 Fax:  (617) 526-5000\n\n     if to the Company, to:\n\n           B2E Solutions, LLC\n           Chasewood Technology Park\n           20333 SH 249 Suite 220\n           Houston, TX  77070\n           Attention:  General Counsel\n           Fax:  (281) 518-1396\n\nAll such notices, requests and other communications shall be deemed received on\nthe date of receipt by the recipient thereof if received prior to 5 p.m. in the\nplace of receipt and such day is a business day in the place of receipt.\nOtherwise, any such notice, request or communication shall be deemed not to have\nbeen received until the next succeeding business day in the place of receipt.\n\n     Section 5.02.  Best Efforts.  Subject to the terms and conditions of this\nAgreement, Buyer, Seller, and the Company will use their respective best efforts\nto take, or cause to be taken, all actions and to do, or cause to be done, all\nthings necessary or desirable under applicable laws and regulations to\nconsummate the transactions contemplated by this Agreement.  Each of Seller,\nBuyer, and the Company agrees to execute and deliver such other documents,\ncertificates, agreements and other writings and to take such other actions as\nmay be necessary or desirable in order to consummate or implement expeditiously\nthe transactions contemplated by this Agreement.\n\n     Section 5.03.  Survival.  The representations and warranties of the parties\nhereto contained in this Agreement shall survive the Closing.\n\n     Section 5.04.  Amendments And Waivers.  (a)  Any provision of this\nAgreement may be amended or waived prior to the Closing if, but only if, such\namendment or waiver is in writing and is signed, in the case of an amendment, by\neach party to this Agreement, or in the case of a waiver, by the party against\nwhom the waiver is to be effective.\n\n     (b)  No failure or delay by any party in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the\nexercise of any other right, power or privilege. The rights and remedies herein\nprovided shall be cumulative and not exclusive of any rights or remedies\nprovided by law.\n\n                                       6\n\n \n     Section 5.05.  Termination.  (a)  This Agreement may only be terminated at\nany time prior to the Closing (i) by mutual written agreement of Seller, Buyer\nand the Company or (ii) by either Seller or Buyer if the Transaction Agreement\nshall have been terminated pursuant to its terms.  The party desiring to\nterminate this Agreement shall give notice of such termination to the other\nparties.\n\n     (b) If this Agreement is terminated as permitted by Section 5.05(a),\ntermination shall be without liability of any party (or any stockholder,\ndirector, officer, employee, agent, consultant or representative of such party)\nto the other parties to this Agreement; provided that if such termination shall\nresult from the willful failure of any party to fulfill a condition to the\nperformance of the obligations of the other parties, failure to perform a\ncovenant of this Agreement or breach by any party hereto of any representation\nor warranty or agreement contained herein, such party shall be fully liable for\nany and all damages incurred or suffered by the other parties as a result of\nsuch failure or breach.\n\n     Section 5.06.  Successors And Assigns.  The provisions of this Agreement\nshall be binding upon and inure to the benefit of the parties hereto and their\nrespective successors and assigns; provided that, no party may assign, delegate\nor otherwise transfer any of its rights or obligations under this Agreement\nwithout the consent of each other party hereto, except that Buyer may transfer\nor assign its rights and obligations contained herein relating to the purchase\nof the Units to a Affiliate of Buyer.\n\n     Section 5.07.  Governing Law.  This Agreement shall be governed by and\nconstrued in accordance with the law of the State of New York, without regard to\nthe conflicts of law rules of such state.\n\n     Section 5.08.  Jurisdiction.  Except as otherwise expressly provided in\nthis Agreement, the parties hereto agree that any suit, action or proceeding\nseeking to enforce any provision of, or based on any matter arising out of or in\nconnection with, this Agreement or the transactions contemplated hereby shall be\nbrought in the United States District Court for the Southern District of New\nYork or any New York State court sitting in New York City, so long as one of\nsuch courts shall have subject matter jurisdiction over such suit, action or\nproceeding, and that any cause of action arising out of this Agreement shall be\ndeemed to have arisen from a transaction of business in the State of New York,\nand each of the parties hereby irrevocably consents to the jurisdiction of such\ncourts (and of the appropriate appellate courts therefrom) in any such suit,\naction or proceeding and irrevocably waives, to the fullest extent permitted by\nlaw, any objection that it may now or hereafter have to the laying of the venue\nof any such suit, action or proceeding in any such court or that any such suit,\naction or proceeding which is brought in any such court has been brought in an\ninconvenient forum. Process in any such suit, action or proceeding may be served\non any party anywhere in the world, whether within or without the jurisdiction\nof any such court. Without limiting the foregoing, each party agrees that\nservice of process on such party as \n\n                                       7\n\n \nprovided in Section 5.01 shall be deemed effective service of process on such\nparty.\n\n     Section 5.09.  WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY\nIRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING\nARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED\nHEREBY.\n\n     Section 5.10.  Counterparts; Third Party Beneficiaries.  This Agreement may\nbe signed in any number of counterparts, each of which shall be an original,\nwith the same effect as if the signatures thereto and hereto were upon the same\ninstrument. No provision of this Agreement is intended to confer upon any Person\nother than the parties hereto any rights or remedies hereunder.\n\n     Section 5.11.  Entire Agreement.  This Agreement together with the\nTransaction Agreement constitutes the entire agreement between the parties with\nrespect to the subject matter of this Agreement and supersedes all prior\nagreements and understandings, both oral and written, between the parties with\nrespect to the subject matter of this Agreement. No representation, inducement,\npromise, understanding, condition or warranty not set forth herein or therein\nhas been made or relied upon by any party hereto.\n\n                                       8\n\n \n     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nduly executed by their respective authorized officers as of the day and year\nfirst above written.\n\n                                     COMPAQ COMPUTER CORPORATION\n \n                                     By: \/s\/ Ben Wells\n                                         ---------------------------------\n                                         Name:  Ben Wells\n                                         Title: VP, Corporate Treasurer\n\n\n\n                                     CMGI, INC.\n \n                                     By: \/s\/ George A. McMillan\n                                         ---------------------------------\n                                         Name:  George A. McMillan\n                                         Title: CFO\n\n\n\n                                     B2E SOLUTIONS, LLC\n \n                                     By: \/s\/ Mia Shernoff\n                                         ---------------------------------\n                                         Name:  Mia Shernoff\n                                         Title: Chief Executive Officer\n\n                                       9\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7128,7162],"corporate_contracts_industries":[9508,9417],"corporate_contracts_types":[9622,9627],"class_list":["post-43508","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cmgi-inc","corporate_contracts_companies-compaq-computer-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_industries-financial__holding","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43508","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=43508"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43508"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43508"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43508"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}