EXHIBIT 10.31
PURCHASE AGREEMENT
DATED MARCH 29, 2000
BETWEEN
DIVINE INTERVENTURES, INC.
AND
MICROSOFT CORPORATION
TABLE OF CONTENTS
Section 1. Authorization, Purchase and Sale................................. 1
1A. Authorization of the Class A Common Stock...................... 1
1B. Purchase and Sale of the Class A Common Stock.................. 1
Section 2. The Closing...................................................... 1
Section 3. Representations and Warranties of the Company.................... 2
3A. Organization and Corporate Power............................... 2
3B. Authorization; No Breach....................................... 2
3C. Title to Shares................................................ 3
3D. Governmental Consent, etc...................................... 3
3E. Disclosure..................................................... 3
Section 4. Representations, Warranties and Covenants of Purchaser........... 3
4A. Organization and Corporate Power............................... 3
4B. Authorization; No Breach....................................... 3
4C. Governmental Consent, etc...................................... 4
4D. Investment Representations..................................... 4
4E. Purchaser's Principal Place of Business........................ 6
4F. Solicitation of Proxies........................................ 6
4G. Notice......................................................... 6
4H. No Group....................................................... 6
Section 5. Intentionally Omitted............................................ 6
Section 6. Conditions of the Purchaser's Obligations at the Closing......... 6
6A. Representations and Warranties................................. 6
6B. Performance.................................................... 6
6D. Opinion of Company Counsel..................................... 7
6E. Commercial Agreement........................................... 7
6F. Amended Certificate of Incorporation........................... 7
Section 7. Conditions of the Company's Obligations at the Closing........... 7
7A. Representations and Warranties................................. 7
7B. Performance.................................................... 7
7D. Commercial Agreement........................................... 7
Section 8. Termination...................................................... 7
Section 9. Indemnification.................................................. 8
9A. Company Indemnification....................................... 8
9B. Purchaser Indemnification..................................... 8
9C. Survival of Representations and Warranties.................... 9
Section 10. Definitions...................................................... 9
Section 11. Miscellaneous.................................................... 9
11A. Expenses...................................................... 9
11B. Remedies...................................................... 9
11C. Legends....................................................... 10
11D. Lock-up Agreements............................................ 11
11E. Exchange of Shares............................................ 11
11F. Successors and Assigns........................................ 11
11G. Severability.................................................. 11
11H. Counterparts.................................................. 11
11I. Descriptive Headings; Interpretation.......................... 12
11J. Governing Law................................................. 12
11K. Notices....................................................... 12
11L. No Strict Construction........................................ 13
Exhibit A - Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit B - Form of Amendment to Alliance Agreement
DIVINE INTERVENTURES, INC.
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of March 29,
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2000 between divine interVentures, inc., a Delaware corporation (the "Company"),
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and Microsoft Corporation, a Delaware corporation (the "Purchaser"). Except as
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otherwise indicated herein, capitalized terms used herein are defined in Section
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10 hereof.
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WHEREAS, the parties desire to enter into a long-term strategic
relationship as further described herein.
WHEREAS, as part of such strategic relationship, Purchaser desires to make
an investment in the Company, on the terms and conditions described herein.
WHEREAS, such strategic relationship and the agreement entered into by the
Company and the Purchaser in connection therewith, is a condition to the
execution and delivery of this Agreement and the issuance to the Purchaser of
the Company's equity securities.
NOW THEREFORE, in consideration of the mutual promises contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
Section 1. Authorization, Purchase and Sale.
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1A. Authorization of the Class A Common Stock. The Company shall
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authorize the issuance and sale to the Purchaser of an aggregate number of
shares of its Class A Common Stock, par value $0.001 per share (the "Class A
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Common Stock") to meet the calculation set forth in Section 1B below.
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1B. Purchase and Sale of the Class A Common Stock. The Company shall
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sell to the Purchaser, and subject to the terms and conditions set forth herein,
the Purchaser shall purchase from the Company, upon the consummation of a
Qualified IPO, that number of shares of Class A Common Stock equal to the
result of $50,000,000 divided by the purchase price stated on the face of the
final prospectus in connection with the Qualified IPO as the price per share to
the public of the Class A Common Stock in the Qualified IPO, which purchase
price shall be paid in immediately available funds.
Section 2. The Closing. The closing of the purchase and sale of the
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Class A Common Stock to the Purchaser (the "Closing") shall take place at the
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offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Zavis, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
immediately following the consummation of the Qualified IPO. At the Closing,
the Company shall deliver a stock certificate or stock certificates evidencing
all of the shares of the Class A Common Stock to be purchased by Purchaser
hereunder, registered in Purchaser's name, upon the payment of the aggregate
purchase price therefor, by wire transfer of immediately available funds to an
account designated
by the Company to Purchaser prior to the Closing. Notwithstanding the foregoing,
if the Qualified IPO has not occurred within four (4) months from the date
hereof, this Agreement shall automatically terminate and Purchaser shall have no
obligation to make any investment in the Company.
Section 3. Representations and Warranties of the Company. As a
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material inducement to the Purchaser to enter into this Agreement and purchase
the Class A Common Stock, the Company hereby represents and warrants that:
3A. Organization and Corporate Power. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Delaware and is qualified to do business in every jurisdiction in which
the failure to so qualify would reasonably be expected to have a material
adverse effect on the financial condition, operating results or assets of the
Company. The Company possesses all requisite corporate power and authority
necessary to carry out the transactions contemplated by this Agreement and each
of the Transaction Documents to which the Company is a party.
3B. Authorization; No Breach.
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(i) The execution, delivery and performance of this Agreement
and each of the Transaction Documents to which the Company is a party will
have been duly authorized by the Company as of the Closing upon the
approval hereof by the Company, its Board of Directors and its
stockholders. This Agreement and the Transaction Documents to which the
Company is a party will each constitute a valid and binding obligation of
the Company, enforceable in accordance with its terms as of the Closing.
(ii) The execution and delivery by the Company of this Agreement
and all Transaction Documents to which the Company is a party, the sale and
issuance of the Class A Common Stock hereunder, and the fulfillment of and
compliance with the respective terms hereof and thereof by the Company, do
not and will not as of the Closing (i) conflict with or result in a breach
of the terms, conditions or provisions of, (ii) constitute a default under,
(iii) result in the creation of any lien, security interest, charge or
encumbrance upon the Company's or any Subsidiary's capital stock or assets
pursuant to, (iv) give any third party the right to modify, terminate or
accelerate any obligation under, (v) result in a violation of, or (vi)
require any authorization, consent, approval, exemption or other action by
or notice or declaration to, or filing with, any court or administrative or
governmental body or agency pursuant to the Certificate of Incorporation of
the Company or the amended and restated bylaws of the Company, or any
material law, statute, rule or regulation to which the Company is subject,
or any agreement, instrument, order, judgment or decree to which the
Company is subject, except for the filing of the Amended Certificate and
any filings required after the date hereof under federal or state
securities laws.
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3C. Title to Shares. Upon issuance in accordance with the terms
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hereof, the Class A Common Stock to be purchased hereunder will be duly and
validly issued, fully paid, nonassessable, and the Purchaser will have good and
marketable title to such shares, free and clear of all liens, claims and
encumbrances of any kind, other than (a) transfer restrictions hereunder
(including Sections 11C and 11D below) and under the other agreements
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contemplated hereby, (b) transfer restrictions under federal and state
securities laws and (c) liens, claims or encumbrances imposed due to the actions
of the Purchaser.
3D. Governmental Consent, etc. No permit, consent, approval or
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authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by the
Company of this Agreement or any of the Transaction Documents to which the
Company is a party, or the consummation by the Company of any other transactions
contemplated hereby or thereby.
3E. Disclosure. (a) The Company has provided the Purchaser with a
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copy of the Registration Statement as filed, and will provide the Purchaser with
a copy of any and all amendments to the Registration Statement filed, by the
Company with the Securities and Exchange Commission prior to the Closing. (b)
To the best of the Company's knowledge as of the date hereof, neither this
Agreement, any Transaction Document to which the Company is a party nor the
Registration Statement, taken as a whole, contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
herein or therein not misleading.
Section 4. Representations, Warranties and Covenants of Purchaser.
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As a material inducement to the Company to enter into this Agreement and issue
and sell Class A Common Stock to the Purchaser, the Purchaser hereby represents,
warrants and covenants to the Company (which representations, warranties and
covenants shall survive the Closing) that:
4A. Organization and Corporate Power. The Purchaser is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Washington. The Purchaser possesses all requisite corporate power and
authority necessary to carry out the transactions contemplated by this
Agreement.
4B. Authorization; No Breach.
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(i) The execution, delivery and performance of this Agreement
and each of the Transaction Documents to which Purchaser is a party have
been duly authorized by Purchaser. This Agreement and each of the
Transaction Documents hereby to which Purchaser is a party each constitute
a valid and binding obligation of Purchaser, enforceable in accordance with
its terms as of the Closing.
(ii) The execution and delivery by Purchaser of this Agreement
and Transaction Documents to which Purchaser is a party and the fulfillment
of and compliance with the respective terms hereof and thereof by
Purchaser, do not and shall not as of the Closing (i) conflict with or
result in a breach of the terms, conditions or provisions of, (ii)
constitute a default under, (iii) result in the creation of any lien,
security
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interest, charge or encumbrance upon the Purchaser's or any Subsidiary's
capital stock or assets pursuant to, (iv) give any third party the right to
modify, terminate or accelerate any obligation under, (v) result in a
violation of, or (vi) require any authorization, consent, approval,
exemption or other action by or notice or declaration to, or filing with,
any court or administrative or governmental body or agency pursuant to, the
charter or bylaws of Purchaser, or any law, statute, rule or regulation to
which Purchaser is subject, or any agreement, instrument, order, judgment
or decree to which Purchaser is subject.
4C. Governmental Consent, etc. No permit, consent, approval or
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authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by
Purchaser of this Agreement or any of the other agreements contemplated
hereunder, to which Purchaser is a party, or the consummation by Purchaser of
any other transactions contemplated hereby or thereby.
4D. Investment Representations.
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(i) Investment Purpose. Purchaser is acquiring the shares of
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Class A Common Stock hereunder (collectively, the "Securities") for its own
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account, not as a nominee or agent, for investment only and not with a view
towards, or for resale in connection with, the public sale or distribution
thereof.
(ii) Accredited Investor Status. Purchaser is an "accredited
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investor" as that term is defined in Rule 501(a)(3) of Regulation D.
(iii) Qualified Institutional Buyer. Purchaser is a "qualified
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institutional buyer", as such term is defined in Rule 144A promulgated
under the Securities Act.
(iv) Reliance on Exemptions. Purchaser understands that the
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Securities are being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States federal and
state securities laws and that the Company is relying in part upon the
truth and accuracy of, and Purchaser's compliance with, the
representations, warranties and agreements of Purchaser set forth herein in
order to determine the availability of such exemptions and the eligibility
of Purchaser to acquire such securities.
(v) No General Solicitation. The Purchaser initiated
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discussions with the Company relating to the purchase and sale of the
Securities contemplated by this Agreement on an unsolicited basis prior to
the date of this Agreement. The Purchaser did not initiate such
discussions, nor did Purchaser decide to enter into this Agreement, as a
result of any general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act, including the filing of
the Registration Statement.
(vi) Information. Purchaser has been furnished with all
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materials relating to the business, finances and operations of the Company
and materials relating to the offer and sale of the Securities which have
been requested by Purchaser. Purchaser
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has been afforded the opportunity to ask questions of the Company.
Purchaser understands that its investment in the Securities involves a high
degree of risk. Purchaser has sought such accounting, legal and tax advice
as it has considered necessary to make an informed investment decision with
respect to its acquisition of the Securities. The Purchaser has received
and reviewed a copy of Amendment No. 2 to the Company's Registration
Statement on Form S-1 as filed with the Securities and Exchange Commission
on February 14, 2000, including without limitation, the language therein
under the caption "Risk Factors" (the "Registration Statement").
(vii) No Governmental Review. Purchaser understands that no
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United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or endorsement
of the Securities or the fairness or suitability of the investment in the
Securities nor have such authorities passed upon or endorsed the merits of
the offering of the Securities.
(viii) Transfer or Resale. Purchaser understands that: (a) the
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Securities have not been and are not being registered under the Securities
Act or any state securities laws, and may not be offered for sale, sold,
assigned or transferred unless (A) subsequently registered thereunder or
(B) sold in reliance on an exemption therefrom; and (b) neither the Company
nor any other person is under any obligation to register such securities
under the Securities Act or any state securities laws or to comply with the
terms and conditions of any exemption thereunder. In this regard,
Purchaser represents that it is familiar with SEC Rule 144, and understands
the resale limitations imposed thereby and by the Securities Act.
Purchaser is able to bear the economic risk of its investment in the
Securities for an indefinite period of time.
(ix) Sophistication. Purchaser is an investor in securities of
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companies in the development stage and acknowledges that it is able to fend
for itself, has knowledge and experience in financial and business matters,
knows of the high degree of risk associated with investments generally and
particularly investments in the securities of companies in the development
stage, is capable of evaluating the merits and risks of an investment in
the Securities and is able to bear the economic risk of an investment in
the Securities in the amount contemplated. Purchaser has adequate means of
providing for its current financial needs and contingencies and will have
no current or anticipated future needs for liquidity which would be
jeopardized by the investment in the Securities. Purchaser can afford a
complete loss of its investment in the Securities.
(x) Further Limitations of Disposition. Without in any way
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limiting the representations set forth above, the Purchaser agrees not to
make any disposition of all or any portion of the Securities unless and
until:
(1) There is then in effect a registration statement
under the Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
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(2)(i) The Purchaser shall have notified the Company of
the proposed disposition and shall have furnished the Company with a
detailed statement of the circumstances surrounding the proposed
disposition, and (ii) if reasonably requested by the Company, the
Purchaser shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, that such disposition will not
require registration of such shares under the Securities Act.
4E. Purchaser's Principal Place of Business. The Purchaser
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represents that its principal place of business is ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇.
▇▇. Solicitation of Proxies. Purchaser will not participate in any
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solicitation of proxies by anyone other than the Company with respect to the
voting of the Securities.
4G. Notice. Purchaser shall notify the Company no later than 15 days
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prior to Purchaser's acquisition of an additional number of securities of the
Company in an amount equal to greater than 1% of the Company's then outstanding
capital stock, and all such acquisitions shall comply with federal and state
securities laws.
4H. No Group. Purchaser shall not form or participate in a "group"
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(as defined in Rule 13d-5 of the Exchange Act) with respect to any securities of
the Company.
Section 5. Intentionally Omitted.
Section 6. Conditions of the Purchaser's Obligations at the Closing.
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The obligation of the Purchaser to purchase and pay for the Class A Common Stock
is subject to the fulfillment, at or before the Closing, of each of the
following conditions:
6A. Representations and Warranties. The representations and
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warranties of the Company contained in Section 3, except for those stated to be
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made as of the date hereof, shall be true and correct in all material respects
at and as of the Closing as though then made, except to the extent of changes
caused by the transactions expressly contemplated herein or in the Transaction
Documents.
6B. Performance. The Company shall have performed and complied with
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all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
6C. Officer's Certificate. The Company shall deliver to the
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Purchaser an Officer's Certificate, stating that (i) the conditions described in
Sections 6A, 6B, 6D 6E and 6F have been satisfied; (ii) the Company has made all
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filings under all applicable federal and state securities laws necessary to
consummate the transactions contemplated by this Agreement in compliance with
such laws; and (iii) all corporate and other proceedings required to be taken by
such party in connection with the transactions contemplated hereby to be
consummated at or prior to the Closing have been taken.
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6D. Opinion of Company Counsel. Purchaser shall have received from
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, counsel for the Company, an opinion, dated as of the
Closing, in the form of Exhibit A attached hereto.
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6E. Commercial Agreement. The Company shall have executed and
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delivered an Amendment to Alliance Agreement dated January 28, 2000 in the form
attached as Exhibit B hereto.
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6F. Amended Certificate of Incorporation. The Company shall deliver
------------------------------------
evidence that its Certificate of Incorporation, as amended to reflect the terms
of the Class C Non-Voting Common Stock of the Company (the "Amended
Certificate"), has been filed with the Secretary of State of Delaware and is in
full force and effect under the laws of the State of Delaware as of the Closing.
Section 7. Conditions of the Company's Obligations at the Closing.
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The obligations of the Company to Purchaser under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions:
7A. Representations and Warranties. The representations and
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warranties of Purchaser contained in Section 4 shall be true at and as of the
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Closing as though then made.
7B. Performance. Purchaser shall have performed and complied with
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all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
7C. Officer's Certificate. The Purchaser shall deliver to the
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Company an Officer's Certificate, stating that (i) the conditions described in
Sections 7A, 7B, 7D and 7E have been satisfied; (ii) the Purchaser has made all
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filings under all applicable federal and state securities laws necessary to
consummate the transactions contemplated by this Agreement in compliance with
such laws; and (iii) all corporate and other proceedings required to be taken by
such party in connection with the transactions contemplated hereby to be
consummated at or prior to the Closing have been taken.
7D. Commercial Agreement. The Purchaser shall have executed and
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delivered the Amendment to Alliance Agreement dated January 28, 2000, in the
form attached as Exhibit B.
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7E. Corporate Consents. The Company shall have obtained the consent
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of its Board of Directors and its stockholders authorizing the execution,
delivery and performance of this Agreement and the Transaction Documents to
which the Company is a party, the filing of the Amended Certificate and the
issuance and sale of the Class A Common Stock hereunder.
Section 8. Termination. This Agreement may or will be terminated at
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any time prior to the consummation of the Closing under the following described
circumstances:
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(i) automatically upon the mutual written consent of the
Company and the Purchaser;
(ii) by either of the Company or the Purchaser by delivery of
written notice thereof, if the Qualified IPO shall not have
been consummated prior to the twelve-month anniversary of
the date of this Agreement; or
(iii) automatically upon the consummation of the Qualified IPO,
if the Closing is not occurring immediately following the
Qualified IPO.
Section 9. Indemnification.
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9A. Company Indemnification. In consideration of Purchaser's
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execution and delivery of this Agreement and acquiring the Securities hereunder
and in addition to all of the Company's other obligations under this Agreement,
the Company shall defend, protect, indemnify and hold harmless Purchaser and all
of its officers, directors, employees and agents (including, without limitation,
those retained in connection with the transactions contemplated by this
Agreement) (collectively, the "Indemnitees") from and against any and all
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actions, causes of action, suits, claims, losses, costs, penalties, fees,
liabilities and damages, and expenses in connection therewith (irrespective of
whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys' fees and disbursements
(the "Indemnified Liabilities"), incurred by the Indemnitees or any of them as a
-----------------------
result of, or arising out of, or relating to any misrepresentation in or breach
of any of the representations and warranties or any nonfulfillment or breach of
any covenant or agreement on the part of the Company under this Agreement,
provided that the Company shall not be liable to an Indemnitee under this
Section 9A for any liability if such liability is caused solely by such
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Indemnitee's fraud, willful misconduct or gross negligence or default or breach
under this Agreement. To the extent that the foregoing undertaking by the
Company may be unenforceable for any reason, the Company shall make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
9B. Purchaser Indemnification. In consideration of the Company's
-------------------------
execution and delivery of this Agreement and all of Purchaser's obligations
under this Agreement, Purchaser shall defend, protect, indemnify and hold
harmless the Company and all of its officers, directors, employees and agents
(including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the "Company
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Indemnitees") from and against any and all actions, causes of action, suits,
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claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Company Indemnitee is a
party to the action for which indemnification hereunder is sought), and
including reasonable attorneys' fees and disbursements (the "Company Indemnified
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Liabilities"), incurred by the Company Indemnitees or any of them as a result
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of, or arising out of, or relating to any misrepresentation in or breach of any
of the representations and warranties or any nonfulfillment or breach of any
covenant or agreement on the part of the Purchaser under this Agreement,
provided that the Purchaser shall not be liable to an Company Indemnitee under
this Section 9B for any liability if such liability is caused solely by such
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Company Indemnitee's
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fraud, willful misconduct or gross negligence or default or breach under this
Agreement. To the extent that the foregoing undertaking by the Purchaser may be
unenforceable for any reason, the Purchaser shall make the maximum contribution
to the payment and satisfaction of each of the Company Indemnified Liabilities
which is permissible under applicable law.
9C. Survival of Representations and Warranties. All of the
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representations and warranties contained herein shall survive the Closing for a
period of six (6) months.
Section 10. Definitions. For the purposes of this Agreement, the
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following terms have the meanings set forth:
"Affiliate" of any particular Person means any other Person
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controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise.
"Person" means any individual, partnership, corporation, limited
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liability company, association, joint stock company, trust, joint venture,
unincorporated organization or governmental entity or any department, agency or
political subdivision thereof.
"Qualified IPO" shall mean an underwritten public offering of Class A
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Common Stock with gross proceeds of not less than $120,000,000.
"Securities Act" means the Securities Act of 1933, as amended, or any
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similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or
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agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
-----------------------
as amended, or any similar federal law then in force.
"Transaction Documents" means all documents, instruments, certificates
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or other agreements being delivered in connection with or pursuant to this
Agreement.
Section 11. Miscellaneous.
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11A. Expenses. The Company shall pay, and hold the Purchaser and all
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holders of Securities harmless against liability for the payment of the fees and
expenses incurred with respect to the enforcement of the rights (in connection
with a breach or threatened breach by the Company) granted under this Agreement,
the other agreements contemplated hereby to which the Company is a party or the
Amended Certificate.
11B. Remedies. Each holder of Securities shall have all rights and
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remedies set forth in this Agreement and all rights and remedies which such
holders have been granted at any time under any other agreement or contract and
all of the rights which such holders have under
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any law. Any Person having any rights under any provision of this Agreement
shall be entitled to enforce such rights specifically (without posting a bond or
other security), to recover damages by reason of any breach of any provision of
this Agreement and to exercise all other rights granted by law.
11C. Legends.
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(i) The certificates evidencing the Securities will include the
legend set forth below, which the Purchaser has read and understands:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND
MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. THESE SECURITIES ARE ALSO SUBJECT TO
INVESTMENT REPRESENTATIONS AND A LOCKUP AGREEMENT WITH THE CORPORATION
PURSUANT TO A PURCHASE AGREEMENT DATED MARCH 29, 2000 WHICH RESTRICTS
THE TRANSFER THEREOF UNTIL [insert one year anniversary of closing], A
COPY OF WHICH CAN BE OBTAINED FROM THE CORPORATION AT ITS EXECUTIVE
OFFICES.
(ii) By accepting the certificates bearing the aforesaid legend,
Purchaser agrees, prior to any transfer of the Securities represented by
the certificates and subject to the restrictions in Section 11D, to give
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written notice to the Company expressing its desire to effect such transfer
and describing briefly the proposed transfer. Upon receiving such notice,
the Company shall present copies thereof to its counsel and the following
provisions shall apply:
(a) subject to Section 11D, if, in the reasonable opinion
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of counsel to the Company, the proposed transfer of such Securities may be
effected without registration under the Securities Act and applicable state
securities acts, the Company shall promptly thereafter notify Purchaser,
whereupon Purchaser shall be entitled to transfer such Securities, all in
accordance with the terms of the notice delivered by Purchaser and upon
such further terms and conditions as shall be required to ensure compliance
with the Securities Act and the applicable state securities acts, and, upon
surrender of the certificate evidencing such Securities, in exchange
therefor, a new certificate not bearing a legend of the character set forth
above if such counsel reasonably believes that such legend is no longer
required under the Securities Act and the applicable state securities acts;
and
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(b) subject to Section 11D, if, in the reasonable opinion
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of counsel to the Company, the proposed transfer of such Securities may not
be effected without registration under the Securities Act or the applicable
state securities acts, a copy of such opinion shall be promptly delivered
to Purchaser, and such proposed transfer shall not be made unless such
registration is then in effect.
(iii) The Company may, from time to time, make stop transfer
notations in its records and deliver stop transfer instructions to its
transfer agent to the extent its counsel considers it necessary to ensure
compliance with the Securities Act and the applicable state securities
acts.
11D. Lock-up Agreements. In order to induce the Company to enter into
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this Agreement, until the 12-month anniversary of the Closing, Purchaser shall
not, directly or indirectly, sell, offer to sell, contract to sell, assign,
transfer or otherwise dispose of, or engage in any other transaction (including,
without limitation, any pledge, put, call, collar, hedge or short sale) which
reduces the risk of ownership of, any of the Securities. Purchaser agrees and
consents to the entry of stop transfer instructions with the Company's transfer
agent against the transfer of the Securities held by the Purchaser except in
compliance with the foregoing restrictions.
11E. Exchange of Shares. Purchaser shall have the right at any time
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after the 12-month anniversary of the Closing and prior to the 36-month
anniversary of the Closing to request that the Company consider an exchange of
no less than one-fifth of the Securities and no more than one-half of the
Securities for shares of the Class A Common Stock of Host divine, inc., a
Subsidiary of the Company. Any such exchange shall be made valuing both the
Securities and the shares of the Class A Common Stock of Host divine, inc. at
no less than their then current market value, and shall be on such other terms
and conditions as shall be mutually acceptable to the parties. Such request may
be made only once in the period set forth in the first sentence of this Section
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11E, and the Company shall have the right to reject such request in its sole
---
discretion.
11F. Successors and Assigns. Except as otherwise expressly provided
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herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. Notwithstanding the foregoing or anything to the contrary herein, the
parties may not assign this Agreement.
11G. Severability. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
11H. Counterparts. This Agreement may be executed simultaneously in
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two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
11
11I. Descriptive Headings; Interpretation. The descriptive headings
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of this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
11J. Governing Law. The general corporation law of the State of
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Delaware shall govern all issues and questions concerning the relative rights
and obligations of the Company and its stockholders. All other issues and
questions concerning the construction, validity, enforcement and interpretation
of this Agreement and the schedules and exhibits hereto shall be governed by,
and construed in accordance with, the laws of the State of Illinois, without
giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of Illinois or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Illinois. In furtherance of the foregoing, the internal law of the State of
Illinois shall control the interpretation and construction of this Agreement
(and all schedules and exhibits hereto), even though under that jurisdiction's
choice of law or conflict of law analysis, the substantive law of some other
jurisdiction would ordinarily apply.
11K. Notices. All notices, demands or other communications to be
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given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to Purchaser at the address indicated for Purchaser
at the address set forth below or as otherwise indicated on the stock records of
the Company, and to the Company at the address indicated below:
If to the Company: divine interVentures, inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
12
If to the Purchaser: Microsoft Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
With a copy to: Microsoft Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Deputy General Counsel,
Finance and Operations
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
11L. No Strict Construction. The parties hereto have participated
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jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
[Remainder of page intentionally left blank.
Signature page follows.]
13
IN WITNESS WHEREOF, the parties hereto have executed this Purchase
Agreement on the date first written above.
DIVINE INTERVENTURES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Executive Vice President
MICROSOFT CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Its: Chief Financial Officer
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(SIGNATURE PAGE TO PURCHASE AGREEMENT)