EXHIBIT 4.8
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is made as of this
14th day of February 2005, between Microsoft Corporation, a Washington
corporation ("Microsoft"), and Avanade Inc., a Washington corporation (the
"Company").
WHEREAS, Microsoft and the Company are parties to a Promissory Note,
dated May 22, 2003 for a total amount of ten million five hundred thousand
dollars ($10,500,000.00) (the "Note"); and
WHEREAS, Microsoft wishes to purchase and the Company wishes to sell
1,136,127 shares of the Company's Series A Preferred Stock, par value $.0001 per
share ("Avanade Series A Preferred") for which the Company is the record and
beneficial owner (the "Purchased Shares"); and
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Purchase and Sale.
1.1. Purchase and Sale. Subject to the terms and conditions set
forth in this Agreement, the Company will sell to Microsoft, and Microsoft
will purchase from the Company, at the Closing (as hereinafter defined)
the Purchased Shares, at a per share purchase price of four dollars and
ninety-seven cents ($4.97) per share of Avanade Series A Preferred for an
aggregate purchase price of five million six hundred forty six thousand
five hundred fifty-one dollars and nineteen cents ($5,646,551.19) (the
"Purchase Price").
1.2. Purchase Price. The Purchase Price will be payable by
cancellation of five million six hundred forty six thousand five hundred
fifty-one dollars and nineteen cents ($5,646,551.19) of the total amount
of the Note effective as of the Closing.
1.3. Payment of Remaining Balance. The remaining balance on the Note
of four million eight hundred fifty three thousand four hundred
forty-eight dollars and eighty-one cents ($4,853,448.81) (the "Remaining
Balance") will be paid at Closing by the Company. Microsoft acknowledges
that no interest is payable on the Note. In connection with the Closing,
that certain loan agreement, dated May 22, 2003 between Xxxxxxx X.
Xxxxxxxx Consultants Ltd., the Company, and Microsoft (the "Loan
Agreement") shall be canceled and become null and void and without further
force and effect. Microsoft shall release any and all further claims under
such Loan Agreement and acknowledges that the payment it receives under
Section 1.2 and this Section 1.3 constitutes payment in full under the
Note and the Loan Agreement.
1.4. Closing. The closing of the sale and purchase of the Purchased
Shares shall take place at 9:00 a.m. (Pacific time) on February 14, 2005
at the offices of Xxxxxxx Coie LLP, 0000 Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX, or at such other date, time and place as Microsoft and the
Company shall mutually agree, orally or in writing (which time and place
are designated as the "Closing").
2
1.5. Closing Deliveries and Conditions.
(a) The following deliveries shall be made as part of the Closing:
(i) At the Closing, Microsoft shall deliver the cancelled Note to
the Company; and
(ii) At the Closing, the Company shall deliver to Microsoft (i) the
certificates representing the Purchased Shares; and (ii) the Remaining
Balance by wire transfer in accordance with written instructions provided
by Microsoft.
(b) The obligation of Avanade to deliver the Purchased Shares and
the Remaining Balance and the obligation of Microsoft to deliver the cancelled
note provided for herein are subject to the satisfaction or waiver of the
following conditions on or prior to the date of the Closing:
(i) The Third Amended and Restated Contribution and Stockholders
Agreement among the Company and certain of its stockholders, dated as of
the date hereof (the "Contribution Agreement"), shall have been executed
by each of Microsoft, Accenture Ltd and Accenture International Sarl
simultaneously with the execution of this Agreement and such Contribution
Agreement shall be in full force and effect.
2. Representations and Warranties of the Company. The Company represents
and warrants to Microsoft as follows:
2.1.
(a) The Company is duly organized, validly existing and in good
standing under the laws of its state of incorporation. The Company has full
corporate power and authority to execute and deliver this Agreement and to issue
the Purchased Shares and perform its obligations hereunder. This Agreement has
been duly executed and delivered by the Company and constitutes a valid and
legally binding obligation of the Company.
(b) The Purchased Shares to be issued pursuant to this Agreement
have been duly authorized and will be duly, validly issued, fully paid and
nonassessable.
(c) None of the execution, delivery or performance of this Agreement
or the issuance of the Purchased Shares by the Company will conflict with the
articles of incorporation or the bylaws or result in breach of any terms or
provisions of, or constitute a default under, any contract, agreement or
instrument to which the Company is a party or by which the Company is bound.
2.2. Consents; Nonviolation. The execution and delivery of this
Agreement and the consummation by the Company of the transactions contemplated
hereby do not and will not (a) require the consent, license, permit, waiver,
approval, authorization or other action of, by or with respect to, or
registration, declaration or filing with any court or governmental authority,
department, commission, board, bureau, agency or instrumentality, domestic or
foreign ("Governmental Authority") or any other person, domestic or foreign, (b)
violate or conflict with the provisions of the articles of incorporation or
bylaws of the Company or (c) constitute a
3
default (with or without notice or lapse of time, or both) under, violate or
conflict with, or give rise to a right of termination, cancellation or
acceleration or to loss of a material benefit under any: statute, law,
ordinance, rule, regulation or policy of any federal, state or local
Governmental Authority ("Law"); material contract; permit, license, consent,
order, certificate, registration, authorization or approval for, or agreement
with, any Governmental Authority ("Permit"); or order, judgment, writ,
injunction, decree, ruling or decision ("Order"); to which the Company is a
party or by which the Company or its respective properties are bound.
2.3 Information Supplied. All of the information furnished by
Company to Microsoft in connection with Microsoft's acquisition of the Series A
Preferred shares is accurate and complete, in all material respects.
3. Representations and Warranties of Microsoft. Microsoft hereby
represents and warrants to the Company that as of the date hereof and as of the
Closing:
3.1. Organization; No Conflict
(a) Microsoft is duly organized, validly existing and in good
standing under the laws of its state of incorporation. Microsoft has full
corporate power and authority to execute and deliver this Agreement and perform
its obligations hereunder. This Agreement has been duly executed and delivered
by Microsoft and constitutes a valid and legally binding obligation of
Microsoft.
(b) None of the execution, delivery or performance of this Agreement
by Microsoft will conflict with its articles of incorporation or bylaws or
result in breach of any terms or provisions of, or constitute a default under,
any contract, agreement or instrument to which Microsoft is a party or by which
Microsoft is bound.
3.2. Consents; Nonviolation. The execution and delivery of this
Agreement and the consummation by Microsoft of the transactions contemplated
hereby do not and will not (a) require the consent, license, permit, waiver,
approval, authorization or other action of, by or with respect to, or
registration, declaration or filing with any Governmental Authority or any other
person, domestic or foreign, (b) violate or conflict with the provisions of any
of the certificate of incorporation or bylaws of Microsoft or (c) constitute a
default (with or without notice or lapse of time, or both) under, violate or
conflict with, or give rise to a right of termination, cancellation or
acceleration or to loss of a material benefit under any Law, Permit or Order to
which Microsoft is a party or by which Microsoft or its properties are bound.
3.3. Investment. Microsoft acknowledges that this Agreement is being
entered into by the Company in reliance upon Microsoft's representation to the
Company, which by Microsoft's execution of this Agreement Microsoft hereby
confirms, that the Purchased Shares to be acquired by Microsoft hereunder will
be acquired for investment for Microsoft's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part hereof, and
that Microsoft has no present intention of selling or granting any participation
in, or otherwise distributing the same. By executing this Agreement, Microsoft
further represents that Microsoft does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Purchased Shares. Microsoft understands that the Purchased Shares are not
registered under the Securities Act of 1933, as amended (the "Securities Act")
on the ground that the transfer
4
provided for in this Agreement and the issuance of securities hereunder is
exempt from registration under the Securities Act, and that the Company's
reliance on such exemption is predicated on Microsoft's representations set
forth herein.
3.4. Receipt of Information. Microsoft has received all the
information Microsoft considers necessary or appropriate for deciding whether to
acquire the Purchased Shares. Microsoft has had an opportunity to ask questions
and receive answers from the Company regarding the terms and conditions of the
Purchased Shares and the financial condition of the Company.
3.5. Accredited Investor; Investment Experience. Microsoft is an
accredited investor within the definition of Regulation D of the Securities Act.
Microsoft is experienced in evaluating and investing in private placement
transactions of securities of companies and acknowledges that Microsoft is able
to fend for itself, can bear the economic risk of Microsoft's investment, and
has such knowledge and experience in financial and business matters that
Microsoft is capable of evaluating the merits and risks of the investment in the
Purchased Shares and can afford a complete loss of its investment.
3.6. Restricted Securities. Microsoft understands that the Avanade
Series A Preferred shares may not be sold, transferred, or otherwise disposed of
without registration under the Securities Act or an exemption therefrom, and
that in the absence of an effective registration statement covering the
Purchased Shares or an available exemption from registration under the
Securities Act, the Purchased Shares must be held indefinitely. In particular,
Microsoft is aware that the shares may not be sold pursuant to Rule 144
promulgated under the Securities Act unless all of the conditions of that Rule
are met. Microsoft shall not sell, transfer or otherwise dispose of any
Purchased Shares except in a manner fully consistent with its representations
contained in this Section 2 and otherwise in full compliance with the terms and
conditions of this Agreement, including without limitation, Section 4 hereof,
and the provisions of applicable law. Microsoft understands that the Company is
under no obligation to register any of the Purchased Shares.
3.7. No Brokers or Finders. Neither Microsoft and any of its
respective affiliates nor Avanade and any of its respective affiliates has
entered or will enter into any agreement pursuant to which the Company will be
liable, as a result of the transactions contemplated by this Agreement, for any
claim of any person for any commission, fee or other compensation as finder or
broker.
3.8. Legends.
(a) Each certificate or other document evidencing any of the
Purchased Shares shall be endorsed with the legends set forth below:
(i) "THE SHARES OF PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO THE THIRD AMENDED AND RESTATED CONTRIBUTION AND
STOCKHOLDERS AGREEMENT AMONG ACCENTURE, MICROSOFT AND AVANADE (THE
"COMPANY") DATED FEBRUARY ___, 2005, AS MAY BE AMENDED FROM TIME TO
TIME, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
5
HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND
BY ALL OF THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY STATE SECURITIES LAW AND, ACCORDINGLY, MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF (COLLECTIVELY, A TRANSFER) UNLESS SUCH TRANSFER IS MADE
PURSUANT TO A REGISTRATION STATEMENT OR POST-EFFECTIVE AMENDMENT
THERETO EFFECTIVE UNDER THE SECURITIES ACT OR SUCH TRANSFER IS
EXEMPT FROM OR NOT SUBJECT TO THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT AND THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION."
(ii) Any other legend imposed or required by the Company's
regulations or applicable state securities or corporations laws.
(b) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if the holder shall have
obtained an opinion of counsel reasonably acceptable to the Company to the
effect that the securities proposed to be disposed of may lawfully be so
disposed of without registration or qualification of legend.
(c) Any legend endorsed on an instrument pursuant to applicable
state securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
4. Miscellaneous.
4.1. Expenses. Each party shall bear all of its own expenses
(including without limitation all counsel's fees and accountant's fees) incurred
by such party in connection with the transactions contemplated by this
Agreement.
4.2. Survival. All representations, warranties, covenants and
agreements contained in or made pursuant to this Agreement or contained in any
certificate delivered pursuant to this Agreement, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any party hereto, and shall survive the consummation of the transactions
contemplated hereby.
4.3. Assignment; No Third Party Beneficiaries. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns, except that neither this Agreement
nor any rights or obligations hereunder shall be assigned or delegated by either
party hereto other than to a wholly owned subsidiary
6
without the prior written consent of the other. This Agreement is not intended
to confer upon any person or entity other than the parties and their permitted
assigns any rights or remedies.
4.4. Amendment; Waiver. This Agreement may be amended only by a
written instrument signed by each of the parties hereto. No provision of this
Agreement may be extended or waived orally, but only by a written instrument
signed by the party against whom enforcement of such extension or waiver is
sought.
4.5 APPLICABLE LAW. THE LAWS OF THE STATE OF WASHINGTON SHALL GOVERN
THE INTERPRETATION, VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT,
REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF
LAW.
4.6. Notices. All notices and other communications provided for
herein shall be dated and in writing and shall be deemed to have been duly given
on the date of delivery, if delivered personally or by overnight courier, or
five days after mailing, if sent by registered or certified mail (return receipt
requested, postage prepaid), to the party to whom it is directed at the
following address (or at such other address as any party hereto shall hereafter
specify by notice in writing to the other parties hereto):
If to Microsoft, to it at the following address:
Xxx Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: Number Redacted
with a copy to:
Xxx Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Deputy General Counsel, Finance and Operations
Facsimile: Number Redacted
If to the Company, to it at the following address:
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, General Counsel
Facsimile: Number Redacted
with a copy to:
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxx
Facsimile: Number Redacted
7
4.7. Integration. This Agreement and the documents referred to
herein or delivered pursuant hereto contain the entire understanding of the
parties with respect to their subject matter and supersede all prior agreements
and understandings between the parties with respect to their subject matter.
4.8. Severability. Each provision of this 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 or invalid under
applicable law, such provision will be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this Agreement.
The parties agree to negotiate in good faith to replace any provision so
prohibited or invalidated with another provision having the same effect
(economically and otherwise) to the extent permitted under applicable law.
4.9. Headings. The section and other headings contained in this
Agreement are for convenience of reference only and shall not affect the meaning
or interpretation of this Agreement.
4.10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which together shall be deemed to be one and the same
agreement.
[Signatures Appear On The Following Page]
8
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
MICROSOFT CORPORATION
By: ____________________________
Name:
Title:
AVANADE INC.
By: ____________________________
Name:
Title:
