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EXHIBIT 10.50
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FUTURELINK CORP.
MICROSOFT CORPORATION
SERIES A CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
JUNE 29, 2000
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FUTURELINK CORP.
SERIES A CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
This Agreement is made as of June 29, 2000, by and between FutureLink,
Inc., a Delaware corporation (the "Company"), and Microsoft Corporation, a
Washington corporation (the "Purchaser").
RECITALS
A. On June 28, 2000, the Company and the Purchaser entered into a
Commercial Agreement (the "Commercial Agreement"), a copy of which is attached
hereto as Exhibit A;
B. The Company desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Company, shares of the Company's Series A 8%
Convertible Redeemable Preferred Stock convertible into the Company's Common
Stock (the "Common Stock"), on the terms and conditions set forth in the
Certificate of Designation of Series A Convertible Preferred Stock in the form
attached as Exhibit C (the "Designation") and to grant to Purchaser a Preferred
Stock Purchase Warrant (the "Warrant") in the form attached as Exhibit B;
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENTS
SECTION 1
AUTHORIZATION AND SALE OF THE SHARES
1.1 AUTHORIZATION OF THE SHARES; WARRANT.
(a) The Company has authorized, or before the Closing (as
defined in Section 2.1 below) will have authorized, a new series of preferred
stock, designated Series A 8% Convertible Preferred Stock (the "Series A
Preferred Stock"), such Series having the rights, preferences and privileges
provided for in the Designation. Without limiting the generality of the
foregoing, the Company and the Purchaser hereby agree that the dividend payable
by the Company with respect to the Series A Preferred is payable in accordance
with Section 3 of the Designation attached hereto as Exhibit C.
(b) In addition, prior to the Closing, the Company will have
authorized the issuance and sale to the Purchaser of an aggregate of One Million
Four Hundred Twenty-Eight Thousand Five Hundred Seventy One (1,428,571) shares
(the "Shares") of the Series A Preferred Stock and the Warrant, which shall
entitle the holder thereof to purchase One Million One Hundred Forty-Two
Thousand Eight Hundred Fifty-Seven (1,142,857) shares of Preferred Stock at an
exercise price of Seven Dollars ($7.00) per share, for an aggregate purchase
price of Ten Million Dollars ($10,000,000) (the "Purchase Price").
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1.2 SALE OF SHARES AND WARRANT. Subject to the terms and conditions
hereof, at the Closing specified in Section 2.1 below, the Company will issue
and sell the Shares and the Warrant to the Purchaser, and the Purchaser will
purchase such Shares and the Warrant from the Company. The Common Stock of the
Company issued or issuable upon conversion of the Shares, including all shares
of Common Stock issuable in the event the Company pays dividends on the Shares
in additional shares of Series A Preferred Stock or Common Stock, or the
exercise or conversion of the Warrant is referred to as the "Conversion Stock."
The Shares, the Conversion Stock and any other securities issued or issuable in
respect of the Shares are sometimes collectively referred to as the
"Securities."
SECTION 2
CLOSING DATE; DELIVERY
2.1 CLOSING DATE. The purchase and sale of the Shares and the Warrant
shall occur at a closing (the "Closing") to be held at such time as shall be
designated by the Company by written notice and agreed to by the Purchaser (the
"Closing Date"). The Closing will take place at the offices of the Purchaser in
Redmond, Washington or at such other place as agreed to by the Purchaser and the
Company.
2.2 DELIVERY. At the Closing, the Company shall deliver to the
Purchaser a certificate, registered in Purchaser's name and representing the
Shares, and the Warrant against delivery to the Company of a check or wire
transfer payable to the order of the Company in the amount of Ten Million
Dollars ($10,000,000). The Shares shall be delivered free of any claims or liens
or encumbrances.
SECTION 3
COMPANY REPRESENTATIONS AND WARRANTIES
Except as disclosed in (a) the Schedule of Exceptions to the
representations and warranties of the Company attached hereto as Exhibit D, with
respect to the sections referenced therein, (b) with respect to Sections
3.6-3.14 only, the Financial Statements (as defined herein), (c) with respect to
Sections 3.6-3.14 only any filings made by the Company with the Securities and
Exchange Commission (the "SEC Filings"), or (d) with respect to Sections
3.6-3.14 only, the SEC Reports (as defined herein), the Company represents and
warrants to the Purchaser as set forth in this Section 3.
3.1 ORGANIZATION AND STANDING. Each of the Company and its subsidiaries
(i) is a corporation duly organized and validly existing under the laws of its
respective jurisdiction of incorporation and is in good standing as a domestic
corporation under the laws of said state, (ii) has all requisite corporate power
and authority to own and lease its properties and to conduct its business as
presently conducted, and, (iii) is duly qualified or licensed to do business as
a foreign corporation in good standing in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified does not and is not
reasonably expected to (x) individually or in the aggregate, have a material
adverse effect on the properties, business, results of operations, condition
(financial or
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otherwise), affairs or prospects of the Company and its subsidiaries, taken as a
whole, (y) interfere with or impair the Company's ability to perform its
obligations under this Agreement, the Commercial Agreement or the Warrant, or
(z) interfere with or prevent the consummation of any of the transactions
contemplated by said instruments (any of the events set forth in clauses (x),
(y) or (z), a "Material Adverse Effect").
3.2 CORPORATE POWER. The Company has all requisite legal and corporate
power to execute and deliver this Agreement and the Commercial Agreement, to
sell and issue the Shares and the Warrant hereunder, to issue the Conversion
Stock issuable upon conversion of the Shares and exercise or conversion of the
Warrant, and to carry out and perform its obligations under the terms of this
Agreement.
3.3 CAPITALIZATION. The authorized capital stock of the Company upon
the filing of the Designation with the Secretary of State of the State of
Delaware will consist of (a) 300,000,000 shares of Common Stock, of which
61,560,666 shares were issued and outstanding as of June 26, 2000, and (b)
20,000,000 shares of Preferred Stock of which 2,571,428 shares have been
designated Series A Preferred, 1,428,571 of which will be sold to the Purchaser
at the Closing. All of the outstanding shares of Common Stock have been, and all
of the shares of Series A Preferred Stock, when issued and sold at the Closing
will be, validly issued, fully paid and nonassessable, free of any liens or
encumbrances. The Series A Preferred Stock shall have the rights, preferences,
privileges and restrictions set forth in the Designation. No subscription,
warrant, option or other right to purchase or acquire any shares of any class of
capital stock of the Company or securities convertible into or exchangeable for
such capital stock are outstanding other than as set forth in the Schedule of
Exceptions.
3.4 AUTHORIZATION. The execution, delivery and performance of this
Agreement, the Commercial Agreement and the Warrant by the Company have been
duly authorized by all requisite corporate action. This Agreement, the
Commercial Agreement, the Investor Rights Agreement (defined below) and the
Warrant constitute valid and binding obligations of the Company enforceable in
accordance with their respective terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors, and rules of law
governing specific performance, injunctive relief or other equitable remedies.
The issuance and sale of the Shares will not give rise to any preemptive rights
or rights of first refusal on behalf of any person in existence on the date
hereof.
3.5 CONVERSION STOCK. The Conversion Stock (i) has been duly and
validly reserved for issuance, (ii) is not subject to preemptive or any other
similar rights of stockholders of the Company, and (iii) when issued in
accordance with the terms of the Designation or the Warrant, will be validly
issued and outstanding, fully paid and nonassessable, and free of any liens or
encumbrances, other than liens or encumbrances created by or imposed upon the
holders through no action of the Company.
3.6 ACCURACY OF REPORTS. All reports (the "SEC Reports") required to be
filed by the Company during the period from January 1, 1999 to the date of this
Agreement under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), have been duly filed, complied in all material respects with the Exchange
Act and the requirements of their respective
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forms (as of their respective filing dates), were complete and correct in all
material respects as of the dates at which the information was furnished, and
none contained (as of their respective dates of filing) any untrue statement of
a material fact nor omitted to state a material fact necessary in order to make
the statements made therein, in light of the circumstances in which made, not
misleading. Except to the extent that information contained in any SEC Report
has been revised or superseded by a later filed SEC Report, none of the SEC
Reports contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
3.7 FINANCIAL STATEMENTS AND CHANGES. Since January 1, 1998, the
financial statements of the Company included in the SEC Reports (the "Financial
Statements") comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with U.S. generally accepted
accounting principles ("GAAP") (except, in the case of unaudited statements as
permitted by Form 10-Q of the SEC) applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto) and fairly
present the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the consolidated results of their
operation and cash flows (or changes in financial position prior to the approval
of Financial Accounting Standards Board Statement of Financial Accounting
Standards No. 95) for the periods then ending in accordance with GAAP (subject,
in the case of the unaudited statements, to normal year end audit adjustments).
Except as set forth in the filed SEC Reports, neither the Company nor any of its
subsidiaries has any liabilities or obligations of any nature (whether accrued,
absolute, contingent or otherwise) required by GAAP to be set forth on a
consolidated balance sheet of the Company and its consolidated subsidiaries or
in the notes thereto and which could reasonably be expected to have a Material
Adverse Effect.
Except as otherwise disclosed herein, in the Financial Statements, the
SEC Filings, the SEC Reports or the Schedule of Exceptions, since January 1,
1999, there has not been:
(a) Any material change in the assets, liabilities, financial
condition, business or results of operations of the Company from that reflected
in the Financial Statements except changes in the ordinary course of business
which do not, either in any individual case or in the aggregate, constitute a
Material Adverse Effect;
(b) Any change in the contingent obligations of the Company,
whether by way of guaranty, endorsement, indemnity, warranty or otherwise,
except such changes as do not, either individually or in the aggregate,
constitute a Material Adverse Effect;
(c) Any damage, destruction or loss, whether or not covered by
insurance, which could reasonably be expected to have a Material Adverse Effect;
(d) Any declaration or payment of any dividend or other
distribution of the assets or securities of the Company in respect of
outstanding Common Stock; or
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(e) Any other event or condition of any character that has
materially and adversely affected, or that could reasonably be expected to have
a Material Adverse Effect.
3.8 NO CONFLICT. The provisions of the Designation do not constitute
any violation, or conflict with or constitute a default under, any indenture,
mortgage, deed of trust or other agreement, instrument, court order, judgment,
decree, statute, rule or regulation (each a "Term" and collectively the "Terms")
to which the Company is a party or by which it is bound, subject to such
exceptions as would not have a Material Adverse Effect. The execution, delivery
and performance of and compliance with this Agreement and the Commercial
Agreement, the issuance of the Securities pursuant to the terms hereof and the
performance of the Company's obligations hereunder and thereunder (i) will not
result in any violation or be in conflict with or constitute a default under any
Term, (ii) will not result in the creation of any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of the Company
pursuant to any such Term, and (iii) will not conflict with or violate any
applicable law, rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court having jurisdiction over the Company or
any of its assets or properties, subject to such exceptions as would not have a
Material Adverse Effect.
3.9 GOVERNMENTAL CONSENTS. No consent, approval or authorization of, or
designation, declaration or filing with, any Federal or state governmental
authority in the United States is required on the part of the Company in
connection with the valid execution and delivery of this Agreement and the
Commercial Agreement, the offer, sale or the issuance of the Securities or the
consummation of any other transaction contemplated hereby, except (i) the filing
of the Designation in the office of the State of Delaware, which will be
completed prior to the Closing, (ii) if required, qualifications or filings in
connection with exemptions under any applicable state "blue sky" laws and
Federal securities laws, which qualifications or exemptions, if required, will
have been obtained and will be effective on the Closing Date, or will be
obtained or filed after the Closing Date within the prescribed time in order to
secure such exemptions or qualifications, and (iii) where the failure to obtain
any required consent, approval, authorization or designation or to make any
required declaration or filing does not and is not reasonably expected to have a
Material Adverse Effect.
3.10 PATENTS, TRADEMARKS, ETC. The Company, to the best of its
knowledge, owns or has the right, or prior to the Closing will own or have the
right, to use all patents, trademarks, service marks, trade names, copyrights,
licenses and rights necessary to its business as now conducted, and, to the best
of its knowledge, is not infringing upon any person under or with respect to any
of the foregoing. The Company has not received any written communications
alleging that the Company has violated any patent, trademark, service xxxx,
trade name, copyright or trade secret or other proprietary right of any other
person or entity, subject to such exceptions as would not have a Material
Adverse Effect. The Company is not aware that any of its employees is obligated
under any contract (including licenses, covenants or commitments of any nature)
or other agreement, or subject to any judgment, decree or order of any court or
administrative agency, that would materially interfere with the Company's
employment of such employees. Neither the execution nor delivery of this
Agreement or the Commercial Agreement, nor the carrying on of the Company's
business by the employees of the Company will conflict with or result in a
breach of the terms, conditions or provisions of, or constitute a default under,
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any contract, covenant or instrument under which any of such employees is now
obligated. The Company does not believe it is necessary to utilize any
inventions of any of its employees made prior to their employment by the
Company, other than those inventions for which the intellectual property
relating thereto previously has been assigned to the Company.
3.11 LITIGATION. There is no suit, action or proceeding pending or
affecting the Company or any of its subsidiaries that, individually or in the
aggregate, could have a Material Adverse Effect, nor is there any judgment,
decree, injunction, rule or order of any governmental entity or arbitrator
outstanding against the Company or any of its subsidiaries having, or which,
could reasonably be expected to have, any such effect.
3.12 COMPLIANCE WITH LAWS. The Company is not in violation of any
applicable statute, rule, regulation, order or restriction of any domestic or
foreign government or any instrumentality or agency thereof in respect of the
conduct of its business or the ownership of its properties which could
reasonably be expected to have a Material Adverse Effect.
3.13 OFFERING OF SECURITIES. Neither the Company nor any person acting
on its behalf has taken or will take any action (including, without limitation,
any offering of any securities of the Company under circumstances which would
require, under the Securities Act of 1933, as amended (the "Securities Act"),
the integration of such offering with the offering and sale of the Securities)
which might subject the offering, issuance or sale of the Securities to the
registration requirements of Section 5 of the Securities Act.
3.14 NO MATERIAL ADVERSE EFFECT. Since the date of the most recent
audited balance sheet of the Company contained in the SEC Reports, there has
been no event or condition resulting in a Material Adverse Effect on the
Company.
SECTION 4
PURCHASER REPRESENTATIONS AND WARRANTIES AND
RESTRICTIONS ON TRANSFER IMPOSED BY THE SECURITIES ACT
Except as disclosed in the Schedule of Exceptions to Representations
and Warranties of the Purchaser attached hereto as Exhibit D-1, the Purchaser
represents and warrants to the Company with respect to the Shares, as follows:
4.1 INVESTMENT INTENT.
(a) Purchaser has substantial experience in business and
financial matters and is capable of evaluating the merits and risks of its
investment in the Company and is able to bear the economic risks of its
investment.
(b) Purchaser is an "accredited investor" as defined in Rule
501(a)(3) of Regulation D of the Securities Act.
(c) Purchaser is acquiring the Securities for investment for
its own account and not with a view to, or for resale in connection with, any
distribution thereof. Purchaser
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understands that the Securities have not been registered under the Securities
Act by reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent as expressed herein.
(d) Purchaser acknowledges that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available. Purchaser is aware of the
provisions of Rule 144 promulgated under the Securities Act ("Rule 144") which
permit limited resale of securities purchased in a private placement subject to
the satisfaction of certain conditions, including the existence of a public
market for the shares, the availability of certain current public information
about the Company, the resale occurring not less than one year after a party has
purchased and paid for the security to be sold, the sale being through a
"broker's transaction" or in a transaction directly with a "market maker" (as
provided by Rule 144(f)) and the number of shares being sold during any
three-month period not exceeding specified limitations.
4.2 CORPORATE POWER. Purchaser has all requisite legal and corporate
power to execute and deliver this Agreement and the Commercial Agreement and to
carry out and perform its obligations under the terms of this Agreement and the
Commercial Agreement.
4.3 AUTHORIZATION. The execution, delivery and performance of this
Agreement and the Commercial Agreement by the Purchaser has been duly authorized
by all requisite corporate action, and this Agreement and the Commercial
Agreement constitutes valid and binding obligations of Purchaser enforceable in
accordance with its terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors, and rules of law governing
specific performance, injunctive relief or other equitable remedies.
4.4 GOVERNMENTAL CONSENTS. No consent, approval or authorization of, or
designation, declaration or filing with, any federal or state governmental
authority in the United States is required on the part of Purchaser in
connection with the valid execution and delivery of this Agreement and the
Commercial Agreement or the consummation of any other transaction contemplated
hereby or thereby, except for such filings as may be required under the Exchange
Act and the related rules and regulations thereunder subsequent to the issuance
of the Shares.
SECTION 5
CONDITIONS TO CLOSING
5.1 CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligation of the
Purchaser to purchase the Shares at the Closing is subject to the fulfillment to
the reasonable satisfaction of the Purchaser on or prior to the Closing Date of
the following conditions any of which may be waived in whole or in part by the
Purchaser:
(a) The representations and warranties made by the Company in
Section 3 hereof shall be true and correct in all material respects when made,
and shall be true and correct in all material respects on the Closing Date;
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(b) All covenants, agreements and conditions contained in this
Agreement to be performed by the Company on or prior to the Closing Date shall
have been performed or complied with in all material respects;
(c) The Purchaser shall have received from Paul, Hastings,
Xxxxxxxx & Xxxxxx, counsel to the Company, an opinion addressed to the
Purchaser, dated the Closing Date, in substantially the form attached hereto as
Exhibit E;
(d) The Company shall have delivered to the Purchaser a
certificate, executed on the Company's behalf by the Chief Executive Officer or
Chief Financial Officer of the Company, dated the Closing Date and certifying to
the fulfillment of the conditions specified in paragraphs (a) and (b) of this
Section 5.1 in the form attached hereto as Exhibit F;
(e) The Company shall have entered into the Commercial
Agreement in substantially the form attached hereto as Exhibit A;
(f) The Company shall have executed and delivered to Purchaser
the Warrant substantially in the form attached hereto as Exhibit B;
(g) The Company shall have entered into the Investor Rights
Agreement with Purchaser dated the date hereof in substantially the form
attached hereto as Exhibit G (the "Investor Rights Agreement");
(h) The Company shall have obtained all necessary state "blue
sky" law permits and qualifications, or have the availability of exemptions
therefrom, required by any state for the offer and sale of the Securities;
(i) The Designation shall have been filed with and accepted by
the Delaware Secretary of State;
(j) All material matters of a legal nature which pertain to
this Agreement, and the transactions contemplated hereby, shall have been
approved by counsel to the Purchaser; and
(k) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, promulgated or issued or deemed
applicable to the proposed transactions by any legislature, administrative
agency, court or other governmental authority which would make consummation of
the proposed transactions pursuant to this Agreement illegal or render the
Company or the Purchaser unable to consummate the proposed transactions nor
shall there have been filed any proceeding in a court of competent jurisdiction
seeking to enjoin or restrain the transactions contemplated by this Agreement.
(l) The Company shall have delivered to Purchaser waivers or
consents from all governmental authorities or other parties necessary to
consummation of the transactions contemplated hereby, including waivers of those
rights of third parties described in Section 3.4 of the Schedule of Exceptions
of Company, in a form reasonably acceptable to Purchaser.
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(m) The Shares and Conversion Stock shall be free of any
claims or liens or encumbrances.
5.2 CONDITIONS TO COMPANY'S OBLIGATIONS. The Company's obligation to
sell and issue the Shares to the Purchaser at the Closing is subject to the
fulfillment to the Company's reasonable satisfaction on or prior to the Closing
Date of the following conditions, any of which may be waived in whole or in part
by the Company:
(a) The representations and warranties made by the Purchaser
in Section 4 hereof shall be true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing
Date;
(b) All covenants, agreements and conditions contained in this
Agreement to be performed by the Purchaser on or prior to the Closing Date shall
have been performed or complied with in all material respects;
(c) The Purchaser shall have delivered to the Company a
certificate executed on the Purchaser's behalf by an executive officer of the
Purchaser, dated as of the Closing Date and certifying to the fulfillment of the
conditions specified in paragraphs (a) and (b) of this Section 5.2 in the form
attached hereto as Exhibit H;
(d) The Purchaser shall have entered into the Commercial
Agreement in substantially the form attached hereto as Exhibit A;
(e) The Designation shall have been filed with the Delaware
Secretary of State;
(f) All material matters of a legal nature which pertain to
this Agreement, and the transactions contemplated hereby, shall have been
approved by counsel to the Company which approval will not be unreasonably
withheld or delayed; and
(g) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, promulgated or issued or deemed
applicable to the proposed transactions by any legislature, administrative
agency, court or other governmental authority which would make consummation of
the proposed transactions pursuant to this Agreement illegal or render the
Company or the Purchaser unable to consummate the proposed transactions nor
shall there have been filed any proceeding in a court of competent jurisdiction
seeking to enjoin or restrain the transactions contemplated by this Agreement.
SECTION 6
COVENANTS
6.1 REASONABLE BEST EFFORTS. Subject to the terms and conditions
provided in this Agreement, each of the parties hereto shall use commercially
reasonable best efforts to promptly take, or cause to be taken, all actions, and
to promptly do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make
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effective the transactions contemplated hereby, to obtain all necessary waivers,
consents and approvals and to effect all necessary registrations and filings and
to remove any injunctions or other impediments or delays, legal or otherwise, in
order to consummate and make effective the transactions contemplated by this
Agreement for the purpose of securing to the parties hereto the benefits
contemplated by this Agreement.
6.2 ADDITIONAL DOCUMENTS AND FURTHER ASSURANCES. Each party hereto, at
the request of the other party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may be necessary or
desirable for effecting completely the consummation of this Agreement and the
transactions contemplated hereby.
SECTION 7
MISCELLANEOUS
7.1 PUBLIC ANNOUNCEMENTS. The Company shall obtain the consent of the
Purchaser and the Purchaser shall obtain the consent of the Company prior to any
public announcement relating to this Agreement, provided that the Company shall
be permitted to make any public announcement which is required pursuant to the
Securities Act or the Exchange Act or the rules or regulations thereunder;
provided, however, that the Company shall, upon Purchaser's request, seek
confidential treatment of such materials or information that the Purchaser may
reasonably designate.
7.2 FINDER'S FEE.
(a) The Company (i) represents and warrants that the Company
has retained no finder or broker in connection with the transactions
contemplated by this Agreement, and (ii) hereby agrees to indemnify and to hold
the Purchaser harmless of and from any liability for commission or compensation
in the nature of a finder's fee to any broker or other person or firm (and the
costs and expenses of defending against such liability or asserted liability)
for which the Company, or any of its employees or representatives, is
responsible.
(b) The Purchaser (i) represents and warrants that the
Purchaser has retained no finder or broker in connection with the transactions
contemplated by this Agreement, and (ii) hereby agrees to indemnify and to hold
the Company harmless of and from any liability for any commission or
compensation in the nature of a finder's fee to any broker or other person or
firm (and the costs and expenses of defending against such liability or asserted
liability) for which the Purchaser, or any of its employees or representatives,
is responsible.
7.3 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to the Company or the Purchaser, upon any breach or
default under this Agreement, shall impair any such right, power or remedy, nor
shall it be construed to be a waiver of any such breach or default, or any
acquiescence therein, or of any similar breach or default thereafter occurring;
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character by the Company or the Purchaser of
any breach or default under this Agreement, or any waiver by the Company or the
Purchaser of any provisions or
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conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in writing, and all remedies, either under
this Agreement, or by law or otherwise afforded to the Company or the Purchaser,
shall be cumulative and not alternative.
7.4 WAIVERS AND AMENDMENTS. The obligations and rights of the Company
and the Purchaser under this Agreement may be waived or this Agreement may be
amended upon the written consent of the Company and the Purchaser. This
Agreement and the provisions hereof may not be waived or amended except pursuant
to a written instrument signed by the required party or parties as aforesaid.
7.5 SEVERABILITY. In the event that any provision of this Agreement
shall be deemed to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
7.6 SURVIVAL. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by Purchaser and the Company
and shall survive the Closing of the transactions contemplated hereby for a
period of one year.
7.7 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
7.8 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be delivered (i) personally,
(ii) by facsimile transmission with written confirmation (other than the
automatic confirmation that is received from the recipient's facsimile machine)
of receipt by the recipient of such notice, or (iii) by a nationally recognized
overnight courier, in each case with all delivery or postal charges pre-paid.
Notices shall be addressed (i) if to the Purchaser, at the Purchaser's address
as set forth on the signature page of this Agreement, Attention: Chief Financial
Officer and Deputy General Counsel, Finance and Operations, (Fax (425)
000-0000), with a copy to Xxxxxxx Xxxx at Xxxxxxx Xxxxx & Xxxxx LLP, 5000
Columbia Center, 000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000-0000 (Fax (000) 000-0000),
(ii) if to any permitted transferee of Series A Preferred hereunder, then to
Purchaser's address or such other address as the transferee shall furnish to the
Company in writing pursuant to the provisions hereof, or (iii) if to the
Company, at the Company's address set forth on the signature page of this
Agreement, Attention: Chief Financial Officer and General Counsel (Fax (215)
000-0000), with copy to the attention of Xxxxxx Xxxxxxx, Paul, Hasting, Xxxxxxxx
& Xxxxxx, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000-0000 (Fax (415)
000-0000) or at such other address as the Company shall have furnished to the
Purchaser (or transferees, as aforesaid) in writing.
Each such notice or communication, addressed and posted as aforesaid,
shall for all purposes of this Agreement be treated as effective or having been
given (i) when delivered, if delivered personally, (ii) the business day on
which the notice or communication is sent, if delivered by facsimile
transmission as provided above, or (iii) upon the earlier of its receipt or two
(2) business days after the business day of deposit with a nationally recognized
overnight courier, if delivered by such means.
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7.9 ENTIRE AGREEMENT. This Agreement, the Commercial Agreement and the
other documents delivered pursuant hereto constitute the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and thereof, and supersede any and all prior agreements and understandings among
the parties.
7.10 GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Washington as they
apply to contracts entered into and wholly to be performed within such state,
and without reference to its principles of conflicts of law or choice of law.
7.11 EXPENSES. The Company and the Purchaser shall each bear all
expenses that such respective party has incurred or incurs in connection with
this Agreement and the transactions contemplated hereby, and any amendments or
waivers hereto.
7.12 ATTORNEYS' FEES. In the event of any litigation in a court of
competent jurisdiction arising in connection with this Agreement and the
transactions contemplated hereby, the prevailing party in judgment shall be
entitled to recover reasonable legal fees and costs in connection with such
action including any appeals.
7.13 TITLES AND SUBTITLES. The titles of the Sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
7.14 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which together shall
constitute one instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first written above.
COMPANY
FUTURELINK CORP., a Delaware corporation
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-----------------------------------
Title: Chairman and CEO
----------------------------------
Address: 6 Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
PURCHASER
MICROSOFT CORPORATION, a Washington
corporation
By: /s/ XXXX XXXXX
-------------------------------------
Xxxx Xxxxx
Vice President, Corporate Development
Address: Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000
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EXHIBITS
Exhibit A - Commercial Agreement
Exhibit B - Form of Warrant
Exhibit C - Certificate of Designation of Series A Convertible Preferred Stock
Exhibit D - Schedule of Exceptions
Exhibit D-1 - Schedule of Purchaser Exceptions
Exhibit E - Legal Opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx
Exhibit F - Form of FutureLink Compliance Certificate
Exhibit G - Form of Investor Rights Agreement
Exhibit H - Form of Purchaser Compliance Certificate
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EXHIBIT D-1
Schedule of Purchaser Exceptions
Such filings as maybe required by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and similar filings required by the merger notification
or control laws of any applicable jurisdiction upon the exercise of the Warrant.
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