EXHIBIT 10.17
BUSINESS OPPORTUNITIES AGREEMENT
This BUSINESS OPPORTUNITIES AGREEMENT (this "Agreement") is made as of
December 7, 1999 by and among divine interVentures, inc., a Delaware corporation
(the "Corporation") and Dell USA L.P., Microsoft Corporation, CBW/SK divine
Investments, Frontenac VII Limited Partnership, Frontenac Masters VII Limited
Partnership, First Chicago Investment Corporation, Cross Creek IX, LLC and
Mesirow Capital Partners VII (together, the "Purchasers").
This Agreement is made in connection with the investment in the Corporation
by each of the Purchasers pursuant to a Purchase Agreement dated as of the date
hereof (the "Purchase Agreement").
For good and valuable consideration, the Purchasers agree with the
Corporation as follows:
1. Business Opportunities.
(a) The Purchasers and the Corporation recognize that the Purchasers,
their Affiliates (as defined in the Purchase Agreement) and assigns, and the
directors designated for appointment to the Board of Directors of the
Corporation or any committee thereof by the Purchasers (i) have participated,
directly or indirectly, and will continue to participate in investments in
corporations, partnerships, joint ventures, limited liability companies and
other entities and other similar transactions, (ii) may acquire, hold and
dispose of investments or other interests in, participate with, assist and
maintain positions on the Board of Directors or a committee thereof or as
officers or employees of other such entities, and (iii) may originate, develop
or receive business opportunities for Purchasers and such other entities. Such
directors may be directors, officers or employees of the Purchasers or their
respective Affiliates, or directors, officers, employees or advisors of entities
in which the Purchasers or their respective Affiliates have invested or may
invest (collectively, the "Positions"). In such Positions, such directors
elected or appointed by the Purchasers may encounter business opportunities that
the Corporation may desire to pursue. The Corporation recognizes that such
opportunities may include, but shall not be limited to, identifying, pursuing
and investing in entities, engaging investment banking firms or underwriters for
access to public and private securities markets, and obtaining investment funds
from institutional and private investors or others.
(b) Therefore, the Purchasers and the Corporation agree that the
Purchasers and the directors elected or appointed by the Purchasers shall have
no obligation to the Corporation, the other stockholders of the Corporation or
any other person or entity to present any such business opportunity to the
Corporation before presenting such opportunity to any other entities (each an
"Other Entity") and allowing such other entities time to develop such
opportunity, other than opportunities that are presented to him or her solely
in, and as a direct result of, his or her capacity as a director of the
Corporation. Notwithstanding the preceding sentence, if an opportunity is
separately presented to or, originated, developed or received by, any Other
Entity, including the Purchasers or their respective Affiliates, such Other
Entity shall be free to pursue such opportunity even if such opportunity also
came to the director's attention solely in and as a direct result of, his or her
capacity as a director of the Corporation. This Agreement shall in no way allow
an individual to usurp a business opportunity solely for his or her personal
benefit without first presenting and allowing time to develop such opportunity
to the entities referred to above (including the Corporation).
(c) The Purchasers and the Corporation acknowledge that, in any such
case, to the extent a court might hold that the conduct of such activity is a
breach of a duty of the Corporation, the Purchasers and the Corporation hereby
waive any and all claims and causes of action that the Purchasers or the
Corporation may have for such activities. The Purchasers and the Corporation
agree that the waivers and agreements in this Agreement identify certain types
and categories of activities which do not violate the director's duty of loyalty
to the Corporation, and such types and categories are not manifestly
unreasonable. The waivers and agreements in this Agreement apply equally to
activities conducted in the future and that have been conducted in the past.
2. Miscellaneous.
This Agreement may be signed in any number of counterparts, each of which
when so executed and delivered shall be deemed an original, and such
counterparts together shall constitute one instrument. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware.
This Agreement shall terminate as of the date that Purchasers no longer
have the right or voting power to elect or designate any members of the Board of
Directors of the Corporation or any committee thereof.
IN WITNESS WHEREOF, this Business Opportunities Agreement was executed as
of the date first set forth above.
DIVINE INTERVENTURES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
Executive Vice President
(SIGNATURE PAGE TO BUSINESS OPPORTUNITIES AGREEMENT)
FRONTENAC VII LIMITED PARTNERSHIP
By: Frontenac Company VII, L.L.C.
Its: General Partner
By: /s/ Xxxxxx Xxxxxxxxx
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Its: Member
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FRONTENAC MASTERS VII LIMITED PARTNERSHIP
By: Frontenac Company VII, L.L.C.
Its: General Partner
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------
Its: Member
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(SIGNATURE PAGE TO BUSINESS OPPORTUNITIES AGREEMENT)
FIRST CHICAGO INVESTMENT CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Its: Attorney-in-Fact
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CROSS CREEK PARTNERS X, LLC
By: /c/ Xxxx X. Xxxxxx
-------------------------
Its: General Partner
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(SIGNATURE PAGE TO BUSINESS OPPORTUNITIES AGREEMENT)
DELL USA L.P.
By: Dell Gen. P. Corp.
Its: General Partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: VP, Business Development
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(SIGNATURE PAGE TO BUSINESS OPPORTUNITIES AGREEMENT)
CBW/SK DIVINE INVESTMENTS,
a New York general partnership
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, a general partner
(SIGNATURE PAGE TO BUSINESS OPPORTUNITIES AGREEMENT)
MICROSOFT CORPORATION
By: /s/ Xxxx Xxxxx
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Its: General Manager, Corporate Development
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(SIGNATURE PAGE TO BUSINESS OPPORTUNITIES AGREEMENT)
MESIROW CAPITAL PARTNERS VII,
an Illinois Limited Partnership
By: Mesirow Financial Services, Inc.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Vice President
(SIGNATURE PAGE TO BUSINESS OPPORTUNITIES AGREEMENT)
