EXHIBIT 4.6
STOCK REPURCHASE AGREEMENT
This Stock Repurchase Agreement (this "Agreement") is made as of
this 21st day of December 2001, among Microsoft Corporation, a Washington
corporation ("Microsoft"), Microsoft AVN Holdings, Inc., a Nevada corporation
("Holdings"), and Avanade Inc., a Delaware corporation (the "Company").
WHEREAS, the Company wishes to repurchase and Microsoft and Holdings
are willing to sell 26,385,224 shares of the Company's Series A Preferred Stock,
par value $.0001 per share ("Avanade Series A Preferred") for which Holdings is
the record and beneficial owner (the "Repurchase 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. Repurchase and Sale . Subject to the terms and conditions set
forth in this Agreement, Holdings will sell to the Company, and the Company will
purchase from Holdings, at the Closing (as hereinafter defined) the Repurchase
Shares, at a per share purchase price of $3.79 per share of Avanade Series A
Preferred for an aggregate purchase price of $100 million (the "Repurchase
Price").
1.2. Purchase Price. The Repurchase Price will be payable by the
Company in immediately available funds to the bank account or accounts
designated by Microsoft, which designation will be made within two (2) business
days after the Closing.
1.3. Closing. The closing of the sale and purchase of the Repurchase
Shares shall take place at 9:00 a.m. (Pacific time) on December 31, 2001 at the
offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 0000 Xxxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxx, 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").
1.4. Closing Deliveries and Conditions.
(a) The following deliveries shall be made as part of the Closing:
(i) Within three (3) business days after the Closing (but in no
event prior to satisfaction of the condition set forth in Section
1.4(b)(ii) below), the Company shall deliver the Repurchase Price to
Microsoft; and
(ii) At the Closing, Holdings shall deliver to the Company
certificates representing the Repurchase Shares, duly endorsed in blank
for transfer or accompanied by duly executed blank stock powers, together
with such other instruments as shall reasonably be required by the Company
to transfer to the Company all right, title and interest in and to the
Repurchase Shares and in each case in form and content reasonably
satisfactory to the Company and its counsel.
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(b) The obligation of Avanade to effect the repurchase provided for
herein and to make the closing deliveries pursuant to Section 1.4(a) is subject
to the satisfaction or waiver of the following conditions on or prior to the
date of the Closing:
(i) The Second 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; and
(ii) Microsoft shall have made all of its capital contributions to
the Company provided for in Section 2.2(a) of the Contribution Agreement.
(c) The obligation of Microsoft to effect the repurchase provided
for herein and to make the closing deliveries pursuant to Section 1.4(a) is
subject to the satisfaction or waiver of the following condition on or prior to
the date of the Closing:
(i) The Contribution Agreement shall have been executed by each of
the Company, 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 Microsoft. Microsoft and Holdings
hereby jointly and severally represent and warrant to the Company that as of the
date hereof and as of the Closing:
2.1. Organization; Authorization. Each of Microsoft and Holdings is
duly incorporated and validly existing under the laws of their respective states
of incorporation. Microsoft and Holdings have all requisite corporate power and
authority to enter into and perform, and has taken all actions necessary to
authorize Microsoft to enter into and perform, all of its obligations under each
of the Transaction Documents (as defined below) to which it is a party and to
consummate the transactions contemplated thereby. Each Transaction Document that
has been executed by Microsoft or Holdings is the legal, valid and binding
obligation of Microsoft or Holdings, as the case may be, enforceable against
such party in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the rights of creditors generally and by general principles of equity.
The "Transaction Documents" shall mean this Agreement and each other document or
instrument executed by or on behalf of Microsoft, Holdings or the Company in
connection with the transactions contemplated hereby or pursuant hereto.
2.2. Purchased Shares. Holdings owns all of the Repurchase Shares
beneficially and of record, free and clear of any mortgages, pledges, charges,
liens, security interests, claims, rights of first refusal, options,
restrictions, limitations in voting rights, commitments, assessments, or other
encumbrances of any kind (collectively, "Liens") (other than any Liens arising
pursuant to this Agreement, the certificate of incorporation of the Company or
the Contribution Agreement). Upon delivery of the Repurchase Price as herein
provided, the Company will acquire good title to the Repurchase Shares, free and
clear of any Lien (other than any Lien arising pursuant to this Agreement or
created by the Company). Neither Microsoft nor Holdings is a party to any voting
trusts or other agreements, understandings, restrictions or
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commitments of any kind with respect to the ownership, voting or transfer of
Avanade Series A Preferred, other than the Contribution Agreement or as may be
imposed under federal or state securities laws.
2.3. Consents; Nonviolation. The execution and delivery of this
Agreement and the consummation by Microsoft and Holdings of the transactions
contemplated hereby (including, without limitation, the offer, sale and delivery
by Holdings of the Repurchase Shares) 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 Microsoft or Holdings 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: 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 Microsoft or Holdings
is a party or by which Microsoft or Holdings or their respective properties are
bound or by which the Repurchase Shares are bound.
2.4. No Brokers or Finders. Neither Microsoft, Holdings nor any of
their respective affiliates that they control 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. Representations and Warranties of the Company. The Company hereby
represents and warrants to Microsoft that as of the date hereof and as of the
Closing:
3.1. Organization and Authorization. The Company is duly
incorporated, validly existing and in good standing under the laws of Delaware.
The Company has all requisite corporate power and authority to enter into and
perform, and has taken all actions necessary to authorize the Company to enter
into and perform, all of its obligations under each of the Transaction Documents
to which it is a party and to consummate the transactions contemplated thereby.
Each Transaction Document that has been executed by the Company is the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the rights of creditors generally and by general principles of equity.
3.2. 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 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 the Company 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
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termination, cancellation or acceleration or to loss of a material benefit under
any Law, Permit or Order to which the Company is a party or by which the Company
or its properties are bound.
3.3. No Brokers or Finders. Neither the Company nor any of its
affiliates that it controls has entered or will enter into any agreement
pursuant to which Microsoft or 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.
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 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):
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If to Microsoft or Holdings, to it at the following address:
Xxx Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Chief Financial Officer
Facsimile: Number Redacted
with a copy to:
Xxx Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, Deputy General Counsel,
Finance and Operations
Facsimile: Number Redacted
and an additional copy to:
Xxxxxxx Xxxxx & Xxxxx LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
If to the Company, to it at the following address:
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Facsimile: Number Redacted
with a copy to:
Xxxxxxx Coie LLP
One Bellevue Center
000-000xx Xxx. XX
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxxxx
Facsimile: Number Redacted
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
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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.
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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:
MICROSOFT AVN HOLDINGS, INC.
By:
-----------------------------
Name:
Title:
AVANADE INC.
By:
-----------------------------
Name: Xxxxxxxx Xxxx
Title: CEO
