EXHIBIT 4.1
PREFERRED STOCK PURCHASE AGREEMENT
This Preferred Stock Purchase Agreement (this "Agreement") is made and
entered into as of June 7, 1999 (the "Effective Date"), by and between Inprise
Corporation, a Delaware corporation ("Inprise"), and Microsoft Corporation, a
Washington corporation ("Microsoft").
RECITALS:
Inprise desires to sell to Microsoft, and Microsoft desires to purchase
from Inprise, 625 shares of Inprise's Series C Convertible Preferred Stock (the
"Series C Shares") with the rights and preferences set forth in the form of
Certificate of Designation (the "Certificate") attached as Exhibit A to this
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Agreement;
Inprise and Microsoft will enter into a Patent Cross License Agreement and
an amendment to an existing license agreement between the parties (collectively,
the "Patent License Agreements") concurrently with the closing of the purchase
contemplated by this Agreement; and
Inprise and Microsoft will, concurrently with the closing of the purchase
contemplated by this Agreement, enter into an Investor Rights Agreement (the
"Rights Agreement").
This Agreement, together with the Certificate, the Patent License Agreement
and the Rights Agreement are referred to herein collectively as the "Transaction
Documents."
AGREEMENT:
NOW, THEREFORE, based on these premises and in consideration of the mutual
covenants and agreements contained herein, the parties hereby agree as follows:
ARTICLE I
PURCHASE OF PREFERRED STOCK AND CLOSING
1.1 Agreement to Purchase and Sell Stock. Inprise agrees to sell to
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Microsoft at the Closing (as defined below), and Microsoft agrees to purchase
from Inprise at the Closing, 625 shares of Series C Convertible Preferred Stock
at a price of $40,000.00 per share, for an aggregate purchase price of $25
million (the "Purchase Price"). The Series C Shares purchased and sold pursuant
to this Agreement will be collectively hereinafter referred to as the "Series C
Preferred Shares" and the shares of Common Stock issuable upon conversion of the
Series C Preferred Shares will be collectively hereinafter referred to as the
"Conversion Shares."
1.2 Closing. The purchase and sale of the Series C Preferred Shares
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will take place at 2:00 p.m. Pacific Standard Time, on such date as is agreed by
Inprise and Microsoft, but in no event later than ten days from the date of this
Agreement (the "Closing Date") at the offices of Xxxx Xxxx Xxxx & Freidenrich
LLP, 000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 (the "Closing"). At the
Closing: (i) Inprise will deliver to Microsoft a certificate representing the
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number of Series C Preferred Shares that Microsoft has agreed to purchase
hereunder, together with executed copies of the Transaction Documents and such
other agreements, documents and certificates required pursuant to Section 4.2
hereof; and (ii) Microsoft will deliver to Inprise the Purchase Price by wire
transfer of immediately available funds, together with executed copies of the
Transaction Documents and such other agreements, documents and certificates
required pursuant to Section 4.3 hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Inprise. Except as disclosed in a
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document referring specifically to the representations and warranties in this
Agreement which identifies by section number the section and subsection to which
such disclosure relates and is delivered by Inprise to Microsoft prior to the
execution of this Agreement (the "Inprise Disclosure Schedule"), Inprise
represents and warrants to Microsoft as follows:
2.1.1 Organization, Standing and Power. Inprise is a corporation
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duly organized, validly existing and in good standing under the laws of
Delaware. Inprise has all requisite power and authority to own, lease and
operate its properties and to carry on its businesses as now being conducted and
as proposed to be conducted. Inprise is qualified to do business as a foreign
corporation in each jurisdiction in which the ownership of its property or the
nature of its business requires such qualification, except where the failure to
be so qualified would not have a materially adverse effect on Inprise. Except
for those entities as set forth in the SEC Documents (as hereinafter defined) or
which otherwise do not conduct any material operations of the company, Inprise
does not own or control, directly or indirectly, any corporation, partnership,
limited liability company, or other entity.
2.1.2 Capital Structure and Stock Issuance.
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(a) The authorized capital stock of Inprise as of the Closing
Date and immediately prior to the Closing will consist of 100,000,000 shares of
Inprise Common Stock, par value $0.01 ("Inprise Common Stock") of which not more
than 55,000,000 will be issued and outstanding (exclusive of shares of Inprise
Common Stock issuable upon conversion of Series B Convertible Preferred Stock),
and 1,000,000 shares of Preferred Stock of which 100,000 will be designated
Series A Junior Participating Preferred Stock, par value $0.01 none of which
will be issued and outstanding, of which 1,470 will be designated Series B
Convertible Preferred Stock, par value $0.01 ("Inprise Series B Stock") of which
not more than 422 will be issued and outstanding, and of which 250 will be
designated Series C Preferred Stock, par value $0.01 none of which are issued
and outstanding. In addition, as of the date hereof, not more than 14 million
shares of Inprise Common Stock are reserved for issuance upon the exercise of
outstanding stock options and not more than 1.8 million shares of Inprise Common
Stock are available for future options grants ("Inprise Options"). Those shares
described above as well as the Inprise Options are collectively referred to as
the "Inprise Securities." Except for the Inprise Common Stock described above
issuable pursuant to Inprise Options, pursuant to the Inprise employee stock
purchase plans or upon conversion of the Inprise Series B Stock, there are no
options, warrants,
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calls, conversion rights, agreements, contracts, or rights of any character to
which Inprise is a party or by which Inprise may be bound obligating Inprise to
issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of the capital stock of Inprise, or obligating Inprise to grant, extend
or enter into any such option, warrant, call, conversion right, agreement,
contract, or right. Inprise does not have outstanding any bonds, debentures,
notes or other indebtedness the holders of which have the right to vote (or
convertible or exercisable into securities having the right to vote) with
holders of Inprise Securities on any matter.
(b) The Series C Preferred Shares, when issued, sold and
delivered in accordance with the terms of this Agreement, will be duly and
validly issued, fully paid and nonassessable. The Conversion Shares have been
duly and validly reserved for issuance and, upon issuance in accordance with the
terms of the Certificate will be duly and validly issued, fully paid and
nonassessable.
2.1.3 Authority. All corporate action on the part of Inprise
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necessary for the authorization, execution, delivery and performance of the
Transaction Documents by Inprise, the authorization, sale, issuance and delivery
of the Series C Preferred Shares hereunder, and the performance of Inprise's
obligations under said Transaction Documents has been taken. Each Transaction
Document constitutes a valid, binding, and enforceable obligation of Inprise in
accordance with its terms, except as may be limited by (i) applicable
bankruptcy, insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors' rights generally, and
(ii) the effect of rules of law governing the availability of equitable
remedies. Inprise hereby represents that it has full power and authority to
enter into the Transaction Documents.
2.1.4 Compliance with Laws and Other Instruments. Inprise holds all
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licenses, permits, and authorizations from all Governmental Entities (as defined
below) necessary for the lawful conduct of its business pursuant to all
applicable statutes, laws, ordinances, rules, and regulations of all such
authorities having jurisdiction over it or any part of its operations,
excepting, however, when such failure to hold would not have a material adverse
effect on Inprise's business and financial condition. Except for applicable
filings necessary to claim an exemption from the registration requirements under
applicable federal and state securities laws and the filing of the Certificate,
no consent, approval, order or authorization of or registration, declaration or
filing with or exemption (collectively "Governmental Consents") by, any court,
administrative agency or commission or other governmental authority or
instrumentality, whether domestic or foreign (each a "Governmental Entity") is
required by or with respect to Inprise in connection with the execution and
delivery of the Transaction Documents by Inprise or the consummation by Inprise
of the transactions contemplated hereby.
2.1.5 No Conflicts. The execution, delivery and performance of the
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Transaction Documents by Inprise and the consummation by Inprise of the
transactions contemplated hereby and thereby and the filing of the Certificate
do not and will not (i) result in a violation of Inprise's charter documents or
bylaws or (ii) conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture,
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patent, patent license or instrument to which Inprise or any of its subsidiaries
is a party (except where such conflict or default would not have a material
adverse effect on Inprise's business or financial condition), or (iii) result in
a violation of any federal, state, local or foreign law, rule, regulation,
order, judgment or decree (including Federal and state securities laws and
regulations) applicable to Inprise or any of its subsidiaries or by which any
property or asset of Inprise or any of its subsidiaries is bound or affected.
The business of Inprise and its direct and indirect subsidiaries is being
conducted in material compliance with all applicable laws, ordinances or
regulations of any Governmental Entity.
2.1.6 SEC Documents. Inprise has filed all required reports,
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schedules, forms, statements and other documents with the Securities and
Exchange Commission (the "SEC") since June 1, 1997 (the "SEC Documents"). As of
their respective dates, the SEC Documents complied in all material respects with
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as the case may be and the rules and regulations
of the SEC promulgated thereunder applicable to such SEC Documents, and none of
the SEC Documents contained any untrue statement of a material fact or omitted
to state a 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. Except to the extent that information contained in any SEC
Document has been revised or superseded by a later filed SEC Document, none of
the SEC Documents 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. The financial statements of Inprise included in the SEC
Documents 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 financial position of Inprise as of the dates thereof and the
results of its operation and cashflows for the periods then ended 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 Documents, Inprise has
no liabilities or obligations of any nature (whether accrued, absolute,
contingent or otherwise) required by GAAP to be set forth on a balance sheet of
Inprise or in the notes thereto and which could reasonably be expected to have a
material adverse effect on Inprise, except such liabilities incurred in the
ordinary course of Inprise's business since March 31, 1999, which liabilities do
not or would not have a material adverse effect on Inprise.
2.1.7 No Material Adverse Change. Except as disclosed in the SEC
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Documents, since the date of the most recent audited financial statements
included in the SEC Documents, there has not been (i) any declaration, setting
aside or payment of any dividend or distribution (whether in cash, stock or
property) with respect to any of Inprise's capital stock, (ii) any split,
combination or reclassification of any of its capital stock or any issuance or
the authorization of any issuance of any other securities in respect of, in lieu
of or in substitution for shares of its capital stock, (iii) any damage,
destruction or loss of property, whether or not covered by insurance, that has
or could reasonably be expected to have a material adverse effect on Inprise,
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or (iv) any change in accounting methods, principles or practices by Inprise
materially affecting its assets, liabilities, or business, except insofar as may
have been required by a change in GAAP.
2.1.8 No Undisclosed Events or Circumstances. No event or
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circumstance has occurred or exists with respect to Inprise or its businesses,
properties, prospects, operations or financial condition, which, under
applicable law, rule or regulation, requires public disclosure or announcement
by Inprise but which has not been so publicly announced or disclosed.
2.1.9 Intellectual Property.
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(a) The "Inprise Intellectual Property" consists of the
following:
(i) all patents, trademarks, trade names, service
marks, trade dress, copyrights and any renewal rights therefor, mask works, net
lists, schematics, technology, manufacturing processes, supplier lists, trade
secrets, know-how, moral rights, computer software programs or applications (in
both source and object code form), applications and registrations for any of the
foregoing;
(ii) all goodwill associated with trademarks, trade
names, service marks and trade dress;
(iii) all software and firmware listings, and updated
software source code, and complete system build software and instructions
related to all software described herein;
(iv) all documents, records and files relating to
design, end user documentation, manufacturing, quality control, sales, marketing
or customer support for all intellectual property described herein;
(v) all other tangible or intangible proprietary
information and materials; and
(vi) all license and other rights in any third party
product, intellectual property, proprietary or personal rights, documentation,
or tangible or intangible property, including without limitation the types of
intellectual property and tangible and intangible proprietary information
described in (i) through (v) above;
that are owned or held by or on behalf of Inprise or that are being, and/or have
been, used, or are currently under development for use, in the business of
Inprise as it has been, is currently or is currently anticipated to be (up to
the Closing), conducted.
(b) Inprise has taken reasonable measures and precautions to
protect and maintain the confidentiality, secrecy and value of the Inprise
Intellectual Property.
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(c) Except as set forth in the SEC Documents and except for
matters which are not reasonably likely to result in a material adverse effect
on the business or financial condition of Inprise, to the knowledge of Inprise:
(i) all patents, trademarks, service marks and copyrights held by Inprise are
valid, enforceable and subsisting; (ii) no Inprise Intellectual Property and no
Inprise Intellectual Property that is currently being developed by Inprise
(either by itself or with any other person) infringes, misappropriates or
conflicts with any intellectual property owned or used by any other person;
(iii) none of the products that are or have been designed, created, developed,
assembled, manufactured or sold by Inprise is infringing, misappropriating or
making any unlawful or unauthorized use of any intellectual property owned or
used by any other person, and none of such products has at any time infringed,
misappropriated or made any unlawful or unauthorized use of, and Inprise has not
received any notice or other communication (in writing or otherwise) of any
actual, alleged, possible or potential infringement, misappropriation or
unlawful or unauthorized use of, any intellectual property owned or used by any
other person; (iv) no other person is infringing, misappropriating or making any
unlawful or unauthorized use of, and no intellectual property owned or used by
any other person infringes or conflicts with, any Inprise Intellectual Property.
(d) To Inprise' knowledge, the Inprise Intellectual Property
constitutes all the intellectual property necessary to enable Inprise to conduct
its business in the manner in which such business has been and is being
conducted. Inprise has not (i) licensed any of the Inprise Intellectual Property
to any person on an exclusive basis, or (ii) entered into any covenant not to
compete or contract limiting its ability to exploit fully any of its Inprise
Intellectual Property or to transact business in any market or geographical area
or with any person.
2.1.10 Brokers. Inprise has taken no action which would give rise to
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any claim by any person, for brokerage commissions, finder's fees or similar
payments by Inprise or Microsoft relating to this Agreement or the transactions
contemplated hereby.
2.1.11 Litigation and Other Proceedings. Neither Inprise nor any of
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its officers, directors, or, to Inprise's knowledge, employees, is a party to
any pending or, to Inprise's knowledge, threatened action, suit, labor dispute
(including any union representation proceeding), proceeding, investigation, or
discrimination claim in or by any court or governmental board, commission,
agency, department, or officer, or any arbitrator, arising from the actions or
omissions of Inprise or, in the case of an individual, from acts in his capacity
as an officer, director, or employee of Inprise which individually or in the
aggregate would be materially adverse to Inprise. Inprise is not subject to any
order, writ, judgment, decree, or injunction that has or would be reasonably
expected to have a material adverse effect on the Inprise business and financial
condition.
2.1.12 Registration Rights. Except as provided in that certain
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Registration Rights Agreement dated June 26, 1997 by and among Inprise and the
purchasers of the Inprise Series B Stock specified therein, Inprise is not under
any obligation to register any presently outstanding securities, or any
securities which may hereafter be issued, under the Securities Act of 1933, as
amended ("1933 Act").
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2.1.13 Contracts. All material contracts, arrangements, plans,
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agreements, leases, licenses, franchises, permits, indentures, authorizations,
instruments and other commitments to which Inprise is a party and which are
material to its business have been disclosed in the SEC Documents to the extent
required in accordance with the rules of the SEC and are valid and in full force
and effect. Inprise has not, nor, to the knowledge of Inprise, has any other
party thereto, breached any material provisions of, or is in default in any
material respect under the terms thereof.
2.1.14 Related Party Transactions. None of the directors or
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executive officers of Inprise, or any member of any of their families, is
presently a party to, or was a party to preceding the date of this Agreement,
any transaction with Inprise, other than compensation arrangements in the
ordinary course of Inprise's business and purchases of securities and other than
transactions not required to be reported in the SEC Documents in accordance with
SEC rules, including, without limitation, any contract, agreement, or other
arrangement: (i) providing for the furnishing of services to or by, (ii)
providing for rental of real or personal property to or from, or (iii) otherwise
requiring payments to or from, any such person or any corporation, partnership,
trust, or other entity in which any such person has or had a 10%-or-more
interest (as a shareholder, partner, beneficiary, or otherwise) or is or was a
director, officer, employee, or trustee.
2.1.15 Disclosure. Neither the representations or warranties made by
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Inprise in this Agreement, nor the Inprise Disclosure Schedule or any other
certificate or document executed and/or delivered by Inprise pursuant to this
Agreement, when taken together, contains any untrue statement of a material
fact, or omits to state a material fact necessary to make the statements or
facts contained herein or therein not misleading in light of the circumstances
under which they were furnished.
2.2 Representations and Warranties of Microsoft. Microsoft hereby
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represents and warrants to, and agrees with Inprise that:
2.2.1 Authorization. Microsoft has full corporate power and
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authority to enter into the Transaction Documents, and each such agreement
constitutes Microsoft's valid and legally binding obligation, enforceable in
accordance with its terms except as may be limited by (i) applicable bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting the enforcement of creditors' rights generally and (ii) the effect of
rules of law governing the availability of equitable remedies.
2.2.2 No Conflict. The execution, delivery and performance of the
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Transaction Documents by Microsoft and the consummation by Microsoft of the
transactions contemplated hereby will not (i) result in a violation of
Microsoft's charter documents or bylaws or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture, patent, patent
license or instrument to which Microsoft or any of its subsidiaries is a party,
or (iii) result in a violation of any federal, state, local or foreign law,
rule, regulation, order, judgment or decree (including Federal and state
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securities laws and regulations) applicable to Microsoft or any of its
subsidiaries or by which any property or asset of Microsoft or any of its
subsidiaries is bound or affected.
2.2.3 Purchase for Own Account. The Series C Preferred Shares to be
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purchased by Microsoft hereunder and any Conversion Shares (collectively, the
"Securities") will be acquired for investment for Microsoft's own account, not
as nominee or agent, and not with a view to public resale or distribution
thereof within the meaning of the 1933 Act, and Microsoft has no present
intention of selling, granting any participation in, or otherwise distributing
the same. Microsoft further represents that it 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
Securities.
2.2.4 Investment Experience. Microsoft understands that the purchase
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of the Securities involves substantial risk. Microsoft acknowledges that it is
able to fend for itself, can bear the economic risk of Microsoft's investment in
the Securities and has such knowledge and experience in financial or business
matters such that Microsoft is capable of evaluating the merits and risks of
this investment in the Securities and protecting its own interests in connection
with this investment.
2.2.5 Restricted Securities. Microsoft understands that the
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Securities are characterized as "restricted securities" under the 1933 Act
inasmuch as they are being acquired from Inprise in a transaction not involving
a public offering and that under the 1933 Act and applicable regulations
thereunder such securities may be resold without registration under the 1933 Act
only in certain limited circumstances. In this connection, Microsoft represents
that it is familiar with Rule 144 of the SEC, as presently in effect, and
understands the resale limitations imposed thereby and by the 1933 Act.
Microsoft understands that Inprise is under no obligation to register any of the
securities sold hereunder except as provided in the Rights Agreement.
2.2.6 Legends. It is understood that the certificates evidencing the
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Securities will bear the legends substantially as provided below:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER
THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM.
The legends provided above shall be removed by Inprise from any certificate
evidencing the Securities upon delivery to Inprise of an opinion by counsel,
reasonably satisfactory to Inprise, that such security can be freely transferred
in a public sale without such a registration statement being in effect and that
such transfer will not jeopardize the exemption or exemptions from registrations
pursuant to which Inprise issued the Securities.
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For purposes of clarification, and provided that any transactions satisfy the
terms of SEC Rule 144 and are not in conflict with the Rights Agreement,
Microsoft may enter into bona fide transactions which constitute a hedge against
changes in the market price of the Inprise Common Stock, provided, however, no
public disclosure is made with respect to such hedge transactions, except in an
initial Schedule 13D, the text of which is reasonably satisfactory to Inprise,
or if in the opinion of counsel to Microsoft such disclosure is required as a
matter of law.
ARTICLE III
ADDITIONAL AGREEMENTS
Microsoft and Inprise each agree as follows:
3.1 Expenses. Whether or not the purchase and sale of the Series C
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Preferred Shares is consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions to Each Party's Obligation to Close. The respective
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obligation of each party to close the transactions contemplated by this
Agreement shall be subject to the satisfaction prior to the Closing Date of the
following conditions:
4.1.1 Governmental Approvals. Other than the filing of a Form D with
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the SEC and the California Department of Corporations, all Governmental Consents
legally required for the consummation of the transactions contemplated by this
Agreement shall have been filed, occurred, or been obtained, other than such
Governmental Consents, for which the failure to obtain would have no material
adverse effect on the consummation of the transactions contemplated hereby.
4.1.2 No Restraints. No statute, rule, regulation, executive order,
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decree or injunction shall have been enacted, entered, promulgated or enforced
by any Governmental Entity of competent jurisdiction enjoining or prohibiting
the consummation of the transactions herein contemplated.
4.1.3 Securities Exemption. The offer and sale of the Series C
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Preferred Shares to Microsoft pursuant to this Agreement shall be exempt from
the registration requirements of the 1933 Act, and the registration and/or
qualification requirements of all other applicable state securities laws.
4.2 Conditions to Obligations of Microsoft. The obligations of Microsoft
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to purchase the Series C Preferred Shares are subject to the satisfaction of the
following conditions unless waived by Microsoft.
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4.2.1 Representations and Warranties of Inprise. The representations
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and warranties of Inprise set forth in this Agreement shall be true and correct
in all material respects as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date, except as otherwise
contemplated by this Agreement. Microsoft shall have received a certificate
signed on behalf of Inprise by an officer of Inprise to such effect on the
Closing Date.
4.2.2 Performance of Obligations of Inprise. Inprise shall have
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performed in all material respects all agreements and covenants required to be
performed by it under this Agreement prior to the Closing Date.
4.2.3 Rights Agreement. Microsoft and Inprise shall have each duly
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executed a Rights Agreement substantially in the form attached hereto as Exhibit
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B.
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4.2.4 Patent License Agreement. Microsoft and Inprise shall have
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each duly executed the Patent License Agreements in the form attached hereto as
Exhibit C-1 and C-2.
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4.2.5 Corporate Documentation. Inprise shall have filed with the
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Delaware Secretary of State the Certificate of Designation in the form attached
hereto as Exhibit A.
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4.2.6 Opinion of Counsel. Microsoft shall have received from Xxxx
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Xxxx Xxxx & Freidenrich LLP, counsel to Inprise, an opinion addressed to
Microsoft, dated the Closing Date, substantially in the form attached as Exhibit
D.
4.3 Conditions to Obligation of Inprise. The obligation of Inprise to
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effect the sale of the Series C Preferred Shares is subject to the satisfaction
of the following conditions unless waived by Inprise.
4.3.1 Representations and Warranties of Microsoft. The
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representations and warranties of Microsoft set forth in this Agreement shall be
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date as though made on and as of the Closing Date, except as
otherwise contemplated by this Agreement.
4.3.2 Performance of Obligations of Microsoft. Microsoft shall have
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performed in all material respects all agreements and covenants required to be
performed by it under this Agreement prior to the Closing Date.
4.3.3 Payment of Purchase Price. Microsoft shall have delivered to
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Inprise the Purchase Price specified in Article I hereof.
ARTICLE V
TERMINATION
5.1 Mutual Agreement. This Agreement may be terminated at any time prior
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to the Closing by the written consent of Microsoft and Inprise.
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5.2 Termination by Inprise. This Agreement may be terminated by Inprise
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alone, by means of written notice to Microsoft, if there has been a material
breach by Microsoft of any representation, warranty, covenant or agreement set
forth in this Agreement or any Transaction Document, which breach has not been
cured within ten business days following receipt by Microsoft of notice of such
breach.
5.3 Termination by Microsoft. This Agreement may be terminated by
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Microsoft alone, by means of written notice to Inprise, if there has been a
material breach by Inprise of any representation, warranty, covenant or
agreement set forth in this Agreement or any Transaction Document, which breach
has not been cured within ten business days following receipt by Inprise of
notice of such breach.
5.4 Effect of Termination. In the event of termination of this Agreement
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by either Inprise or Microsoft as provided in this Article, and notwithstanding
that Inprise may have taken certain actions in contemplation of the Closing,
this Agreement shall forthwith become void and have no effect, and there shall
be no liability or obligation on the part of Microsoft, Inprise or their
respective officers or directors or shareholders, except that (i) the provisions
of Sections 3.1, 3.2 and 6.2 shall survive any such termination and abandonment,
and (ii) no party shall be released or relieved from any liability arising from
the willful breach by such party of any of its representations, warranties,
covenants or agreements as set forth in this Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Entire Agreement. This Agreement, including the exhibits and
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schedules delivered pursuant to this Agreement, together with the Transaction
Documents between the parties contain all of the terms and conditions agreed
upon by the parties relating to the subject matter of this Agreement and
supersede all prior agreements, negotiations, correspondence, undertakings, and
communications of the parties, whether oral or written, respecting that subject
matter.
6.2 Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of Delaware.
6.3 Headings. The headings contained in this Agreement are intended
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principally for convenience and shall not, by themselves, determine the rights
of the parties to this Agreement.
6.4 Notices. All notices, requests, demands, or other communications
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which are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed to have been duly given: (i) on the date of
delivery if personally delivered by hand, (ii) upon the third day after such
notice is (a) deposited in the United States mail, if mailed by registered or
certified mail, postage prepared, return receipt requested, or (b) sent by a
nationally recognized overnight express courier, or (iii) by facsimile upon
written confirmation (other than the automatic confirmation that is received
from the recipient's facsimile machine) of receipt by the recipient of such
notice:
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If to Microsoft: Microsoft Corporation
---------------
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Inprise: Inprise Corporation
-------------
000 Xxxxxxxxxx Xxx
Xxxxxx Xxxxxx, XX 00000-0000
Attention: XxXxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to: Xxxx Xxxx Xxxx & Freidenrich LLP
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000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided in this Section 6.4.
6.5 Severability. In the event any provision of this Agreement shall be
------------
unenforceable or invalid under any applicable law or be so held by applicable
court decision, such unenforceablility or invalidity shall not render this
Agreement unenforceable or invalid as a whole, and, in such even, such provision
shall be changed and interpreted so as to best accomplish the objectives of such
provision within the limits of applicable law or applicable court decisions.
6.6 Survival of Representations and Warranties. The representations,
------------------------------------------
warranties and covenants of Inprise and Microsoft contained in or made pursuant
to this Agreement shall survive the execution and delivery of this Agreement and
the Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of Microsoft or its counsel or Inprise or
its counsel, as the case may be.
6.7 Assignment. No party to this Agreement may assign, by operation of
----------
law or otherwise, all or any portion of its rights, obligations, or liabilities
under this Agreement.
6.8 Counterparts. This Agreement may be executed in two or more partially
------------
or fully executed counterparts and by facsimile signatures each of which shall
be deemed an original and shall bind the signatory, but all of which together
shall constitute but one and the same instrument. The execution and delivery of
a signature page in the form annexed to this
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Agreement by any party hereto who shall have been furnished the final form of
this Agreement shall constitute the execution and delivery of this Agreement by
such party.
6.9 Amendment. This Agreement may not be amended except by an instrument
---------
in writing signed on behalf of each of the parties hereto.
6.10 Extension, Waiver. At any time prior to the Closing, any party hereto
-----------------
may, to the extent legally allowed: (i) extend the time for the performance of
any of the obligations or other acts of the other party hereto, (ii) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements, covenants or conditions for the benefit of such
party contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party.
6.11 Interpretation. When a reference is made in this Agreement to
--------------
Sections, Exhibits or Schedules, such reference shall be to a Section, Exhibit
or Schedule to this Agreement unless otherwise indicated. The words "include,"
"includes," and "including" when used therein shall be deemed in each case to be
followed by the words "without limitation." The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
"Inprise"
INPRISE CORPORATION
By: /s/ XXX X. XXXXX
--------------------------------
Xxx X. Xxxxx
Chief Financial Officer
"MICROSOFT"
MICROSOFT CORPORATION
By: /s/ XXXX XXXXXX
--------------------------------
Xxxx Xxxxxx
Vice President
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