EXHIBIT 4.5
PURCHASE AGREEMENT
DATED MARCH 29, 2000
BETWEEN
DIVINE INTERVENTURES, INC.
AND
CPQ HOLDINGS, INC.
TABLE OF CONTENTS
Section 1. Authorization, Purchase and Sale................................................................ 1
1A. Authorization of the Class C Common Stock.................................................... 1
1B. Purchase and Sale of the Class C Common Stock................................................ 1
Section 2. The Closing..................................................................................... 1
Section 3. Representations and Warranties of the Company................................................... 2
3A. Organization and Corporate Power............................................................. 2
3B. Authorization; No Breach..................................................................... 2
3C. Title to Shares.............................................................................. 2
3D. Governmental Consent, etc.................................................................... 3
3E. Disclosure................................................................................... 3
Section 4. Representations, Warranties and Covenants of Purchaser.......................................... 3
4A. Organization and Corporate Power............................................................. 3
4B. Authorization; No Breach..................................................................... 3
4C. Governmental Consent, etc.................................................................... 4
4D. Investment Representations................................................................... 4
4E. Purchaser's Principal Place of Business...................................................... 6
4F. Solicitation of Proxies...................................................................... 6
4G. Notice....................................................................................... 6
4H. No Group..................................................................................... 6
Section 5. HSR Filings..................................................................................... 6
Section 6. Conditions of the Purchaser's Obligations at the Closing........................................ 6
6A. Representations and Warranties............................................................... 6
6B. Performance.................................................................................. 7
6C. Officer's Certificate........................................................................ 7
6D. Opinion of Company Counsel................................................................... 7
6E. Commercial Agreement......................................................................... 7
6F. Amended Certificate of Incorporation......................................................... 7
Section 7. Conditions of the Company's Obligations at the Closing.......................................... 7
7A. Representations and Warranties............................................................... 7
7B. Performance.................................................................................. 7
7C. Officer's Certificate........................................................................ 7
7D. Commercial Agreement......................................................................... 7
7E. Corporate Consents........................................................................... 8
Section 8. Termination...................................................................................... 8
Section 9. Indemnification.................................................................................. 8
9A. Company Indemnification...................................................................... 8
9B. Purchaser Indemnification.................................................................... 8
9C. Survival of Representations and Warranties................................................... 9
Section 10. Definitions..................................................................................... 9
Section 11. Miscellaneous................................................................................... 10
11A. Expenses..................................................................................... 10
11B. Remedies..................................................................................... 10
11C. Legends...................................................................................... 10
11D. Lock-up Agreements........................................................................... 11
11E. Board Seat................................................................................... 11
11F. Successors and Assigns....................................................................... 12
11G. Severability................................................................................. 12
11H. Counterparts................................................................................. 12
11I. Descriptive Headings; Interpretation......................................................... 12
11J. Governing Law................................................................................ 12
11K. Notices...................................................................................... 12
11L. No Strict Construction....................................................................... 13
Exhibit A - Form of Opinion of Xxxxxx Xxxxxx Xxxxx
Exhibit B - Form of Summary of Terms
DIVINE INTERVENTURES, INC.
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of March 29,
---------
2000 between divine interVentures, inc., a Delaware corporation (the "Company"),
-------
and CPQ Holdings, Inc., a Delaware corporation (the "Purchaser"). Except as
---------
otherwise indicated herein, capitalized terms used herein are defined in Section
-------
10 hereof.
--
WHEREAS, the parties desire to enter into a long-term strategic
relationship as further described herein.
WHEREAS, as part of and as a consequence of such strategic relationship,
Purchaser desires to make an investment in the Company, on the terms and
conditions described herein.
NOW THEREFORE, in consideration of the mutual promises contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
Section 1. Authorization, Purchase and Sale.
--------------------------------
1A. Authorization of the Class C Common Stock. The Company shall
-----------------------------------------
authorize the issuance and sale to the Purchaser of an aggregate number of
shares of its Class C Non-voting Common Stock, par value $0.001 per share (the
"Class C Common Stock") to meet the calculation set forth in Section 1B below.
-------------------- ----------
The Class C Common Stock is convertible into shares of the Company's Class A
Common Stock on a one-for-one basis at the option of Purchaser at any time;
provided that the Purchaser complies with the requirements of Section 5 hereof.
----------
1B. Purchase and Sale of the Class C Common Stock. The Company shall
---------------------------------------------
sell to the Purchaser, and subject to the terms and conditions set forth herein,
the Purchaser shall purchase from the Company, upon the consummation of a
Qualified IPO, that number of shares of Class C Common Stock equal to the result
of $50,000,000 divided by the purchase price stated on the face of the final
prospectus in connection with the Qualified IPO as the price per share to the
public of the Company's Class A Common Stock in the Qualified IPO, which
purchase price shall be paid in immediately available funds.
Section 2. The Closing. The closing of the purchase and sale of the
-----------
Class C Common Stock to the Purchaser (the "Closing") shall take place at the
-------
offices of Xxxxxx Xxxxxx Zavis, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, XX 00000,
immediately following the consummation of the Qualified IPO. At the Closing, the
Company shall deliver a stock certificate or stock certificates evidencing all
of the shares of the Class C Common Stock to be purchased by Purchaser
hereunder, registered in Purchaser's name, upon the payment of the aggregate
purchase price therefor, by wire transfer of immediately available funds to an
account designated by the Company to Purchaser prior to the Closing.
Section 3. Representations and Warranties of the Company. As a
---------------------------------------------
material inducement to the Purchaser to enter into this Agreement and purchase
the Class C Common Stock, the Company hereby represents and warrants that:
3A. Organization and Corporate Power. The Company is a corporation
--------------------------------
duly organized, validly existing and in good standing under the laws of the
State of Delaware and is qualified to do business in every jurisdiction in which
the failure to so qualify would reasonably be expected to have a material
adverse effect on the financial condition, operating results or assets of the
Company. The Company possesses all requisite corporate power and authority
necessary to carry out the transactions contemplated by this Agreement and each
of the Transaction Documents to which the Company is a party.
3B. Authorization; No Breach.
------------------------
(i) The execution, delivery and performance of this Agreement
and each of the Transaction Documents to which the Company is a party will
have been duly authorized by the Company as of the Closing upon the
approval hereof by the Company, its Board of Directors and its
stockholders. This Agreement and the Transaction Documents to which the
Company is a party will each constitute a valid and binding obligation of
the Company, enforceable in accordance with its terms as of the Closing.
(ii) The execution and delivery by the Company of this
Agreement and all Transaction Documents to which the Company is a party,
the sale and issuance of the Class C Common Stock hereunder, the issuance
of the Class A Common Stock upon conversion of Class C Common Stock
(except, with respect thereto, any filings required under the HSR Act and
the termination or expiration of any applicable waiting period under the
HSR Act), and the fulfillment of and compliance with the respective terms
hereof and thereof by the Company, do not and will not as of the Closing
(i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under, (iii) result in the
creation of any lien, security interest, charge or encumbrance upon the
Company's or any subsidiary's capital stock or assets pursuant to, (iv)
give any third party the right to modify, terminate or accelerate any
obligation under, (v) result in a violation of, or (vi) require any
authorization, consent, approval, exemption or other action by or notice or
declaration to, or filing with, any court or administrative or governmental
body or agency pursuant to the Certificate of Incorporation of the Company,
as amended, or the amended and restated bylaws of the Company, or any
material law, statute, rule or regulation to which the Company is subject,
or any agreement, instrument, order, judgment or decree to which the
Company is subject, except for the filing of the Amended Certificate and
any filings required after the date hereof under federal or state
securities laws.
3C. Title to Shares. Upon issuance in accordance with the terms
---------------
hereof, the Class C Common Stock to be purchased hereunder, and the Class A
Common Stock issuable upon conversion of such shares of Class C Common Stock,
will be duly and validly authorized, issued, fully paid, nonassessable, the
Purchaser will have good and marketable title to such
2
shares, free and clear of all liens, claims and encumbrances (including pre-
emptive rights) of any kind, other than (a) transfer restrictions hereunder
(including Sections 11C and 11D below) and under the other agreements
------------ ---
contemplated hereby, (b) transfer restrictions under federal and state
securities laws and (c) liens, claims or encumbrances imposed due to the actions
of the Purchaser, and the shares of Class A Common Stock issuable upon
conversion of such shares of Class C Common Stock will have been fully reserved
for issuance upon such conversion.
3D. Governmental Consent, etc. Except for any filings required under
-------------------------
the HSR Act with respect to the conversion of the Class C Common Stock into
Class A Common Stock and the termination or expiration of any applicable waiting
period under the HSR Act, no permit, consent, approval or authorization of, or
declaration to or filing with, any governmental authority is required in
connection with the execution, delivery and performance by the Company of this
Agreement or any of the Transaction Documents to which the Company is a party,
or the consummation by the Company of any other transactions contemplated hereby
or thereby.
3E. Disclosure. (a) The Company has provided the Purchaser with a
----------
copy of the Registration Statement as filed, and will provide the Purchaser with
a copy of any and all amendments to the Registration Statement filed, by the
Company with the Securities and Exchange Commission prior to the Closing. (b)
To the best of the Company's knowledge as of the date hereof, neither this
Agreement, any Transaction Document to which the Company is a party nor the
Registration Statement, taken as a whole, contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
herein or therein not misleading. For purposes of this Section 3E, a "material"
----------
fact is a fact, in light of all of the facts and circumstances as of the date
of this Agreement, would have caused the Purchaser to not enter into this
Agreement if, at the time of its execution hereof, the Purchaser had known such
fact was untrue or omitted.
Section 4. Representations, Warranties and Covenants of Purchaser.
------------------------------------------------------
As a material inducement to the Company to enter into this Agreement and issue
and sell Class C Common Stock to the Purchaser, the Purchaser hereby represents,
warrants and covenants to the Company (which representations, warranties and
covenants shall survive the Closing) that:
4A. Organization and Corporate Power. The Purchaser is a corporation
--------------------------------
duly organized, validly existing and in good standing under the laws of Delaware
and is qualified to do business in every jurisdiction in which the failure to so
qualify would reasonably be expected to have a material adverse effect in the
financial condition, operating results or assets of the company. The Purchaser
possesses all requisite corporate power and authority necessary to carry out the
transactions contemplated by this Agreement.
4B. Authorization; No Breach.
------------------------
(i) The execution, delivery and performance of this Agreement
and each of the Transaction Documents to which Purchaser is a party have
been duly authorized by Purchaser. This Agreement and each of the
Transaction Documents hereby
3
to which Purchaser is a party each constitute a valid and binding
obligation of Purchaser, enforceable in accordance with its terms as of the
Closing.
(ii) The execution and delivery by Purchaser of this Agreement
and Transaction Documents to which Purchaser is a party and the fulfillment
of and compliance with the respective terms hereof and thereof by
Purchaser, do not and shall not as of the Closing (i) conflict with or
result in a breach of the terms, conditions or provisions of, (ii)
constitute a default under, (iii) result in the creation of any lien,
security interest, charge or encumbrance upon the Purchaser's or any
Subsidiary's capital stock or assets pursuant to, (iv) give any third party
the right to modify, terminate or accelerate any obligation under, (v)
result in a violation of, or (vi) require any authorization, consent,
approval, exemption or other action by or notice or declaration to, or
filing with, any court or administrative or governmental body or agency
pursuant to, the charter or bylaws of Purchaser, or any law, statute, rule
or regulation to which Purchaser is subject, or any agreement, instrument,
order, judgment or decree to which Purchaser is subject, other than filings
under the HSR Act in connection with the conversion of the Class C Common
Stock into Class A Common Stock and the termination or expiration of any
applicable waiting period under the HSR Act.
4C. Governmental Consent, etc. Except for any filings required under
--------------------------
the HSR Act with respect to the conversion of Class C Common Stock into Class A
Common Stock, no permit, consent, approval or authorization of, or declaration
to or filing with, any governmental authority is required in connection with the
execution, delivery and performance by Purchaser of this Agreement or any of the
other agreements contemplated hereunder, to which Purchaser is a party, or the
consummation by Purchaser of any other transactions contemplated hereby or
thereby.
4D. Investment Representations.
--------------------------
(i) Investment Purpose. Purchaser is acquiring the Class C
------------------
Common Stock and the Class A Common Stock issuable upon conversion of the
Class C Common Stock (collectively, the "Securities") for its own account,
----------
not as a nominee or agent, for investment only and not with a view towards,
or for resale in connection with, the public sale or distribution thereof.
(ii) Accredited Investor Status. Purchaser is an "accredited
--------------------------
investor" as that term is defined in Rule 501(a)(3) of Regulation D.
(iii) Qualified Institutional Buyer. Purchaser is a "qualified
-----------------------------
institutional buyer", as such term is defined in Rule 144A promulgated
under the Securities Act.
(iv) Reliance on Exemptions. Purchaser understands that the
----------------------
Securities are being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States federal and
state securities laws and that the Company is relying in part upon the
truth and accuracy of, and Purchaser's compliance with, the
4
representations, warranties and agreements of Purchaser set forth herein in
order to determine the availability of such exemptions and the eligibility
of Purchaser to acquire such securities.
(v) No General Solicitation. The Purchaser initiated
-----------------------
discussions with the Company relating to the purchase and sale of the
Securities contemplated by this Agreement on an unsolicited basis prior to
the date of this Agreement. The Purchaser did not initiate such
discussions, nor did Purchaser decide to enter into this Agreement, as a
result of any general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act, including the filing of
the Registration Statement.
(vi) Information. Purchaser has been furnished with all
-----------
materials relating to the business, finances and operations of the Company
and materials relating to the offer and sale of the Securities which have
been requested by Purchaser. Purchaser has been afforded the opportunity to
ask questions of the Company. Purchaser understands that its investment in
the Securities involves a high degree of risk. Purchaser has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision with respect to its acquisition of the
Securities. The Purchaser has received and reviewed a copy of Amendment No.
2 to the Company's Registration Statement on Form S-1 as filed with the
Securities and Exchange Commission on March 16, 2000, including without
limitation, the language therein under the caption "Risk Factors" (the
"Registration Statement").
(vii) No Governmental Review. Purchaser understands that no
----------------------
United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or endorsement
of the Securities or the fairness or suitability of the investment in the
Securities nor have such authorities passed upon or endorsed the merits of
the offering of the Securities.
(viii) Transfer or Resale. Purchaser understands that: (a) the
------------------
Securities have not been and are not being registered under the Securities
Act or any state securities laws, and may not be offered for sale, sold,
assigned or transferred unless (A) subsequently registered thereunder or
(B) sold in reliance on an exemption therefrom; and (b) neither the Company
nor any other person is under any obligation to register such securities
under the Securities Act or any state securities laws or to comply with the
terms and conditions of any exemption thereunder. In this regard, Purchaser
represents that it is familiar with SEC Rule 144, and understands the
resale limitations imposed thereby and by the Securities Act. Purchaser is
able to bear the economic risk of its investment in the Securities for an
indefinite period of time.
(ix) Sophistication. Purchaser is an investor in securities of
--------------
companies in the development stage and acknowledges that it is able to fend
for itself, has knowledge and experience in financial and business matters,
knows of the high degree of risk associated with investments generally and
particularly investments in the securities of companies in the development
stage, is capable of evaluating the merits and risks of an investment in
the Securities and is able to bear the economic risk of an investment in
the
5
Securities in the amount contemplated. Purchaser has adequate means of
providing for its current financial needs and contingencies and will have
no current or anticipated future needs for liquidity which would be
jeopardized by the investment in the Securities. Purchaser can afford a
complete loss of its investment in the Securities.
4E. Purchaser's Principal Place of Business. The Purchaser
---------------------------------------
represents that its principal place of business is Houston, Texas.
4F. Solicitation of Proxies. Purchaser will not participate in any
-----------------------
solicitation of proxies by anyone other than the Company with respect to the
voting of the Securities.
4G. Notice. Purchaser shall notify the Company of Purchaser's
------
acquisition of any securities of the Company no later than 15 days prior to any
such acquisition, and all such acquisitions shall comply with federal and state
securities laws.
4H. No Group. Purchaser shall not form or participate in a "group"
--------
(as defined in Rule 13d-5 of the Exchange Act) with respect to any securities of
the Company.
Section 5. HSR Filings. As promptly as practicable after the date of
-----------
this Agreement, each of the parties hereto will make any filings required by the
HSR Act to be made by it in order to consummate the transactions contemplated
hereby and required in connection with the conversion of Class C Common Stock to
Class A Common Stock, and each party hereto will cooperate with the other party
hereto in connection with any such filings required by the HSR Act and share
such information related to such filings as reasonably necessary.
Notwithstanding anything to the contrary contained herein, nothing in this
Agreement will require any Person, whether pursuant to an order of the Federal
Trade Commission or the United States Department of Justice or otherwise, to
dispose of any assets, lines of business or equity interests, or otherwise take
any action that would materially affect its business, in order to obtain the
consent of the Federal Trade Commission or the United States Department of
Justice to the transactions contemplated by this Agreement. The Class C Common
Stock issued to Purchaser (i) may be converted by Purchaser into Class A Common
Stock only if all consents, approvals or authorizations of, or declarations to
or filings with, any governmental authority, including, without limitation,
filings required under the HSR Act and the termination or expiration of any
applicable waiting period under the HSR Act, as may be required for such
conversion have been obtained or made, as the case may be, to the reasonable
satisfaction of the Company and (ii) shall be converted at such time.
Section 6. Conditions of the Purchaser's Obligations at the Closing.
--------------------------------------------------------
The obligation of the Purchaser to purchase and pay for the Class C Common Stock
is subject to the fulfillment, at or before the Closing, of each of the
following conditions:
6A. Representations and Warranties. The representations and
------------------------------
warranties of the Company contained in Section 3, except for those stated to be
---------
made as of the date hereof, shall be true and correct in all material respects
at and as of the Closing as though then made, except to the extent of changes
caused by the transactions expressly contemplated herein or in the Transaction
Documents.
6
6B. Performance. The Company shall have performed and complied with
-----------
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
6C. Officer's Certificate. The Company shall deliver to the
---------------------
Purchaser an Officer's Certificate, stating that (i) the conditions described in
Sections 6A, 6B, 6D 6E and 6F have been satisfied; (ii) the Company has made all
----------- -- -- -- --
filings under all applicable federal and state securities laws necessary to
consummate the transactions contemplated by this Agreement in compliance with
such laws; and (iii) all corporate and other proceedings required to be taken by
such party in connection with the transactions contemplated hereby to be
consummated at or prior to the Closing have been taken.
6D. Opinion of Company Counsel. Purchaser shall have received from
--------------------------
Xxxxxx Xxxxxx Xxxxx, counsel for the Company, an opinion, dated as of the
Closing, in the form of Exhibit A attached hereto.
---------
6E. Commercial Agreement. The Company shall have executed and
--------------------
delivered a Summary of Terms in the form attached as Exhibit B hereto.
---------
6F. Amended Certificate of Incorporation. The Company shall deliver
------------------------------------
evidence that its Certificate of Incorporation, as amended to reflect the terms
of the Class C Common Stock (the "Amended Certificate"), has been filed with the
Secretary of State of Delaware and is in full force and effect under the laws of
the State of Delaware as of the Closing.
Section 7. Conditions of the Company's Obligations at the Closing.
------------------------------------------------------
The obligations of the Company to Purchaser under this Agreement are subject to
the fulfillment on or before the Closing of each of the following conditions:
7A. Representations and Warranties. The representations and
------------------------------
warranties of Purchaser contained in Section 4 shall be true at and as of the
---------
Closing as though then made.
7B. Performance. Purchaser shall have performed and complied with
-----------
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
7C. Officer's Certificate. The Purchaser shall deliver to the
---------------------
Company an Officer's Certificate, stating that (i) the conditions described in
Sections 7A, 7B, 7D and 7E have been satisfied; (ii) the Purchaser has made all
------------ -- -- --
filings under all applicable federal and state securities laws necessary to
consummate the transactions contemplated by this Agreement in compliance with
such laws; and (iii) all corporate and other proceedings required to be taken by
such party in connection with the transactions contemplated hereby to be
consummated at or prior to the Closing have been taken.
7D. Commercial Agreement. The Purchaser shall have executed and
--------------------
delivered
7
the Summary of Terms in the form attached as Exhibit B.
---------
7E. Corporate Consents. The Company shall have obtained the consent
------------------
of its Board of Directors, and its stockholders authorizing the execution,
delivery and performance of this Agreement and the Transaction Documents to
which the Company is a party, the filing of the Amended Certificate and the
issuance and sale of the Class C Common Stock hereunder.
Section 8. Termination. This Agreement may or will be terminated at
-----------
any time prior to the consummation of the Closing under the following described
circumstances:
(i) automatically upon the mutual written consent of the
Company and the Purchaser;
(ii) by either of the Company or the Purchaser by delivery of
written notice thereof, if the Qualified IPO shall not
have been consummated prior to the twelve-month
anniversary of the date of this Agreement; or
(iii) automatically upon the consummation of the Qualified
IPO, if the Closing is not occurring immediately
following the Qualified IPO.
Section 9. Indemnification.
---------------
9A. Company Indemnification. In consideration of Purchaser's
-----------------------
execution and delivery of this Agreement and acquiring the Securities hereunder
and in addition to all of the Company's other obligations under this Agreement,
the Company shall defend, protect, indemnify and hold harmless Purchaser and all
of its officers, directors, employees and agents (including, without limitation,
those retained in connection with the transactions contemplated by this
Agreement) (collectively, the "Indemnitees") from and against any and all
-----------
actions, causes of action, suits, claims, losses, costs, penalties, fees,
liabilities and damages, and expenses in connection therewith (irrespective of
whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys' fees and disbursements
(the "Indemnified Liabilities"), incurred by the Indemnitees or any of them as a
-----------------------
result of, or arising out of, or relating to any misrepresentation in or breach
of any of the representations and warranties or any nonfulfillment or breach of
any covenant or agreement on the part of the Company under this Agreement,
provided that the Company shall not be liable to an Indemnitee under this
Section 9A for any liability if such liability is caused solely by such
----------
Indemnitee's fraud, willful misconduct or gross negligence or default or breach
under this Agreement. To the extent that the foregoing undertaking by the
Company may be unenforceable for any reason, the Company shall make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
9B. Purchaser Indemnification. In consideration of the Company's
-------------------------
execution and delivery of this Agreement and all of Purchaser's obligations
under this Agreement, Purchaser shall defend, protect, indemnify and hold
harmless the Company and all of its officers, directors, employees and agents
(including, without limitation, those retained in connection with
8
the transactions contemplated by this Agreement) (collectively, the "Company
-------
Indemnitees") from and against any and all actions, causes of action, suits,
-----------
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Company Indemnitee is a
party to the action for which indemnification hereunder is sought), and
including reasonable attorneys' fees and disbursements (the "Company Indemnified
-------------------
Liabilities"), incurred by the Company Indemnitees or any of them as a result
-----------
of, or arising out of, or relating to any misrepresentation in or breach of any
of the representations and warranties or any nonfulfillment or breach of any
covenant or agreement on the part of the Purchaser under this Agreement,
provided that the Purchaser shall not be liable to an Company Indemnitee under
this Section 9B for any liability if such liability is caused solely by such
----------
Company Indemnitee's fraud, willful misconduct or gross negligence or default or
breach under this Agreement. To the extent that the foregoing undertaking by the
Purchaser may be unenforceable for any reason, the Purchaser shall make the
maximum contribution to the payment and satisfaction of each of the Company
Indemnified Liabilities which is permissible under applicable law.
9C. Survival of Representations and Warranties. All of the
------------------------------------------
representations and warranties contained herein shall survive the Closing for a
period of six (6) months.
Section 10. Definitions. For the purposes of this Agreement, the
-----------
following terms have the meanings set forth:
"Affiliate" of any particular Person means any other Person
---------
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise.
"Class A Common Stock" means the Company's Class A Common Stock, par
--------------------
value $.001 per share.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
-------
1976, as amended, and the Premerger Notification Rules promulgated thereunder.
"Person" means any individual, partnership, corporation, limited
------
liability company, association, joint stock company, trust, joint venture,
unincorporated organization or governmental entity or any department, agency or
political subdivision thereof.
"Qualified IPO" shall mean an underwritten public offering of Class A
-------------
Common Stock with gross proceeds of not less than $120,000,000.
"Securities Act" means the Securities Act of 1933, as amended, or any
--------------
similar federal law then in force.
"Securities and Exchange Commission" includes any governmental body or
----------------------------------
agency succeeding to the functions thereof.
9
"Securities Exchange Act" means the Securities Exchange Act of 1934,
-----------------------
as amended, or any similar federal law then in force.
"Transaction Documents" means all documents, instruments, certificates
---------------------
or other agreements being delivered in connection with or pursuant to this
Agreement.
Section 11. Miscellaneous.
-------------
11A. Expenses. The Company shall pay, and hold the Purchaser and all
--------
holders of Securities harmless against liability for the payment of the fees and
expenses incurred with respect to the enforcement of the rights (in connection
with a breach or threatened breach by the Company) granted under this Agreement,
the other agreements contemplated hereby to which the Company is a party or the
Amended Certificate.
11B. Remedies. Each holder of Securities shall have all rights and
--------
remedies set forth in this Agreement and all rights and remedies which such
holders have been granted at any time under any other agreement or contract and
all of the rights which such holders have under any law. Any Person having any
rights under any provision of this Agreement shall be entitled to enforce such
rights specifically (without posting a bond or other security), to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law.
11C. Legends.
-------
(i) The certificates evidencing the Securities will include
the legend set forth below, which the Purchaser has read and understands:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND
MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. THESE SECURITIES ARE ALSO SUBJECT TO
INVESTMENT REPRESENTATIONS AND A LOCKUP AGREEMENT WITH THE CORPORATION
PURSUANT TO A PURCHASE AGREEMENT DATED MARCH 29, 2000 WHICH RESTRICTS
THE TRANSFER THEREOF UNTIL [insert one year anniversary of closing], A
COPY OF WHICH CAN BE OBTAINED FROM THE CORPORATION AT ITS EXECUTIVE
OFFICES.
(ii) By accepting the certificates bearing the aforesaid
legend, Purchaser agrees, prior to any transfer of the Securities
represented by the certificates and subject to the restrictions in Section
-------
11D, to give written notice to the Company expressing its desire to effect
---
such transfer and describing briefly the proposed transfer.
10
Upon receiving such notice, the Company shall present copies thereof to its
counsel and the following provisions shall apply:
(a) subject to Section 11D, if, in the reasonable opinion
-----------
of counsel to the Company, the proposed transfer of such Securities may be
effected without registration under the Securities Act and applicable state
securities acts, the Company shall promptly thereafter notify Purchaser,
whereupon Purchaser shall be entitled to transfer such Securities, all in
accordance with the terms of the notice delivered by Purchaser and upon
such further terms and conditions as shall be required to ensure compliance
with the Securities Act and the applicable state securities acts, and, upon
surrender of the certificate evidencing such Securities, in exchange
therefor, a new certificate not bearing a legend of the character set forth
above if such counsel reasonably believes that such legend is no longer
required under the Securities Act and the applicable state securities acts;
and
(b) subject to Section 11D, if, in the reasonable opinion
-----------
of counsel to the Company, the proposed transfer of such Securities may not
be effected without registration under the Securities Act or the applicable
state securities acts, a copy of such opinion shall be promptly delivered
to Purchaser, and such proposed transfer shall not be made unless such
registration is then in effect.
(iii) The Company may, from time to time, make stop transfer
notations in its records and deliver stop transfer instructions to its
transfer agent to the extent its counsel considers it necessary to ensure
compliance with the Securities Act and the applicable state securities
acts.
11D. Lock-up Agreements. In order to induce the Company to enter into
------------------
this Agreement, until the 12-month anniversary of the Closing, Purchaser shall
not, directly or indirectly, sell, offer to sell, contract to sell, assign,
transfer or otherwise dispose of, or engage in any other transaction (including,
without limitation, any pledge, put, call, collar, hedge or short sale) which
reduces the risk of ownership of, any of such securities. Purchaser agrees and
consents to the entry of stop transfer instructions with the Company's transfer
agent against the transfer of the Securities held by the Purchaser except in
compliance with the foregoing restrictions.
11E. Board Seat. So long as Purchaser and/or its affiliates owns at
----------
least 25% of the Securities originally purchased hereunder, the Company shall
take all necessary or desirable actions within its control (including, without
limitation, calling special Board of Director and stockholder meetings), so
that: (i) Purchaser shall be entitled to designate one (1) director of the
Company's Board of Directors, (ii) the removal from the Board of Directors
(with or without cause) of a director designated hereunder shall be only at the
written request of Purchaser, (iii) any vacancy on the Board of Directors
resulting from the removal or resignation of a director designated hereunder
shall be filled by Purchaser, and (iv) if Purchaser fails to designate a
representative to fill a directorship pursuant to the terms of this Section 11E,
-----------
such directorship shall remain vacant until Purchaser so directs.
11
11F. Successors and Assigns. Except as otherwise expressly provided
----------------------
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. Notwithstanding the foregoing or anything to the contrary herein, the
parties may not assign this Agreement without the consent of the other party,
which consent shall not be unreasonably withheld.
11G. Severability. Whenever possible, 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
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
11H. Counterparts. This Agreement may be executed simultaneously in
------------
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
11I. Descriptive Headings; Interpretation. The descriptive headings
------------------------------------
of this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
11J. Governing Law. The general corporation law of the State of
-------------
Delaware shall govern all issues and questions concerning the relative rights
and obligations of the Company and its stockholders. All other issues and
questions concerning the construction, validity, enforcement and interpretation
of this Agreement and the schedules and exhibits hereto shall be governed by,
and construed in accordance with, the laws of the State of Illinois, without
giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of Illinois or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Illinois. In furtherance of the foregoing, the internal law of the State of
Illinois shall control the interpretation and construction of this Agreement
(and all schedules and exhibits hereto), even though under that jurisdiction's
choice of law or conflict of law analysis, the substantive law of some other
jurisdiction would ordinarily apply.
11K. Notices. All notices, demands or other communications to be
-------
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to Purchaser at the address indicated for Purchaser
at the address set forth below or as otherwise indicated on the stock records of
the Company, and to the Company at the address indicated below:
12
If to the Company:
divine interVentures, inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
With a copy to: Xxxxxx Xxxxxx Xxxxx
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to the Purchaser: CPQ Holdings, Inc.
20555 S.H. 1249 MS110701
Xxxxxxx, Xxxxx 00000-0000
Attention: General Counsel
(Office of the Corporate Secretary)
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
11L. No Strict Construction. The parties hereto have participated
----------------------
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
[Signature page follows.]
13
IN WITNESS WHEREOF, the parties hereto have executed this Purchase
Agreement on the date first written above.
DIVINE INTERVENTURES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxx
Executive Vice President
CPQ HOLDINGS, INC.
By: /s/ Xxx X. Xxxxx
-----------------------------------
Its: Vice President and Treasurer
-----------------------------------
(SIGNATURE PAGE TO PURCHASE AGREEMENT)
