EXHIBIT 10.17
STOCK PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made as of March 27th, 1998 by and between Asymetrix
Learning Systems, Inc., a Washington corporation with an address for purposes of
this Agreement at 000 - 000xx Xxxxxx XX, Xxxxxxxx, Xxxxxxxxxx 00000
("Asymetrix"), and Vulcan Ventures Inc., a Washington corporation with an
address for purposes of this Agreement at 000 - 000xx Xxxxxx XX, Xxxxxxxx,
Xxxxxxxxxx 00000 ("Vulcan").
RECITALS
A. Asymetrix is the holder of record of 700,000 shares of the Series A
Preferred Stock of Infomodlers, Inc. (the "Series A Shares") and is the holder
of record of 19 shares of the Common Stock of Infomodlers, Inc. (the "Common
Shares").
B. Asymetrix has certain rights with respect to the Series A Shares
pursuant to the terms of a Registration Rights Agreement among Infomodlers,
Inc., Asymetrix and Informix Corporation dated as of November 5, 1996 (the
"Registration Rights Agreement").
C. Vulcan desires to purchase from Asymetrix and Asymetrix desires to sell
to Vulcan, all of the Series A Shares and 16 of the Common Shares (the Series A
Shares and such portion of the Common Shares being collectively referred to as
the "Shares") on the terms and conditions in this Agreement.
Therefore, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
the mutual promises contained in this Agreement, Asymetrix and Vulcan agree as
follows:
1. PURCHASE AND SALE OF SHARES.
(a) Purchase and Sale; Calculation of Purchase Price. Subject to the terms
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and conditions of this Agreement, Asymetrix hereby agrees to sell the Shares to
Vulcan, and Vulcan hereby agrees to purchase the Shares from Asymetrix. The
per share purchase price for each of the Series A Shares shall be $2.8259. The
per share purchase price for each of the Common Shares shall be $24,346.39. The
total aggregate purchase price for all of the Shares is $2,367,662.21.
(b) Taxes. Vulcan shall be required to pay any sales or transfer taxes
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imposed on the sale of the Shares to Vulcan, other than income or capital gains
taxes based on any appreciation in the value of the Shares. Asymetrix shall pay
any income or capital gains taxes resulting from the sale of the Shares to
Vulcan.
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2. REPRESENTATIONS AND WARRANTIES OF ASYMETRIX.
Asymetrix hereby represents and warrants to Vulcan as follows:
(a) Good Title. Except for rights pursuant to the Registration Rights
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Agreement, Asymetrix has good title (both record and beneficial) to the Shares,
free and clear of all claims, pledges, security interests, liens or encumbrances
of every nature whatsoever, and Asymetrix has the right to sell, assign,
transfer and convey the Shares to Vulcan.
(b) Authorization. This Agreement has been duly executed and delivered by
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Asymetrix and constitutes the valid and binding obligation of Asymetrix,
enforceable in accordance with its terms. The execution, delivery and
performance of this Agreement and the sale and transfer of the Shares and
compliance with the provisions of this Agreement will not conflict with any
provision of, or constitute the breach of or default under, any agreement,
indenture or other instrument to which Asymetrix is a party or by which
Asymetrix is bound or affected.
3. REPRESENTATIONS AND WARRANTIES OF VULCAN.__
Vulcan represents and warrants to Asymetrix as follows:
(a) Authorization. This Agreement has been duly executed and delivered by
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Vulcan and constitutes the valid and binding obligation of Vulcan, enforceable
in accordance with its terms. The execution, delivery and performance of this
Agreement and the purchase of the Shares and compliance with the provisions of
this Agreement will not conflict with any provision of, or constitute the breach
of or default under, any agreement, indenture or other instrument to which
Vulcan is a party or by which Vulcan is bound or affected.
(b) Investment Representations. Vulcan is acquiring the Shares for
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Vulcan's own account, for investment purposes only and not with a view to
distribution thereof; and none of the Shares will be sold or distributed in
violation of the Securities Act of 1933 (the "Securities Act") or applicable
state securities laws or the rules or regulations under either. Vulcan has no
present intention of selling or otherwise disposing of any portion of the Shares
and no one other than Vulcan has any beneficial interest in the Shares. Vulcan
understands and acknowledges that the Shares have not been registered with the
Securities and Exchange Commission ("SEC") under the Securities Act, nor have
the Shares been registered under any state securities laws but instead were
issued under one or more exemptions from the registration and qualification
requirements of the Securities Act and any state securities laws.
(c) Restrictions on Transfer. Vulcan understands and acknowledges the
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Shares must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act and applicable state securities law or
unless, in the opinion of counsel for Infomodelers, Inc., exemption from
registration and qualification are available. Vulcan understands that only
Infomodelers, Inc. may file a registration statement with the SEC or any state
authorities, and that Infomodelers, Inc. is under no obligation to do so.
Vulcan understands that exemptions from
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registration or qualification may not be available or may not permit Vulcan to
transfer the Shares in the amounts or at the times proposed by Vulcan. The
financial condition of Vulcan is such that Vulcan is able to bear all risks of
holding the Shares for an indefinite period of time.
(d) Due Diligence. Vulcan has been afforded an opportunity to ask
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questions of and receive answers from Asymetrix concerning the Shares, and the
opportunity to obtain any additional information necessary to verify the
accuracy of information otherwise furnished by Asymetrix hereunder. Vulcan
acknowledges that Vulcan has investigated acquisition of the Shares to the
extent Vulcan deems necessary or desirable, and Asymetrix has provided Vulcan
with any assistance, including full access to all material information in
Asymetrix's possession or reasonably available to Asymetrix in connection
therewith that was requested by Vulcan. Vulcan has also consulted such tax,
legal and other professional advisors as Vulcan deems appropriate. As a result,
Vulcan is fully aware of (i) the highly speculative nature of the Shares; (ii)
the financial hazards involved; (iii) the lack of liquidity of the Shares and
restrictions on the transfer of the Shares; (iv) the qualifications and
background of the management of Infomodelers, Inc.; and (iv) the tax
consequences of the issuance and holding of the Shares.
(e) Sophisticated Purchaser. By reason of Vulcan's business and financial
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experience, Vulcan has the capacity to protect its own interests in connection
with the purchase of the Shares. In addition, Vulcan has such knowledge and
experience in financial and business matters that Vulcan is capable of
evaluating the merits and risks of acquisition of the Shares and of making an
informed investment decision with respect thereto. In addition, Vulcan is an
accredited investor, as "accredited investor" is defined in Regulation D adopted
by the U.S. Securities and Exchange Commission and the regulations adopted under
the Securities Acts of the State of Washington.
(f) Private Negotiation. This Agreement was privately negotiated between
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Asymetrix and Vulcan and involved no advertising, publicity or general
solicitation. No communications between Vulcan and Asymetrix relating to the
purchase of the Shares were received or originated by Vulcan outside the state
of Washington. Vulcan has not employed any broker or finder in connection with
the transactions contemplated by this Agreement.
4. DELIVERY, ASSIGNMENT AND ASSUMPTION.
(a) Delivery of Certificates. At the Closing, Asymetrix will deliver to
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Vulcan Certificate No. AP-1 representing the Series A Shares, accompanied by a
fully executed Stock Power and Assignment Separate from Certificate in the form
attached hereto as Exhibit A. Asymetrix has not received from Infomodelers,
Inc. any certificate representing the Common Shares. The parties will execute
such documents and take such actions as may be required to enable Infomodelers,
Inc. to promptly issue new certificates to Vulcan representing the Series A
Shares and the 16 Common Shares sold to it pursuant to this Agreement, and to
Asymetrix representing the 3 Common Shares being held by Asymetrix.
(b) Assignment and Assumption Rights. Asymetrix hereby sells, assigns,
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transfers and conveys to Vulcan, effective immediately, all of its rights under
each of the Registration
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Rights Agreement. Vulcan hereby assumes, from and after the date hereof, and
agrees to perform or discharge when due, any obligations of Asymetrix under the
Registration Rights Agreement. Asymetrix will indemnify and hold Vulcan harmless
from and against all actions or causes of action, liabilities, claims,
obligations, damages, and expenses (including reasonable attorneys' fees), which
arise out Asymetrix's failure to comply with any provision of the Registration
Rights Agreement prior to the date hereof. Vulcan will indemnify and hold
Asymetrix harmless from and against all actions or causes of action,
liabilities, claims, obligations, damages, and expenses (including reasonable
attorneys' fees), which arise out Vulcan's failure to comply with any provision
of the Registration Rights Agreement on or after the date hereof.
5. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed in all respects by the
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laws of the State of Washington as such laws are applied to agreements between
Washington residents entered into and to be performed entirely within
Washington. Venue of any action to enforce this Agreement shall be in the state
or federal courts located in King County, Washington, and the parties hereby
submit to the jurisdiction of such courts.
(b) Survival. The representations, warranties, covenants and agreements
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made in this Agreement shall survive the issuance of the Shares and any
investigation made by Vulcan or Asymetrix.
(c) Successors and Assigns. Except as otherwise expressly provided in this
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Agreement, the provisions of this Agreement shall inure to the benefit of, and
be binding upon, the successors, heirs, permitted assigns, transferees and
administrators of the parties to this Agreement.
(d) Entire Agreement. This Agreement contains all the agreements,
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understandings, representations, conditions, warranties and covenants, and
constitutes the sole and entire agreement between the parties hereto pertaining
to the subject matter hereof and supersedes all prior communications or
agreements, written or oral, other than any confidentiality or non-disclosure
agreements. This Agreement may not be modified except by written instrument
signed by each party.
(e) Notices. All notices, requests, demands or other communications which
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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 delivered by hand or by confirmed facsimile, (ii) upon the third day after
such notice is deposited in the United States mail, if mailed by registered or
certified mail, postage prepaid, return receipt requested, or (iii) upon the
date of the courier's verification of delivery at the specified address if sent
by a nationally recognized overnight express courier.
(f) Delays or Omissions. It is agreed that no delay or omission to
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exercise any right, power or remedy accruing to either party upon any breach of
default of the other party under this
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Agreement shall impair any such right, power or remedy, nor shall it be
construed to be a waiver of any such breach or default, or any acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ASYMETRIX LEARNING SYSTEMS, INC. VULCAN VENTURES INC.
By /s/ Xxxx Xxxxxxx By /s/ Xxxxxxx X. Xxxxx
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Name Xxxx Xxxxxxx Name Xxxxxxx X. Xxxxx
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Title V.P. Finance and Title Vice President
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Administration
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EXHIBIT A
STOCK POWER AND ASSIGNMENT
FOR VALUE RECEIVED, and pursuant to that certain Stock Purchase and Sale
Agreement dated as of March 24th, 1998 executed in connection herewith (the
"Agreement"), the undersigned hereby sells, assigns, transfers and coveys unto
Vulcan Ventures, Inc. pursuant to the Agreement, the following shares of the
capital stock of Infomodelers, Inc. (the "Shares"):
(1) 700,000 shares of the Series A Preferred Stock of Infomodelers, Inc.
represented by Certificate number AP - 1; and
(2) 13 shares of the Common Stock of Infomodelers, Inc. (originally
represented by Certificate number 173 prior to the 1 for 35,647 reverse stock
split of Infomodelers, Inc.)
The undersigned does not sell, assign, transfer or xxxxx, and expressly
retains all right, title or interest in, 3 shares of the Common Stock of
Infomodelers, Inc. (also originally represented by Certificate number 173).
The undersigned hereby irrevocably appoints the Secretary of Infomodelers,
Inc., as attorney-in-fact, with full power of substitution and re-substitution,
to transfer the Shares and cancel the above described Certificates on the books
and records of Infomodelers, Inc.
Dated: March 24, 1998.
ASYMETRIX LEARNING SYSTEMS, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: V.P. Finance and
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Administration
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