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EXHIBIT 10.33
PURCHASE AGREEMENT
This Agreement is made and entered into as of October 22, 1996, by and
between Norwest Equity Partners IV, a Minnesota limited partnership ("Seller")
and PeopleSoft, Inc., a Delaware corporation ("Purchaser") with respect to
Seller's limited partnership interest in PeopleMan, L.P. (the "Partnership")
and Seller's shares of PeopleMan, Inc., a Delaware corporation (the
"Corporation").
WHEREAS, immediately prior to the sale of its limited Partnership
interest in the Partnership, Seller shall receive a distribution from the
Partnership of shares of common stock of Purchaser with a value of $4,000,000
based on the closing trading price of such shares on October 22, 1996 (the
"Distribution Shares");
WHEREAS, Seller wishes to transfer its entire remaining limited
partnership interest in the Partnership and all of its capital stock of the
Corporation to Purchaser: and
WHEREAS, Purchaser wishes to acquire such interests on the terms set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, covenants
and conditions contained herein, and other good and valuable consideration,
Seller and Purchaser agree as follows:
1. In exchange for the consideration described in paragraph 3,
Seller hereby conveys, assigns and transfers to Purchaser, all of Seller's
limited partnership interest in the Partnership ("the Purchased Interest"), and
Purchaser hereby accepts the Purchased Interest and assumes all of Seller's
obligations and duties with respect to such Purchased Interest. By virtue of
the preceding sentence, Seller intends to, and does hereby, transfer to
Purchaser its entire interest in the Purchased Interest, including, without
limitation, its capital account balance and all rights of Seller to receive a
return of capital contributions or distributions of profit made on or after the
date of this Agreement with respect to the Purchased Interest, whether or not
such profit distributions related to profit that was realized by the
Partnership prior to the date of this Agreement (but excluding the Distribution
Shares which shall be made to Seller immediately prior to the sale of the
Purchased Interest).
2. In exchange for the consideration designated in paragraph 4,
Seller hereby conveys, assigns and transfers to Purchaser Seller's 4,950 shares
of common stock of the Corporation (the "PeopleMan Shares") and Purchaser
hereby accepts the PeopleMan Shares.
3. In exchange for the Purchased Interest, Purchaser agrees to
deliver to Seller upon execution of this Agreement the number of shares of
Purchaser's common stock equal to $10,282,264 divided by the closing trading
price of the Purchaser's common stock on October 22, l996.
4. In exchange for the PeopleMan Shares, Purchaser agrees to
deliver to Seller upon execution of this Agreement that number of shares of
Purchaser's common stock equal to $144,265 divided by the closing trading price
of Purchaser's common stock on October 22, 1996. The shares of Purchaser's
common stock deliverable under paragraphs 3 and 4 of this Agreement are
hereinafter referred to as the "PeopleSoft Shares."
5. Seller hereby represents and warrants to Purchaser as follows:
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a. Each of the Purchased Interest and the PeopleMan
Shares is owned beneficially and of record by Seller, free and clear of all
liens, encumbrances, security interests, options and claims of any kind.
b. Seller has the power and authority to enter into this
Agreement and the execution, delivery and performance of this Agreement has
been duly authorized by all necessary action.
c. Seller understands that the PeopleSoft Shares have
not been registered under the Securities Act of 1933. Seller also understands
that the Shares are being offered and sold pursuant to an exemption from
registration contained in the Securities Act based in part upon Seller's
representations contained in this Agreement.
d. Seller has substantial experience in evaluating and
investing in securities in companies similar to Purchaser so that it is capable
of evaluating the merits and risks of its investment in Purchaser and has the
capacity to protect its own interests. Seller must bear the economic risk of
this investment indefinitely unless the PeopleSoft Shares are registered
pursuant to the Securities Act of 1933, or an exemption from registration is
available. Seller also understands that there is no assurance that any
exemption from registration under the Securities Act of 1933 will be available
and that, even if available, such exemption may not allow Seller to transfer
all or any portion of the PeopleSoft Shares under the circumstances, in the
amounts or at the times Seller might propose.
e. Seller is acquiring the PeopleSoft Shares for
Purchaser's own account for investment only, and not with a view towards
distribution.
f. Seller represents that by reason of its, or of its
management's business or financial experience, Seller has the capacity to
protect its own interests in connection with the transactions contemplated in
this Agreement.
6. Purchaser hereby represents and warrants to Seller that
Purchaser as follows:
a. Purchaser has delivered to Seller accurate and
complete copies (excluding copies of exhibits) of each report, registration
statement (on a form other than Form S-8) and definitive proxy statement filed
by Purchaser with the Securities and Exchange Commission (the "SEC") between
January 1, 1996 and the date of this Agreement (the "Purchaser SEC Documents").
As of the time it was filed with the SEC (or, if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing:
(i) each of the Purchaser SEC Documents compiled in all material respects with
the applicable requirements of the Securities Act of 1933 or the Securities
Exchange Act of 1934 (as the case may be); and (ii) none of the Purchaser 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 the light of the circumstances under which they were
made, not misleading.
b. The consolidated financial statements contained in
the Purchaser SEC Documents: (i) compiled as to form in all material respects
with the published rules and regulations of the SEC applicable thereto; (ii)
were prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods covered, except as may be
indicated in the notes to such financial statements and (in the case of
unaudited statements) as permitted by Form 10-Q of the SEC, and except that
unaudited financial statements may not contain footnotes and are subject to
year-end audit adjustments; and (iii) fairly present the consolidated financial
position of Purchaser and its subsidiaries as of the respective dates thereof
and the consolidated results of operations of Purchaser and its subsidiaries
for the periods covered thereby.
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c. Purchaser has the absolute and unrestricted right,
power and authority to perform its obligations under this Agreement and under
the Registration Rights Agreement; and the execution, delivery and performance
by Purchaser of this Agreement (including the issuance of the PeopleSoft Shares
as contemplated by this Agreement) have been duly authorized by all necessary
action on the part of Purchaser and the Partnership. This Agreement
constitutes the legal, valid and biding obligation of Purchaser, enforceable
against it in accordance with its terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies.
7. Concurrently with the execution of this Agreement, Purchaser
and Seller shall execute and deliver the Registration Rights Agreement covering
the PeopleSoft Shares in the form attached hereto as Exhibit A.
8. This Agreement may be executed in more than one counterpart
with the same effect as if the parties executing the several counterparts had
all executed one counterpart.
9. This Agreement shall be governed by and construed in
accordance with the laws of the State of California as applied to agreements
among the residents of such state made and to be performed entirely within such
state.
10. The representations, warranties, covenants and agreements made
herein shall survive any investigation made by any Purchaser and the closing of
the transactions contemplated hereby.
11. Except as otherwise expressly provided herein, the provisions
hereof shall inure the benefit of, and be binding upon, the successors.
assigns, heirs, executors and administrators of the parties hereto and shall
inure to the benefit of and be enforceable by each person who shall be a holder
of the PeopleSoft Shares from time to time.
12. This Agreement, the Registration Rights Agreement and the
other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and no party shall be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as specifically
set forth herein and therein.
13. It is agreed that no delay or omission to exercise any right,
power or remedy accruing to any party, upon any breach, default or
noncompliance by another party under this Agreement or the Registration Rights
Agreement shall impair any such right, power or remedy, nor shall it be
construed to be a waiver of any such breach, default or noncompliance or any
acquiescence therein, or of or in any similar breach, default or noncompliance
thereafter occurring. It is further agreed that any waiver, permit, consent or
approval of any kind or character on Purchaser's part of any breach, default or
noncompliance under this Agreement or the Registration Rights Agreement or any
waiver on such party's part of any provisions or conditions of the Agreement or
the Registration Rights Agreement must be in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies,
either under this Agreement and the Registration Rights Agreement, by law, or
otherwise afforded to any party, shall be cumulative and not alternative.
14. Purchaser shall pay all costs and expenses that it incurs with
respect to the negotiation, execution, delivery and performance of the
Agreement. The Purchaser shall reimburse the reasonable fees of and expenses
of counsel for the Purchaser and shall reimburse such counsel for reasonable
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expenses incurred in connection with the negotiation, execution, delivery and
performance of this Agreement.
15. In the event that any dispute among the parties to this
Agreement shall result in litigation, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
SELLER: PURCHASER:
Norwest Equity Partners IV, L.P. PeopleSoft, Inc.
By: ITNCA Partners
its general partner
By: ____________________________ By:_____________________________
George J. Still, Jr. Authorized Officer
general partner
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