UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
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CLICK2LEARN.COM, INC.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
18681S106
(CUSIP Number)
William D. Savoy Gail J. Gordon
Vulcan Ventures Incorporated Foster Pepper & Shefelman PLLC
110-110th Avenue N.E., Suite 550 1111 Third Avenue, Suite 3400
Bellevue, WA 98004 Seattle, WA 98101
(206) 453-1940 (206) 447-4400
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications)
September 30, 1999
(Date of Event which Requires Filing of This Statement)
---------------
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box. [_]
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule including all exhibits. See ss.240.13d-7
for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
<PAGE>
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CUSIP NO. 18681S106 13D Page 2 of 14 Pages
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- -------- ----------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Vulcan Ventures Incorporated IRS ID NO. 91-1374788
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [__]
(b) [__]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(E)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Washington
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NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY
EACH 0 shares
REPORTING PERSON
WITH
------ --------------------------------------------
8 SHARED VOTING POWER
1,003,216 shares of which 387,096 shares are
issuable upon the exercise of warrants. Paul
G. Allen is the sole shareholder of Vulcan
Ventures and may be deemed to have shared
voting and dispositive power with respect to
shares beneficially owned by Vulcan Ventures.
------ ---------------------------------------------
9 SOLE DISPOSITIVE POWER
0 shares
------ --------------------------------------------
10 SHARED DISPOSITIVE POWER
1,003,216 shares of which 387,096 shares are
issuable upon the exercise of warrants. Paul
G. Allen is the sole shareholder of Vulcan
Ventures and may be deemed to have shared
voting and dispositive power with respect to
shares beneficially owned by Vulcan Ventures.
- --------------------------- ------ --------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,003,216 shares of which 387,096 shares are issuable upon the
exercise of warrants. Paul G. Allen is the sole shareholder of Vulcan
Ventures and may be deemed to have shared voting and dispositive power
with respect to shares beneficially owned by Vulcan Ventures.
- --------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
- --------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1 %
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
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CUSIP NO. 18681S106 13D Page 3 of 14 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Paul G. Allen
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_]
(b) [_]
- --------- ---------------------------------------------------------------------
3 SEC USE ONLY
- --------- ---------------------------------------------------------------------
4 SOURCE OF FUNDS*
AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(E)
- --------- ---------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------- ---------------------------------------------------------------------
NUMBER OF SHARES BENEFICIALLY 7 SOLE VOTING POWER
OWNED BY
EACH 5,925,000 shares
REPORTING PERSON
WITH
------- ------------------------------------
8 SHARED VOTING POWER
1,003,216 shares, of which 616,120
shares are held of record by Vulcan
Ventures Incorporated, and 387,096
shares are issuable upon the exercise
of warrants issued to Vulcan
Ventures. Paul G. Allen is the sole
shareholder of Vulcan Ventures and
may be deemed to have shared voting
and dispositive power with respect to
such shares.
------- -------------------------------------
9 SOLE DISPOSITIVE POWER
5,925,000 shares
------- ------------------------------------
10 SHARED DISPOSITIVE POWER
1,003,216 shares, of which 616,120
shares are held of record by Vulcan
Ventures Incorporated, 387,096 shares
are issuable upon the exercise of
warrants issued to Vulcan Ventures.
Paul G. Allen is the sole shareholder
of Vulcan Ventures and may be deemed
to have shared voting and dispositive
power with respect to such shares.
- ---------------------------------- ------- ------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,928,216 shares of which 616,120 shares are held of record by Vulcan
Ventures Incorporated, and 387,096 shares are issuable upon the
exercise of warrants issued to Vulcan Ventures. Paul G. Allen is the
sole shareholder of Vulcan Ventures and may be deemed to have shared
voting and dispositive power with respect to the shares beneficially
owned by Vulcan Ventures.
- --------- ---------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
- --------- ---------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
42.0%
- --------- ---------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------- ---------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Item 1. Security and Issuer
This statement relates to the common stock, $0.01 par value per share
(the "Common Stock"), of CLICK2LEARN.COM, Inc., a Delaware corporation (the
"Issuer"). The Issuer's principal executive offices are located 110 - 110th
Avenue N.E., Bellevue, Washington 98004.
Item 2. Identity and Background
The persons filing this statement are Vulcan Ventures Incorporated
("Vulcan Ventures") and Paul G. Allen. Vulcan Ventures is a Washington
corporation whose principal business is investing in various companies. Paul G.
Allen is its sole shareholder. The principal office of Vulcan Ventures is
located at 110-110th Avenue N.E., Suite 550, Bellevue, Washington 98004. All of
Vulcan Ventures' executive officers and directors are U.S. citizens. Their
names, business addresses and principal occupations are as follows:
Paul G. Allen, Vulcan Ventures Incorporated, 110 - 110th
Avenue N.E., Suite 550, Bellevue, Washington 98004. Mr. Allen is
Chairman, President and sole shareholder of Vulcan Ventures and a
Director and sole shareholder of Vulcan Northwest Inc.
William D. Savoy, Vulcan Northwest Inc., 110-110th Avenue
N.E., Suite 550, Bellevue, Washington 98004. Mr. Savoy is Vice
President and a Director of Vulcan Ventures and Chairman and President
of Vulcan Northwest Inc.
Bert E. Kolde, Vulcan Ventures Incorporated, 110-110th Avenue
N.E., Suite 550, Bellevue, Washington 98004. Mr. Kolde is a Vice
President, Secretary, Treasurer and a Director of Vulcan Ventures and a
Vice President of Vulcan Northwest Inc.
Jo Allen Patton, Vulcan Northwest Inc., 110-110th Avenue N.E.,
Suite 550, Bellevue, Washington 98004. Ms. Patton is Vice Chairman and
a Vice President of Vulcan Ventures and Vulcan Northwest Inc.
During the last five years, Mr. Allen and Vulcan Ventures have not,
nor, to the best knowledge of Vulcan Ventures, has any other person named in
this Item 2, been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of which
he is or was subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Item 3: Source and Amount of Funds or Other Consideration
Mr. Allen funded his purchases of the Issuer's capital stock from his
personal funds. Vulcan Ventures and funded its purchases of the Issuer's capital
stock from its own working capital. None of the funds used to purchase such
securities consisted of funds or other consideration borrowed or otherwise
obtained for the purpose of acquiring, holding, trading or voting the shares of
common stock.
Item 4. Purpose of Transaction
Vulcan Ventures and Mr. Allen effected the transactions reported in
this statement for investment purposes. As a result of Mr. Allen's beneficial
ownership of the Issuer, he will be able to exert considerable influence over
the board of directors and the policies and management of the Issuer and all
matters requiring stockholder approval, including the election of directors and
approval of significant corporate transactions. This concentration of ownership
might have the effect of delaying or preventing a change in control. Vulcan
Ventures or Mr. Allen may purchase additional shares of Common Stock from time
to time, pursuant to the exercise of warrants, a right of first offer or
otherwise, depending on various factors, including, without limitation, the
price of the Common Stock, stock market conditions and the business prospects of
the Issuer. Vulcan Ventures and
Page 4 of 14
<PAGE>
Mr. Allen also may determine to dispose of some or all of their beneficial
holdings of the Issuer's securities. They reserve the right to increase or
decrease their holdings on such terms and at such times as they may decide.
Except as set forth in this statement, Vulcan Ventures and Mr. Allen
have no present plan or proposal that relates to or would result in (i) the
acquisition by any person of additional securities of the Issuer, or the
disposition of securities of the Issuer; (ii) an extraordinary corporate
transaction, such as a merger, reorganization, liquidation, or sale or transfer
of a material amount of assets involving the Issuer or any of its subsidiaries,
(iii) any change in the Issuer's present Board of Directors or management, (iv)
any material change in the Issuer's present capitalization or dividend policy or
any other material change in the Issuer's business or corporate structure, (v)
any change in the Issuer's charter or by-laws or other actions that may impede
the acquisition of control of the Issuer by any person, (vi) any change that
would result in the Issuer's common stock becoming eligible for termination of
its registration pursuant to Section 12(g)(4) of the Securities Exchange Act of
1934, as amended, or to cease to be authorized to be quoted in Nasdaq, or (vii)
any similar action.
Item 5. Interest in Securities of the Issuer
Vulcan Ventures owns of record and beneficially 616,120 shares of
Common Stock and may be deemed to own beneficially an additional 387,096 shares
of Common Stock issuable upon the exercise of the Series A Warrant, as described
below. Such shares, represent approximately 6.1% of the outstanding Common
Stock. This percentage amount is based upon 16,115,339 shares of Common Stock
outstanding as of December 31, 1999, as reported by the Issuer to Vulcan
Ventures.
As the sole shareholder of Vulcan Ventures, Mr. Allen shares voting and
dispositive power over the 1,003,216 shares of Common Stock beneficially owned
by Vulcan Ventures and may be deemed beneficially to own such shares. Mr. Allen
owns of record 5,925,000 shares of Common Stock and, therefore, may be deemed
beneficially to own an aggregate of 6,928,216 shares of Common Stock,
representing approximately 42.0 % of the outstanding shares of Common stock.
Bert E. Kolde, Secretary, Treasurer and a Vice President of Vulcan
Ventures, is a director of the Issuer. He may be deemed to be the beneficial
owner of 88,250 shares of Common Stock, including 76,250shares issuable upon the
exercise of options that were granted by the Issuer and are exercisable within
60 days of this filing. On February 1, 2000, Mr. Kolde exercised options for
20,000 shares of Common Stock at $1.55 per share. Of those shares, he sold 5,000
shares at $17.50 per share on February 2, 2000 and 3,000 shares at $18.00 per
share on February 3, 2000. Both transactions were executed in the open market
through The Nasdaq Stock Market (National Market).
Except as set forth in this Item 5, to the best knowledge of Vulcan
Ventures and Mr. Allen, none of the parties named in Item 2 owns any of the
Issuer's common stock.
Except for the transactions set forth in this Item 5 and in Item 6
below, which item is incorporated herein by reference, Vulcan Ventures and Mr.
Allen have not, nor, to the knowledge of Vulcan Ventures has any of its
executive officers, directors or controlling persons, effected any transactions
in the Issuer's common stock during the past sixty days.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Vulcan Ventures entered into a Securities Purchase Agreement dated as
of September 30, 1999, with the Issuer and with Marshall Capital Management,
Inc. ("Marshall") pursuant to which Vulcan Ventures purchased 4,000 shares of
the Issuer's Series A Convertible Preferred Stock ("Series A Stock") for an
aggregate purchase price of $4,000,000. These shares of Series A Stock were
convertible at a conversion price of $7.75 per share of Common Stock, subject to
adjustment to no lower than $6.82 per share, if the average closing price of the
Common Stock for the 20 trading days ending on the effective date (the
"Effective Date") of a registration statement covering the resale of those
shares dropped below $7.75 per share. Such registration statement was
Page 5 of 14
<PAGE>
filed pursuant to a Registration Rights Agreement dated as of September 30, 1999
between the Issuer, Vulcan Ventures and other stockholders. On November 3, 1999,
the registration statement was declared effective and the Series A Stock held by
Vulcan Ventures automatically converted at a conversion price of $7.75 per share
into 516,120 shares of Common Stock. If the Effective Date had not occurred
prior to March 29, 1999, the Issuer would have been required to pay on a
quarterly basis a premium with respect to the shares at a rate per annum equal
to 5% of the purchase price of the shares.
The Issuer is obligated to keep the registration statement effective
until the date on which the stockholders that are parties to such agreement have
resold all of their Registrable Securities, as defined therein, or, if earlier,
until they may resell their Registrable Securities without registration and
without volume limitations. The Issuer also granted Vulcan Ventures piggyback
registration rights under the Registration Rights Agreement. The registration
rights are subject to various conditions and limitations. The Issuer generally
is required to bear all of the expenses of registration, except underwriting
discounts and selling commissions. Registration of Registrable Securities held
by security holders with registration rights results in such shares becoming
freely tradable without restriction under the Securities Act of 1933, as
amended, immediately upon the effectiveness of such registration.
In connection with this transaction, the Issuer granted Vulcan Ventures
and Marshall a right of first offer each to purchase its Allocable Portion, as
defined in the Purchase Agreement, of subsequent equity offerings by the Issuer.
This right of first offer is subject to certain exceptions and expires on
October 6, 2000.
Also, in connection with this transaction, the Issuer issued a warrant
to Vulcan Ventures to purchase an aggregate of 387,096 shares of Common Stock
(the "Series A Warrant"). The warrant is exercisable for a period of five years
and has an exercise price of $9.30 per share. Vulcan Ventures may exercise the
warrant only for cash, unless the shares issuable upon exercise are not covered
by an effective registration statement, in which case, they may be exercised on
a "net exercise" basis, without the payment of additional cash consideration to
the Issuer.
The number of shares issuable upon exercise of the warrant is subject
to adjustment for stock splits, stock dividends and similar transactions. In the
event the Issuer issues securities for a purchase price of less than the
exercise price, the exercise price will be adjusted on a "weighted average"
basis to account for dilution. This anti-dilution provision does not apply to
issuances in connection with employee stock options, employee stock purchase
plans, mergers or acquisitions, strategic investments or underwritten offerings.
On February 1, 2000, Vulcan Ventures purchased 100,000 shares of Common
Stock from James A. Billmaier, Vice Chairman and former Chief Executive Officer
of the Issuer, pursuant to a Purchase Agreement of even date. Vulcan Ventures
paid aggregate cash consideration of $1,681,937.50 for such shares.
Except as set forth in this statement, Vulcan Ventures and Mr. Allen do
not have, nor, to the knowledge of Vulcan Ventures does any of the executive
officers, directors or controlling persons of Vulcan Ventures have, any
contracts, arrangements, understandings or relationships (legal or otherwise)
with any person with respect to any securities of the Issuer, finder's fees,
joint ventures, loan or option agreements, puts or calls, guarantees of profits,
division of profits or loss, or the giving or withholding of proxies.
Item 7. Material To Be Filed as Exhibits.
Exhibit Description
99.1 Securities Purchase Agreement, dated as of September 30, 1999
by and among the Issuer, Marshall Capital Management, Inc.
and Vulcan Ventures. (Incorporated herein by reference to
Exhibit 99.01 the Issuer's Current Report on Form 8-K filed
October 13, 1999.)
Page 6 of 14
<PAGE>
99.2 Registration Rights Agreement, dated as of September 30, 1999
by and among the Issuer, Marshall Capital Management, Inc.
and Vulcan Ventures. (Incorporated herein by reference to
Exhibit 99.02 the Issuer's Current Report on Form 8-K filed
October 13, 1999.)
99.3 Form of Warrant issued as of October 6, 1999 to Marshall
Capital Management, Inc. and Vulcan Ventures. (Incorporated
herein by reference to Exhibit A of Exhibit 99.01 to the
Issuer's Current Report on Form 8-K filed October 13, 1999.)
99.4 Purchase Agreement, dated as of February 1, 2000, by and
between Vulcan Ventures and James A. Billmaier.
99.5 Joint Filing Agreement.
99.6 Power of Attorney filed on August 30, 1999, with the Schedule
13G of Vulcan Ventures Incorporated and Paul G. Allen for
Pathogenesis, Inc. (Incorporated herein by reference.)
Page 7 of 14
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
VULCAN VENTURES INCORPORATED
February 10, 2000 By: /s/ William D. Savoy
-------------------------------------------
William D. Savoy, Vice President
February 10, 2000 *
-------------------------------------------
Paul G. Allen
*By: /s/ William D. Savoy
-------------------------------------------
William D. Savoy as Attorney-in Fact for
Paul G. Allen pursuant to a Power of
Attorney filed on August 30, 1999, with the
Schedule 13G of Vulcan Ventures,
Incorporated and Paul G. Allen for
Pathogenesis, Inc. and incorporated herein
by reference.
Page 8 of 14
<PAGE>
EXHIBIT INDEX
Exhibit Description
99.1 Securities Purchase Agreement, dated as of September 30, 1999
by and among the Issuer, Marshall Capital Management, Inc.
and Vulcan Ventures. (Incorporated herein by reference to
Exhibit 99.01 the Issuer's Current Report on Form 8-K filed
October 13, 1999.)
99.2 Registration Rights Agreement, dated as of September 30, 1999
by and among the Issuer, Marshall Capital Management, Inc.
and Vulcan Ventures. (Incorporated herein by reference to
Exhibit 99.02 the Issuer's Current Report on Form 8-K filed
October 13, 1999.)
99.3 Form of Warrant issued as of October 6, 1999 to Marshall
Capital Management, Inc. and Vulcan Ventures. (Incorporated
herein by reference to Exhibit A of Exhibit 99.01 to the
Issuer's Current Report on Form 8-K filed October 13, 1999.)
99.4 Purchase Agreement, dated as of February 1, 2000, by and
between Vulcan Ventures and James A. Billmaier.
99.5 Joint Filing Agreement.
99.6 Power of Attorney filed on August 30, 1999, with the Schedule
13G of Vulcan Ventures Incorporated and Paul G. Allen for
Pathogenesis, Inc. (Incorporated herein by reference.)
Page 9 of 14
EXHIBIT 99.4
Purchase Agreement
PURCHASE AGREEMENT ("Agreement") dated as of February 1, 2000 by and
between James A. Billmaier ("Seller") and Vulcan Ventures, Inc. ("Purchaser"),
for the purchase of 100,000 ("Shares") of click2learn.com, inc. ("Issuer").
In consideration of the mutual covenants and undertakings contained herein
and for other good and valuable consideration, the sufficiency of which is
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein without definition shall have
the meanings set forth on Annex A hereto.
2. Purchase of the Shares. In reliance upon the representations and warranties
of the Purchaser contained in this Agreement and upon and subject to the terms
and conditions of this Agreement, the Seller agrees to sell the Shares to the
Purchaser. The Purchaser agrees, in reliance upon the representations and
warranties of the Seller contained in this Agreement and upon and subject to the
terms and conditions of this Agreement, to purchase the Shares on the Closing
Date at the Sale Price.
3. Closing and Delivery of Shares. On the Closing Date, the Purchaser shall
pay to the Seller and Sale Price by wire transfer of immediately available funds
to such account of the Seller as the Seller shall reasonably direct. Seller
hereby directs Purchaser to wire the funds to:
___________________________________. Such payment shall be made against delivery
to the Purchaser of the Shares to the offices of the Purchaser or its designee.
Also on such date the Purchaser in accordance with the Purchaser's instructions.
4. Representations and Warranties of the Seller. The Seller hereby represents
and warrants to the Purchaser, as of the date hereof, that:
(a) The Seller has legal capacity and full power and authority to
execute and deliver this Agreement and the Shares and to undertake and
perform his obligations hereunder and thereunder, and this Agreement is
a legal, valid, binding and enforceable obligation of the Seller
(subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally).
(b) The execution, delivery and performance of this Agreement by the
Seller of this Agreement, the compliance with the terms of this
Agreement and the consummation of the transaction contemplated hereby
will not (i) require any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or
agency, (ii) conflict with or constitute a breach of any of the terms
or provisions of, or a default under the Seller's organizational
documents or any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which the Seller is a party or by which the
Seller or any of its/his/her property is bound or (iii) violate or
conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Seller or any property of the Seller.
(c) Immediately prior to the transfer of the Shares to the Purchaser,
the Seller is the legal and beneficial owner of, and has good and
marketable title to, the Shares.
(d) The Shares are not subject to (i) any pledge, lien, mortgage,
hypothecation, security interest, charge, option, or any agreement
purporting to grant such an encumbrance in the Shares or property or
assets of Seller which would include any Shares, or (ii) any
contractual restriction applicable to the Seller on the sale, pledge,
transfer or hypothecation of the Shares, except as disclosed in the
transfer restrictions on the face of the Shares.
Page 10 of 14
<PAGE>
(e) To the knowledge of Seller, the Shares have been duly authorized
and validly issued, are fully paid and non-assessable, and Seller has
the right and all requisite authorities to pledge, assign, grant a
security interest in, transfer and deliver the Shares to the Purchaser
as provided herein.
(f) The Seller is not in possession of Material Non-Public Information
concerning the business, operations or prospects of the Issuer. The
Seller is not restricted from transferring the shares of the Issuer
because of any "blackout period" or similar policy of the Issuer or any
of its affiliates.
(g) The Seller is an "Accredited Investor" within the meaning of Rule
501 of the 1933 Act, and has, in connection with the negotiation,
execution and delivery of this Agreement (i) the knowledge and
sophistication to independently appraise and understand the financial
and legal terms and conditions of this Agreement and to assume the
economic consequences and risks thereof and has, in fact, done so as a
result of arm's length dealings with the Purchaser, (ii) to the extent
necessary, consulted with its own independent tax, accounting,
financial, legal or other advisors and has made its own investment and
trading decisions in connection with this Agreement, based upon its own
judgment and the advice of such advisors and not upon any view
expressed by the Purchaser; (iii) not relied upon any representations
(whether written or oral) of the Purchaser, other than the
representations expressly set forth hereunder, and is not in any
fiduciary relationship with the Purchaser, it being understood that
information and explanations related to the terms and conditions of
this Agreement shall not be considered investment advice or a
recommendation to enter into this Agreement; and (iv) not obtained from
the Purchaser (directly or indirectly through any other person) any
advice, counsel or assurances as to the expected or projected success,
profitability, performance, results or benefit of this Agreement and no
communication (written or oral) received from the Purchaser shall be
deemed to be an assurance or guarantee as to the expected results of
this Agreement.
5. Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants to the Seller as follows:
(a) The Purchaser is an "Accredited Investor" within the meaning of
Rule 501 of the 1933 Act, and by reason of its business and financial
experience the Purchaser has such knowledge, sophistication, and
experience in business and financial matters that it is capable of
evaluating the merits and risks of the prospective Investment in the
Shares and the Purchaser is able to bear the economic risk of such
investment.
(b) The Purchaser is purchasing the Shares for its own account for
investment purposes, and not with a view to distribution. The Purchaser
will not offer, sell, or deliver at any time, directly or indirectly,
the Shares unless the Shares are offered and sold under the applicable
exemptions of the 1933 Act.
6. Warranties and Agreements to Continue. Notwithstanding anything herein to
the contrary, the respective representations, warranties, and agreements of the
Seller and the Purchaser contained in this Agreement shall survive the delivery
of and payment for the Shares.
7. Notices. Any notice or communication in respect to this Agreement will be
sufficiently given to a party if in writing and delivered in person, or by
overnight courier or given by facsimile transmission at the address and
facsimile number specified on the signature page of this Agreement. A notice or
communication will be effective of delivered by hand or sent by overnight
courier or facsimile, on the day it is delivered or, in the case of a facsimile,
received, or if that day is not a Business Day, or if delivered or received, as
applicable, after the close of business on a Business Day, on the first
following day that is a Business Day.
8. Assignment. The Seller acknowledges and consents to the assignment of all
Purchaser's right, title and interest hereunder.
Page 11 of 14
<PAGE>
IT WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
VULCAN VENTURES, INC.
as Purchaser
By: Name: William D. Savoy
Title: Vice President
Address: 110 - 110th Ave. NE, #550
Bellevue, WA 98004
Attention:
Facsimile: (425)453-1985
Telephone: (425)453-1940
JAMES A. BILLMAIER
As Seller
By:
Name:
Title:
Address:
Attention:
Facsimile:
Telephone:
Page 12 of 14
<PAGE>
ANNEX A
DEFINITIONS:
"1993 Act" means the U.S. Securities Act of 1933, as amended.
"1934 Act" means the U.S. Securities Exchange Act of 1934, as amended.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banking institutions in New York City are
authorized or obligated by law to be closed.
"Closing Date" means February 1, 2000.
"Material Non-Public Information" information for these purposes is
any information to which an investor would reasonably attach
importance in reaching a decision to buy, sell or hold securities of
the issuer of the Shares.
"Sale Price" means a Dollar amount equal to 85% of the number of
Shares multiplied by the average closing price per share of a share
of the common stock of the Issuer as reported by Nasdaq on the five
trading days immediately preceding the Closing Date.
"Transfer Agent" means ChaseMellon Shareholder Services LLC.
Page 13 of 14
EXHIBIT 99.5
Joint Filing Agreement
We, the signatories of the statement to which this Joint Filing
Agreement is attached, hereby agree that such statement is filed, and any
amendments thereto filed by either or both of us will be filed, on behalf of
each of us.
Dated: February 10, 2000.
VULCAN VENTURES INCORPORATED
By: /s/ William D. Savoy
-------------------------------------------
William D. Savoy, Vice President
*
-------------------------------------------
Paul G. Allen
*By: /s/ William D. Savoy
-------------------------------------------
William D. Savoy as Attorney-in Fact for
Paul G. Allen pursuant to a Power of
Attorney filed on August 30, 1999, with the
Schedule 13G of Vulcan Ventures,
Incorporated and Paul G. Allen for
Pathogenesis, Inc. and incorporated herein
by reference.
Page 14 of 14
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