EXHIBIT 10.17
Vitria Contract:8519
TRANSFER AGREEMENT FOR ORDINARY SHARES
This Transfer Agreement (the "Agreement") is made and entered into as
of December 31, 2003, (the "Effective Date") by and between Vitria Technology,
Inc. (the "Transferor") and ChiLin LLC, a California limited liability company
(the "Transferee").
AGREEMENT
The parties hereby agree as follows:
1. TRANSFER. Subject to the terms and conditions of this
Agreement, the Transferor agrees to transfer to the Transferee 1,000 ordinary
shares (the "Shares") of ChiLin (Cayman) Limited, formerly Vitria Technology
(Cayman) Limited, a company incorporated in the Cayman Islands (the "Company"),
which Transferor acquired under that certain Memorandum and Articles of
Association dated 11th of June 2003, between Transferor and the Company. Upon
execution of this Agreement, the Transferor shall deliver to the Transferee a
share certificate representing the Shares, accompanied by a Share Transfer in
the form attached to this Agreement as EXHIBIT A executed by the Transferor in
favor of the Transferee. Upon execution of this Agreement, the Transferee shall
deliver to the Transferor the amount set forth in Section 2(a) below.
2. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEREE. In
connection with the transfer of the Stock to the Transferee, the Transferee
represents and warrants:
(a) The Transferee shall pay US$1,487,690.50 to the
Transferor in exchange for the Stock. Such amount shall be due upon execution of
this Agreement.
(b) The Transferee is accepting transfer of the Stock for
investment for Transferee's own account only and not with a view to, or for
resale in connection with, any "distribution" of the Stock within the meaning of
the Securities Act of 1933, as amended (the "SECURITIES ACT").
(c) The Transferee understands that the Stock has not
been registered under the Securities Act by reason of a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Transferee's investment intent as expressed herein.
(d) The Transferee understands that the shares of Stock
are "restricted securities" under applicable U.S. federal and state securities
laws and that, pursuant to these laws, the Transferee must hold the Stock
indefinitely unless it is registered with the Securities and Exchange Commission
and qualified by state authorities, or an exemption from such registration and
qualification requirements is available. The Transferee acknowledges that if an
exemption from registration or qualification is available, it may be conditioned
on various requirements including, but not limited to, the time and manner of
sale, the holding period for the Stock and requirements relating to the Company
which are outside of the Transferee's control, and which the Company is under no
obligation and may not be able to satisfy.
Vitria Contract:8519
3. RESTRICTIONS ON FURTHER TRANSFERS. In addition to the
restrictions set forth in the Agreement, the Transferee will not sell, transfer,
pledge or otherwise dispose of any shares of the Stock received by the
Transferee unless and until (a) such shares are subsequently registered under
the Securities Act and any applicable state securities laws, or (b) (i) an
exemption from such registration is available thereunder, and (ii) the
Transferee has notified the Company of the proposed transfer and has furnished
the Company with an opinion of counsel in a form reasonably satisfactory to the
Company that such transfer will not require registration of such shares under
the Securities Act. The Transferee understands that the Company is not
obligated, and does not intend, to register any such shares either under the
Securities Act or any state securities laws. The Transferee authorizes the
Company to issue stop transfer instructions to its stock transfer agent, or, so
long as the Company may act as its own transfer agent, to make a stop transfer
notation in its appropriate records, in order to ensure the Transferee's
compliance with this provision.
4. AGREEMENT TO BE BOUND. The Transferee agrees to be bound by
all the terms and conditions applicable to the Transferor under the Purchase
Agreement and any amendments thereto. Without limiting the generality of the
foregoing, the undersigned hereby agrees to be bound by any rights of first
refusal or co-sale obligations restricting the resale of the Stock, contained in
the Purchase Agreement and any amendments thereto.
5. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of California, without giving effect to principles of conflicts of
law.
(b) COMPLIANCE WITH LAWS. Transferee will maintain high
standards of professionalism and at all times will comply with all applicable
laws and regulations in jurisdictions in which it does business and shall be
responsible for maintaining all regulatory, governmental, or other licenses
and/or legal filings for Transferee, Company, and any and all subsidiaries of
Company. Transferor has no further financial, regulatory, or other obligation to
Transferee, Company, and/or any and all subsidiaries of Company.
(c) ENTIRE AGREEMENT; AMENDMENT. Except as expressly set
forth herein, this Agreement and the Purchase Agreement and any amendments
thereto set forth the entire agreement and understanding of the parties relating
to the subject matter herein and merges all prior discussions between them. No
modification of or amendment to this Agreement, nor any waiver of any rights or
obligations under this Agreement or the Purchase Agreement and any amendments
thereto, shall be effective unless in writing signed by the parties hereto.
(d) NOTICES. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient when delivered
personally or sent by fax (as evidenced by sender's confirmation receipt) or
forty-eight (48) hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, and addressed to the party to be notified
at such party's address as set forth below or as subsequently modified by
written notice.
Vitria Contract:8519
(e) COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(f) SUCCESSORS AND ASSIGNS; TRANSFER OF STOCK. The rights
and obligations of the Transferee under this Agreement may only be assigned with
the prior written consent of the Company. The Transferee understands that the
Company is entitled to withhold its consent to transfer of the Stock or
assignment of the Transferee's rights and obligations under this Agreement.
(g) TRANSITION PERIOD. For a period of 30 days from the
Effective Date, Transferor shall make available, at Transferee's written
request, a single Transferor employee based at Transferor's offices in
Sunnyvale, California, for no more than 15 hours per week, to assist Transferee
with the transition of IT services from Transferor to Transferee. Transferor
shall charge Transferee for such services at a rate of $100 per hour. To the
extent that such Transferor employee assists Transferee for more than 15 hours
per week, the rate for such assistance shall be $200 per additional hour.
Transferee shall pay Transferor for such services within 60 days of receipt of
an invoice from Transferor for such services.
(h) SOFTWARE LICENSES. To the extent that the Company or
any subsidiary of the Company retains licenses to third party software as of the
Effective Date, the Company or its subsidiaries shall be responsible for
ensuring compliance with such licenses. If the Company is not in compliance with
such licenses, Transferee shall direct the Company to refrain from using such
third party software. The parties agree that Transferor shall have no obligation
to acquire, pay for, license and or sublicense any such third party software for
the Company as of the Effective Date or thereafter.
(i) LEASES.
1) Transferee agrees that in the event that with respect to
any debts, liabilities or other obligations of the Company or
its subsidiary in the People's Republic of China, including,
without limitation, that certain Tenancy Agreement dated as of
June 19, 2003 ("China Obligations"), Transferor or any
affiliated entity continues to have liability or obligation
with respect to such China Obligations as a guarantor, surety
or in any other manner, Transferee and its related parties
agree (i) to indemnify and hold harmless Transferor and any
related party from any debt, liability, payment or other
obligation with respect to the China Obligations, and (ii)
that in the event that Transferor or any related party is
obligated to, or pays any amount related to the China
Obligations, Transferee shall reimburse Transferor such amount
within 30 days of a written request from Transferor to
Transferee describing such amount and the purpose for which it
was paid.
2) Transferor shall terminate, as of January 18, 2004, its
lease on office space located at 00X, Xx. 000, Xxx Xxx X. Xx.,
Xxxxxx, 000 Xxxxxx ("Taiwan Office"),
Vitria Contract:8519
pursuant to the terms of a lease agreement entered into
between Transferor or an affiliate of Transferor and Far Glory
Business Center on August 12, 2003 ("Taiwan Lease Agreement").
Transferee shall pay Transferor $1,760.00 within 30 days of
the Effective Date for Transferee's use of the Taiwan Office
from January 1, 2004 through January 18, 2004. Transferee will
indemnify and hold harmless Transferor and any related party
from any debt, liability, payment or other obligation against
any third party claim to the extent based upon a claim arising
after December 31, 2003, and associated with the Taiwan Lease
Agreement. Transferee agrees to cooperate with Transferor to
ensure that the Taiwan Landlord returns to Transferor its
security deposit equal to US$5,800 in accordance with the
terms of the Taiwan Lease Agreement.
The parties have executed this Agreement as of the date first set forth
above.
TRANSFEROR
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Xxxx Xxxxxxxx, CFO
Vitria Technology, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
TRANSFEREE
/s/ XxXxx Xxxxx
--------------------------------------
ChiLin LLC
Address: c/o Mayer, Brown, Xxxx & Maw LLP
Two Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Vitria Contract:8519
SHARE TRANSFER
FOR VALUE RECEIVED, we, Vitria Technology, Inc. (the "Transferor"), hereby sell,
assign and transfer to ChiLin LLC (the "Transferee") 1,000 ordinary shares, of
nominal or par value of US$1,487,690.50, standing in our name in the undertaking
called
CHILIN (CAYMAN) LIMITED
to hold the same unto the Transferee.
Signed by the Transferor
in the presence of:
VITRIA TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxxxx
--------------------------------- ----------------------------
Xxxxxxx X. Xxxxxxxx (Witness) Xxxx X. Xxxxxxx
Signed by the Transferee
in the presence of:
CHILIN LLC
By: /s/ XxXxx Xxxxx, Ph.D. /s/ M. Xxxx Xxxxx
--------------------------------- --------------------------------
XxXxx Xxxxx, Ph.D. (Witness) M. Xxxx Xxxxx, Ph.D.
