BROADVISION (DELAWARE) LLC SHARE PURCHASE AGREEMENT
BROADVISION
(DELAWARE) LLC
This Share
Purchase Agreement (the “Agreement”) is made as of November 14, 2008
between BroadVision
Delaware LLC, a Delaware limited liability company (the “Company”), and
CHRM
LLC, a Delaware limited liability company (“Purchaser”).
Whereas,
the Company desires to issue, and Purchaser desires to acquire, a limited
liability company interest in the Company as herein described, on the terms and
conditions hereinafter set forth; and
Whereas,
the issuance of Shares (as hereinafter defined) hereby is being made in
conformity with Regulation D promulgated by the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the “Act);
Now,
Therefore, It Is Agreed between the parties as follows:
1. Purchase
and Sale of Shares. Purchaser hereby
agrees to purchase from the Company, and the Company hereby agrees to sell to
Purchaser, an aggregate of Twenty
(20)
Class B Shares of the Company (the “Shares”) at $100.00* per Share, for an aggregate purchase price of
$2,000.00*, payable as follows:
Transfer
of intellectual property rights pursuant to the
Technology
Assignment Agreement attached as Exhibit A
.............................................................$2,000.00*
The
closing hereunder, including payment for and issuance of the Shares, shall occur
concurrently with the execution of this Agreement.
2. Limitations
on Transfer. In addition to
any other limitation on transfer created by applicable securities laws and the
Company’s operating agreement, Purchaser shall not assign, hypothecate, donate,
encumber or otherwise dispose of any interest in the Shares except in compliance
with the provisions herein, the Company’s operating agreement and applicable
securities laws. Furthermore, the Shares shall be subject to any
right of first refusal in favor of the Company or its assignees that may be
contained in the Company’s Bylaws or operating agreement.
3. Investment
Representations. In connection with the purchase of the
Shares, Purchaser represents to the Company the following:
(a) Purchaser
is aware of the Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and
knowledgeable decision to acquire the Shares. Purchaser is purchasing
the Shares for investment for Purchaser’s own account only and not with a view
to, or for resale in connection with, any “distribution” thereof within the
meaning of the Act.
(b) Purchaser
understands that the Shares have not been registered under the Act by reason of
a specific exemption therefrom, which exemption depends upon, among other
things, the bona fide nature of Purchaser’s investment intent as expressed
herein.
(c) Purchaser
further acknowledges and understands that the Shares must be held indefinitely
unless the Shares are subsequently registered under the Act or an exemption from
such registration is available. Purchaser further acknowledges and
understands that the Company is under no obligation to register the
Shares.
(d) Purchaser
is familiar with the provisions of Rules 144 and 701, under the Act, as in
effect from time to time, which, in substance, permit limited public resale of
“restricted securities” acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering subject
to the satisfaction of certain conditions. Rule 701 provides that if
the issuer qualifies under Rule 701 at the time of issuance of the securities,
such issuance will be exempt from registration under the Act. In the
event the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, the securities
exempt under Rule 701 may be sold by Purchaser ninety (90) days thereafter,
subject to the satisfaction of certain of the conditions specified by
Rule 144 and the market stand-off provision described in Section 10
below.
In the
event that the sale of the Shares do not qualify under Rule 701 at the time
of purchase, then the Shares may be resold by Purchaser in certain limited
circumstances subject to the provisions of Rule 144, which requires, among other
things: (i) the availability of certain public information about the Company and
(ii) the resale occurring following the required holding period under Rule 144
after the Purchaser has purchased, and made full payment of (within the meaning
of Rule 144), the securities to be sold.
(e) Purchaser
further understands that at the time Purchaser wishes to sell the Shares there
may be no public market upon which to make such a sale, and that, even if such a
public market then exists, the Company may not be satisfying the current public
information requirements of Rule 144 or 701, and that, in such event, Purchaser
would be precluded from selling the Shares under Rule 144 or 701 even if the
minimum holding period requirement had been satisfied.
(f) Purchaser
further warrants and represents that Purchaser has either (i) preexisting
personal or business relationships, with the Company or any of its officers,
directors or controlling persons, or (ii) the capacity to protect his own
interests in connection with the purchase of the Shares by virtue of the
business or financial expertise of himself or of professional advisors to
Purchaser who are unaffiliated with and who are not compensated by the Company
or any of its affiliates, directly or indirectly.
4. Market Stand-Off
Agreement. Purchaser shall not sell, dispose of,
transfer, make any short sale of, grant any option for the purchase of, or enter
into any hedging or similar transaction with the same economic effect as a sale,
any Shares or other securities of the Company held by Purchaser, including the
Shares (the “Restricted Securities”), for a period of time specified by the
managing underwriter (not to exceed one hundred eighty (180) days, extendable by
the managing underwriter under certain circumstances for up to an additional
seventeen (17) days) following the effective date of a registration statement of
the Company filed under the Act. Purchaser agrees to execute and
deliver such other agreements as may be reasonably requested by the Company
and/or the managing underwriter which are consistent with the foregoing or which
are necessary to give further effect thereto. In order to enforce the
foregoing covenant, the Company may impose stop-transfer instructions with
respect to Purchaser’s Restricted Securities until the end of such
period.
5. Refusal
to Transfer. The Company shall not
be required (a) to transfer on its books any Shares of the Company which
shall have been transferred in violation of any of the provisions set forth in
this Agreement or (b) to treat as owner of such shares or to accord the
right to vote as such owner or to pay dividends to any transferee to whom such
shares shall have been so transferred.
6. MISCELLANEOUS.
(a) Notices. Any notice
required or permitted hereunder shall be given in writing and shall be deemed
effectively given upon personal delivery or sent by telegram or fax or three
days after deposit in the United States Post Office, by registered or certified
mail with postage and fees prepaid, addressed to the other party hereto at his
address hereinafter shown below its signature or at such other address as such
party may designate by ten (10) days’ advance written notice to the other party
hereto.
(b) Successors and Assigns. This
Agreement shall inure to the benefit of the successors and assigns of the
Company and, subject to the restrictions on transfer herein set forth, be
binding upon Purchaser, Purchaser’s successors, and assigns.
(c) Attorneys’ Fees; Specific
Performance. Purchaser shall reimburse the Company for all
costs incurred by the Company in enforcing the performance of, or protecting its
rights under, any part of this Agreement, including reasonable costs of
investigation and attorneys’ fees.
(d) Governing Law;
Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. The parties
agree that any action brought by either party to interpret or enforce any
provision of this Agreement shall be brought in, and each party agrees to, and
does hereby, submit to the jurisdiction and venue of, the appropriate state or
federal court for the district encompassing the Company’s principal place of
business.
(e) Further
Execution. The parties agree to take all such further
action(s) as may reasonably be necessary to carry out and consummate this
Agreement as soon as practicable, and to take whatever steps may be necessary to
obtain any governmental approval in connection with or otherwise qualify the
issuance of the securities that are the subject of this Agreement.
(f) Independent
Counsel. Purchaser acknowledges that this Agreement has been
prepared on behalf of the Company by Xxxxxx Godward Kronish LLP, counsel to the
Company and that Xxxxxx Godward Kronish LLP does not represent, and is not
acting on behalf of, Purchaser. Purchaser has been provided with an
opportunity to consult with Purchaser’s own counsel with respect to this
Agreement.
(g) Entire Agreement;
Amendment. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes and
merges all prior agreements or understandings, whether written or
oral. This Agreement may not be amended, modified or revoked, in
whole or in part, except by an agreement in writing signed by each of the
parties hereto.
(h) Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good
faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its
terms.
(i) 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.
In Witness
Whereof, the parties hereto have executed this Agreement as of the day
and year first above written.
Company:
BroadVision (Delaware)
LLC
By: /s/ Xxxxxx
Xxxx
Xxxxxx Xxxx
Manager
Address: 0000 Xxxxxxx
Xxxxxxxxx
Xxxxx Xxxxxxxx, Xxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Purchaser:
CHRM LLC
By: /s/ Xxxxxx
Xxxx
Xxxxxx Xxxx
Manager
Address: 00 Xxxxxxxxx
Xxxxx
Xxxxxxxx,
XX 00000
*
Subject to adjustment under certain circumstances as provided in the Company’s
operating agreement.
Exhibit A
TECHNOLOGY
ASSIGNMENT AGREEMENT
This
Technology Assignment Agreement (the “Agreement”) is made and entered
into as of November 14, 2008 between CHRM
LLC (“Assignor”) and BroadVision
(Delaware) LLC, a Delaware limited liability company (the
“Company”). The parties hereto agree as follows.
1. Assignor
hereby irrevocably assigns, sells, transfers and conveys to the Company all
right, title and interest, on a worldwide basis, in and to the technology and
other rights described in Schedule 1 attached hereto and all applicable
intellectual property rights, on a worldwide basis, related thereto, including,
without limitation, copyrights, trademarks, trade secrets, patents,
patent applications, moral rights, contract and licensing rights (the
“Property”). In consideration for such transfer of the Property, the
Company shall issue to Assignor 20 of its Class B Shares (the
“Payment”). Assignor hereby acknowledges that it retains no right to
use the Property and agrees not to challenge the validity of the Company’s
ownership of the Property.
2. Upon each
request by the Company, without additional consideration, Assignor agrees to
promptly execute documents, testify and take other acts at the Company’s expense
as the Company may deem necessary or desirable to procure, maintain, perfect,
and enforce the full benefits, enjoyment, rights, title and interest, on a
worldwide basis of the Property assigned hereunder, and render all necessary
assistance in making application for and obtaining original, divisional,
renewal, or reissued utility and design patents, copyrights, mask works,
trademarks, trade secrets, and all other technology and intellectual property
rights throughout the world related to any of the Property, in the Company’s
name and for its benefit. In the event the Company is unable for any
reason, after reasonable effort, to secure Assignor’s signature on any document
needed in connection with the actions specified herein, Assignor hereby
irrevocably designates and appoints the Company and its duly authorized officers
and agents as its agent and attorney in fact, which appointment is coupled with
an interest, to act for and in its behalf to execute, verify and file any such
documents and to do all other lawfully permitted acts to further the purposes of
this paragraph with the same legal force and effect as if executed by
Assignor. Assignor hereby waives and quitclaims to the Company any
and all claims, of any nature whatsoever, which Assignor now or may hereafter
have for infringement of any Property assigned hereunder.
3. Assignor
further agrees to deliver to the Company upon execution of this Agreement any
and all tangible manifestations of the Property, including, without limitation,
all notes, records, files and tangible items of any sort in its possession or
under its control relating to the Property. Such delivery shall
include all present and predecessor versions. In addition, Assignor
agrees to provide to the Company from and after the execution of this Agreement
and at the expense of the Company competent and knowledgeable assistance to
facilitate the transfer of all information, know-how, techniques, processes and
the like related to such tangible manifestation and otherwise comprising the
intangible aspects of the Property.
4. Assignor
represents and warrants to the Company that (a) Assignor is the sole owner of
the Property and has full and exclusive right to assign the rights assigned
herein, (b) Assignor has full right and power to enter into and perform this
Agreement without the consent of any third party, (c) all of the Property is
free and clear of all claims, liens, encumbrances and the like of any nature
whatsoever, (d) the Property is an original work of Assignor, (e) none of the
Property infringes, conflicts with or violates any patent or other intellectual
property right of any kind (including, without limitation, any trade secret) or
similar rights of any third party, (f) Assignor was not acting within the scope
of employment or other service arrangements with any third party when
conceiving, creating or otherwise performing any activity with respect to the
Property, (g) the execution, delivery and performance of this Agreement does not
conflict with, constitute a breach of, or in any way violate any arrangement,
understanding or agreement to which Assignor is a party or by which Assignor is
bound, and (h) Assignor has maintained the Property in confidence and has not
granted, directly or indirectly, any rights or interest whatsoever in the
Property to any third party.
5. Assignor
further represents and warrants to the Company that no claim, whether or not
embodied in an action past or present, of any infringement, of any conflict
with, or of any violation of any patent, trade secret or other intellectual
property right or similar right, has been made or is pending or threatened
against Assignor relative to the Property. Assignor agrees to
promptly inform the Company of any such claim arising or threatened in the
future with respect to the Property or any part thereof.
6. Assignor
will indemnify and hold harmless the Company, from any and all claims, losses,
liabilities, damages, expenses and costs (including attorneys’ fees and court
costs) which result from a breach or alleged breach of any representation or
warranty of Assignor (a “Claim”) set forth in this Agreement, provided that the
Company gives Assignor written notice of any such Claim and Assignor has the
right to participate in the defense of any such Claim at its
expense.
7. This
Agreement and the Exhibits attached hereto constitute the entire, complete,
final and exclusive understanding and agreement of the parties hereto with
respect to the subject matter hereof, and supersedes any other prior or
contemporaneous oral understanding or agreement or any other prior written
agreement. No modification of or amendment to this Agreement, nor any
waiver of any rights under this Agreement, will be effective unless in writing
and signed by the parties hereto.
8. This
Agreement will be governed and construed in accordance with the laws of the
State of California as applied to transactions taking place wholly within
California between California residents. Assignor hereby expressly
consents to the personal jurisdiction of the state and federal courts located in
San Mateo County, California, for any lawsuit filed there against Assignor by
the Company arising from or related to this Agreement.
9. If any
provision of this Agreement is found invalid or unenforceable, in whole or in
part, the remaining provisions and partially enforceable provisions will,
nevertheless, be binding and enforceable.
10. Failure
by either party to exercise any of its rights hereunder shall not constitute or
be deemed a waiver or forfeiture of such rights.
11. The
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties
hereto.
In Witness
Whereof, the parties hereto have executed this Agreement as of the day
and year first above written.
COMPANY:
BroadVision (Delaware)
LLC
By: /s/ Xxxxxx
Xxxx
Xxxxxx Xxxx
Manager
ASSIGNOR:
CHRM LLC
By: /s/ Xxxxxx
Xxxx
Xxxxxx Xxxx
Manager
Schedule
1 to Technology Assignment Agreement
DESCRIPTION
OF TECHNOLOGY
All right, title and interest of
Assignor and of all persons claiming by, through and under Assignor in, to and
under all intellectual property or other rights of any kind or description
relating to the “CHRM” software development project currently being pursued by
BroadVision, Inc. and its affiliates, however such rights may have been
developed or acquired and whether or not such rights have been reduced to
writing.
The types of rights assigned hereby
include, without limitation: (a) trade secrets, inventions, ideas, processes,
computer source and object code, data, formulae, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs, and
techniques; (b) information regarding products, services, plans for research and
development, marketing and business plans, budgets, financial statements,
contracts, prices, suppliers, and customers; (c) information regarding the
skills and compensation of employees, contractors, and any other service
providers; and (d) the existence of any business discussions, negotiations, or
agreements with any third party.
