EXHIBIT 10.10
OPTION TRANSFER AGREEMENT
THIS OPTION TRANSFER AGREEMENT (the "Agreement") is made as of September
__, 1997 by and among HAHT Software, Inc., a North Carolina Corporation
("Company") and the investors listed on Schedule I attached hereto (the
"Transferees").
RECITALS
WHEREAS, pursuant to the Option to Purchase Common Stock Agreement (the
"Option Agreement") dated August 15, 1997 between Xxxxx Xxxxxx ("Optionor") and
the Company, a copy of which is attached hereto as Exhibit A, the Optionor sold
and granted to the Company (i) an option (the "Option") to purchase from
Optionor up to 1,365,625 shares (the "Option Shares") of the Common Stock (the
"Option Stock") of the Company then held by Optionor at an exercise price (the
"Exercise Price") of $0.40 per Option Share.
WHEREAS, pursuant to Section 6.1.2 of the Option Agreement, the Company may
assign its right, title and interest in the Option Agreement, in whole or in
part, effective upon notice to Optionor and Escrowholder.
WHEREAS, in connection with the Transferees participation in the Series D
Preferred Stock Financing of the Company, the Company desires to transfer and
assign the Option to the Transferees and to assign the rights associated with
the Option to the Transferees and each Transferee desires to accept such
transfer and assignment and be bound by the terms of the Option Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the Company and the undersigned Transferees hereby agree
as follows:
1. Transfer. Subject to the terms and conditions of this Agreement and
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the Option Agreement, the Transferor hereby transfers the Option to the
Transferees, and agrees that from and after the date of this Agreement each
Transferee shall have the right to exercise the Option with respect to the
number of Option Shares set forth opposite such Transferee's name on Schedule I
(as attached hereto).
2. Representations and Warranties of the Transferees. In connection with
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the transfer of the Option to the Transferees, each Transferee represents and
warrants to the Company that:
(a) Authorization. This Agreement and the Agreement to be Bound,
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when executed and delivered by the Transferee, will constitute valid and legally
binding obligations of the Transferee, enforceable in accordance with their
terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and any other laws of general application
affecting enforcement of creditors' rights generally, and as limited by laws
relating to the availability of a specific performance, injunctive relief, as
other equitable remedies.
(b) Purchase Entirely for Own Account. This Agreement is made with
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the Transferee in reliance upon the Transferee's representation to the Company,
which by the Transferee's execution of this Agreement, the Transferee hereby
confirms, that the Option (or the Option Shares issuable upon exercise thereof)
to be acquired by the Transferee will be acquired for investment for the
Transferee's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that the Transferee has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, the Transferee further
represents that the Transferee does not presently have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Option (or the Option Shares issuable upon exercise thereof). The Transferee
represents that it has full power and authority to enter into this Agreement.
The Transferee has not been formed for the specific purpose of acquiring the
Option (or the Option Shares issuable upon exercise thereof).
(c) Disclosure of Information. The Transferee has had an opportunity
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to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Option with the Company's management and
has had an opportunity to review the Company's facilities. The Transferee
understands that such discussions, as well as the written information issued by
the Company, were intended to describe the aspects of the Company's business
which it believes to be material.
(4) Restricted Securities. The Transferee understands that the
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Option (and the Option Shares issuable upon exercise thereof) has not been, and
will not be, registered under the Securities Act of 1933, as amended (the
"Securities Act"), by reason of a specific exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the investment intent and the accuracy of the Transferee's
representations as expressed herein. The Transferee understands that the Option
(and the Option Shares issuable upon exercise thereof) are characterized as
"restricted securities" under the federal securities laws inasmuch as they are
being acquired from the Company in a transaction not involving a public offering
and that under such laws and applicable regulations such Option (and the Option
Shares issuable upon exercise thereof) may be resold without registration under
the Securities Act only in certain limited circumstances. The Transferee
acknowledges that the Option (and the Option Shares issuable upon exercise
thereof) must be held indefinitely unless subsequently registered under the
Securities Act or an exemption from such registration is available. The
Transferee is aware of the provisions of Rule 144 promulgated under the
Securities Act which permit limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions, including, among
other things, the existence of a public market for the shares, the availability
of certain current public information about the Company, the resale occurring
not less than one year (two years in case of an affiliate) after a party has
purchased and paid for the security to be sold, the sale being effected through
a "broker's transaction" or in transactions directly with a "market maker" (as
provided by Rule 144(f)) and the number of shares being sold during any three-
month period not exceeding specified limitations.
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(e) No Public Market. The Transferee understands that no public
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market now exists for any of the securities issued by the Company, and that the
Company has made no assurances that a public market will ever exist for the
Option or the underlying Option Shares.
(f) The Transferee will not sell, transfer, pledge or otherwise
dispose of or encumber the Option or any of the Option Shares issuable to the
Transferee upon exercise of the Option unless and until (a) the Optionor such
Option Shares are subsequently registered under the 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 the Optionor such Option 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 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 Transferee 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.
3. Agreements to Transfer and to be Bound. By entering into this
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Agreement, each Transferee agrees to be bound by the terms and conditions of the
Option Agreement, including, but not limited to Section 6.1.3. of the Option
Agreement, which provides that (i) the Transferee will not contact the Optionor
regarding the Optionor's former employment or affiliation with the Company,
except to the extent necessary to carry out the provisions of the Option
Agreement and (ii) the Transferee shall not make any public statement regarding
the Optionor without the Optionor's prior consent.
4. Legends. Each Transferee authorizes the Company and its agents to
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place on each certificate for Option Shares issuable upon exercise of the Option
a legend stating that such Option Shares have not been registered under the Act
or any state securities law and setting forth the aforementioned restrictions on
transfer, including the following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL IN A FORM SATISFACTORY TO THE CORPORATION OR ITS COUNSEL THAT
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933."
(b) "THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED
ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND
THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY."
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(c) Any other legend required by applicable state securities law.
5. Market Standoff Agreement. In connection with the initial public
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offering of the Company's securities and upon request of the Company or the
underwriters managing any underwritten offering of the Company's securities, the
Transferee agrees not to sell, make any short sale of, loan, grant any option
for the purchase of, or otherwise dispose of any of the Company's securities
then owned by the Transferee (other than those included in the registration)
without the prior written consent of the Company or such underwriters, as the
case may be, for such period of time (not to exceed 180 days) from the effective
date of such registration as may be requested by the Company or such managing
underwriters and to execute an agreement reflecting the foregoing as may be
requested by the underwriters at the time of the public offering.
6. Miscellaneous.
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(a) Governing Law. This Agreement and all acts and transactions
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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
North Carolina, without giving effect to principles of conflicts of law.
(b) Entire Agreement; Enforcement of Rights. Except as expressly set
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forth herein, this Agreement sets 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 under this Agreement, shall be effective unless in
writing signed by the parties to this Agreement. The failure by either party to
enforce any rights under this Agreement shall not be construed as a waiver of
any rights of such party.
(c) Severability. If one or more provisions of this Agreement are
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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.
(d) Construction. This Agreement is the result of negotiations
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between and has been reviewed by each of the parties hereto and their respective
counsel, if any; accordingly, this Agreement shall be deemed to be the product
of all of the parties hereto, and no ambiguity shall be construed in favor of or
against any one of the parties hereto.
(e) Notices. Any notice required or permitted by this Agreement
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shall be in writing and shall be deemed sufficient when delivered personally or
sent by telegram or fax 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.
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(f) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(g) Successors and Assigns; Transfer of Stock. The rights and
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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 Option Shares or
assignment of the Transferee's rights and obligations under this Agreement
unless the Transferee requires as a condition to any such transfer or assignment
that the Transferee's transferee[s] or assign[s] execute an agreement similar to
this Agreement or otherwise agree to be bound by terms and conditions similar to
those contained in this Agreement.
[Signature Page Follows]
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The parties have executed this Agreement as of the date first set forth
above.
COMPANY:
HAHT SOFTWARE, INC.
By: /s/ Xxxxxx X Xxxxxx
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Title: Chief Financial Officer
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TRANSFEREES:
/s/ Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
STANFORD UNIVERSITY
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Assistant Secretary to the
Board of Trustees of the Xxxxxx
Xxxxxxxx Junior University
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
JMI EQUITY FUND II, L.P.
By: JMI Partners II, L.P.
Its General Partner
By: /s/ Xxxxxxx X Xxxxx
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Xxxxxxx Xxxxx
A General Partner
Address: 00000 Xxxx Xxxxx Xxxxx,
Xxxxx 000
Xxx Xxxxx, XX 00000
HIGH STREET PARTNERS, L.P.
By: /s/ Xxxxxxx X Xxxx
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Xxxxxxx X. Xxxx
General Partner
Address: High Street Tower
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
SIPPL XXXXXXXXX VENTURES I, L.P.
By: /s/ Xxxxxx XxxXxxxxx
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Name: Xxxxxx XxxXxxxxx
General Partner
Address: 0 Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
HAHT Software, Inc.
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Agreement to be Bound
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The undersigned hereby agrees to be bound by the terms of the Option to
Purchase Common Stock Agreement (the "Option Agreement") dated August 15, 1997
between Xxxxx Xxxxxx ("Optionor") and the Company
The undersigned acknowledges receipt of a copy of the document listed
above.
Dated: September__, 1997
_________________________________
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: N/A
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HAHT Software, Inc.
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Agreement to be Bound
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The undersigned hereby agrees to be bound by the terms of the Option to
Purchase Common Stock Agreement (the "Option Agreement") dated August 15, 1997
between Xxxxx Xxxxxx ("Optionor") and the Company
The undersigned acknowledges receipt of a copy of the document listed
above.
Dated: September__, 1997
Stanford University
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By: /s/ Xxxxx Gilmer___
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Name: Xxxxx Xxxxxx
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Title: ASSISTANT SECRETARY
THE BOARD OF TRUSTEES OF THE
XXXXXX XXXXXXXX JUNIOR UNIVERSITY
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HAHT Software, Inc.
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Agreement to be Bound
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The undersigned hereby agrees to be bound by the terms of the Option to
Purchase Common Stock Agreement (the "Option Agreement") dated August 15, 1997
between Xxxxx Xxxxxx ("Optionor") and the Company
The undersigned acknowledges receipt of a copy of the document listed
above.
Dated: September__, 1997
________________________________
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: CTO
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HAHT Software, Inc.
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Agreement to be Bound
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The undersigned hereby agrees to be bound by the terms of the Option to
Purchase Common Stock Agreement (the "Option Agreement") dated August 15, 1997
between Xxxxx Xxxxxx ("Optionor") and the Company
The undersigned acknowledges receipt of a copy of the document listed
above.
Dated: September__, 0000
Xxxx Xxxxxx Partner, LP
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By: /s/ Xxxxxxx X Xxxx
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Name: Xxxxxxx X Xxxx
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Title: GP
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Schedule I
Schedule of Transferees
Number of
Transferee Option Shares
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Xxxxxxx Xxxxxxx 151,736
Xxxxx Xxxxxxx 151,736
Xxxxxxx Xxxxxx 455,208
JMI Equity Fund II, L.P. 307,285
High Street Partners, L.P. 121,301
Stanford University 20,742
Sippl Xxxxxxxxx Ventures 157,617
Total: 1,365,625