1
EXHIBIT 10.10
AGREEMENT
Agreement made this 30th day of March, 1999 by and between OpenSite
Technologies, Inc., a Delaware corporation (the "Corporation") and Xxx X. Xxxx
("Xxxx").
RECITALS
WHEREAS, Xxxx currently owns 650,000 shares of the Common Stock, par
value $.01 per share, of the Corporation (the "Shares") which are subject to
the terms of a restricted stock agreement between the Corporation and Xxxx
dated as of October 15, 1998 (the "Restricted Stock Agreement"); and
WHEREAS, the Corporation proposes to sell and issue shares of its
Class C Preferred Stock,
NOW, THEREFORE, the parties agree as follows:
1. Loan. Promptly following the Closing of the sale of the
Corporation's Series C Preferred Stock, the Corporation will lend to Xxxx the
sum of $300,000 (the "Loan").
2. Interest Rate. Interest shall accrue on the amount of the
Loan at the rate of 6.0% per annum, which amount shall accrue and be paid at
the time the Loan is repaid.
3. Repayment. The Loan shall be repaid at the earlier of the
termination of Xxxx'x employment with the Corporation or December 31, 2002.
Xxxx has the right to prepay the Loan at any time. Xxxx may repay the Loan
either with cash or by delivering Shares based upon their then Market Value.
Market Value shall mean (a) if the Common Stock is listed on a national
securities exchange, the average of the closing prices of the Common Stock on
the Composite Tape for the 10 consecutive trading days immediately preceding
such given date; (b) if the Common Stock is traded on an exchange or market in
which prices are reported on a bid and asked price, the average of the mean
between the bid and the asked price for the Common Stock at the close of
trading for the ten consecutive trading days immediately preceding such given
date; and (c) if the Common Stock is not listed on a national securities
exchange nor traded on the over-the-counter market, such value as the Board, in
good faith, shall determine.
4. Pledge of Shares. The parties agree that the Shares shall be
subject to a pledge agreement in substantially the form attached hereto as
Exhibit A to secure the Loan. The Corporation agrees, from time to time, to
consent to the sale of Shares by Xxxx provided, that the Market Value of the
Shares remaining subject to the pledge is at least 150% of the unpaid Loan
amount.
5. Non-Recourse Nature of Loan. The Loan made pursuant to this
Agreement shall be non-recourse and the Corporation's sole rights to repayment
shall be from the Shares or proceeds thereof.
6. Further Documents. The parties agree to execute and deliver
such documents as may be reasonably required by the other to effect the intent
of this Agreement.
7. Attorneys' Fees. In the event that it shall become necessary
for either party to retain the services of an attorney to enforce any terms
under this Agreement, the prevailing party, in addition to all other rights and
remedies hereunder or as provided by law, shall be entitled to reasonable
attorneys' fees and costs of suit.
2
8. Severability. The provisions of this Agreement shall be
deemed severable, and the invalidity or unenforceability of any provision (or
part thereof) of this Agreement shall in no way affect the validity or
enforceability of any other provision (or remaining part thereof).
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina, without
reference to the choice of law provisions of such laws.
10. Benefit. This Agreement shall be binding upon and shall inure
to the benefit of each of the parties hereto, and to their respective heirs,
representative, successors and permitted assigns. This Agreement shall be
binding upon the Corporation and upon any successor Corporation. Xxxx may not
assign any of his rights under this Agreement without the prior written consent
of the Board of Directors of the Corporation.
11. Entire Agreement. This Agreement, the Restricted Stock
Agreement, the Pledge Agreement attached as Exhibit A, and the Employment
Agreement contain the entire agreement and understanding by and between the
Corporation and Xxxx with respect to the covenants herein described and no
representations, promises, agreements or understandings, written or oral, not
herein contained shall be of any force or effect. No change or modification
shall be valid or binding unless the same is in writing and signed by the
parties hereto. No waiver of any provision of this Agreement shall be valid
unless the same is in writing and signed by the party against whom such waiver
is sought to be enforced; moreover, no valid waiver of any other provision of
this Agreement at any time shall be deemed a waiver of any other provision of
this Agreement at such time nor will it be deemed a valid waiver of such
provision at any other time.
12. Captions. The captions in this Agreement are for convenience
only and in no way define, bind or describe the scope or intent of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
OPENSITE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxx-Xxxxx
--------------------------------
/s/ Xxx X. Xxxx
------------------------------------
Xxx X. Xxxx
2
