Exhibit 10.34
OPTION AGREEMENT
THIS OPTION AGREEMENT ("Agreement") is entered into as of April 26,
2001, by and between XXXXXXX XXXXXXX ("Optionor"), and PRINTCAFE, INC. a
Delaware corporation ("Optionee). Optionor and Optionee are individually
referred to as "Party" and collectively referred to as the "Parties."
1.0 RECITALS.
1.1 Optionor is the owner of those certain Shares of Common
Stock and Series A Preferred Stock of Optionee as identified on SCHEDULE 1
hereto.
1.2 Optionee desires to obtain the right, but not the
obligation, to purchase the Shares.
1.3 Optionor desires to grant to Optionee the right, but not
the obligation, to purchase the Shares.
2.0 DEFINITIONS
2.1 "COMMON STOCK" shall mean the Common Stock of Optionee.
2.2 "OPTION" shall mean the option to purchase the Shares
pursuant to this Agreement.
2.3 "OPTIONEE" shall mean PRINTCAFE, INC, a Delaware
corporation.
2.4 "OPTIONOR" shall mean Xxxxxxx Xxxxxxx, an individual.
2.5 "PARTY" and "PARTIES" have the meanings set forth in the
preamble.
2.6 "SEPARATION AGREEMENT" shall mean that certain Separation
and Mutual General Release Agreement of even date between the Parties.
2.7 "SERIES A PREFERRED STOCK" shall mean the Series A
Preferred Stock of Optionee.
2.8 "SHARES" shall mean those certain shares of Common Stock
and Series A Preferred Stock as identified on SCHEDULE 1 hereto.
2.9 "STOCK PURCHASE AGREEMENT" shall mean the Stock Purchase
Agreement between the Parties.
2.10 "UNSECURED PROMISSORY NOTE" shall mean that certain
Unsecured Promissory Note from Optionee to Optionor in the form attached hereto
as EXHIBIT "B."
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3.0 OPTION TERM. Optionor hereby grants to Optionee the right to
purchase the Shares pursuant the terms of the Stock Purchase Agreement, attached
hereto as EXHIBIT "A" commencing on the Termination Date, as that term is
defined in the Separation Agreement and expiring thirty (30) days thereafter.
4.0 OPTION CONSIDERATION. As consideration for the option hereunder,
Optionee shall pay to Optionor the sum of Ninety Nine Thousand Seventy Eight and
37/100 Dollars ($99,078.37) in the form of an Unsecured Promissory Note attached
hereto as EXHIBIT "B."
5.0 EXERCISE OF OPTION. Optionee shall exercise the Option granted
hereunder by providing written notice to Optionor, in the form of execution of
the Stock Purchase Agreement, within the option term provided in Section 3.0 at
the address set forth in Section 14 hereof at least two (2) calendar days prior
to the date up on which Optionee desires to exercise the Option.
6.0 NO ASSIGNMENT: BINDING EFFECT. Neither Party may assign any of its
rights, duties or obligations under this Agreement without the prior written
consent of the other Party and any such attempted assignment shall be void. This
Agreement and all documents executed and delivered pursuant hereto shall be
binding upon and shall inure to the benefit of the undersigned Parties and their
respective heirs, executors, administrators, representatives, successors, and
assigns.
7.0 ENTIRE AGREEMENT.
7.1 SOLE AGREEMENT. This Agreement (including any attachments
and exhibits hereto) contains the Parties' sole and entire agreement regarding
the subject matter hereof, and supersedes any and all other agreements between
them.
7.2 NO OTHER REPRESENTATIONS. The Parties acknowledge and
agree that no Party has made any representations (a) concerning the subject
matter hereof, or (b) inducing the other Party to execute and deliver this
Agreement, except those representations specifically referenced herein. The
Parties have relied on their own judgment in entering into this Agreement.
7.3 NO RELIANCE. The Parties further acknowledge that any
statements or representations that may have been made by either of them to the
other are void and of no effect. No Party has relied on any such statements or
representations in dealing with the other(s).
8.0 MODIFICATIONS OR WAIVERS.
8.1 MUST BE WRITTEN. Waivers or modifications of this
Agreement, or of any covenant, condition, or limitation contained herein, are
valid only if in a writing that is separately signed or initialed by the
Parties.
8.2 NO USE AS EVIDENCE. One or more waivers or modifications
of any covenant, term or condition in this Agreement by any Party shall not be
construed by any other
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Party as a waiver or modification applicable to any subsequent breach of the
same covenant, term or condition. Evidence of any such waiver or modification
may not be offered or received in evidence in any proceeding, arbitration, or
litigation between the Parties arising out of or affecting this Agreement, or a
party's rights or obligations under it. This limitation does not apply if the
waiver or modification is in writing and duly executed as provided above.
9.0 COOPERATION AND FURTHER ACTIONS. The Parties agree to perform any
and all acts and to execute and deliver any and all documents necessary or
convenient to carry out the terms of this Agreement, consistent with the terms
and conditions herein.
10.0 PROFESSIONAL FEES. If a lawsuit, arbitration, or other proceedings
are instituted by any Party to enforce any of the terms or conditions of this
Agreement against any other Party hereto, the prevailing party in such
litigation, arbitration, or proceedings shall be entitled, as an additional item
of damages, to such reasonable attorneys' and other professional fees (including
but not limited to expert witness fees), court costs, arbitrators' fees,
arbitration administrative fees, travel expenses, and other out-of-pocket
expenses or costs of such other proceedings as may be fixed by any court of
competent jurisdiction, arbitrator, or other judicial or quasi-judicial body
having jurisdiction thereof, whether or not such litigation or proceedings
proceed to a final judgment or award. For the purposes of this Section 10.0, any
Party receiving an arbitration award or a judgment for damages or other amounts
shall be deemed to be the prevailing party, regardless of amount of the damage
awarded or whether the award or judgment was based upon all or some of such
Party's claims or causes of action.
11.0 SEVERABILITY. If any part, clause, or condition of this Agreement
is held to be partially or wholly invalid, unenforceable, or inoperative for any
reason whatsoever, such shall not affect any other provision or portion hereof,
which shall continue to be effective as though such invalid, inoperative, or
unenforceable part, clause or condition had not been made.
12.0 GOVERNING LAW AND VENUE. To the extent not controlled by federal
law, all questions concerning this Agreement, its construction, and the rights
and liabilities of the Parties hereto shall be interpreted and enforced in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
Pennsylvania choice of law provisions, as applied to contracts which are
executed and performed entirely within the state. For purposes of this
Agreement, sole and proper venue shall be the County of Allegheny, Commonwealth
of Pennsylvania.
13.0 INTERPRETATION.
13.1 PARAGRAPH HEADINGS. The paragraph headings of this
Agreement are included for purposes of convenience only, and shall not affect
the construction or interpretation of any of its provisions.
13.2 CAPITALIZED TERMS. Except as otherwise expressly provided
herein, all capitalized terms defined in this Agreement shall have the meaning
ascribed to them herein.
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13.3 GENDER AND NUMBER. Whenever required by the context, the
singular shall include the plural, the plural shall include the singular, and
the masculine gender shall include the neuter and feminine genders and vice
versa.
14.0 NOTICES. For purposes hereof, delivery of written notice shall be
complete upon personal delivery, or upon mailing if mailed with proper postage
paid by United States registered or certified mail, addressed to the party at
the address set forth below, or to such other mailing address as the parties
hereto may designate by written notice given in accordance with this Section
14.0. Notice may also be given upon receipt of electronic facsimile, provided
that any facsimile notice shall only be deemed received if (a) the transmission
thereof is confirmed, and (b) facsimile notice is followed by written notice,
made either by (i) personal delivery thereof, or (ii) via deposit in certified
mail return receipt requested, postage prepaid, within three (3) business days
following the facsimile notice. Notices shall be addressed to the parties as
follows:
Shareholder: Xxxxxxx Xxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fix: (000)000-0000
With required copy to: The Xxxxx Firm
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq. and
Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000)000-0000
Facsimile: (000)000-0000
Optionee: printCafe, Inc.
The Crane Building, Xxxxx Xxxxx
Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: President
Fax: (000)000-0000
Any party may change the address to which to send notices by notifying
the other party of such change of address in writing in accordance with this
Section 14.0.
15.0 TIME OF ESSENCE. The Parties acknowledge and agree that time is
strictly of the essence with respect to each and every term, condition,
obligation and provision hereof. Failure to timely perform any of the terms,
conditions, obligations or provisions hereof by any Party shall constitute a
material breach of this Agreement by the Party so failing to perform.
16.0 RELATIONSHIP CREATED. Nothing contained herein or in any schedule,
attachment, or exhibit hereto shall create any partnership, joint venture or
other agreement between the Parties hereto.
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17.0 COUNTERPARTS. This Agreement may be executed in several
counterparts, of which so executed shall be deemed to be an original, but such
counterparts shall together constitute and be one and the same instrument.
IN WITNESS WHEREOF, each Party to this Agreement has caused it to be
executed as of the date set forth above.
"OPTIONOR"
/s/ Xxxxxxx Xxxxxxx
-----------------------------------
XXXXXXX XXXXXXX
"OPTIONEE"
PRINTCAFE, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxx
-------------------------------
Xxxx Xxxx, President
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SCHEDULE 1
SHARES
Class of Stock Number of Shares Price Certificate Nos.
-------------- ---------------- ----- ----------------
Series A Preferred Stock 259,581 Shares $389,371.50
Common Stock 234,193 Shares $351,289.50
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