EXHIBIT 10.9
OPTION TO PURCHASE COMMON STOCK AGREEMENT
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THIS OPTION TO PURCHASE COMMON STOCK AGREEMENT (the "Option Agreement") is
made as of August 15, 1997 between ▇▇▇▇▇ ▇▇▇▇▇▇ ("Optionor") and HAHT Software,
Inc., a North Carolina Corporation ("Company").
THE PARTIES AGREE AS FOLLOWS:
1. Grant of Option; Term.
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1.1 Consideration; Grant of Option; Exercise Price. In consideration
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of the payment of $100, receipt of which is hereby acknowledged, Optionor hereby
sells and grants to Company (i) an option (the "Option") to purchase from
Optionor all or any part of 1,365,625 shares (the "Option Shares") of the Common
Stock (the "Option Stock") of the Company at an exercise price (the "Exercise
Price") of $0.40 per Option Share.
1.2 Term. This Option shall terminate at 5 p.m. Pacific Time, on
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August 15, 2007 (the "Expiration Date").
1.3 Voting Rights. The Optionor hereby grants the Company and its
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assigns under Section 6.1.2 hereof an irrevocable proxy pursuant to Section 55-
7-22 of the North Carolina Business Corporation Act, which proxy is coupled with
an interest, to attend and vote at any and all meetings of the shareholders of
Company, and any adjournments thereof, held on or after the effective date of
this Option Agreement and prior to the termination of this Option Agreement and
to execute any and all written consents of shareholders of Company executed on
or after the effective date of this Option Agreement and prior to the
termination of this Option Agreement, with the same effect as if the Optionor
had personally attended or had personally voted the Option Shares or had
personally signed the written consent. In the event that the proxy granted
under this Section 1.3 shall be deemed unenforceable under applicable law,
Optionor hereby agrees to vote the Option Shares as directed by the Company or
its assigns under Section 6.1.2 on all matters on which such Option Shares may
be voted by the Optionor.
1.4 Changes in Capital Structure. If the Option Stock is changed by
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reason of a stock split, reverse stock split, stock dividend or
recapitalization, or converted or exchanged for other securities as a result of
a merger or reorganization of the Company, the number of Option Shares, the
class of securities and the Exercise Price shall be appropriately adjusted to
preserve the benefits to the parties under this Option Agreement.
2. Exercise of Option.
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2.1 Partial Exercise and Time of Exercise. The Option may be
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exercised in whole or in part, from time to time, on or prior to the Expiration
Date.
2.2 Manner of Exercise. Company may exercise the Option, or any part
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of the Option, by delivery on or before the Expiration Date of written notice
(the "Option Exercise Notice") to Optionor and Escrowholder (as such term is
defined in Section 4.1 hereof) with a copy to Company, specifying the number of
Option Shares with respect to which the Option is
exercised and the effective date of the exercise (the "Option Exercise Date"),
which shall be ten days after the date on which Optionor is deemed to receive
the Option Exercise Notice. The date for payment of the Purchase Price (as
defined below, the "Payment Date") shall be the Option Exercise Date.
2.3 Payment of Exercise Price. The purchase price payable upon
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exercise of the Option (the "Purchase Price") shall equal the product obtained
by multiplying (A) the number of Option Shares as to which the Option is
exercised, times (B) the Exercise Price. Company shall pay for the Option Shares
then being acquired by delivering a check or cash to Optionor on the Payment
Date.
3. Distributions, Adjustments, and Rights to Purchase Shares.
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3.1 Distributions and Additional Securities. If any Distribution (as
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hereinafter defined) of securities issued in connection with a change described
in Section 1.4 shall be received by Optionor, Optionor shall, within five days
of receipt, deliver the cash, certificates or other instruments evidencing title
to such Distribution or other securities, together with appropriate instruments
of transfer, to Escrowholder to be held in the Escrow. Any Distribution shall
become a part of the Option Share to which it relates, shall be transferred to
Company without extra cost upon the exercise of the Option. A "Distribution"
means any property receivable by Optionor as owner of any Option Share, or as
owner of any Distribution, and shall include, without limitation, dividends,
whether in cash or other property, such as securities or contract rights, cash
securities or other property arising from a reorganization, recapitalization,
stock split or merger of the Company or the Company of any security that is a
Distribution, or otherwise; provided, however, that (i) cash dividends in any
calendar year aggregating less than 5% of the Exercise Price shall be the sole
property of Optionor and shall not be deemed a Distribution, and (ii) securities
received in connection with a change contemplated by Section 1.4 for which
appropriate adjustments are made pursuant thereto shall not be deemed a
Distribution.
4. Escrow.
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4.1 Creation of Escrow. To assure Optionor's ability to perform
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Optionor's obligations under this Option Agreement, Optionor shall deliver the
stock certificate(s) listed on Schedule 4.1, together with seven stock
assignments in blank duly executed by Optionor, to ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇ or such other third party as may be mutually agreed upon by Company and
the Optionor (the "Escrowholder") within thirty (30) days after the date of this
Option Agreement, such documents to be held in escrow (the "Escrow") pursuant to
the terms of this Section 4. Fees of the Escrowholder shall be paid by the
Company.
4.2 Duties of Escrowholder Upon Exercise of Option. If, prior to the
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Expiration Date, Escrowholder is given an Option Exercise Notice and does not,
within ten days thereafter, receive a Cancellation Notice, Escrowholder shall,
on the Payment Date, close the transaction contemplated by the notice on the
Option Exercise Date, by (i) dating the stock assignment(s) necessary for the
transfer in question, (ii) filling in the number of shares being
transferred, and (iii) delivering to Company the assignment(s), together with
the certificate(s) for the number of Option Shares being transferred, possession
of the Distributions with respect to such Option Shares and all instruments
necessary to transfer title to such Distributions from Optionor to Company,
against the simultaneous delivery to Optionor of the Purchase Price.
4.3 Term of Escrow. The Escrow shall continue until Company has
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certified to Escrowholder that the Option has expired or the Option has been
exercised in full. Company agrees to advise Escrowholder from time to time,
upon request, of the status of the obligations of Optionor under this Option
Agreement.
4.4 Attorney-In-Fact; Additional Stock Assignments. Optionor hereby
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irrevocably constitutes and appoints Escrowholder as Optionor's attorney-in-fact
and agent for the term of this Escrow to execute, with respect to the securities
and other property that are deposited with Escrowholder hereunder, all documents
necessary or appropriate to make any such securities negotiable and complete any
transaction contemplated herein. Optionor shall deliver to Escrowholder from
time to time such number of stock assignments separate from certificate and
other instruments of transfer duly executed by Optionor as may be requested by
Company or Escrowholder.
4.5 Return of Property. If, at the time of termination of this
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Escrow, Escrowholder has in his possession any documents, securities, or other
property belonging to Optionor, he shall deliver all of same to Optionor and
shall be discharged of all further obligations hereunder.
4.6 Duties. Escrowholder shall carry out Escrowholder's duties
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hereunder to the best of Escrowholder's ability and shall be liable only for
gross negligence or willful misconduct. Escrowholder's duties hereunder may be
altered, amended, modified or revoked only by a written instrument signed by
Company, Optionor and Escrowholder.
4.7 Obligations. Escrowholder shall be obligated only for the
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performance of such duties as are specifically set forth herein and may rely and
shall be protected in relying or refraining from acting on any instrument
reasonably believed by Escrowholder to be genuine and to have been signed or
presented by the proper party or parties. Escrowholder shall not be personally
liable for any act Escrowholder may do or omit to do hereunder as Escrowholder
or as attorney-in-fact for Optionor while acting in good faith and in the
exercise of Escrowholder's own judgment, and any act done or omitted by
Escrowholder pursuant to the advice of Escrowholder's own attorneys shall be
conclusive evidence of such good faith.
4.8 Bankruptcy. Bankruptcy, insolvency, dissolution or absence of
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any party hereto shall not affect Escrowholder's performance hereunder.
4.9 Termination of Duties; Successor. Escrowholder's
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responsibilities as Escrowholder hereunder shall terminate if (i) Escrowholder
shall resign by thirty days written notice to Optionor and Company, (ii)
Optionor and Company jointly agree as to Escrowholder's termination and appoint
Escrowholder's successor, or (iii) Escrowholder dies or is disabled. In the
event of Escrowholder's termination as Escrowholder by resignation, death or
disability,
Company shall appoint a successor. Upon receipt of notice of appointment of a
successor, all documents, shares and other property then in Escrowholder's
possession pursuant to this Option Agreement shall be delivered to such
successor.
4.10 Further Instruments. If Escrowholder reasonably requires other
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or further instruments in connection with this Option Agreement or obligations
in respect hereto, the necessary parties hereto shall join in furnishing such
instruments.
5. Representations, Warranties and Covenants of Optionor.
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5.1 Ownership of Option Shares; No Conflicts. Optionor represents
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and warrants as of this date, and covenants, for the period beginning on this
date and ending on the Expiration Date, that (i) Optionor has and will have the
right to transfer to Company all or any part of the Option Shares and
Distributions, free and clear of any lien, claim, encumbrance or restriction of
any type or nature whatsoever (other than restrictions on resale that may arise
under applicable federal and state securities laws); (ii) the Option Shares are
not, and the Option Shares and Distributions will not be, subject to any right
of first refusal, right of repurchase or any similar right granted to, or
retained by, the Company, any shareholder of the Company or any other person
that has not been waived; and (iii) there is no provision of any existing
agreement, and Optionor will not enter into an agreement by which the Optionor
is or would be bound (or to which the Optionor is or would become subject), that
conflicts or would conflict with this Agreement or the performance of Optionor's
obligations under this Option Agreement.
5.2 Further Assurances. Upon the reasonable request of Escrowholder
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or Company, Optionor will prepare, execute and deliver any further instruments
and do any further acts that may be necessary to carry out more effectively the
purposes of this Option Agreement, including, if necessary, the preparation and
execution of applications to the California Department of Corporations.
6. Miscellaneous.
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6.1 Assignment.
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6.1.1 By Optionor. Except as provided herein Optionor may
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not sell, assign, transfer, hypothecate, pledge or otherwise encumber, in any
manner, prior to the Expiration Date, this Option Agreement or any of the Option
Shares or Distributions. Any attempt to sell, assign, transfer, hypothecate,
pledge or otherwise encumber this Option Agreement, any interest therein or any
such shares or Distributions and any levy of execution, attachment, or similar
process on the Option Shares or such Distributions shall be null and void.
Subject to the foregoing, this Option shall be binding on and inure to the
benefit of the heirs, executors, and personal representatives of Optionor.
6.1.2 By Company. Company may assign its right, title and
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interest in this Option Agreement, in whole or in part, subject to the receipt
of all necessary waivers under the Shareholders' Agreement dated July 1, 1995 by
and among the Company and the Stockholders (as defined therein), effective upon
notice to Optionor and Escrowholder.
Following such assignment, this Option Agreement shall be binding upon and inure
to the benefit of any such assignee. Such assignment shall be conditioned on
compliance with any applicable state and federal securities laws.
6.1.3. Quiet Enjoyment; Nondisclosure. Company agrees that any
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assignment to any third party will be conditioned on such third party agreeing
that (i) such party will not contact Optionor regarding the Optionor's former
employment or affiliation with Company, except to the extent necessary to carry
out the provisions of this Option Agreement and (ii) such party shall not make
any public statement regarding the Optionor without the Optionor's prior
consent.
6.2 Amendment. Except as provided in Section 4.6 with respect to
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Escrowholder's duties, this Option Agreement may only be amended by a writing
signed by Optionor and Company.
6.3 Costs of Enforcement. If any party to this Option Agreement
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seeks to enforce its rights under this Option Agreement by legal proceedings or
otherwise, the non-prevailing party shall pay all costs and expenses incurred by
the prevailing party, including, without limitation, all reasonable attorneys'
fees.
6.4 Notices. All notices and other communications under this Option
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Agreement shall be in writing, and shall be deemed to have been duly given on
the date of delivery if delivered personally, or by telegram, telex or confirmed
facsimile, or on the next day after dispatch via overnight messenger or courier,
or on the second day after mailing if mailed to the party to whom notice is to
be given by first class mail, registered or certified, postage prepaid, and
addressed as follows (until any such address is changed by notice duly given):
If to Optionor: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
If to Company: HAHT Software, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: President
If to Company: Corporate Secretary
HAHT Software, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
If to Escrowholder: ___________________
___________________
___________________
___________________
IN WITNESS WHEREOF, the parties hereto have duly executed this Option to
Purchase Stock Agreement as of the date first written above.
OPTIONOR: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
COMPANY: HAHT Software, Inc.
By: /s/ J ▇▇▇▇ ▇▇▇▇▇▇
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Name: J ▇▇▇▇ ▇▇▇▇▇▇
Title: CFO
Consent by Escrowholder. The undersigned agrees to act as escrowholder
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under this Option to Purchase Stock Agreement pursuant to Section 4 and agrees
to be bound only by such Section 4 and Section 5.
By:___________________________
Name:
Schedule 4.1
Type Number
of Certificate of
Company Record Holder Stock Number Shares
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HAHT Software, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇ Common 1,365,625