Exhibit 10.1
MUTUAL TERMINATION
AGREEMENT
MUTUAL TERMINATION AGREEMENT, dated
as of November 18, 2005 (this “ Agreement
”), by and among BroadVision, Inc. (the “
Company ”), a Delaware corporation, Bravo Holdco
(“ Parent ”), an exempted company with limited
liability incorporated under the laws of the Cayman Islands and
Bravo Merger Sub, LLC (“ Merger Sub ”), a
Delaware limited liability company.
RECITALS
WHEREAS, the Company, Parent and
Merger Sub are parties to an Agreement and Plan of Merger, dated as
of July 25, 2005 (as amended, the “ Merger
Agreement ”) (capitalized terms used herein but not
otherwise defined herein shall have the meanings ascribed to them
in the Merger Agreement); and
WHEREAS, the Company, Parent and
Merger Sub wish to terminate the Merger Agreement.
NOW THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements contained
herein, and intending to be legally bound hereby, the Company,
Parent and Merger Sub hereby agree as follows:
1.
The Company, Parent and Merger Sub
hereby agree that (i) subject to Section 3 hereof, the
Merger Agreement is terminated as of the date hereof by mutual
written consent in accordance with Section 7.1(a) thereof
without any liability on the part of Parent, Merger Sub, the
Company, or any of their respective parents, subsidiaries,
directors, officers, agents, representatives, shareholders and
other affiliates (“ Related Parties ”) (and each
of their respective Related Parties), except as provided herein,
and (ii) the Company shall pay to Parent an amount of cash
equal to $980,000 plus interest accruing at an annual rate of 6%
($161.10 per day) from and after the date hereof until the date
such amount is paid in full (collectively, the “ Expense
Reimbursement ”) on or before January 17, 2006 by
wire transfer in immediately available funds to Parent pursuant to
the written instructions provided to the Company by Parent.
If the Company fails to make the required payment in a timely
manner, Parent and Merger Sub shall be entitled to exercise the
rights and shall be entitled to indemnification set forth in
Section 7.3(h) of the Merger Agreement.
2.
Each of the Company, Parent and
Merger Sub, on behalf of itself and all present or former parents,
subsidiaries and other affiliates, hereby releases the other
parties and their Related Parties (and each of their respective
Related Parties) from all claims, demands, debts, liabilities,
obligations, agreements, promises, losses, damages, demands,
rights, actions or causes of action, whether known or unknown,
whether at law or equity, whether direct or derivative (herein
“ Claim ” or “ Claims ”)
arising under or relating to the Merger Agreement or any of the
transaction(s) described or referred to in the Merger Agreement;
provided however, that nothing in this Agreement shall
be
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construed to release any Claim arising under or
relating to the Non-Disclosure Agreement, this Agreement or the
Transfer Agreement (as defined below).
3.
It is a condition precedent to the
effectiveness of this Agreement that Pehong Chen enter into that
certain transfer agreement with Vector Capital III, L.P., an
affiliate of Parent and Merger Sub (“ Vector III
”), in the form attached hereto as Exhibit A (the
“ Transfer Agreement ”), pursuant to which
Pehong Chen agrees to cause Honu Holdings LLC to acquire the entire
rights, title and interest in, to and under those certain Senior
Subordinated Secured Convertible Notes (the “ Note
”) of the Company of an aggregate principal amount of
$12,799,999 held by Vector III and consummate the transactions
contemplated thereby, including the full payment of the Purchase
Price (as defined in the Transfer Agreement) to Vector
III.
4.
Each of the Company, Parent and
Merger Sub hereby represents and warrants to the other parties
that: (a) it has full power and authority to enter into this
Agreement and to perform its obligations hereunder in accordance
with its provisions, (b) this Agreement has been duly
authorized, executed and delivered by such party, and (c) this
Agreement constitutes a legal, valid and binding obligation of such
party, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, moratorium
or other similar laws affecting creditors’ rights generally
and by general principles of equity.
5.
This Agreement shall be construed
and enforced in accordance with, and be governed by, the laws of
the State of Delaware without regard to its conflict of law
provisions, and it may not modified, amended or terminated, nor may
the provisions hereof be waived, other than in a written instrument
executed by all parties hereto.
6.
This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original, all of which together shall constitute one and the same
instrument.
[The remainder of this
page is intentionally left blank.]
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IN WITNESS WHEREOF, each of the
undersigned has duly executed this Mutual Termination Agreement as
an agreement as of the date first above written.
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BRAVO HOLDCO
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By:
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/s/ Christopher Nicholson
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Name:
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Christopher Nicholson
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Title:
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Director
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BRAVO MERGER SUB, LLC
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By:
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/s/ Christopher Nicholson
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Name:
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Christopher Nicholson
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Title:
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Chief Executive Officer
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BROADVISION, INC.
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By:
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/s/ Pehong Chen
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Name:
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Pehong Chen
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Title:
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Chief Executive Officer
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EXHIBIT A
TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT, dated as of
November 18, 2005 (this “ Agreement ”), is
between Vector Capital III, L.P. (the “ Seller
”), Pehong Chen (the “ Buyer ”) and
BroadVision, Inc., a Delaware corporation (the “
Issuer ”).
WHEREAS, on November 9, 2005,
the Seller acquired the entire rights, title and interest in, to
and under those certain Senior Subordinated Secured Convertible
Notes of the Issuer of an aggregate principal amount of $12,799,999
(the “ Note ”); and,
WHEREAS, the Seller desires to sell
and assign to the Buyer, and the Buyer desires to purchase from the
Seller, the Seller’s entire rights, title and interest in, to
and under the Note (such sale, assignment and purchase, the “
Transaction ”).
NOW, THEREFORE, in consideration of
the mutual agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1.
Pursuant to the terms hereof, the
Seller hereby sells, transfers, assigns, delegates and conveys unto
the Buyer’s assignee, Honu Holdings LLC, a Delaware limited
liability company wholly owned by the Buyer (“
Holdings ”), without recourse, any and all rights,
title, interests, duties and obligations to the Note, including,
without limitation, all rights, title, interests, duties and
obligations arising out of or incurred in connection with such
assets, for an aggregate purchase price equal to the sum of
(i) $15,359,999 (equal to 120% of the Principal to be
assigned), and (ii) accrued and unpaid interest (including
default interest) on such Principal equal to $120,526 as of
November 21, 2005 and accruing at a rate of $2,104.11 per day
for each day thereafter (the “ Purchase Price
”), payable no later than the close of business on the first
business day after the date hereof. The Buyer, on behalf of himself
and Holdings, hereby accepts the foregoing assignment and
delegation, accepts the Note and assumes all of the Seller’s
rights, title, interests, duties and obligations (whether arising
before or after execution of this Agreement) with respect to the
Note. Each of the Buyer and the Seller shall take all
necess
