UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

31

 

 

   

   

   

Date of Report (Date of Earliest Event Reported):

  

January   2 , 201 9

 

BroadVision, Inc.

__________________________________________

(Exact name of registrant as specified in its charter)



 

 

   

   

   

Delaware

1-34205

94-3184303

_____________________

(State or other jurisdiction

_____________

(Commission

______________

(I.R.S. Employer

of incorporation)

File Number)

Identification No.)

  

   

   

460 Seaport Court , Suite 102 ,  

Redwood City, California

   

94063

_________________________________

(Address of principal executive offices)

   

___________

(Zip Code)







 

 

   

   

   

Registrant's telephone number, including area  code:

   

(650) 331-1000

 

______________________________________________

Former name or former address, if changed since last report

 



Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: 



[  ]  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

[  ]  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

[  ]  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

[  ]  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  [  ]

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  [  ]

 


 





Item 1.01 Entry into a Material Definitive Agreement

 

Series A Preferred Stock Purchase Agreement



On   January   2 , 201 9 ,   BroadVision, Inc. (the “Company”) entered into a Series A Preferred Stock Purchase Agreement with Vmoso, Inc. , a Delaware corporation (“ Vmoso ”)   for the purchase of 745,000 shares of Vm oso’s Series A Preferred Stock for a purchase price comprising the contribution of Company intellectual property and other assets valued by the Company’s Board of Directors at $745,000   (the “Series A SPA” ) . The contributed assets represent substantially all of the intellectual property and other assets relating to the Company’s Clearvale and Vmoso platforms, including the current Clearvale and Vmoso products and the My Vmoso Network ( MVN ) development project . As previously announced, Vmoso will continue the commercialization of the Clearvale and Vmoso products and the development of MVN .    



Following the completion of Vmoso’s sale of Class 1 Common Stock described below, the shares of Series A Preferred Stock owned by the Company represent approximately 19.9% of the total number of shares of Vmoso’s capital stock outstanding .   The rights, preferences and privileges of Vmoso’s Series A Preferred Stock include a liquidation preference of $1.00 per share.



The foregoing is a summary description of the terms and conditions of the Series A SPA and by its nature is incomplete. It is qualified in its entirety by reference to the Series A SPA , which is attached as Exhibit 10. 1 to this Form 8-K and incorporated herein by reference.



Class 1 Common Stock Purchase Agreement



Pursuant to the financing plan announced by the Company in October 2018, on January 2 ,   2019 ,   Dr. Pehong Chen , the Company’s and Vmoso’s President and Chief Executive Officer and the Company’s largest stockholder , purchased 3,000,000 shares of Vmoso’s Class 1 Common Stock, representing approximately 80.1% of the total number of shares of Vmoso’s capital stock outstanding after such purchase, for a purchase price of $3,000,000 in cash pursuant to a Class 1 Common Stock Purchase Agreement between Dr. Chen and Vmoso (the “Common SPA”).



The foregoing is a summary description of the terms and conditions of the Common SPA and by its nature is incomplete. It is qualified in its entirety by reference to the Common SPA, which is attached as Exhibit 10. 2 to this Form 8-K and incorporated herein by reference.



Services and Facilities Agreement



On   January   2 , 201 9 ,   the Company entered into a Services and Facilities Agreement (the “Intercompany Agreement” ) with Vmoso , the terms of which provide for the   payment of certain fees to the Company by Vmoso, in exchange for the contribution of the Company’s expertise, resources, services, as well as the limited use of the Company’s facilities in Vmoso’s business and operations .   The Intercompany Agreement became effective   as of   January   1 , 2019 and shall continue for a period of one year, unless earlie r terminated, and shall be renewable upon written consent from both p arties .



The Company and Vmoso anticipate that, pursuant to the Intercompany Agreement, the Company will provide substantially all of the personnel, facilities and equipment required for Vmoso’s operations for the foreseeable future. The fees contemplated by the Intercompany Agreement are generally intended to permit the Company to recover the cost to it of providing these personnel, facilities , and equipment .



The foregoing is a summary description of the terms and conditions of the Intercompany Agreement and by its nature is incomplete. It is qualified in its entirety by reference to the Intercompany Agreement, which is attached as Exhibit 10. 3 to this Form 8-K and incorporated herein by reference.



Item 2.01 Completion of Acquisition or Disposition of Assets.



The information set forth under Item 1.01 above is hereby incorporated herein by reference.



 


 

Item 9.01 – Financial Statements & Exhibits

 

(a) Exhibits



 


 

SIGNATURES

 

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

31

 

 

 

 

   

   

   

   

   

   

   

BroadVision, Inc.

  

   

   

   

   

January   2 , 201 9

   

By:

   

/s/ Pehong Chen

   

   

   

   

 

   

   

   

   

Name: Pehong Chen

   

   

   

   

Title: Chairman of the Board, President, and Chief Executive Office r



 



 


VMOSO, INC.

SERIES A PREFERRED STOCK PURCHASE AGREEMENT

This Series A Preferred Stock Purchase Agreement (the “ Agreement ”) is ma de as of January 2, 2019 by and between Vmoso, Inc. , a Delaware corporation (the “ Company ”) and BroadVision , Inc. (“ Purchaser ”).  Certain capitalized terms used below are defined in the terms and conditions set forth in Exhibit A attached to this Agreement, which are incorporated by reference.

Total shares of Stock purchased:

7 45 ,000 shares of Series A Preferred Stock (the “ Stock ”)

Purchase Price per share:

$ 1.00

Total Purchase Price:

$ 7 45 ,000.00

Form of Payment:

Transfer of intellectual property rights pursuant to the Technology Assignment Agreement attached as Exhibit   B : $ 7 45 ,000.00



[Remainder of page intentionally left blank]

Series A Preferred Stock Purchase Agreement

BroadVision, Inc.

Page 1

 


 

Additional Terms/Acknowledgements: The undersigned Purchaser acknowledges receipt of, and understands and agrees to, this Series A Preferred Stock Purchase Agreement, including the terms and conditions set forth in Exhibit A attached to this Agreement, which are incorporated by reference. 





 

 

 



COMPANY:



 

 

 



Vmoso, Inc.



 

 



By:

/s/ Pehong Chen



 

 

 



 

Name:

Pehong Chen



 

Title:

Chief Executive Officer



 

 

 



E-mail:

Pehong.Chen@BroadVision.com



 

 

 



Address:

460 Seaport Court, Suite 102



 

Redwood City, CA 94063



 

c/o Broad Vision, Inc.









 

 

 



COMPANY:



 

 

 



BroadVision, Inc.



 

 



By:

/s/ Pehong Chen



 

 

 



 

Name:

Pehong Chen



 

Title:

Chief Executive Officer



 

 

 



E-mail:

Pehong.Chen@BroadVision.com



 

 

 



Address:

460 Seaport Court, Suite 102



 

Redwood City, CA 94063



 

 



 

Series A Preferred Stock Purchase Agreement

BroadVision, Inc.

Page 2

 


 

EXHIBIT A

 
Terms and Conditions Incorporated into

Series A Preferred Stock Purchase Agreement



1. Purchase and Sale of Stock .  Purchaser agrees to purchase from the Company, and the Company agrees to sell to Purchaser, the number of shares of Stock for the consideration set forth in the cover page to this Agreement.  The closing of the transactions contemplated by this Agreement, including payment for and delivery of the Stock, will occur at the offices of the Company immediately following the execution of this Agreement, or at such other time and place as the parties may mutually agree.

2. Investment Representations .  In connection with the purchase of the Stock, Purchaser represents to the Company the following:

(a) Purchaser is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Stock.  Purchaser is purchasing the Stock for investment for Purchaser’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “ Act ”).

(b) Purchaser understands that the Stock has not been registered under the Act by reason of a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of Purchaser’s investment intent as expressed in this Agreement.

(c) Purchaser further acknowledges and understands that the Stock must be held indefinitely unless the Stock is subsequently registered under the Act or an exemption from such registration is available.  Purchaser further acknowledges and understands that the Company is under no obligation to register the Stock.  Purchaser understands that the certificate evidencing the Stock will be imprinted with a legend that prohibits the transfer of the Stock unless the Stock is registered or such registration is not required in the opinion of counsel for the Company.

(d) Purchaser is familiar with the provisions of Rule 144 under the Act as in effect from time to time, that, in substance, permits limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer of such securities (or from an affiliate of such issuer), in a non-public offering subject to the satisfaction of certain conditions.

(e) Purchaser further understands that at the time Purchaser wishes to sell the Stock there may be no public market upon which to make such a sale, and that, even if such a public market then exists, the Company may not be satisfying the current public information requirements of Rule 144, and that, in such event, Purchaser may be precluded from selling the Stock under Rule 144 even if the minimum holding period requirement had been satisfied.

(f) Purchaser further warrants and represents that Purchaser has either (i) preexisting personal or business relationships, with the Company or any of its officers, directors or controlling persons, or (ii) the capacity to protect Purchaser’s own interests in connection with the purchase of the Stock by virtue of the business or financial expertise of Purchaser or of professional advisors to Purchaser who are unaffiliated with and who are not compensated by the Company or any of its affiliates, directly or indirectly.

(g) Purchaser acknowledges that Purchaser has read all tax related sections and further acknowledges Purchaser has had an opportunity to consult Purchaser’s own tax, legal and financial advisors regarding the purchase of Series A Preferred Stock under this Agreement.

Exhibit A to Series A Preferred Stock Purchase Agreement

BroadVision, Inc.

Page 1

 


 

(h) Purchaser acknowledges and agrees that in making the decision to purchase the Series A Preferred Stock under this Agreement, Purchaser has not relied on any statement, whether written or oral, regarding the subject matter of this Agreement, except as expressly provided in this Agreement and in the attachments and exhibits to this Agreement.

(i) If the Purchaser is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “ Code ”)), the Purchaser has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Stock or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the Stock, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Stock.  The Purchaser’s subscription and payment for and continued beneficial ownership of the Stock will not violate any applicable securities or other laws of the Purchaser’s jurisdiction.

3. Restrictive Legends .  All certificates representing the Stock will have endorsed thereon legends in substantially the following forms (in addition to any other legend which may be required by other agreements between the parties to this Agreement):

(a) “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED.  THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.”

(b) “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL OPTION IN FAVOR OF THE CORPORATION AND/OR ITS ASSIGNEE(S) AS PROVIDED IN THE BYLAWS OF THE CORPORATION.”

(c) “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A TRANSFER RESTRICTION, AS PROVIDED IN THE BYLAWS OF THE CORPORATION.”

(d) Any legend required by appropriate blue sky officials.

4. Market Stand-Off Agreement .  Purchaser will not sell, dispose of, transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale of, any Common Stock or other securities of the Company held by Purchaser (other than those included in the registration), including the Stock (the “ Restricted Securities ”), during the 180-day period following the effective date of  the Company’s first firm commitment underwritten public offering of its Common Stock (or such longer period as the underwriters or the Company will request in order to facilitate compliance with FINRA Rule 2241 or NYSE Member Rule 472 or any successor or similar rule or regulation)   .  Purchaser agrees to execute and deliver such other agreements as may be reasonably requested by the Company and/or the managing underwriters that are consistent with the foregoing or that are necessary to give further effect to the foregoing provision.  In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to Purchaser’s Restricted Securities until the end of such period. The underwriters of the Company’s stock are intended third party beneficiaries of this Section 4 and have the right, power and authority to enforce the provisions hereof as though they were a party to this Agreement.

5. Miscellaneous .

Exhibit A to Series A Preferred Stock Purchase Agreement

BroadVision, Inc.

Page 2

 


 

(a) Notices . All notices required or permitted hereunder will be in writing and will be deemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not during normal business hours of the recipient, then on the next business day; (iii) five calendar days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one business day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.  All communications will be sent to the other party to this Agreement at such party’s address hereinafter set forth on the signature page hereof, or at such other address as such party may designate by 10 days’ advance written notice to the other party hereto.

(b) Successors and Assigns .   This Agreement will inure to the benefit of the successors and assigns of the Company and, subject to the restrictions on transfer herein set forth, be binding upon Purchaser, Purchaser’s successors, and assigns.

(c) Attorneys’ Fees .     The prevailing party in any suit or action hereunder will be entitled to recover from the losing party all costs incurred by it in enforcing the performance of, or protecting its rights under, any part of this Agreement, including reasonable costs of investigation and attorneys’ fees. 

(d) Governing Law; Venue .  This Agreement will be governed by and construed in accordance with the laws of the State of Delaware.  The parties agree that any action brought by either party to interpret or enforce any provision of this Agreement will be brought in, and each party agrees to, and does hereby, submit to the jurisdiction and venue of, the appropriate state or federal court for the district encompassing the Company’s principal place of business .

(e) Further Execution .  The parties agree to take all such further actions as may reasonably be necessary to carry out and consummate this Agreement as soon as practicable, and to take whatever steps may be necessary to obtain any governmental approval in connection with or otherwise qualify the issuance of the securities that are the subject of this Agreement.

(f) Independent Counsel .  Purchaser acknowledges that this Agreement has been prepared on behalf of the Company by Cooley LLP , counsel to the Company and that Cooley LLP does not represent, and is not acting on behalf of, Purchaser.  Purchaser has been provided with an opportunity to consult with his, her or its own counsel with respect to this Agreement.

(g) Entire Agreement; Amendment .  This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and merges all prior agreements or understandings, whether written or oral, with respect to the subject matter hereof.  This Agreement may not be amended, modified or revoked, in whole or in part, except by an agreement in writing signed by each of the parties hereto.

(h) Severability .  If one or more provisions of this Agreement are 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 will be excluded from this Agreement, (ii) the balance of the Agreement will be interpreted as if such provision were so excluded and (iii) the balance of the Agreement will be enforceable in accordance with its terms.

(i) Counterparts This Agreement (including any schedules and/or exhibits hereto or thereto) may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of

Exhibit A to Series A Preferred Stock Purchase Agreement

BroadVision, Inc.

Page 3

 


 

2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.

[End of Exhibit A to Series A Preferred Stock Purchase Agreement]

Exhibit A to Series A Preferred Stock Purchase Agreement

BroadVision, Inc.

Page 4

 


 

Exhibit B

Technology Assignment Agreement



 

 


 

 

TECHNOLOGY ASSIGNMENT AGREEMENT

This Technology Assignment Agreement (the “ Agreement ”) is entered in to as of January   2, 2019 , by and between BroadVision , Inc. (the “ Assignor ”) and Vmoso, Inc. , a Delaware corporation (the “ Company ”).  The parties hereto agree as follows:

Agreement

1. In consideration of the Company’s agreement to issue Company stock to Assignor, Assignor hereby irrevocably assigns, sells, transfers and conveys to the Company all right, title and interest, on a worldwide basis, in and to the technology described in Schedule 1 attached hereto and all applicable intellectual property rights, on a worldwide basis, related thereto, including, without limitation, copyrights, trademarks   (and the goodwill of the b usiness(es) symbolized thereby) , trade secrets, patents, patent applications, moral rights, contract and licensing rights (the “ Property ”).  In consideration for such transfer of the Property, the Company will grant to Assignor shares of its Series A Preferred Stock .  Assignor hereby acknowledges that Assignor retains no right to use the Property and agrees not to challenge the validity of the Company’s ownership of the Property.

2. Upon each request by the Company, without additional consideration, Assignor agrees to promptly execute documents, testify and take other actions at the Company’s expense as the Company may deem necessary or desirable to procure, maintain, perfect, and enforce the full benefits, enjoyment, rights, title and interest, on a worldwide basis of the Property assigned hereunder, and render all necessary assistance in making application for and obtaining original, continuing, divisional, renewal, or reissued utility and design patents, copyrights, mask works, trademarks, trade secrets, and all other technology and intellectual property rights throughout the world related to any of the Property, in the Company’s name and for its benefit.  In the event the Company is unable for any reason, after reasonable effort, to secure Assignor’s signature on any document needed in connection with the actions specified herein, Assignor hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as its agent and attorney in fact, which appointment is coupled with an interest, to act for and in its behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this paragraph with the same legal force and effect as if executed by Assignor.  Assignor hereby waives and quitclaims to the Company any and all claims, of any nature whatsoever, which Assignor now or may hereafter have for infringement of any Property assigned hereunder.

3. Assignor will deliver to the Company upon execution of this Agreement any and all tangible manifestations of the Property, including, without limitation, all notes, records, files and tangible items of any sort in its possession or under its control relating to the Property.  Such delivery will include all present and predecessor versions.  In addition, Assignor agrees to provide to the Company from and after the execution of this Agreement and at the expense of the Company competent and knowledgeable assistance to facilitate the transfer of all information, know-how, techniques, processes and the like related to such tangible manifestation and otherwise comprising the intangible aspects of the Property.

4. Assignor represents and warrants to the Company that (a) Assignor is the sole owner of the Property and has full and exclusive right to assign the rights assigned herein, (b) Assignor has full right and power to enter into and perform this Agreement without the consent of any third party, (c) all of the Property is free and clear of all claims, liens, encumbrances and the like of any nature whatsoever, (d) the Property is an original work of Assignor, (e) none of the Property infringes, conflicts with or violates any patent or other intellectual property right of any kind (including, without limitation, any trade secret) or similar rights of any third party, (f) Assignor was not acting within the scope of employment or other service arrangements with any third party when conceiving, creating or otherwise performing any activity with respect to the

Technology Assignment Agreement

BroadVision, Inc.

Page 1

 


 

 

Property, (g) the execution, delivery and performance of this Agreement does not conflict with, constitute a breach of, or in any way violate any arrangement, understanding or agreement to which Assignor is a party or by which Assignor is bound and (h) Assignor has maintained the Property in confidence and has not granted, directly or indirectly, any rights or interest whatsoever in the Property to any third party.

5. Assignor further represents and warrants to the Company that no claim, whether or not embodied in an action past or present, of any infringement, of any conflict with, or of any violation of any patent, trade secret or other intellectual property right or similar right, has been made or is pending or threatened against Assignor relative to the Property.  Assignor agrees to promptly inform the Company of any such claim arising or threatened in the future with respect to the Property or any part thereof.

6. Assignor will indemnify and hold harmless the Company, from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) which result from a breach or alleged breach of any representation or warranty of Assignor (a “ Claim ”) set forth in this Agreement, provided that the Company gives Assignor written notice of any such Claim and Assignor has the right to participate in the defense of any such Claim at its expense.

7. This Agreement and the Schedule attached hereto constitute the entire, complete, final and exclusive understanding and agreement of the parties hereto with respect to the subject matter hereof, and supersedes any other prior or contemporaneous oral understanding or agreement or any other prior written agreement.  No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the parties hereto.

8. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.

9. This Agreement will be governed and construed in accordance with the laws of the State of Delaware, as such laws are applied by Delaware courts to contracts made and to be performed entirely in Delaware by residents of that state.  Assignor hereby expressly consents to the personal jurisdiction of the state and federal courts located in the county in which the Company has its principal offices for any lawsuit filed there against Assignor by the Company arising from or related to this Agreement.

10. If any provision of this Agreement is found invalid or unenforceable, in whole or in part, the remaining provisions and partially enforceable provisions will, nevertheless, be binding and enforceable.

11. Failure by either party to exercise any of its rights hereunder will not constitute or be deemed a waiver or forfeiture of such rights.

12. The provisions hereof will inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.

[Remainder of page intentionally left blank]

Technology Assignment Agreement

BroadVision, Inc.

Page 2

 


 

 

The undersigned have executed this Technology Assignment Agreement   as of the date set forth above.



COMPANY:



 

 

 



Vmoso, Inc.



 

 



By:

/s/ Pehong Chen



 

 

 



 

Name:

Pehong Chen



 

Title:

Chief Executive Officer



 

 

 



E-mail:

Pehong.Chen@BroadVision.com



 

 

 







ASSIGNOR:



 

 

 



BroadVision, Inc.



 

 



By:

/s/ Pehong Chen



 

 

 



 

Name:

Pehong Chen



 

Title:

Chief Executive Officer



 

 

 



E-mail:

Pehong.Chen@BroadVision.com



 

 

 





 

Technology Assignment Agreement

BroadVision, Inc.

Signature Page

187032352 v4  


 

 

SCHEDULE 1 TO TECHNOLOGY ASSIGNMENT AGREEMENT

DESCRIPTION OF TECHNOLOGY

See attached pdf file entitled New Co Asset Transfer

 

187032352 v4  


 

 

Clearvale Vmoso Asset Transfer

Engineering



Source control



Repository

 http://vm-svn.broadvision.com/svn/mychrm/





Servers and devices



Engineering Shared and Production Computer Systems

See attached document: Clearvale and Vmoso Servers.pdf



Engineering Work Computer Systems

See Appendix I



BVOD

Computer systems - See Appendix II Mobile devices - See Appendix III





Employees Personal Computer Systems

Some Employees uses personal computer systems for work. See list in Appendix IV.



Documentation



Clearvale

Documentation can be found on   https://cvc.clearvale.com

\\rw-fs1\Documentation\user.docs\works-in-progress\Clearvale



Vmoso

https://www.vmoso.com/help/

 

 


 

 

https://ngxbeta.vmoso.com/help/vmosongxhelp/

\\rw-fs1\Documentation\user.docs\works-in-progress\Vmoso



Third party service and software licenses





Vendor, product

Purpose

Product using

Active Presenter

Training videos production

Clearvale, Vmoso

Amazon Web Service

Hosting

Clearvale, Vmoso

Ansavoice

Monitoring

Clearvale, Vmoso

Apple Developer Program

iOS app for App Store

Clearvale, Vmoso

Atlassian (Jira)

Issue tracking

Vmoso

CKSource CKEditor

Rich text editor

Clearvale, Vmoso

Comodo

SSL certificates

Clearvale

Firebase Messaging

Push notification

Vmoso

Google API

Google Integration

Clearvale, Vmoso

Google Developer Program

Android app for Google Market

Clearvale, Vmoso

HeroThemes

Wordpress theme

Vmoso

Hurricane Electric

Hosting

Clearvale, Vmoso

Maxmind

Geolocation

Clearvale

Nanospell

Spell checker

Vmoso

Office 365

Developer license (to be cancelled)

Vmoso

RapidSSL (thesslstore.com)

SSL certificates

Vmoso

Samsung SEAP

Samsung managed app

Vmoso

T-Systems

Hosting

Clearvale, Vmoso

Talentlms

Training materials hosting

Vmoso

TypeForm

Online survey (free

Vmoso

 

 


 

 



subscription to be cancelled)

 

Uptrends

Monitoring

Clearvale, Vmoso

Webtranslateit

Translation

Vmoso

Wordpress plugin wpml

Translation

Vmoso





Patents

1. 8,639,552,   SYSTEMS   AND   METHODS   FOR   CREATING   AND   SHARING   TASKS, issued   2014-01-28

2. 9,608,987,   SYSTEMS   AND   METHODS   FOR   THE   SECURE   SHARING   OF   DATA, issued   2017-03-28





Marketing



Marketing Materials

Materials for MyVmoso, Vmoso and Clearvale include

White   papers

Presentations

Data   sheets

Videos

Web   content

Logo

Graphics

etc...



The content is hosted on web site

http://www.broadvision.com/resources



Domain Names

All domain names in this spreadsheet for products Vmoso and Clearvale https://docs.google.com/spreadsheets/d/18xvoaZabLSa2XfV-2_WcGya3tLtMdYR82OeJGtFscy   k/edit?usp=sharing



Domain Name

Registration

Expires

Product

 

 


 

 

 clearvale-apj.com

Network Solution

2020-09-15

Clearvale

 clearvale-beta.com

Network Solution

2019-05-03

Clearvale

 clearvale-eu.com

Network Solution

2019-05-22

Clearvale

 clearvale-eu.net

Network Solution

2019-02-05

Clearvale

 clearvale.biz

Network Solution

2019-09-24

Clearvale

 clearvale.com

Network Solution

2020-02-11

Clearvale

 clearvale.com.tw

Network Solution

2019-03-04

Clearvale

 clearvale.es

GoDaddy

2018-12-17

Clearvale

 clearvale.it

GoDaddy

2018-12-17

Clearvale

 clearvale.net

Network Solution

2019-05-03

Clearvale

 clearvale.n l

GoDaddy

2018-12-19

Clearvale

 clearvale.org

Network Solution

2019-05-03

Clearvale

 itsclear.com

Network Solution

2019-01-25

Clearvale

 myclearvale.com

GoDaddy

2019-09-19

Clearvale

 myclearvale.info

GoDaddy

2019-09-24

Clearvale

 myclearvale.net

GoDaddy

2019-09-19

Clearvale

 myclearvale.org

GoDaddy

2019-09-24

Clearvale

 mytaskmail.com

GoDaddy

2018-10-11

Vmoso

myvmoso.app

GoDaddy

2019-09-06

Vmoso

 myvmoso.com

GoDaddy

2019-06-05

Vmoso

 myvmoso.net

GoDaddy

2019-06-05

Vmoso

 taskmail.com

GoDaddy

2019-05-20

Vmoso

 virmoso.biz

GoDaddy

2019-08-22

Vmoso

 virmoso.co.uk

GoDaddy

2019-08-23

Vmoso

 virmoso.com

GoDaddy

2019-08-22

Vmoso

 virmoso.fr

GoDaddy

2019-08-22

Vmoso

 virmoso.it

GoDaddy

2019-08-23

Vmoso

 virmoso.mobi

GoDaddy

2019-08-23

Vmoso

 virmoso.net

GoDaddy

2019-08-22

Vmoso

 virmoso.tw

GoDaddy

2019-08-23

Vmoso

 virmoso.us

GoDaddy

2019-08-22

Vmoso

vmoso.app

GoDaddy

2019-09-06

Vmoso

 vmoso.com

GoDaddy

2019-09-23

Vmoso

 vmoso.info

GoDaddy

2019-09-24

Vmoso

 

 


 

 

 vmoso.net

GoDaddy

2019-09-23

Vmoso

 vmoso.org

GoDaddy

2019-09-24

Vmoso

 vmosonetwork.com

GoDaddy

2019-06-05

Vmoso

 vmosonetwork.net

GoDaddy

2019-06-05

Vmoso

 vmosonetworks.com

GoDaddy

2019-06-05

Vmoso

 vmosonetworks.net

GoDaddy

2019-06-05

Vmoso

 vmosoplus.com

GoDaddy

2019-06-05

Vmoso

 vmosoplus.net

GoDaddy

2019-06-05

Vmoso

 vmosopro.com

GoDaddy

2019-06-05

Vmoso

 vmosopro.net

GoDaddy

2019-06-05

Vmoso

 vmosostar.com

GoDaddy

2019-06-05

Vmoso

 vmosostar.net

GoDaddy

2019-06-05

Vmoso

 yunrenwu.net

GoDaddy

2019-08-31

Vmoso

 yunrenwu.org

GoDaddy

2019-08-31

Vmoso











Trademarks



Trademark

Registration No.

Registration Date

CLEARVALE

4,253,421

2012-12-04

CLEARVALE (Stylized)

4,253,420

2012-12-04





Sales



Customer and Partner Contracts



Clearvale Customers

1. GC

a. Clearvale Order Form between HONG KONG BAPTIST HOSPITAL   and BroadVision, Inc dated   2018-05-04

2. EMEA

 

 


 

 

a. Clearvale   Order   Form   between   Contexo   GesellSchaft   fur   Systemintegration   mbh and BroadVision, Inc date   2018-06-26

b. Clearvale   Order   Form   between   Zambon   S.p.A.   and   BroadVision,   Inc   dated 2018-06-05

c. Clearvale   Order   Form   between   CIGREF   and   BroadVision,   Inc   dated   2018

3. Japan

a. Clearvale   Order   Form   between   K.K.   Ashisuto   and   BroadVision   Japan   K.K.   dated 2016-02-17

b. Clearvale   Order   Form   between   Hoya   /   Pentax   Medical   and   BroadVision   Japan

K.K. dated 2017-11-22

c. Clearvale   Order   Form   between   Plus   Jointex   and   BroadVision   Japan   K.K.   dated 2016-09-01

d. Clearvale   Order   Form   between   Jun-Ashida   and   BroadVision   Japan   K.K.   dated 2016-12-15

e. Clearvale Order Form between Software Research Associates, Inc   and BroadVision Japan K.K. dated   2015-12-08

f. Clearvale   Order   Form   between   NTT   PC   and   BroadVision   Japan   K.K.   dated 217-11-07



Vmoso Customers

1. GC

a. Vmoso Order Form between Mitac Information Technology Corp   and BroadVision Inc. dated   2017-12-25

b. Professional   Service   Agreement   between   Mitac   Information   Technology   Corp and BroadVision Taiwan dated   2018-02-01

c. Vmoso   Order   Form   between   TECHTREE   IT   SYSTEMS   PRIVATE   LIMITED   and BroadVision, Inc. dated   2016-12-08

d. Vmoso   Order   Form   between   President   Information   Corp   and   BroadVision   Taiwan dated   2018-08-07

e. Settlement   Agreement   between   President   Information   Corp   and   BroadVision Taiwan dated   2018-08-28

2. EMEA

a. Vmoso Order Form between EAQC GmbH and BroadVision, Inc.   dated 2018-03-01

b. Vmoso   Order   Form   between   EE-ISAC   and   BroadVision,   Inc.   dated   2018-01-22

c. Vmoso   Order   Form   between   ConsSys   IT   AG   and   BroadVision,   Inc.   dated 2017-11-29

3. Japan

a. Vmoso   Order   Form   between   Canon   Marketing   Japan   Inc.   and   BroadVision   Japan

K.K. dated 2017-10-17

b. Vmoso Order Form between Software Research Associates, Inc.   and BroadVision Japan K.K. dated   2015-12-08

 

 


 

 



Vmoso Partners

1. GC

a. BroadVision   Partner   Agreement   between   Mitac   Information   Technology   Corp   and BroadVision Taiwan dated   2017-01-25

i. Exhibit A: Initial Business   Terms

ii. Exhibit B:   Support

b. BroadVision   Partner   Agreement   between   TECHTREE   IT   SYSTEMS   PRIVATE LIMITED and BroadVision, Inc. dated   2017-01-10

c. Agent   Agreement   between   Yip-In-Tsoi   and   BroadVision,   Inc   dated   2016-10-21

d. Agent Agreement between MaxResourceIT International Co Ltd   and BroadVision, Inc dated   2017-03-28

e. Agent   Agreement   between   Farmor   Cloud   Factory   Co.   Ltd.   and   BroadVision,   Inc dated   2016-04-18

2. EMEA

a. Agent   Agreement   between   Contexo   GesellSchaft   fur   Systemintegration   mbh   and BroadVision, Inc dated   2018-06-26

b. Partner   Agreement   of   1   Feb   2018   between   ConsSys   IT   AG   and   BroadVision,   Inc. dated   2018-01-22

c. Vmoso   Referral   Agreement   between   Business   Networks   Europe   Gmbh   and BroadVision, Inc. dated   2011-11-06

d. Vmoso   Reseller   Agreement   between   Extended   Knowledge   Services   LS   and BroadVision, Inc dated   2018-03-23



Partners

1. Japan

a. Partner   Agreement   between   NTT   Communications   and   BroadVision   Japan   K.K. dated   2014-01-31

b. Partner   Agreement   between   BQ   Technologies   and   BroadVision   Japan   K.K.   dated 2015-12-18

c. Partner   Agreement   between   River   Field   and   BroadVision   Japan   K.K.   dated 2017-07-27

d. Agent   Agreement   between   OMG   Japan   and   BroadVision   Japan   K.K.   dated 2018-04-10

e. Agent   Agreement   between   K.K.   Ashisuto   and   BroadVision   Japan   K.K.   dated 2016-09-13

 

 


 

 



Appendix I

US employee development systems





Employee s

HW Type

Model

Asset Tag

Service Tag

Serial No.

Locat ion

HostNa me

Baba, Norman

Dell Desktop

Optiplex 3020

O0533

9LBQN2

2

20880549434

RWC

W10-05 33

Baba, Norman

Samsung Phone

GT-I9100

O0497

 

RF-1D194W T2J

RWC

 

Baba, Norman

Apple Mac Mini

A1347

O0502

 

C07KC04GD WYL

RWC

 

Chan, Dennison Keith

Apple MacBook Pro

A1425

O0498

 

C02K48Q2F FRP

RWC

Dennys- MBP

Chan, Yuk

Dell Laptop

Inspiron 15-5559

O0541

568BM7

2

11260687646

RWC

W10-05 41

Chan, Yuk

Samsung

Galaxy S WiFi 4.0

O0548

 

 

RWC

Yuk-Gal axy-S6

Chan, Yuk

Samsung Tablet

GT-P311 3

O0547

 

R82C3028Y NJ

RWC

 

Chen, Pehong

MS Tablet

MS

Surface

O0527

 

 

RWC

CHEN- SP3

Chen, Pehong

Dell Laptop

Inspiron 13-7000

O0542

F8FSC8 2

32161980898

RWC

W10-05 42

Deleon, Ruel

Dell Desktop

Optiplex 3010

O0505

BVZ0DX 1

25877861749

RWC

Ruels-M BP

Der, Robert

Dell Desktop

Optiplex 3010

O0480

7QJRTV

1

16842808045

RWC

W7-048 0

Hankodo, Petrus

Dell Desktop

Optiplex 3010

O0537

9LBGN2

2

20880082874

RWC

W10-05 37

 

 


 

 



Henderson

, Tuc

Lenovo Laptop

T60

O0348

L3BT65 4

1953-EUU

RWC

 

Hsu,

Yun-Ping

Dell Laptop

XPS-13 9350

O0553

2B2LTC

2

5023432514

Taiwa n

 

Hughes, Richard

Apple Mac Book

A1342

O0400

 

WQ94919Q8 PW

UK

 

Hui, John

Apple MacBook Pro

A1279

O0522

 

C1ML33YTD V30

RWC

 

Lai, Patrick

Dell Laptop

Latitude E5400

O0379

GYWKY G1

36939091537

RWC

 

Lipinsky, Ed

Dell Desktop

Optiplex 3010

O0506

BZS0DX 1

26107969141

RWC

W7-050 6

Lipinsky, Ed

LG Nexus Phone

 

O0549

 

510KPJP481

380

RWC

 

Luo, Frank

Dell Laptop

Latitude E5420

O0443

D9PL4S 1

28883542321

US

W7-044 3

Mitani, Eiko

Dell Desktop

Optiplex 3020

O0537

2NGGJ S1

5771932706

RWC

W10-05 37

Mitani, Eiko

Dell Desktop

Optiplex 390

O0476

2NGGJ S1

5771932706

RWC

W7-047 6

Mitani, Eiko

Lenovo Laptop

E430

O0462

 

MP-0MYLE 12-06

RWC

W10-04 62

Sidle, Steve

Dell Laptop

Precision M4700

O0531

GNGHN X1

36246937429

RWC

W10-05 31

Sidle, Steve

Dell Laptop

XPS13-2 700sLV

O0504

FN2Y1 W1

34047405073

RWC

 

Valmiki, Jagadeesh

Dell Desktop

Optiplex 3010

O0485

C08TXV 1

26136221869

RWC

W10-04 85

Wong, Dexter

Dell Desktop

Optiplex 3010

O0479

7QKSTV

1

16844534317

RWC

W7-047 9

Zhang,

Dell

Optiplex

O0503

BVYYC

25877767141

RWC

W7-050

 

 


 

 

Lisheng Desktop 3010 X1 3

 

 


 

 

Appendix II

BVOD systems







Name

Computers

Personal computers to hold company data

Wang, Wei

1.   HP Pro 3330

No

Zhao, HongYan

1. HP Pro 3330

2. HP TPN-Q129

No

Xu, Chao

1.   MBP

Yes

Shi, NanJun

1.   Dell vostro 270s

No

Dong, Xia

1. lenovo   E430c

2. lenovo   x230i

3. dell vostro 3902

4. HP laserjet M1005MFP(printer

)

5. OKI microline760F(print er)

6. Fellowes

P-35C(Shredder)

No

Dong, Qiuhong

1. lenovo   x220i

2. lenovo   x230i

No

Shen,Ruoy u

1.   lenovo U410

No

Liu,Wenbin

1. HP Pro3330

2. Mac mini

Yes



OpenVPN cento7_openvpn_1.195   123.125.107.112

 

 


 

 



Appendix III

BVOD mobile devices







手机 & 平板

Apple

&

 

Ipad 4

OnDemand

平板: surface 32G (2014-12-8

王薇 )

Surface pro (2015/02/06 )

ipad 1   (已 归还 ,放入小机房 柜子上 箱中

itouch   同上 2014/12/25 )   ipad-mini1

刘文斌

平板:

ipad2



三星 GT-P5110

itouch



手机 :

iphone5(2013-3-20)



Sony  8G SD 卡   2013-7-27

ipad4(2013-3-20)



小米   2S 2013-7-29

ipad mini(2013-3-20 QA 共用 )



三星   note2 2013-7-30

itouch4 16G 2013-3-21



铂   T8N14100071   32G

 



14-11-6

 



檬   K3 Note 16G

 



(2015-06-30 S/N

 



HA0A57WH(60))

 



HTC E9pw 手机 (32G

 



2015-08-06

 



SN:LC53MYH00999)

 



华为 荣耀 8 FRD-AL10

 



2017-08-11 SN

 



GSL0217721000593

 



Sony Xperia (ntt)docomo

 



(2017-09-29)

 

 

 


 

 

QA

Nexus7

iphone3

(江莉莉)

Blackberry  9800 Torch

itouch



Blackberry Classic SQC100-1

ipad1



Black (2015-10-27)

iphone5(2013-3-20)



Samsung  GT-S5570

ipad4(2013-3-20)



HTC Sensation Z710e

MAC mini MD387CH/A



Samsung I8262D 3G 手机(

(2013-7-25)



2013-3-21

Iphone5c 2013-1-13 usa 来)



MEIZU NOTE2 (2015-07-01

Ipad mini 2013-1-13 usa 来)



SN:810EBLS29ZXN)

Ipad mini2(2015-06-29



Samsung Galaxy S6

F9FPMUU6FCM8)



SM-G9209 4G 手机 (2016-06-23)

Mac mini C07RH19TG1HW



Apple iPhone 6 A1586 TD-LTE

(2.6GHZ 8G 1TB 2016 年新 )



(2016-06-29) (IMEI

 



359279065357805)

 



Sony E6533 Black (2016-07-29)

 



(IMEI 35909806-108542-0)

 



Huawei Mate 8 (NXT-AL10)

 



(IMEI1 862521039385770)

 



OPPO R15

 



(IMEI:869318038989253,

 



869318038989246)

 

退

摩托 拉   MB525

三星 GT-P1010

HTC Desire S 5510e HTC T528W One SU )   2013-3-21

华为 Asceend MateG3

2013-7-27

 

 

 


 

 



Appendix IV

Employees using personal computer systems







Employee

Type

Details

Chen, Sandra

Laptop

Lenovo E330

Chen, Don

Personal

 

Lin, Jiasheng

Laptop

Lenovo 13

Portal, Bill

Laptop

Samsung NP905S3G

Sakayori, Tsugutoshi

Personal

 

Lida, Reiko

Laptop

Lenovo S300



 

 





 


VMOSO, INC.

CLASS 1 COMMON STOCK PURCHASE AGREEMENT

This Common Stock Purchase Agreement (the “ Agreement ”) is made as of January 2, 2019 by and between Vmoso, Inc. , a Delaware corporation (the “ Company ”) and Dr. Pehong Chen (“ Purchaser ”).  Certain capitalized terms used below are defined in the terms and conditions set forth in Exhibit A attached to this Agreement, which are incorporated by reference.

Total shares of Stock purchased:

3 ,000,000 shares of Class 1 Common Stock (the “ Stock ”)

Purchase Price per share:

$ 1.00

Total Purchase Price:

$ 3 ,000.00 0 .00

Form of Payment:

Cash: $ 3,000.000.00



[Remainder of page intentionally left blank]

Class 1 Common Stock Purchase Agreement

Pehong Chen

Page 1

 


 

Additional Terms/Acknowledgements: The undersigned Purchaser acknowledges receipt of, and understands and agrees to, this C lass 1 Common Stock Purchase Agreement, including the terms and conditions set forth in Exhibit A attached to this Agreement, which are incorporated by reference. 



COMPANY:



 

 

 



Vmoso, Inc.



 

 



By:

/s/ Pehong Chen



 

 

 



 

Name:

Pehong Chen



 

Title:

Chief Executive Officer



 

 

 



E-mail:

Pehong.Chen@BroadVision.com



 

 

 



Address:

460 Seaport Court, Suite 102



 

Redwood City, CA 94063



 

c/o Broad Vision, Inc.









 

 

 



PURCHASER:



 

 

 



Pehong Chen



 

 



/s/ Pehong Chen



(Signature)



 

 

 



E-mail:

Pehong.Chen@BroadVision.com



 

 

 



Address:

460 Seaport Court, Suite 102



 

Redwood City, CA 94063



 

 



 

Class 1 Common Stock Purchase Agreement

Pehong Chen

Page 2

 


 

EXHIBIT A

 
Terms and Conditions Incorporated into

Class 1 COMMON Stock Purchase Agreement



1. Purchase and Sale of Stock .  Purchaser agrees to purchase from the Company, and the Company agrees to sell to Purchaser, the number of shares of Stock for the consideration set forth in the cover page to this Agreement.  The closing of the transactions contemplated by this Agreement, including payment for and delivery of the Stock, will occur at the offices of the Company immediately following the execution of this Agreement, or at such other time and place as the parties may mutually agree.

2. Investment Representations .  In connection with the purchase of the Stock, Purchaser represents to the Company the following:

(a) Purchaser has been given the opportunity to ask questions and obtain material and relevant information from the Company regarding the Stock. Purchaser is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire the Stock.  Purchaser is purchasing the Stock for investment for Purchaser’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “ Act ”).

(b) Purchaser understands that the Stock has not been registered under the Act by reason of a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of Purchaser’s investment intent as expressed in this Agreement.

(c) Purchaser further acknowledges and understands that the Stock must be held indefinitely unless the Stock is subsequently registered under the Act or an exemption from such registration is available.  Purchaser further acknowledges and understands that the Company is under no obligation to register the Stock.  Purchaser understands that the certificate evidencing the Stock will be imprinted with a legend that prohibits the transfer of the Stock unless the Stock is registered or such registration is not required in the opinion of counsel for the Company. Purchaser further acknowledges that   the Stock purchased hereunder may be required to be held indefinitely, and that during such time, the value of such Stock may increase or decrease, such that any risk associated with the fluctuation in value of such Stock shall be borne by the Purchaser.

(d) Purchaser understands and acknowledges that i n addition to any other limitation on transfer created by applicable securities laws, Purchaser shall not assign, hypothecate, donate, encumber or otherwise dispose of any interest in the Stock except in compliance with the provisions contained herein, in the Bylaws of the Company , and any applicable securities laws. Furthermore, Purchaser explicitly acknowledges   that the Stock shall be subject to any right of first refusal in favor of the Company or its assignees as provided in the Bylaws of the Company .

(e) Purchaser is familiar with the provisions of Rule 144 under the Act as in effect from time to time, that, in substance, permits limited public resale of “restricted securities” acquired, directly or indirectly, from the issuer of such securities (or from an affiliate of such issuer), in a non-public offering subject to the satisfaction of certain conditions.

(f) Purchaser further understands that at the time Purchaser wishes to sell the Stock there may be no public market upon which to make such a sale, and that, even if such a public market then exists, the Company may not be satisfying the current public information requirements of Rule 144, and that, in such

 


 

event, Purchaser may be precluded from selling the Stock under Rule 144 even if the minimum holding period requirement had been satisfied.

(g) Purchaser further warrants and represents that Purchaser has either (i) preexisting personal or business relationships, with the Company or any of its officers, directors or controlling persons, or (ii) the capacity to protect Purchaser’s own interests in connection with the purchase of the Stock by virtue of the business or financial expertise of Purchaser or of professional advisors to Purchaser who are unaffiliated with and who are not compensated by the Company or any of its affiliates, directly or indirectly.

(h) Purchaser acknowledges that Purchaser has read all tax related sections and further acknowledges Purchaser has had an opportunity to consult Purchaser’s own tax, legal and financial advisors regarding the purchase of c ommon s tock under this Agreement.

(i) Purchaser acknowledges and agrees that in making the decision to purchase the c ommon s tock under this Agreement, Purchaser has not relied on any statement, whether written or oral, regarding the subject matter of this Agreement, except as expressly provided in this Agreement and in the attachments and exhibits to this Agreement.

(j) If the Purchaser is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “ Code ”)), the Purchaser has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Stock or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the Stock, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Stock.  The Purchaser’s subscription and payment for and continued beneficial ownership of the Stock will not violate any applicable securities or other laws of the Purchaser’s jurisdiction.

3. Restrictive Legends .  All certificates representing the Stock will have endorsed thereon legends in substantially the following forms (in addition to any other legend which may be required by other agreements between the parties to this Agreement):

(a) “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS AMENDED.  THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.”

(b) “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL OPTION IN FAVOR OF THE CORPORATION AND/OR ITS ASSIGNEE(S) AS PROVIDED IN THE BYLAWS OF THE CORPORATION.”

(c) “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A TRANSFER RESTRICTION, AS PROVIDED IN THE BYLAWS OF THE CORPORATION.”

(d) Any legend required by appropriate blue sky officials.

4. Market Stand-Off Agreement .  Purchaser will not sell, dispose of, transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same eco nomic effect as a sale of, any common s tock or other securities of the Company held by Purchaser (other

 


 

than those included in the registration), including the Stock (the “ Restricted Securities ”), during the 180-day period following the effective date of  the Company’s first firm commitment under written public offering of its common s tock (or such longer period as the underwriters or the Company will request in order to facilitate compliance with FINRA Rule 2241 or NYSE Member Rule 472 or any successor or similar rule or regulation).  Purchaser agrees to execute and deliver such other agreements as may be reasonably requested by the Company and/or the managing underwriters that are consistent with the foregoing or that are necessary to give further effect to the foregoing provision.  In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to Purchaser’s Restricted Securities until the end of such period. The underwriters of the Company’s stock are intended third party beneficiaries of this Section 4 and have the right, power and authority to enforce the provisions hereof as though they were a party to this Agreement.

5. Miscellaneous .

(a) Waiver of Information Rights . Purchaser hereby acknowledges and agrees that, except for such information as required to be delivered to Purchaser by the Company pursuant to any other agreement by and between the Company and Purchaser, Purchaser has no right to receive any information from the Company by virtue of such Purchaser’s purchase of the Shares, ownership of the Shares, or as a result of Purchaser being a holder of record of stock of the Company. Without limiting the foregoing, to the fullest extent permitted by law, Purchaser hereby waives Purchaser’s inspection rights under Section 220 of the Delaware General Corporation Law and all such similar information and/or inspection rights that may be provided under the law of any jurisdiction, or any federal, state or foreign regulation, that are, or may become, applicable to the Company, the Company’s capital stock or the Shares (the “ Inspection Rights ”).  Purchaser hereby covenants and agrees never to directly or indirectly commence, voluntarily aid in any way, prosecute, assign, transfer, or cause to be commenced any claim, action, cause of action, or other proceeding to pursue or exercise the Inspection Rights.

(b) Notices . All notices required or permitted hereunder will be in writing and will be deemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not during normal business hours of the recipient, then on the next business day; (iii) five calendar days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one business day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.  All communications will be sent to the other party to this Agreement at such party’s address hereinafter set forth on the signature page hereof, or at such other address as such party may designate by 10 days’ advance written notice to the other party hereto.

(c) Successors and Assigns .   This Agreement will inure to the benefit of the successors and assigns of the Company and, subject to the restrictions on transfer herein set forth, be binding upon Purchaser, Purchaser’s successors, and assigns.

(d) Attorneys’ Fees .     The prevailing party in any suit or action hereunder will be entitled to recover from the losing party all costs incurred by it in enforcing the performance of, or protecting its rights under, any part of this Agreement, including reasonable costs of investigation and attorneys’ fees. 

(e) Governing Law; Venue .  This Agreement will be governed by and construed in accordance with the laws of the State of Delaware.  The parties agree that any action brought by either party to interpret or enforce any provision of this Agreement will be brought in, and each party agrees to, and does hereby, submit to the jurisdiction and venue of, the appropriate state or federal court for the district encompassing the Company’s principal place of business .

 


 

(f) Further Execution .  The parties agree to take all such further actions as may reasonably be necessary to carry out and consummate this Agreement as soon as practicable, and to take whatever steps may be necessary to obtain any governmental approval in connection with or otherwise qualify the issuance of the securities that are the subject of this Agreement.

(g) Independent Counsel .  Purchaser acknowledges that this Agreement has been prepared on behalf of the Company by Cooley LLP , counsel to the Company and that Cooley LLP does not represent, and is not acting on behalf of, Purchaser.  Purchaser has been provided with an opportunity to consult with his, her or its own counsel with respect to this Agreement.

(h) Entire Agreement; Amendment .  This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and merges all prior agreements or understandings, whether written or oral, with respect to the subject matter hereof.  This Agreement may not be amended, modified or revoked, in whole or in part, except by an agreement in writing signed by each of the parties hereto.

(i) Severability .  If one or more provisions of this Agreement are 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 will be excluded from this Agreement, (ii) the balance of the Agreement will be interpreted as if such provision were so excluded and (iii) the balance of the Agreement will be enforceable in accordance with its terms.

(j) Counterparts This Agreement (including any schedules and/or exhibits hereto or thereto) may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.

[End of Exhibit A to Class 1 Common Stock Purchase Agreement]



 


SERVICES and facilities AGREEMENT

This SERVICES AND FACILITIES AGREEMENT  ( this Agreement ”) is entered into on January 2, 2019, effective as of January 1, 2019 (the “ Effective Date ”), between Vmoso, Inc. , a Delaware corporation (“ Recipient ”), and BroadVision , Inc. ,   a Delaware corporation (“ Provider ”) Provider and Recipient are each referred to herein individually as a “ Party ” and collectively as the “ Parties .

WHEREAS , Recipient desires to secure certain services and facilities with respect to its business and operations; and

WHEREAS , Provider has the expertise, resources and capacity to provide such services and facilities and is willing to undertake such work and provide such facilities ; and

WHEREAS , the Parties desire to specify the terms and conditions pursuant to which such services and facilities will be provided ; and

WHEREAS , Recipient desires to compensate Provider for such services and facilities at arm’s-length;

NOW, THEREFORE , in consideration of the foregoing premises and the mutual representations and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

1. SERVICES

1.1. Services .   Recipient hereby engages and retains Provider to perform the services set forth in Exhibit A as well as any additional services that may be agreed upon in writing after the Effective Date by the Parties (the “ Services ”).  Provider shall conduct the Services in accordance with all applicable laws and regulations.  Provider shall determ ine the corporate facilities used in rendering the Services and the individuals who will render the Services.    N othing herein shall restrict Provider or its directors, officers or employees from engaging in any business or from contracting with other parties, including, without limitation, other affiliates of Provider , for similar or different services.  Provider may   subcontract the provision of any or all of the Services to its affiliates or third parties, in all cases , in Provider’s sole discretion , provided that Provider shall be responsible for the direction and coordination of the services of each subcontractor and each subcontractor’s compliance with the terms and conditions of this Agreement .   For the avoidance of doubt, the employees of Provider who perform the Services will remain Provider employees unless and until otherwise specifically agreed by Recipient and Provider .

1.2. Cooperation ; License .  Recipient shall fully cooperate with Provider to permit Provider to perform its duties and obligations under this Agreement in a timely manner.  Without limiting the foregoing, Recipient shall : (a)   promptly and accurately respond to requests by Provider for information, (b) promptly provide Provider with copies of any agreements, instruments or documents in possession of Recipient as are reasonably requested by Provider, and (c) promptly provide Provider with any notices or other communications that Recipient may receive from any third party related to Provider’s performance of the Services.     Recipient agrees to grant and hereby grants to Provider authorization to act as the Recipient’s agent as needed to perform its duties and obligations under the Agreement, including , but not limited to , revenue collection from third parties that are party to agreements with Recipient.     Recipient agrees to grant and hereby grants to Provider a non-exclusive, worldwide, royalty-free license (with rights to sublicense through multiple tiers of sublicensees) under all intellectual property owned or controlled by Recipient that is necessary or reasonably useful to conduct the Services , solely to conduct the Services in accordance with the terms of this Agreement .    

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1.3. Materials .  Recipient may provide Provider with certain tangible materials for Provider to perform the Services.  As between the Parties, title to such materials shall remain with Recipient.  Provider shall use such materials solely to perform the Services and in compliance with Recipient’s instructions.  Provider shall not sell, transfer, disclose or otherwise provide access to such materials to any person or entity except to those affiliates and third parties who require access to conduct the Services or related services for Recipient.  Upon completion of the applicable Services or earlier upon Recipient’s request, Provider shall return any unused materials to Recipient as directed by Recipient.

1.4. Work Product .     Provider agrees that Recipient shall own all right, title, and interest in and to all data, information and materials generated by Recipient in the course of performance of the Services, and all discoveries, inventions and improvements, whether patentable or not, developed, conceived or reduced to practice in the course of performance of the Services, whether solely by employees, agents, consultants or contractors of Provider or Recipient, or jointly by one or more employees , agents, consultants or contractors of Provider and one or more employees , agents, consultants or contractors of Recipient , and all intellectual property rights arising therefrom (collectively, the “ Work Product ”).  Provider shall promptly notify Recipient in writing of any Work Product developed, conceived or reduced to practice by employees , agents, consultants or contractors of Provider.  Provider hereby assigns and transfers to Recipient all right, title and interest of Provider in and to all Work Product (or if such assignment and transfer is not permitted by law, Provider agrees to waive such rights or grant to Recipient an exclusive, fully paid, perpetual, irrevocable, worldwide license under such rights for any and all purposes) and agrees to take all further acts reasonably required to evidence such assignment and transfer, or license, as applicable, to Recipient at Recipient’s expense.  Provider represents and covenants that it has entered (or will enter) into an agreement with each employee, agent, consultant or contractor of Provider performing Services, pursuant to which such person shall grant all rights in the Work Product to Provider such that Provider may convey such rights to Recipient in accordance with this Section 1.4 All Work Product and any information with respect thereto shall be Confidential Information of Recipient and shall be subject to the confidentiality provisions of Section 4 .  Work Product shall not include any Provider proprietary technology existing prior to the Effective Date or any improvements thereto, and shall likewise not include any other information or technology that is developed, conceived or reduced to practice by or on behalf of Provider independent of any activities conducted pursuant to this Agreement , all of which, as between the P arties, shall be owned solely by Provider.

2. FACILITIES

2.1. Premises .   The parties acknowledge that the principal location from which Provider will   provide the Services to Recipient is   the space leased by Provider in suite 102 of the building located at 460 Seaport C our t , in Redwood City, CA 94063 (“ Premises ”).

2.2. Use .   Recipient will not occupy or   use directly any portion of the Premises .   However, Provider’s personnel and equipment involved in providing the Services will occupy and use the Premises.

3. PAYMENT

3.1. Service Fee .  In consideration of the Services performed by Provider during the Term, Recipient shall pay Provider a   service fee determined as provided in Exhibit B (the “ Service Fee ,   the underlying components of which are each   a n individual  “ Fee , or collectively, the “ Fees ) in accordance with Section 3.4 .  In addition, if the Parties agree to additional Services pursuant to Section 1.1 , for which the Service Fee is insufficient to compensate Provider, Recipient will make payments to Provider (the “ Additional Payments ”) in accordance with a budget and payment schedule agreed by the Parties, including reimbursing all third party expenses, if applicable, incurred by Provider to conduct the Services.

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3.2. Determination of Fees; Adjustments The Service Fee   is intended to cover all direct and indirect costs incurred by Provider in connection with providing the Services and the Premises as agreed as of the Effective Date,   accounted for according to Provider’s standard accounting practices consistent with generally-accepted accounting principles,   plus a reasonable and customary percentage mark-up of such costs .  The Parties will periodically review and adjust such costs and percentage mark-up from time to time as necessary to assure that the amount of each Fee is (a) at all times equal to a reasonable and customary mark-up of Provider’s direct and indirect costs to conduct the Services and provide the Premises , and (b) calculated such that all cost allocations are reflected net of any Recipient revenues collected by Provider on behalf of Recipient .   All Fees will be calculated and invoiced on a quarterly basis . For the avoidance of doubt, the calculated and invoiced   Fees   may   include   those costs incurred by Provider   (or any of its subsidiaries or affiliates )   under the terms of any transfer pricing agreements or other arrangements exist ing   between Provider and any of its subsidiaries or affiliate s .

3.3. Payment .  Recipient shall pay Provider, in U.S. dollars, the quarterly   Fees   before the end of the quarter that immediately follows the quarter in which the Fees were incurred , or thirty days after receipt of invoice from Provider if later, less any withholdings required under applicable law.  Recipient shall pay Provider for the Additional Payments, if any, according to the applicable budget and payment schedule.

3.4. Bookkeeping .  Provider shall maintain complete and accurate financial records in accordance with U.S. generally accepted accounting principles during the Term and for a period of one (1) year after the termination or expiration of this Agreement with respect to Additional Payments incurred under this Agreement .  Recipient will have the right, at its own expense, upon reasonable prior notice, periodically to engage an independent, nationally recognized accounting firm to inspect and audit the records of Provider solely with respect to Additional Payments , provided that if such inspection and audit reveals that Recipient has overpaid Provider with respect to any amounts due and payable under this Agreement, Recipient shall promptly repay such amounts as are necessary to rectify such overpayment .   Such inspection and auditing rights shall extend throughout the Term and for a period of one (1) year after the termination or expiration of this Agreement .

4. TERM; TERMINATION; SURVIVAL

4.1. Term The term of this Agreement shall commence on the Effective Date and shall continue for a period of one year , unless earlier terminated in accordance with this Section  4 , and shall be renew able   upon written consent from both   Parties (the initial term, together with any renewal terms, collectively, the “ Term ”).

4.2. Termination Either Party may terminate this Agre ement at any time upon 30 days written notice to the other Party .    

4.3. Effect of Termination .  Upon any termination or expiration of this Agreement, (a ) Recipient shall promptly pay to Provider all amounts due and payab le under this Agreement; and (b ) each Party shall immediately discontinue all use of the other Party’s Confidential Information and shall return to the other Party, or, at the other Party’s option, destroy, all copies of the other Party’s Confidential Information in tangible form then in such Party’s possession.

4.4. Survival of Rights and Obligations In the event of termination of this Agreement for any reason or expiration of this Agreement , the Parties’ rights and obligations under Sections 1. 4 ,   3   (with respect to amounts owed for Services performed prior to such termination or expiration only and with respect to Section 3.5 only for the length of time specified therein ), 4.3 ,   4 .4 ,   5 ,   6 and   7 shall survive termination or expiration of this Agreement. T he termination or expiration of this Agreement shall not

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relieve either Party of any liability under this Agreement that accrued prior to such termination or expiration.

5. CONFIDENTIALITY

5.1. Ownership of Confidential Information Confidential Information ”   of a Party means all written or oral information disclosed by or on behalf of such Party to the other Party , before or after the Effective Date , related to the business, research, sales, technology or operations of such Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure a reasonable person would understand to be conside red confidential; provided that the Work Product will be deemed Recipient’s Confidential Information .   The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information (including c onfidential i nformation of third parties ) that the disclosing Party is require d to maintain as confidential.   Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and , as between the Parties, will remain the sole property of the disc losing Party

5.2. Mutual Confidentiality Obligations .     Each Party shall   maintain all Confidential Information furnished to it by or on behalf the other Party in trust and confidence using at least the same degree of care to prevent its unauthorized disclosure, use or publication as it uses with respect to its own Confidential Information of a similar nature, but in all cases at least a reasonable standard of care Additionally, during the Term and for five (5) years thereafter, each Party agrees that it will (a) not use for any purpose any Confidential Information furnished to it by or on behalf the other Party , except as is reasonably necessary or reasonably useful for the performance of, or the exercise of such Party ’s rights under, this Agreement , and (b) not disclose any Confidential Information furnished to it by the other Party except to its or its Affiliates’ employees, consultants, contractors, advisors (including financial advisors, lawyers and accountants) and others on a need to know basis, for the sole purpose of performing its obligations or exercising its rights under this Agreement, provided that in each case the recipient of such Confidential Information is bound by obligations of confidentiality and non-use at least as equivalent in scope as those set forth in this Section   5 prior to any such disclosure.

5.3. Confidentiality Exceptions .     Notwithstanding the foregoing, the confidentiality and non-use obligations set forth in   Sections 5.1 and 5.2 will not apply to Confidential Information to the extent that such Confidential Information : (a) is in the public domain at the time disclosed hereunder ; (b) enters th e public domain other than through any act or omission of the receiving Party in breach of this Agreement ; (c) is rightfully communicated to the receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation (directly or indirectly) to the disclosing Party not to disclose such information ; (d) is already in the receiving Party ’s   possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the receiving Party ; or (f) is approved for release or disclosure by the disclos ing Party without restriction.    

5.4. Required Disclosures .  Notwithstanding the confidentiality and non-use obligations set forth in Sections 5.1 and 5.2 , the receiving Party may disclose particular Confidential Information of the disclosing Party to the extent that such disclosure is required by a valid order of a court or other governmental body having jurisdiction, or by applicable law or regulation; provided that, in each case, the receiving Party (a) provides the disclosing Party with reasonable prior written notice of such disclosure obligation to the extent permitted by law, (b) reasonably cooperates and assists the disclosing Party in obtaining such a protective order or other appropriate remedy preventing or limiting the disclosure, and ( c ) discloses the minimum amount of the disclosing Party’s Confidential Information required to comply with such court or government order, law or regulation.  Any Confidential Information disclosed pursuant to this Section 5 .4 shall remain otherwise subject to the confidentiality and non-use obligations set forth herein.

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6. DISCLAIMER AND LIMITATION OF LIABILITY

6.1. Disclaimer ALL SERVICES PROVIDED HERUNDER ARE PROVIDED “AS IS. ”  PROVIDER MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR GUARANTEES RELATING TO THE SERVICES OR THE QUALITY OR RESULTS OF THE SERVICES TO BE PERFORMED UNDER THIS AGREEMENT AND EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS , WARRANTIES OR GUARANTEES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.   Notwithstanding the foregoing, to the maximum extent permitted, Provider will use reasonable efforts to pass through to Recipient any warranties or indemnification rights that Provider receives from third parties who provide components of the Services performed hereunder by Provider.

6.2. Cap .     IN NO EVENT WILL PROVIDER’S LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE SERVICE FEE   OR, IF APPLICABLE, ADDITIONAL PAYMENTS   PAID TO PROVIDER HEREUNDER IN THE LAST 12 MONTHS PREECEDING THE DATE OF ANY CLAIM THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION TAKEN TOGETHER , INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.

6.3. Limitation; No Liability for Employees .     OFFICERS AND EMPLOYEES OF PROVIDER WHO PROVIDE THE SERVICES TO RECIPIENT SHALL NOT BE LIABLE TO RECIPIENT OR TO ANY THIRD PARTY, INCLUDING ANY GOVERNMENTAL AGENCY, FOR ANY CLAIMS, DAMAGES OR EXPENSES RELATING TO THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, AND RECIPIENT SHALL HAVE THE ULTIMATE RESPONSIBILITY FOR THE SERVICES PROVIDED HEREIN.  IN NO EVENT WILL PROVIDER HAVE ANY LIABILITY TO RECIPIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, LOSS OF DATA OR LOSS OF USE EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES , PROVIDED THAT THE FOREGOING LIMITATIONS IN THIS SECTION 6 .3 SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION RIGHTS OR OBLIGATIONS SET FORTH IN ARTICLE 6 . PROVIDER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO ANY MERCHANDISE, FIXTURES, EQUIPMENT OR PERSONAL PROPERTY OF RECIPIENT, OR ANY OTHER P ARTY IN OR ABOUT THE PREMISES

6.4. Essential Basis of Agreement .  The Parties acknowledge and agree that the disclaimers, exclusions and limitations of liability set forth in this Section 6 form an essential basis of this Agreement, and that, absent any of such disclaimers, exclusions or limitations of liability, the terms of this Agreement, including, without limitation, the economic terms, would be substantially different.

7. INDEMNIFICATION

7.1. Indemnification by Recipient Recipient shall indemnify, defend and hold harmless Provider and its officers, directors, employees, consultants, representatives, and agents (collectively, the “ Provider Indemnitees ”), from any and all losses, injuries, harms, costs or expenses, including without limitation, reasonable attorney’s fees (collectively, “ Losses ”), incurred by any Provider Indemnitee in connection with any claim, suit or action brought by a third party arising from (a) the negligence, recklessness or willful misconduct of any Recipient Indemnitee (as defined in Section 7 .2 ) or (b) the breach by Recipient of any its obligations, warranties, or representations under this Agreement, except in each case

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to the extent that such Losses   arise from (i) the negligence, recklessness or willful misconduct of any Provider Indemnitee or (ii) Provider’s breach of its obligations, warranties, or representations under this Agreement.

7.2. Indemnification by Provider .   Provider shall indemnify, defend and hold harmless Recipient and its officers, directors, employees, consultants, representatives, and agents (collectively, the “ Recipient Indemnitees ”), from any and all Losses, incurred by any Recipient Indemnitee in connection with any claim, suit or action brought by a third party arising from (a) the negligence, recklessness or willful misconduct of any Provider Indemnitee or (b) the breach by Recipient of any its obligations, warranties, or representations under this Agreement, except in each case to the extent that such Losses   arise from (i) the negligence, recklessness or willful misconduct of any Recipient Indemnitee or (ii) Recipient’s breach of its obligations, warranties, or representations under this Agreement.

7.3. Procedure.     Any Party seeking indemnity hereunder shall (a) give prompt written notice to the indemnifying Party of any Claim for which indemnification is sought, (b) permit the indemnifying Party to assume full responsibility to investigate, prepare for and defend against such claim, (c) reasonably assist the indemnifying Party, at the indemnifying Party’s reasonable expense, in the investigation of, preparation for and defense of such claim, and (d) not compromise or settle such claim without the indemnifying Party’s prior written consent. Notwithstanding the foregoing, an indemnifying Party will not settle a claim in such a way as to require an admission of wrongdoing or negligence on the part of any other Party, or incur a financial obligation on behalf of any other Party, without such other Party’s written approval, which approval will not be unreasonably withheld, delayed, or conditioned.  

8. MISCELLANEOUS

8.1. Entire Agreement This Agreement, including any attached schedules or exhibits, sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and, except as specifically provided herein, supersede s and merge s all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof , and neither of the Parties shall be bound by any conditions, inducements or representations other than as expressly provided for herein. 

8.2. Independent Contractors In making and performing this Agreement, Provider and Recipient act and shall act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement shall be construed or implied to create an agency or partnership relationship between them Except as expressly set forth herein or separately agreed by the Parties in writing , at no time shall either Party execute any contract in the name of the other Party, negotiate any contract in a manner that legally binds the other Party, make commitments or incur any costs, charges or expenses or own any property, whether tangible or intangible for, or in the name of, the other Party.

8.3. No Third - Party Beneficiaries The Parties acknowledge that the covenants set forth in this Agreement are solely for the benefit of the Parties and their successors and permitted assigns Nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties and their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

8.4. Notices All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the Party to be notified; (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not during normal business hours of the recipient, then on the next business day; (c) five calendar days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one business day after

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deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.  All communications shall be sent to the other Party at such Party’s address first set forth above, or at such other address as such party may designate by 10 days’ advan ce written notice to the other P arty.

8.5. Amendments; Modifications This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.

8.6. Assignment; Delegation Provider may, upon written notice to Recipient, assign any of its rights or delegate any of its duties hereunder without the prior written consent of Recipient.  Recipient shall not assign any rights or delegate any duties hereunder without the prior written consent of Provider, which consent shall not be unreasonably withheld.  Except as permitted by the foregoing, any attempted assignment or delegation shall be null, void and of no effect.

8.7. Severability If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

8.8. Force Majeure Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than 90 days, the other Party may terminate this Agreement upon 30 days written notice.

8.9. Waiver No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time Any delay or forbearance by either Party in exercising any right hereunder shall not be deemed a waiver of such right.

8.10. Governing Law This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to conflicts of law principles thereof

8.11. Counterparts This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one a greement.

8.12. Headings The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.

[ Signature Page Follows ]



 

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In Witness Whereof,   the Parties have caused their duly authorized representatives to execute this Agreement as of the Effective Date.





 

 

 

 

 

 

 



VMOSO, INC.

 

 

BROADVISION, INC.

 



 

 

 

 

 

 

 

By:

/s/ Pehong Chen

 

By:

/s/ Pehong Chen

 



 

 

 

 

 

 

 



Name:

Pehong Chen

 

 

Name:

Pehong Chen

 



Title:

Chief Executive Officer

 

 

Title:

Chief Executive Officer

 



 

 

 

 

 

 

 









 

 


 

Exhibit a

SERVICES  

Recipient does not anticipate having any employees or contractors and instead will rely on Provider to   perform all   s ervices for Recipient that would ordinarily be performed by Recipient’s workforce. These services will include all functions necessary for the operation of Recipient’s business (which specifically include all activities and facilities related to the ongoing development and operation of the Clearvale and
Vmoso platform s and the My Vmoso Network development project and all systems related thereto) , including research and development, engineering, marketing, sales, human resources, information services, telecommunications, legal, administration and general management. The specific services to be provided from time to time will be mutually agreed between Provider and Recipient.

 


 

Exhibit B



FEES



Each   Fee (including the Profit Charge , as defined below) shall be determined by allocation of total costs incurred by BroadVision , Inc . across its entire group, as reported in its quarterly accounts, determined as follows:





1. Salaries :   Within each region (i.e., US, EMEA and APJ), Provider will determine, subject to Recipient’s reasonable approval, the percentage of each employee’s total time that was devoted to providing Services to Recipient during the quarter. Th e value corresponding to this percentage of each employee’s salary for the quarter will be allocated to Recipient. The sum of the salaries allocated   to Recipient for the quarter will be a component of the Service Fee . The company-wide total of all salaries allocated to Recipient as a percentage of total company-wide salaries for those employees providing Services to Recipient is the “ Salary Percentage .

2. Benefits :   Within each region for each quarter, Provider will determine, subject to Recipient’s reasonable approval, the percentage of total salaries that total employee benefits represents. For each region, this percentage of the total salaries allocated to Recipient multiplied by the s alaries for each respective region for the quarter   will be a component of the Service Fee.



3. Severance :   Within each region for each quarter, Provider will determine, subject to Recipient’s reasonable approval, the total severance charges applicable to each employee that was devoted to providing Services to Recipient during the quarter. For each region, the total of all such severance obligations   apportionable to Recipient for the quarter will be a component of the Service Fee .



4. Contractors :   Within each region for each quarter, Provider will determine, subject to Recipient’s reasonable approval, the total independent contractor and consultant fees (the “ Contractor Fees ”) charged in its accounts for Services provided to Recipient during the quarter. For each region, the total of all such Contractor Fees apportionable to Recipient for the quarter will be a component of the Service Fee.



5. Commission & Bonuses :   Within each region for each quarter , Provider will multiply (a) the value of all commissions and bonus payments made to all employees   providing Services to Recipient during the quarter ,   by (b) the Salary Percentage, the resulting product of which will be   allocated to Recipient as a component of the Service Fee.



6. Supplies/Computers/Telecommunications :   Within each region for each quarter , Provider will multiply (a) the total costs reported in its accounts for   all suppl ies , computer, and telecommunications expenses ( subject to Recipient’s reasonable approval) by (b) the Salary Percentage, the resulting product of which will be allocated to Recipient as a component of the Service Fee.



7. Travel & Expenses (including use of automobiles) :   Within each region for each quarter, Provider will multiply (a) the total costs reported in its accounts for   all travel expenses (subject to Recipient’s reasonable approval)   by (b) the Salary Percentage, the resulting product of which will be allocated to Recipient as a component of the Service Fee.



 


 

8. Legal & Professional :   Within each region for each quarter, the total legal and professional fees allocated to Recipient by Provide r   for the quarter   will be a component of the Service Fee .



9. Marketing :   Within each region for each quarter, the total marketing fees allocated to Recipient by Provide r for the quarter will be a component of the Service Fee .



10. Bad debt - specific :   The Service Fee will include specific bad debt charges reported by Provider in its accounts, insofar as those charges relate to customers of Recipient .



11. Bad debt – general :   The Service Fee will include a percentage of the charge for general bad debt provisions, where such percentage is calculated as Recipient's revenue for the quarter divided by the aggregate of Provider s and Recipient s revenue for the  quarter, where such revenue figures are as reported in Provider s accounts .



12. Office Rent Fee :   Within each region (i.e., US, EMEA and APJ), Provider will determine, subject to Recipient’s reasonable approval, the percentage of each employee s (and each contractor s) time that was spent in the office ( Equivalent Person-time-in-office ”) .   Provider will then compare the aggregate Equivalent Person-Time-in-Office for such persons providing services to Recipient with the aggregate for such persons not providing services to Recipient, and use the resulting ratio to determine the costs falling under the category of  “ Facilities in its accounts, which should comprise a component of the Service Fee .



13. Other O perating C osts : Within each region for each quarter, Provider will multiply (a) the value of all applicable operating expenses not listed above (subject to Recipient’s reasonable approval)   that were reported by Provider under the heading “O ther O perating C osts in its accounts , by (b) the Salary Percentage, the resulting product of which will be allocated to Recipient as a component of the Service Fee.



14. Profit Charge : A “Profit Charge”   representing one percent (1%) of the total Fees (calculated as the aggregate of all Fee components listed in items 1 through 13 above), or any alternate percentage as the P arties may agree, from time to time, shall be assessed in addition to the total value of each quarterly invoice.