Exhibit 10.1


 


NOTEHOLDERS AGREEMENT


 


THIS AGREEMENT, by and among BroadVision, Inc., a
Delaware corporation, (the “Company”)
and the other signatories hereto, is effective as of October 21, 2005 (the
“Agreement”).


 


RECITALS


 


WHEREAS, Portside Growth & Opportunity
Fund, SF Capital Partners Ltd., Kings Road Investments Ltd., Provident Premier
Master Fund, Ltd. (collectively, the “Investors”)
and the Company have entered into that certain Securities Purchase Agreement
dated as of November 10, 2004, as amended on July 25, 2005 (the “Purchase Agreement”); and


 


WHEREAS, pursuant to the terms of the Purchase
Agreement the Company issued senior subordinated secured convertible notes to
the Investors (the “Notes”); and


 


WHEREAS,
the Investors
comprise the Required Holders (as defined in the Notes);


 


WHEREAS,
the Company and the
Investors that are parties to this Agreement wish to modify the Notes as set
forth below; and


 


WHEREAS,
Section 17 of
the Notes states in part that any change or amendment to the Notes can be accomplished
with the written consent without a meeting of the Required Holders.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of these premises and for
other good and valid consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:


 


1.                                       Definitions.  Capitalized terms not defined in this
Agreement shall have the meaning ascribed to them in the Notes.


 


2.                                       Amendment of Notes.  Pursuant
to Section 17 of the Notes, each of the Notes held by the Investors is hereby
amended such that, as of the date of this Agreement, the “Change of Control Redemption Price”
shall be equal to 120%.


 


3.                                       Payment Obligations.  The Company acknowledges that its untimely payment of interest due October 1,
2005 constitutes an Event of Default under Section 4(a)(v) of the
Notes.  As a result, each Investor is
entitled to the Event of Default Redemption Price equal to 120% with respect to
such Investor’s Notes, as if each Investor had delivered an Event of Default
Redemption Notice, without further action on the part of such Investor and
without regard to any subsequent cure of such Event of Default by the Company
or any subsequent Event of Default that would otherwise result in a lower Event
of Default Redemption Price.  Such Event
of Default Redemption Price shall be payable to a given Investor upon the
earlier of: (a) the Company’s receipt of an Event of Default Redemption
Notice or Change of Control Redemption Notice, and (b) (i) with
respect to the Principal, in accordance with the Company’s Installment


 





















 


Amount payment obligations, and (ii) with
respect to the excess of the Event of Default Redemption Price over the
Principal, December 31, 2005.


 


4.                                       Redemption Right.  Prior to November 16, 2005, no Investor
shall request or require that the Company redeem all or any portion of such
Investor’s Note, by delivery to the Company of an Event of Default Redemption
Notice or otherwise, and any Event of Default Redemption Notice received by the
Company from an Investor prior to the date of this Agreement is hereby
rescinded and is of no force or effect. 
In no event shall anything contained in this Agreement provide the right
on the part of the Company to refrain from paying, or impair or affect the right
on the part of any Investor to receive, Installment Amounts when due pursuant
to the terms of the Notes.


 


5.                                       No Waiver.  Except as
expressly set forth in this Agreement, nothing herein shall be deemed to
operate as a waiver of the exercise of any power, right or privilege of any
Investor or Holder under the Notes or the Purchase Agreement.


 


6.                                       Counterparts.  This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one instrument.


 


7.                                       Governing Law.  This
Agreement shall be governed in all respects by the laws of the State of New
York, without giving effect to conflict of law principles thereof.  Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in The City of
New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper.  Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address for such notices to it under the Purchase
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. 
Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law.  EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.


 


8.                                       Independent Nature of Buyers’ Obligations and Rights.  The obligations of each Investor hereunder
are several and not joint with the obligations of any other Investor, and no
Investor shall be responsible in any way for the performance of the obligations
of any other Investor hereunder or for any other Investor’s representations or
warranties hereunder.  Nothing contained
herein, and no action taken by any Investor pursuant hereto, shall be deemed to
constitute the Investors as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Investors are in any
way acting in concert or as a group with respect to such obligations or the
transactions contemplated hereby.  Each
Investor confirms that it has independently participated in the negotiation of
the transaction contemplated hereby


 


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with the advice of its own counsel and advisors.  Each Investor shall be entitled to
independently protect and enforce its rights, including, without limitation,
the rights arising out of this Agreement, and it shall not be necessary for any
other Investor to be joined as an additional party in any proceeding for such
purpose.


 


[Signature page follows]


 


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The parties hereto have executed this Agreement as of the date first
set forth above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
  BROADVISION, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Pehong Chen

  	
   

  
	
   

  	
   

  	
  Name: Pehong Chen

  
	
   

  	
   

  	
  Title: CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  INVESTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  PORTSIDE GROWTH & OPPORTUNITY FUND

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey Smith

  	
   

  
	
   

  	
   

  	
  Name: Jeffrey Smith

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  SF CAPITAL PARTNERS LTD.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael A. Roth

  	
   

  
	
   

  	
   

  	
  Name: Michael A. Roth

  
	
   

  	
   

  	
  Title:
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
  KINGS ROAD INVESTMENTS LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brandon L. Jones

  	
   

  
	
   

  	
   

  	
  Name: Brandon L. Jones

  
	
   

  	
   

  	
  Title:
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PROVIDENT PREMIER MASTER FUND, LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven Winters

  	
   

  
	
   

  	
   

  	
  Name: Steven Winters

  
	
   

  	
   

  	
  Title: Attorney-in-Fact

  



 


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