Exhibit 4.5
EXECUTION COPY
MUTUAL TERMINATION AGREEMENT
MUTUAL TERMINATION AGREEMENT (the "Agreement"), dated as of February 26,
2003, by and between TENFOLD CORPORATION, a Delaware corporation (the
"Company"), and FUSION CAPITAL FUND II, LLC (the "Buyer").
WHEREAS, the Buyer and the Company mutually desire to terminate the Common
Stock Purchase Agreement dated as of February 15, 2002, by and between the
Company and the Buyer (as amended, the "Purchase Agreement") as well as all
other agreements entered into between the parties (other than this Agreement).
All capitalized terms used in this Agreement that are not defined in this
Agreement shall have the meanings set forth in the Purchase Agreement.
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
1. MUTUAL TERMINATION OF THE PURCHASE AGREEMENT.
Upon the execution hereof, the Buyer shall immediately return to the
Company the Commitment Shares which are 632,911 shares of common stock of the
Company represented by certificate number T-1173. The Buyer agrees and
acknowledges that upon receipt thereof, the Company shall immediately cancel
such shares. Upon the execution hereof, the Company shall immediately wire
transfer to the Buyer $75,000 as a termination fee. The Purchase Agreement, any
other Transaction Document related to the Purchase Agreement, or any other
agreement between the Buyer and the Company (other than this Agreement) are
hereby terminated effective as of the date hereof and any and all rights, duties
and obligations arising thereunder or in connection with the Purchase Agreement,
the Transaction Documents, or any other agreement between the parties (other
than this Agreement) shall then be fully and finally terminated, provided,
however, that the representations and warranties of the parties contained in
Sections 2 and 3 of the Purchase Agreement, the indemnification provisions set
forth in Section 8 of the Purchase Agreement and the agreements and covenants
set forth in Section 11 of the Purchase Agreement shall survive such termination
and shall continue in full force and effect (the "Surviving Obligations").
2. WAIVER OF DEFAULTS AND BREACHES.
Except as may arise under or in connection with this Agreement or the
Surviving Obligations, the Buyer hereby as of the date hereof and for any time
hereafter waives any and all past, present or future defaults or breaches
whatsoever which have been or may have been committed by the Company, whether
known or unknown, arising out of or relating to the transactions described in
the Purchase Agreement, the Transaction Documents, or any other
agreement between the parties, whether arising prior to, on or after the date
hereof, provided,however, that this Agreement and the Surviving Obligations
shall continue in full force and effect as the legal, valid and binding
obligation of each party thereto enforceable against each such party in
accordance with its terms. Except as may arise under or in connection with this
Agreement or the Surviving Obligations, the Company hereby as of the date hereof
and for any time hereafter waives any and all past, present or future defaults
or breaches whatsoever which have been or may have been committed by the Buyer,
whether known or unknown, arising out of or relating to the transactions
described in the Purchase Agreement, the Transaction Documents, or any other
agreement between the parties, whether arising prior to, on or after the date
hereof, provided, however, that this Agreement and the Surviving Obligations
shall continue in full force and effect as the legal, valid and binding
obligation of each party thereto enforceable against each such party in
accordance with its terms.
3. MUTUAL GENERAL RELEASE.
Except as may arise under or in connection with this Agreement or the
Surviving Obligations, the Company and the Buyer hereby as of the date hereof
release and forever discharge each party hereto and its predecessors, successors
and assigns, employees, shareholders, partners, managing members, officers,
directors, agents, subsidiaries, divisions and affiliates from any and all
claims, causes of actions, suits, demands, debts, dues, accounts, bonds,
covenants, contracts, agreements, judgments whatsoever in law or in equity,
whether known or unknown, including, but not limited to, any claim arising out
of or relating to the transactions described in the Purchase Agreement, the
Transaction Documents, or any other agreement between the parties, which any
party hereto had, now has or which its heirs, executors, administrators,
successors or assigns, or any of them, hereafter can, shall or may have, against
any party hereto or such parties predecessors, successors and assigns,
employees, shareholders, partners, managing members, officers, directors,
agents, subsidiaries, divisions and affiliates, for or by reason of any cause,
matter or thing whatsoever, whether arising prior to, on or after the date
hereof, provided, however, that this Agreement and the Surviving Obligations
shall continue in full force and effect as the legal, valid and binding
obligation of each party thereto enforceable against each such party in
accordance with its terms.
4. PUBLIC DISCLOSURE.
Each of the Company and the Buyer shall jointly approve in writing any and
all disclosures whatsoever regarding this Agreement, the Purchase Agreement, the
Transaction Documents, or any other agreement between the parties that are
hereafter made by either party, which approval shall not be unreasonably
withheld.
5. MISCELLANEOUS.
(a) Governing Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by the internal laws of the State of Illinois, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State
of Illinois or any other jurisdictions) that would cause the
2
application of the laws of any jurisdictions other than the State of Illinois.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state
and federal courts sitting in the City of Chicago, for the adjudication of any
dispute hereunder or under the other Transaction Documents or in connection
herewith or therewith, 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
this 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 HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(b) Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party; provided that a facsimile signature shall be
considered due execution and shall be binding upon the signatory thereto with
the same force and effect as if the signature were an original, not a facsimile
signature.
(c) Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(d) Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
(e) Notices. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one Trading Day after deposit with
a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
If to the Company:
TenFold Corporation
000 Xxxx 00000 Xxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
3
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: General Counsel
If to the Buyer:
Fusion Capital Fund II, LLC
000 Xxxxxxxxxxx Xxxx Xxxxx, Xxxxx 0-000
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
or at such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by written notice given to
each other party three (3) Trading Days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, and recipient facsimile number or (C) provided by a nationally recognized
overnight delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from a nationally recognized overnight delivery
service in accordance with clause (i), (ii) or (iii) above, respectively.
(f) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns. The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Buyer, including by merger or
consolidation. The Buyer may not assign its rights or obligations under this
Agreement.
(g) No Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
(h) Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement.
(i) No Strict Construction. The language used in this Agreement is the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.
4
(j) Changes to the Terms of this Agreement. This Agreement and any
provision hereof may only be amended by an instrument in writing signed by the
Company and the Buyer. The term "Agreement" and all reference thereto, as used
throughout this instrument, shall mean this instrument as originally executed,
or if later amended or supplemented, then as so amended or supplemented.
IN WITNESS WHEREOF, the Buyer and the Company have caused this Mutual
Termination Agreement to be duly executed as of the date first written above.
THE COMPANY:
TENFOLD CORPORATION
By:______________________
Name:
Title:
BUYER:
FUSION CAPITAL FUND II, LLC
BY: FUSION CAPITAL PARTNERS, LLC
BY: SGM HOLDINGS CORP.
By:_______________________
Name: Xxxxxx X. Xxxxxx
Title: President
5
