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Exhibit 10.1
GREENTREE SOFTWARE, INC.
CONVERTIBLE NOTE PURCHASE AGREEMENT (this "Agreement"), made as of the 17th
day of April, 1998, between GREENTREE SOFTWARE, INC., a New York corporation
(the "Company"), and L-R GLOBAL PARTNERS, L.P., a Delaware limited partnership
("Investor").
W I T N E S S E T H:
WHEREAS, the Company wishes to issue and sell to Investor, and Investor
wishes to purchase from the Company, a Convertible Promissory Note of the
Company of even date herewith in the aggregate principal amount of $3,200,000.00
in the form of Exhibit A hereto (the "Note"); and
WHEREAS, the Note is convertible into shares (the "Shares") of the
Company's Common Stock, par value $.01 per share ("Common Stock"), as set forth
herein and in the Note; and
WHEREAS, the Company and Investor wish to enter into an agreement setting
forth the terms and conditions of the purchase and sale of the Note;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the parties
hereto agree as follows:
1. PURCHASE AND SALE OF NOTE. Subject to the terms and conditions of
this agreement, on the date hereof Investor is purchasing from the Company, and
the Company is selling and issuing to Investor, the Note for the purchase price
of $3,200,000 (the "Principal Amount"), payment of which is being made by wire
transfer to the Company's account at F&M Alliance Bank, Minneapolis, Minnesota.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As an inducement to
Investor to purchase the Note, the Company hereby represents and warrants to
Investor that:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York and has all requisite corporate power and authority to
carry on its business and to enter into and perform this Agreement and the
transactions contemplated hereby. The Company is duly qualified to transact
business and is in good standing in the State of Minnesota and in each other
jurisdiction in which the failure to so qualify would
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have a material adverse effect on its business or properties. The Company
has furnished to Investor a true and complete copy of the Certificate of
Incorporation of the Company presently in effect (the "Certificate") and the
By-laws of the Company presently in effect (the "By-laws").
2.2 CAPITALIZATION.
(a) The authorized capital of the Company as of the date hereof
is 15,000,000 shares of Common Stock, of which 3,465,451 shares are issued and
outstanding as of the date hereof.
(b) Except for the conversion rights set forth in the Note and
except as set forth on SCHEDULE 2.2 hereto, there are no outstanding options,
warrants, rights (including conversion or preemptive rights or rights of first
refusal) or agreements for the purchase or acquisition by or from the Company of
any shares of its capital stock. The Company is not a party or subject to any
agreement or understanding and, to the Company's knowledge, there is no
agreement or understanding between any persons and/or entities, which affects or
relates to the voting or giving of written consents with respect to any security
or by a director of the Company.
(c) All of the issued and outstanding shares of the Common Stock
have been offered, issued and sold by the Company in compliance with applicable
federal and state securities laws and are fully paid and non assessable.
2.3 SUBSIDIARIES. The Company does not presently own or control,
directly or indirectly, any interest in any other corporation, association or
other business entity. The Company is not a participant in any joint venture,
partnership or similar arrangement.
2.4 AUTHORIZATION. All corporate action on the part of the Company,
its officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement and the Note, the performance of all
obligations of the Company hereunder and thereunder and the authorization,
issuance, sale and delivery of the Note has been taken on or prior to the
Closing, and this Agreement and the Note constitute valid and legally binding
obligations of the Company, enforceable in accordance with their respective
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies.
2.5 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement,
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except for such filings as are required by state securities laws, which
filings have been duly made.
2.6 VALID ISSUANCE OF NOTE. The Note, when issued, sold and
delivered in accordance with the terms of this Agreement, will be duly and
validly issued. The Shares will, upon delivery thereof as a result of any
conversion of the Note, be duly and validly issued and fully paid up, with no
personal liability attaching to the ownership thereof.
2.7 OFFERING. Subject in part to the truth and accuracy of
Investor's representations set forth in Section 3 of this Agreement, the offer,
sale and issuance of the Note as contemplated by this Agreement are exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"1933 Act"), and from the registration and qualification requirements of
applicable state securities laws, and neither the Company nor any authorized
agent acting on its behalf will take any action hereafter that would cause the
loss of such exemptions.
2.8 INTELLECTUAL PROPERTY.
(a) SCHEDULE 2.8 hereto lists all patents and all patent
applications and registered trademarks, service marks, trade names, copyrights
and applications therefor (the "Registrable Intellectual Property") owned or
used by the Company. The Company is sole owner of all copyright and other
property rights in the software, in all forms and formats, constituting a part
of any products currently or previously marketed, sold or distributed by the
Company, including without limitation its Purchase Soft and GT Purchase PRO
software (all of such rights being referred to sometimes as the "Product
Intellectual Property" and, together with the Registrable Intellectual Property,
the "Intellectual Property"; such products being sometimes referred to as the
"Company Products"). The Company owns or has a valid and adequate right to use
all other patents, trademarks, service marks, trade names, copyrights and all
applications and registrations therefor being used to conduct its business as
now conducted and as now proposed to be conducted, and the conduct of its
business as now conducted and as now proposed to be conducted does not and will
not, and the Product Intellectual Property and the Company Products do not, have
not and will not, conflict with or infringe upon the intellectual property
rights or rights of others. Except as set forth in SCHEDULE 2.8 hereto the
Company has not received any communication to the effect that any such
Intellectual Property or other proprietary rights owned or licensed to the
Company, or which the Company otherwise has used, is using or has the right to
use, is invalid or unenforceable by the Company. Except pursuant to the terms
of any licenses specified in SCHEDULE 2.8 hereto, the Company has no obligation
pursuant to any license agreement to compensate any person for the use of any
such Intellectual Property or other proprietary rights and, except in the
ordinary course of business, the Company has not granted any person any license
or other right to use any of the Intellectual Property or
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other proprietary rights owned by the Company, whether requiring the payment
of royalties or not.
(b) The Company has taken all reasonable measures to protect and
preserve the security, confidentiality and value of its Intellectual Property,
including its trade secrets and other confidential information. All past and
present Company Products are and at all times have been and to the best
knowledge of the Company, all other trade secrets and other confidential
information of the Company are presently valid and protectible and are not part
of the public domain or knowledge, nor, to the best knowledge of the Company,
have they or any Product Intellectual Property been used, divulged or
appropriated for the benefit of any person other than the Company or otherwise
to the detriment of the Company. To the best knowledge of the Company, no
employee or consultant of the Company has used any trade secrets or other
confidential information of any other person in the course of such person's work
for the Company. To the best knowledge of the Company, the Company is the
exclusive owner of all right, title and interest in the Intellectual Property
rights as purported to be owned by the Company, and such Intellectual Property
rights are valid and in full force and effect. Neither the Company nor, to the
best of the Company's knowledge, any of its employees or consultants has
received notice of, and there does not exist any valid basis for nor, to the
best of the Company's knowledge does there exist any other basis for, any claim
that any of the Company Products or any of the Intellectual Property or the use
or ownership or licensing thereof by the Company infringes, violates or
conflicts with, any such right of any third party.
2.9 COMPLIANCE WITH OTHER INSTRUMENTS. Except as set forth in
SCHEDULE 2.9, the Company is not in violation or default in any material respect
of any provision of its Certificate or By-laws, or in any material respect of
any instrument, judgment, order, writ, decree or contract to which it is a party
or by which it is bound, or any provision of any federal or state statute, rule
or regulation applicable to the Company. The execution, delivery and
performance of this Agreement and the Note, and the consummation of the
transactions contemplated hereby and thereby, will not:
(a) result in any such violation; or
(b) be in conflict with or constitute, with or without the
passage of time and giving of notice, a default under, or give any entity or
person the right to exercise any remedy under, any such provision, instrument,
judgment, order, writ, decree or contract; or
(c) result in the creation of any lien, charge or encumbrance
upon any assets of the Company or the suspension, revocation, impairment,
forfeiture or nonrenewal of any material permit, license, authorization or
approval applicable to the Company, its business or operations or any of its
assets or properties; or
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(d) give any entity or person the right to accelerate the
maturity or performance of, or to cancel, terminate, or modify, any contract to
which the Company is a party.
2.10 AGREEMENTS; ACTION.
(a) There are no agreements, understandings or proposed
transactions between the Company and any of its officers, directors, affiliates
or any affiliate thereof, except for agreements explicitly described in the
Disclosure Documents or in SCHEDULE 2.10 attached hereto.
(b) The Company has not (i) made any loans or advances to any
person, other than ordinary, advances for travel expenses or (ii) sold,
exchanged or otherwise disposed of any of its assets or rights, other than the
sale of its inventory in the ordinary course of business.
(c) Except as set forth in SCHEDULE 2.10, the Company is not a
party to and is not bound by any contract, agreement or instrument, or subject
to any restriction under its Certificate or By-laws that adversely affects its
business as now conducted or as proposed to be conducted, its properties or its
financial condition.
2.11 RELATED-PARTY TRANSACTIONS. Except as set forth on SCHEDULE 2.11
attached hereto, no employee, officer, or director or shareholder of the Company
or member of his or her immediate family is indebted to the Company, nor is the
Company indebted (or committed to make loans or extend or guarantee credit) to
any of them. To the Company's knowledge, none of such persons has any direct or
indirect ownership interest in any firm or corporation with which the Company is
affiliated or with which the Company has a business relationship, or any firm or
corporation that competes with the Company, except that employees, officers,
directors or shareholders of the Company and members of their immediate families
may own stock in publicly traded companies that may compete with the Company.
No member of the immediate family of any officer or director of the Company is
directly or indirectly interested in any material contract with the Company.
2.12 PERMITS. The Company has all franchises, permits, licenses, and
any similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the
business, properties, prospects, or financial condition of the Company, and the
Company believes it can obtain, without undue burden or expense, any similar
authority for the conduct of its business as planned to be conducted. The
Company is not in default in any material respect under any of such franchises,
permits, licenses, or other similar authority.
2.13 ENVIRONMENTAL AND SAFETY LAWS. To its knowledge, the Company is
not in violation, nor has it received notice of any violation or potential
violation, of any applicable statute, law or regulation relating to the
environment or
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occupational health and safety, and, to its knowledge, no material
expenditures are or will be required in order to comply with any such
existing statute, law or regulation.
2.14 REGISTRATION RIGHTS. Except as provided in the Investors' Rights
Agreement (as defined in Section 4.1 below) and as set forth on SCHEDULE 2.14
attached hereto, the Company has not granted or agreed to grant any registration
rights, including piggyback rights, to any person or entity.
2.15 TITLE TO PROPERTY AND ASSETS. The Company owns its property and
assets free and clear of all mortgages, liens, loans and encumbrances, except
such encumbrances and liens that arise in the ordinary course of business and do
not materially impair the Company's ownership or use of such property or assets.
With respect to the property and assets it leases, the Company is in compliance
with such leases and, to its knowledge, holds a valid leasehold interest free of
any liens, claims or encumbrances.
2.16 INSURANCE. The Company maintains valid policies of workers'
compensation insurance and of insurance with respect to its properties and
business of the kinds and in the amounts not less than is customarily obtained
by corporations engaged in the same or similar business and similarly situated,
including, without limitation, insurance against loss, damage, fire, theft,
public liability and other risks.
2.17 EMPLOYEES. No employee of the Company is, to the knowledge of
the Company, acting in violation of any confidentiality, nondisclosure,
noncompetition, or other similar agreement executed between such employee and
the Company or any other entity.
2.18 CURRENT PUBLIC INFORMATION. The Company is required to file
reports pursuant to Section 13 or 15(d) of the 1934 Act and has filed all the
materials required to be filed as reports pursuant to the 1934 Act for a period
of at least 12 months preceding the date hereof, and all such filings have been
made on a timely basis.
2.19 BUSINESS.
(a) The Company's business is, in all material respects, as
described in the Disclosure Documents (as defined in paragraph (c) below),
including without limitation the reports filed pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"). There have been no material
adverse changes to the Company's business, financial condition or prospects
since the date of such reports. The Disclosure Documents are true and correct
in all material respects and the financial statements contained in the
Disclosure Documents have been prepared in accordance with general accepted
accounting principles, consistently applied, and fairly present in all material
respects the consolidated financial condition of the Company as of the dates of
the balance sheets included therein and the consolidated results of its
operations and cash flows for the period then ended. Without limiting the
foregoing, there are no material liabilities, contingent or actual, that are not
disclosed in the Disclosure Documents (other
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than liabilities incurred by the Company in the ordinary course of its
business, consistent with its past practice, after the period covered by the
Disclosure Documents). Except as set forth on SCHEDULE 2.19 attached hereto,
the Company has paid all taxes which are due, except for taxes which it
reasonably disputes. There is no claim, litigation or administrative
proceeding pending or, to the Company's knowledge, threatened against the
Company, except as disclosed in the Disclosure Documents or except for any
such claim, litigation or administrative proceeding pending which if
adversely determined would not have a material adverse effect. Neither this
Agreement nor any of the Disclosure Documents contain, and none of the proxy
solicitation or other materials prepared by or on behalf of the Company in
connection with the shareholders meeting referred to in Section 4.2 will
contain, any untrue statement of a material fact or omit to state any
material fact necessary to make the statements contained therein or herein
not misleading in the light of the circumstances under which they were made.
(b) Investor is not precluded by any order or injunction of any
court of competent jurisdiction from consummating the transactions contemplated
hereby, and no action or proceeding is pending or threatened before any court or
administrative agency by any person which directly or indirectly relates to the
transactions contemplated hereby or which might materially adversely affect the
Company.
(c) For purposes of this Agreement, "Disclosure Documents" means
the Company's (i) Annual Report on Form 10-KSB for the year ended May 31, 1997,
(ii) Quarterly Reports on Form 10-QSB for the quarters ended August 31, 1997,
November 30, 1997 and February 28, 1998, (iii) Form S-3 filed with the
Securities and Exchange Commission on January 21, 1998 and all amendments
thereto, and (iv) private placement memorandum dated February 1998 in the form
previously delivered to Investor (the "PPM"). The projections contained in the
PPM are reasonable and are based on assumptions that are reasonable, though the
Company makes no guaranty that such projections will be achieved.
2.20 USE OF PROCEEDS. The Company will use the proceeds from the sale
of the Note for the purposes and in the amounts set forth in SCHEDULE 2.20
hereto.
3. REPRESENTATIONS AND WARRANTIES OF INVESTOR. Investor hereby
represents and warrants that:
3.1 AUTHORIZATION. Investor has full power and authority to enter
into this Agreement, and this Agreement constitutes its valid and legally
binding obligation, enforceable in accordance with its terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
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3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with
Investor in reliance upon Investor's representation to the Company, which by
Investor's execution of this Agreement Investor hereby confirms, that the Note
will be acquired for investment for Investor's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and that Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, Investor further represents that Investor does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to the Note.
3.3 DISCLOSURE OF INFORMATION. Investor has had an opportunity to
ask questions and receive answers from the Company regarding the Note and the
business, properties, prospects and financial condition of the Company. The
foregoing, however, does not limit or modify the representations and warranties
of the Company in Section 2 of this Agreement or the right of Investor to rely
thereon.
3.4 INVESTMENT EXPERIENCE. Investor is able to fend for itself, can
bear the economic risk of its investment, and has such knowledge and experience
in financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Note. Investor has not been organized for the
purpose of acquiring the Note.
3.5 ACCREDITED INVESTOR. Investor is an "accredited investor" within
the meaning of Securities and Exchange Commission ("SEC") Rule 501 of Regulation
D, as presently in effect.
3.6 RESTRICTED SECURITIES. Investor understands that the Note is,
and each of the Shares will be, characterized as a "restricted security" under
the federal securities laws inasmuch as each of them is or will be acquired from
the Company in a transaction not involving a public offering and that under such
laws and applicable regulations neither the Note nor such shares may be resold
without registration under the 1933 Act only in certain limited circumstances.
In this connection, Investor represents that it is familiar with SEC Rule 144,
as presently in effect, and understands the resale limitations imposed thereby
and by the 1933 Act.
3.7 FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting
the representations set forth above, Investor further agrees not to make any
disposition of the Note or, following conversion thereof, the Shares, unless:
(a) There is then in effect a Registration Statement under the
1933 Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
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(b) (i) Investor shall have notified the Company of the proposed
disposition and (ii) if reasonably requested by the Company, Investor shall have
furnished the Company with an opinion of counsel, reasonably satisfactory to the
Company, that such disposition will not require registration of such the Note or
the Shares under the 0000 Xxx.
3.8 LEGEND. It is understood that the Note and the Shares may bear
the following legend:
These securities have not been registered under the
Securities Act of 1933, as amended (the "Act"). They
may not be sold, offered for sale, pledged or
hypothecated in the absence of a registration statement
in effect with respect to the securities under such Act
or an opinion of counsel reasonably satisfactory to the
Company that such registration is not required or
unless sold pursuant to Rule 144 or Rule 144A of such
Act.
4. COVENANTS OF THE COMPANY. The Company hereby covenants and agrees
with Investor that:
4.1 INVESTORS' RIGHTS AGREEMENT. As promptly as practicable after
the date hereof, and in any event no later than the date of the shareholders
meeting referred to in Section 4.2, Investor and the Company shall enter into a
registration rights agreement (the "Investors' Rights Agreement"), which shall
grant Investor registration rights no less favorable to Investor than those set
forth in the Registration Rights Agreement dated October 25, 1996 among the
Company and other persons named therein and contain such other provisions as are
normal and customary for registration rights agreements including, without
limitation, continuing covenants of the Company to publish such information as
may be necessary to ensure the availability of the exemptions afforded by Rule
144 under the 1933 Act.
4.2 SHAREHOLDER MEETING. As promptly as practicable after the date
hereof, but in no event later than ninety (90) days after the date hereof, the
Company shall duly call and convene, in compliance with the By-laws and all
applicable laws and regulations including, without limitation, all applicable
proxy solicitation rules of the SEC, a special meeting of shareholders for the
sole purpose of approving amendments to the Certificate, in form satisfactory to
Investor, so as to: (a) provide that one of the purposes of the Company shall be
to engage in any lawful activity for which corporations may be formed under the
New York Business Corporation Law (the "BCL"); (b) delete paragraph 5 of the
Certificate regarding the Company's tax year; (c) add provisions to the
Certificate (i) eliminating the personal liability of the Company's directors to
the Company and its shareholders for damages as and to the extent permitted by
Section 402(b) of the BCL and (ii) providing for indemnification of the
Company's directors as
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and to the extent permitted by the BCL; and (d) add or delete other
provisions of the Certificate, PROVIDED, HOWEVER, that any additions or
deletions pursuant to this clause (d) shall be reasonably acceptable in
substance to Investor. The Company and its management shall not present or
permit to be presented at such meeting (or any adjournment thereof) any other
matters for shareholder action without Investor's prior consent and shall
recommend that the Company's shareholders approve the aforementioned
amendments, shall use its best efforts to obtain all requisite shareholder
approval for such amendments, and shall, as soon as practicable following
such approval, cause such amendments to become effective.
4.3 DIRECTORS AND OFFICERS INSURANCE. As soon as practicable after the
date hereof, but in no event later than the date of the conversion of the Note
into the Shares, the Company will obtain a directors and officers insurance
policy, with an insurer satisfactory to Investor, of the kind customarily
obtained by corporations engaged in the same or similar business as the Company
and in the amount of not less than $10,000,000.
4.4 AMENDMENT OF BY-LAWS. Within two (2) business days after the date
hereof, the Company shall cause the By-laws to be amended to provide that: (i)
upon written request to the Company by one-third of the holders of the
outstanding Common Stock, the Company shall call a special meeting of the
shareholders of the Company, and (ii) the Chairman of the Board of the Directors
of the Company (the "Chairman") shall be the Chief Executive Officer of the
Company, and that if there is no Chairman, the President shall be the Chief
Executive Officer of the Company. Within five (5) business days after written
request by Investor, the Company shall cause the By-laws to be amended to
provide that the Board of Directors of the Company shall consist of five (5)
members, and cause two designees of Investors to be elected directors of the
Company.
4.5 PAYMENT OF TAXES. The Company shall, as soon as practicable after the
date hereof, but in no event later than ninety (90) days after the date hereof,
pay or otherwise discharge all tax obligations of the Company whatsoever
outstanding on the date hereof. As soon as practicable after the date hereof,
but in no event later than 14 days after the date hereof, the Company shall
engage a reputable accounting firm to assist the Company in making such payments
and/or causing such discharges.
4.6 FURNISH INFORMATION. The Company undertakes to furnish Investor with
copies of such publicly disclosable information as may be reasonably required by
Investor for so long as Investor holds the Note or, after the date of the
conversion of the Note into the Shares, holds at least ten percent (10%) of the
Shares (appropriately adjusted to reflect any stock split, stock dividend, share
combination, recapitalization or the like).
4.7 PROPRIETARY INFORMATION AND INVENTIONS, NONCOMPETE AND NONDISCLOSURE
AGREEMENTS. No later than 14 days after the date hereof, the Company shall
cause each employee of the Company to enter into (i) a Proprietary Information
and Inventions Agreement and (ii) a Nondisclosure Agreement, and both of such
agreements
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shall be in form and substance reasonably acceptable to Investor. In
addition, no later than 14 days after the date hereof, the Company shall
cause each employee of the Company listed on SCHEDULE 4.7 attached hereto to
enter into a Noncompete Agreement, in form and substance reasonably
satisfactory to Investor.
5. MISCELLANEOUS.
5.1 SURVIVAL. The representations, warranties and covenants of the
Company and Investor contained in or made pursuant to this Agreement or the Note
shall survive the execution and delivery of this Agreement and the Note and
shall in no way be affected by any investigation of the subject matter thereof
made by or on behalf of Investor or the Company.
5.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Agreement and the Note shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties.
Nothing in this Agreement of the Note, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement of the Note, except as expressly provided in this Agreement.
5.3 GOVERNING LAW. This Agreement and the Note shall be governed by
and construed under the laws of the State of New York applicable to agreements
among residents of, and entered into and to be performed entirely within, such
state.
5.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement and the Note are used for convenience only and are not to be
considered in construing or interpreting this Agreement and the Note.
5.6 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement or the Note shall be given in writing and shall
be deemed effectively given (i) upon personal delivery to the party to be
notified or (ii) upon deposit with an overnight delivery service or with the
United States Post Office by certified mail, postage prepaid and addressed to
the party to be notified at the address indicated for such party on the
signature page hereof, or at such other address as such party may designate by
ten (10) days' advance written notice to the other party.
5.7 FINDER'S FEE. Each party represents that it neither is nor will
be obligated for any finder's fee or commission in connection with this
transaction. Investor agrees to indemnify and to hold harmless the Company from
any liability for any commission or compensation in the nature of a finder's fee
(and the costs and expenses of
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defending against such liability or asserted liability) for which Investor or
any of its officers, employees, or representatives is responsible. The
Company agrees to indemnify and hold harmless Investor from any liability for
any commission or compensation in the nature of a finder's fee (and the costs
and expenses of defending against such liability or asserted liability) for
which the Company or any of its officers, employees or representatives is
responsible.
5.8 ATTORNEYS' FEES. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the Investors' Rights
Agreement or the Note, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
5.9 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of the Company and Investor.
5.10 SEVERABILITY. If one or more provisions of this Agreement or the
Note are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement or the Note, as the case may be, and the balance of
the Agreement and the Note, as the case may be, shall be interpreted as if such
provision were so excluded and such agreement shall be enforceable in accordance
with its respective terms.
5.11 ENTIRE AGREEMENT. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
5.12 COSTS AND EXPENSES. The Company shall be responsible for its own
costs and expenses incurred in connection with the negotiation, execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby.
[Signatures on next page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
GREENTREE SOFTWARE, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
L-R GLOBAL PARTNERS, L.P.
By: L-R Managers, LLC,
General Partner
By: /s/ X. Xxxxxx Xxxxx
-----------------------------
Name: X. Xxxxxx Xxxxx
Title: Investment Manager
