Exhibit 10(dd)
GREENTREE SOFTWARE, INC.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of October 25, 1996, among
Greentree Software, Inc., a New York corporation (the "Company"), and the other
Persons identified on the signature pages hereto.
W I T N E S S E T H:
WHEREAS, the Company is offering to sell to prospective investors, in a
private placement (the "Private Placement"), up to 1,000,000 shares (the
"Purchase Shares") of common shares, $.04 par value per share (the "Common
Shares"), and $1,000,000 in Convertible Term Promissory Notes (the "Notes")
convertible into 4,000,000 Common Shares (the "Conversion Shares"), all upon the
terms and conditions described in the Company's private placement memorandum
relating to the Private Placement (the "Private Placement Memorandum");
WHEREAS, the Company will issue to the purchasers of Purchase Shares or
Notes in this Private Placement a warrant (the "Investor Warrant") to purchase a
number of shares of Common Shares, which number will be based on the number of
Purchase Shares and amount of Notes purchased.
WHEREAS, the Company has engaged Xx Xxxxx Securities, Inc., a Colorado
corporation (the "Placement Agent"), to offer and sell on behalf of the Company,
on a best efforts basis, the Purchase Shares and Notes proposed to be sold by
the Company pursuant to the Private Placement;
WHEREAS, as partial consideration for the Placement Agent's services, the
Company has agreed to issue to the Placement Agent a warrant (the "Placement
Agent Warrant") to purchase a number of shares of the Common Shares, which
number will be determined on a formula basis as based on the total amount of
Purchase Shares and Notes sold; and
WHEREAS, in order to induce the Holders to purchase shares of Common Shares
in the Private Placement and in order to induce the Placement Agent to accept
the Placement Agent Warrant as partial consideration for the Placement Agent's
services, the Company has agreed to provide certain registration rights to the
Holders and to the Placement Agent upon the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
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1. DEFINITIONS. As used in this Agreement, the following capitalized
terms shall have the following meanings:
"COMMISSION" shall mean the Securities and Exchange Commission.
"DEMAND REGISTRATION" shall have the meaning assigned to such term in
Section 3 hereof.
"HOLDER" shall mean a Person who is the owner of Registrable Securities.
"PERSON" shall mean an individual, partnership, corporation, business
trust, joint state company trust, unincorporated organization, joint venture, a
government authority or other entity of whatever nature.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement, and all other amendments and supplements
to the Prospectus, including post-effective amendments to the Registration
Statement of which such Prospectus is a part, and all material incorporated by
reference in such Prospectus.
"REGISTRABLE SECURITIES" shall mean the Securities, but only so long as
they remain Restricted Securities.
"REGISTRATION EXPENSES" shall have the meaning ascribed thereto in
Section 7 hereof.
"REGISTRATION STATEMENT" means any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits, and
all material incorporated by reference in such Registration Statement.
"RESTRICTED SECURITIES" means the Registrable Securities unless and until,
in the case of any such Registrable Security, (i) it has been effectively
registered under the Securities Act and disposed of in accordance with the
Registration Statement covering it, or (ii) it is eligible for distribution to
the public pursuant to Rule 144 (or any similar provisions then in force) under
the Securities Act.
"SECURITIES" shall mean the Common Shares (i) issued to the parties to this
Agreement pursuant to the Private Placement or (ii) issuable to the parties to
this Agreement upon conversion of the Notes or upon exercise of the Placement
Agent Warrant or the Investor Warrants.
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"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
2 SECURITIES SUBJECT TO THIS AGREEMENT. The Securities entitled to the
benefits of this Agreement are the Registrable Securities.
3. DEMAND REGISTRATION.
(a) REQUEST FOR REGISTRATION. Subject to the provisions of this Section,
one or more Holders owning in the aggregate in excess of 50% of the issued and
outstanding Registrable Securities may make a written request to the Company for
registration under and in accordance with the provisions of the Securities Act
of up to all of the Registrable Securities owned by such Holder or Holders (a
"Demand Registration"). Within five (5) days after receipt of such request, the
Company will serve written notice (the "Notice") of such request to all other
Holders and will include in such registration all Registrable Securities with
respect to which the Company receives written requests for inclusion therein
within five (5) business days after it gives the Notice to the applicable
Holder. Subject to the provisions of Section 3(d), the Company may include in
any registration statement to be filed pursuant to this Section 3 additional
shares of Common Shares for sale for its own account or for the account of any
other person.
(b) NUMBER OF REGISTRATIONS. The Holders are entitled to, in the
aggregate, two (2) Demand Registrations regardless of the Person or Persons
making demand. Each Holder agrees that if the Company determines that there are
material developments which the Company determines require the filing of a post-
effective amendment to the Registration Statement, then each Holder agrees to
refrain from selling any Registrable Securities until the post-effective
amendment is declared effective.
(c) SELECTION OF UNDERWRITERS. If a registration pursuant to this
Section 3 involves an underwritten offering, the underwriter or underwriters
thereof shall be selected by the Company after consultation with the Holders
making demand.
(d) LIMITATIONS, CONDITIONS AND QUALIFICATIONS. The obligations of the
Company to cause the Registrable Securities to be registered under the
Securities Act pursuant to this Section 3 are subject to each of the following
limitations, conditions and qualifications:
(1) The Company shall not be obligated to file or keep effective any
Registration Statement pursuant to Section 3(a) hereof at any time if the
Company would be required to include financial statements audited as of any date
other than the end of its fiscal year.
(2) The Company, by act of its Board of Directors, shall, one time
during any 180 day period, be entitled to postpone for up to 30 days from the
receipt of request for a Demand Registration the filing or effectiveness of any
Registration Statement otherwise
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required to be prepared and filed by it pursuant to Section 3(a) if the Board of
Directors of the Company determines, in its reasonable judgment, that the
Company is in possession of material information that has not been disclosed to
the public and the Board of Directors of the Company reasonably deems it to be
advisable not to disclose such information at such time in a registration
statement. If the Company shall so postpone the filing of a Registration
Statement, the Holders shall have the right to withdraw the request for
registration by giving written notice to the Company within 30 days after
receipt of the notice of postponement and, in the event of such withdrawal, such
request shall not be counted for purposes of the request for registration to
which the Holders are entitled pursuant to Section 3(a) hereof.
(3) If the Company at any time shall register Registrable Securities
under the Securities Act for sale to the public, the Holders of such Registrable
Securities shall, upon the written request of the Company, not publicly sell,
make any short sale of, grant any option for the purchase of, or otherwise
dispose of any Securities (other than any Registrable Securities being
registered under such Demand Registration) without the prior written consent of
the Company, to the extent and for the period (not exceeding 180 days) that all
of the directors and officers of the Corporation (other than directors and
officers holding not more than 25,000 shares of Common Shares (as adjusted for
stock dividends, stock splits, combinations of shares, or similar events) in the
aggregate) are subject to the same restriction.
(4) PRIORITY OF DEMAND REGISTRATION. If the Demand Registration
pursuant to this Section 3 involves an underwritten offering and the managing
underwriter shall advise the Company in writing that, in its opinion, the number
of shares of Common Shares requested to be included in such registration exceeds
the number which can be sold in such offering, then the Company will include in
such registration, to the extent of the number of shares of Common Shares which
the Company is so advised can be sold in such offering, (i) first, the number of
Registrable Securities requested to be included in such registration by the
Holders (on a pro rata basis to the number of Registrable Securities held by
such Holder), and (ii) second, the other shares of Common Shares of the Company
proposed to be included in such registration, in accordance with the priorities,
if any, then existing among the Company and the holders of such other
securities.
4. "PIGGYBACK" REGISTRATION. Whenever the Company proposes to register
any of its Common Shares under the Securities Act, other than pursuant to a
Demand Registration pursuant to Section 3(a) or a registration statement on
Form S-4 or Form S-8 or similar or successor forms, the Company shall, each such
time, give to the Holders written notice of its intent to do so. Upon the
written request of any Holder within twenty (20) days after the giving of any
such notice by the Company, the Company shall use its best efforts to cause to
be included in such registration up to fifty (50%) percent of the Registrable
Securities owned by such selling Holder, to the extent requested to be
registered; PROVIDED that (i) such selling Holder agrees to sell its shares of
Common Shares in the same manner and on the same terms and conditions as the
other shares of Common Shares which the Company
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proposes to register and (ii) if the registration is to include shares of Common
Shares to be sold for the account of the Company, the proposed managing
underwriter does not advise the Company that, in its opinion, the inclusion of
such selling Holders' shares of Registrable Securities (without any reduction in
the number of shares to be sold for the account of the Company) is likely to
affect adversely the success of the offering or the price the Company would
receive for any shares of Common Stock offered by it pursuant thereto, in which
case the shares proposed to be included by the selling Holders will be reduced
(on a pro rata basis), according to the total number of shares of Registrable
Securities owned by such selling Holders, or in such other proportions as shall
mutually be agreed to by such selling Holders, to such number which the Company
is advised can be sold in such offering without adversely affecting the success
of the offering or the price the Company would receive for any shares of Common
Shares.
5. INFORMATION. Upon making a request pursuant to Sections 3 or 4, the
Holders shall specify the number and shares of Common Shares to be registered.
The Company may require the Holders to furnish to the Company such information
regarding themselves and the distribution of Registrable Securities as the
Company may from time to time reasonably request in writing in order to comply
with the Securities Act. The Holders agree to notify the Company as promptly as
practicable of any inaccuracy or change in information they have previously
furnished to the Company.
6. REGISTRATION PROCEDURES. If and when the Company is required by the
provisions of Sections 3 or 4 to effect a registration under the Securities Act,
the Company will, at its expense, as expeditiously as practicable, subject to
the provisions of Section 3(d) hereof:
(a) In accordance with the Securities Act and the rules and
regulations of the Commission, prepare and file with the Commission a
Registration Statement in the form of registration statement appropriate with
respect to the Registrable Securities and use its best efforts to cause such
Registration Statement to become and remain continuously effective until all of
the Registrable Securities covered by such Registration Statement have been sold
in accordance with the intended methods of disposition of the seller or sellers
set forth in such Registration Statement, but in no event for longer than five
years from the date of the issuance of such Registrable Securities, and prepare
and file with the Commission such amendments to such Registration Statement and
supplements to the Prospectus contained therein as may be necessary to keep such
Registration Statement effective and such Registration Statement and Prospectus
accurate and complete during such period;
(b) Furnish to the Holders participating in such registration such
reasonable number of copies of the Registration Statement and Prospectus and
such other documents as such Holders may reasonably request in order to
facilitate the public offering of the Registrable Securities;
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(c) Use its best efforts to register or qualify the Common Shares
covered by such Registration Statement under such state securities or blue sky
laws of such jurisdictions as such Holders may reasonably request, PROVIDED,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to subject itself to taxation in connection with
any such registration or qualification of such Common Shares;
(d) Notify the Holders participating in such registration, promptly
after it shall receive notice thereof, of the date and time when such
Registration Statement and each post-effective amendment thereto has become
effective or a supplement to any Prospectus forming a part of such Registration
Statement has been filed;
(e) Notify the Holders participating in such registration promptly of
any request by the Commission for the amending or supplementing of such
Registration Statement or Prospectus or for additional information;
(f) Prepare and file with the Commission, promptly upon the request
of any Holder participating in such registration, the Registration Statement and
any amendments or supplements to such Registration Statement or Prospectus
which, in the reasonable opinion of counsel for such Holders is required under
the Securities Act or the rules and regulations thereunder in connection with
the distribution of the Common Shares by such Holders or to otherwise comply
with the requirements of the Securities Act and such rules and regulations;
(g) Prepare and promptly file with the Commission and promptly notify
the Holders participating in such registration of the filing of such amendments
or supplements to such Registration Statement or Prospectus as may be necessary
to correct any statements or omissions if, at the time when a Prospectus
relating to such Common Shares is required to be delivered under the Securities
Act, any event has occurred as the result of which any such Prospectus or any
other Prospectus then in effect may include an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(h) Advise the Holders participating in such registration, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission suspending the effectiveness of such
Registration Statement or the initiation or threatening of any proceeding for
that purpose and promptly use its best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued;
(i) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to the
Company's security holders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act, no later than forty-five (45) days after
the end of any twelve (12) month period (or ninety
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(90) days, if such a period is a fiscal year) beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of a
Registration Statement.
7. EXPENSES OF REGISTRATION. All expenses of the Company incident to the
Company's performance of or compliance with the provisions of Sections 3, 4, 5
and 6 of this Agreement shall be borne by the Company including without
limitation:
(a) All registration and filing fees;
(b) Fees and expenses of compliance with all securities or blue sky laws
(including fees and disbursements of counsel for the Company in connection with
blue sky qualifications of the Registrable Securities; PROVIDED, HOWEVER, that
the Company shall not be required to consent to general service of process or
qualify as a foreign corporation in any such state);
(c) Printing, messenger, telephone and delivery expenses; and
(d) Fees and disbursements of counsel for the Company and its independent
auditors.
Nothing in this Section 7 shall be deemed to require the Company to pay or
bear any expenses of any Holder's attorneys or accountants or any other personal
expenses or any underwriting discounts, selling commissions or similar fees if
such registration results in an underwritten public offering of all or any
portion of the Registrable Securities.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. Whenever, pursuant to Sections 3 or
4, a Registration Statement relating to the Registrable Securities is filed
under the Securities Act, the Company will (except as to matters covered by
Section 8(b) hereof) indemnify and hold harmless each Holder participating in
the registration, each of their officers, directors and employees, and each
person, if any, who controls any such Person (collectively, the "Holder
Indemnitees" and, individually, a "Holder Indemnitee"), against any losses,
claims, damages or liabilities, joint or several, to which such Holder
Indemnitees may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in such Registration Statement, or Prospectus
contained therein, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Holder Indemnitee for all legal or other
expenses reasonably incurred by it in connection with investigating or defending
against such loss, claim, damage, liability or action.
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(b) INDEMNIFICATION BY HOLDERS. Each Holder participating in any
registration will indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the Registration Statement and
each other person, if any, who controls the Company, within the meaning of the
Securities Act (collectively, the "Company Indemnitees" and, individually, a
"Company Indemnitee") and each other Holder Indemnitee against all losses,
claims, damages or liabilities, joint or several, to which any of the Company
Indemnitees or the other Holder Indemnitees may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
such Registration Statement, or Prospectus contained therein, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only if, and to the
extent that, such statement or omission was in reliance upon and in conformity
with written information furnished to the Company by such Holder specifically
for use in the preparation thereof, and will reimburse each Company Indemnitee
and each other Holder Indemnitee for all legal or other expenses reasonably
incurred by it in connection with investigating or defending against such loss,
claim, damage, liability or action.
(c) INDEMNIFICATION PROCEDURES. Promptly after receipt by a Holder
Indemnitee or a Company Indemnitee (collectively, "Indemnitees" and,
individually, an "Indemnitee") under Section 8(a) or 8(b) hereof of notice of
the commencement of any action, such Indemnitee will, if a claim in respect
thereof is to be made against the indemnifying party under such clause, notify
the indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve the indemnifying party from
any liability which it may have to any Indemnitee otherwise than under such
clauses. In case any such action shall be brought against any Indemnitee, and
such Indemnitee shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in, and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such Indemnitee, and
after notice from the indemnifying party to such Indemnitee of its election to
assume the defense thereof, the indemnifying party shall not be liable to such
Indemnitee under such clause for any legal or other expenses subsequently
incurred by such Indemnitee in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that the Indemnitee shall
have the right to employ one counsel to represent such Indemnitee if, in the
reasonable judgment of such Indemnitee, it is advisable for such party to be
represented by separate counsel because separate defenses are available, or
because a conflict of interest exists between such indemnified and indemnifying
party in respect of such claim, and in that event the fees and expenses of such
separate counsel shall be paid by the indemnifying party. Notwithstanding the
foregoing, if the Company is an Indemnitee, the Company shall designate the one
counsel, and in all other circumstances, the one counsel shall be designated by
a majority in interest based upon the Registrable Securities of the Indemnitees.
For purposes of this Section 8, the terms
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"control," and "controlling person" have the meanings which they have under the
Securities Act.
(d) CONTRIBUTION. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an Indemnitee, then the
indemnifying party shall contribute to the amount paid or payable by the
Indemnitee as a result of such losses, claims, damages, liabilities or expenses
(i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party on the one hand and the Indemnitee on the
other from the registration or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, or provides a lesser sum to the
Indemnitee than the amount hereinafter calculated, in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the Indemnitee on the other but also the
relative fault of the indemnifying party and the Indemnitee as well as any other
relevant equitable considerations. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
9. AMENDMENT AND MODIFICATION. This Agreement may be amended, modified
or supplemented in any respect only by written agreement by the Company and the
Holders of a majority of the issued and outstanding Registrable Securities.
10. GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the Commonwealth of Massachusetts, without giving
effect to the choice of law principles thereof.
11. INVALIDITY OF PROVISION. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
12. NOTICES. All notices and other communications hereunder shall be in
writing and, unless otherwise provided herein, shall be deemed duly given upon
receipt if delivered personally, sent by facsimile transmission, sent by express
courier, or mailed by registered or certified mail (return receipt requested) to
the parties at the following addresses or (at such other address for the party
as shall be specified by like notice):
(a) If to the Company:
Greentree Software, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx, President
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with a copy to:
Xxxxxxx, Xxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
(b) If to a Holder, as listed on Schedule A or as such Holder shall
designate to the Company in writing.
13. HEADINGS; EXECUTION IN COUNTERPARTS. The headings and captions
contained herein are for convenience of reference only and shall not control or
affect the meaning or construction of any provision hereof. This Agreement may
be executed in any number of counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one and the same
instrument. In making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart.
14. ENTIRE AGREEMENT. This Agreement, including any exhibits hereto and
the documents and instruments referred to herein and therein, embodies the
entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
15. ATTORNEYS' FEES. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover such reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to which
it or they may be entitled, as may be ordered in connection with such
proceeding.
16. TRANSFERABILITY OF RIGHTS. Notwithstanding anything in this Agreement
to the contrary, none of the rights of any Holder under this Agreement shall be
transferred or assigned to any person unless (i) such person becomes the
registered holder, in the books of the Company, of such Holder's Securities,
Notes or Investor Warrant, and (ii) such person agrees to become a party to, and
bound by all of the terms and conditions of, this Agreement.
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IN WITNESS WHEREOF, this Agreement has been signed by each of the parties
hereto as of this 25th day of October, 1996.
GREENTREE SOFTWARE, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
Chairman
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SIGNATURE PAGE
TO
REGISTRATION RIGHTS AGREEMENT
Reference is hereby made to that certain Registration Rights Agreement,
dated as of October 25, 1996, among Greentree Software, Inc., a New York
corporation (the "Company"), and the Holders parties thereto, as amended and in
effect from time to time (the "Registration Rights Agreement").
The undersigned hereby agrees that, from and after the date that the
Company countersigned this Signature Page in the space provided therefor below,
the undersigned shall become a party to the Registration Rights Agreement. This
Signature Page shall take effect and shall become a part of the Registration
Rights Agreement immediately upon execution by the undersigned and the Company.
Executed under seal as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Signature:
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Name:
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Accepted:
GREENTREE SOFTWARE, INC.
By:
--------------------------------
Date:
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SCHEDULE A
HOLDER ADDRESS
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