Exhibit D
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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:
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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 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
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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, 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
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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
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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
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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 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
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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 non-renewal of any material
permit, license, authorization or approval applicable to the
Company, its business or operations or any of its assets or
properties; or
(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.
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(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
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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
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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 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
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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 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
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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.
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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.
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
(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 and to the extent
permitted by the BCL; and (d) add or delete other provisions of
the Certificate, provided, however, that any additions or
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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 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
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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 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.]
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: CEO
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
