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EXHIBIT 4.5
FEE AGREEMENT
This FEE AGREEMENT (the "Agreement") dated as of 18th February 1999 by
and between International Microcomputer Software, Inc. a California corporation
("IMSI"), and Greentree Technologies, Inc. a New York corporation ("Greentree").
WHEREAS, IMSI currently owes Greentree an amount equal to $75,000.00
(the "Fees") pursuant to the Software License Agreement, dated December 2, 1997,
between IMSI and Greentree (the "Licensing Agreement"), and
WHEREAS, IMSI and Greentree now desire to set forth certain terms and
provisions with respect to the payment by IMSI of the Fees:
NOW, THEREFORE in consideration of the foregoing and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto hereby agree as follows:
1. Payment of the Fees. Notwithstanding anything to the contrary in the
License Agreement with respect to the form and timing of payment of the Fees,
the obligations to pay the Fees shall the satisfied in full by compliance by
IMSI with the terms and provisions of this Agreement.
2. Issuance of the Shares. As soon as reasonable practicable after
execution of this Agreement, IMSI will issue to Greentree, one hundred fifty
thousand dollars ($150,000.00) in shares of IMSI's Common Stock (the "Common
Stock"), no par value (collectively, the "Shares"). The number of shares of IMSI
common stock constituting the Shares will be determined on the day that IMSI is
able to grant fully tradable shares to Greentree. The Shares will be included in
the next Registration Statement to be filed by IMSI on or around 28th February
1999. If a Registration Statement is not filed by IMSI before 19th March, 1999,
this Fee Agreement shall be null and void and the fee terms and conditions of
the Licensing Agreement shall be re-instated sua sponte.
3. Sale.
a. Sale. The Shares may be sold by one or more of the following means of
distribution (subject to the provisions of this Agreement): (a) a block trade in
which the broker-dealer so engaged will attempt to sell Shares as agent, but may
position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account; (c) an over-the-counter distribution in
accordance with the rules of Nasdaq; (d) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; and (e) in privately
negotiated transactions.
b. Restrictions on Sale. Greentree shall have no restrictions on sale.
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4. Representations, Warranties and Covenants of IMSI. IMSI represents
and warrants to and covenants with Greentree as follows:
a. Registration. IMSI shall use its reasonable best efforts to
cause the shares of IMSI Common Stock that are issuable pursuant to this Fee
Agreement to be registered on a registration statement (or to be issued pursuant
to a then-effective registration statement) on Form S-3 (or successor form)
promulgated by the Securities and Exchange Commission ("SEC") under the 1933
Act, as soon as reasonably practicable after the Closing. It is the intent of
IMSI to file a registration statement on or around 28th February 1999. Nothing
herein shall require IMSI to separately register the Shares.
b. At the date the Registration Statement becomes effective
under the Securities Act (the "Effective Date") or the time of effectiveness of
any post-effective amendment to the Registration Statement, at the time the
Prospectus is first filed with the Commission pursuant to Rule 424 (b) of the
Regulations (if a Rule 424 (b) filing is required), at the time any supplement
to or amendment of the Prospectus is filed with the Commission and at the time
any document filed under the Exchange Act is filed, the Registration Statement
and the Prospectus and any amendments thereof and supplements thereto complied
or will comply in all material respects with the applicable provisions of the
Securities Act and the Regulations or the Exchange Act and the respective rules
and regulations thereunder and do not or will not contain an untrue statement of
a material fact and do not or will not omit to state any material fact required
to be stated therein or necessary in order to make the statements therein (i) in
the case of the Registration Statement, not misleading and (ii) in the case of
the Prospectus, in the light of the circumstances under which they were made,
not misleading.
c. The Shares, when issued and delivered in accordance with this
Agreement, will be duly and validly issued and outstanding, fully paid and
non-assessable and will not have been issued in violation of any preemptive
rights.
d. If at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act any event shall occur as a
result of which the Prospectus as then amended or supplemented, in the judgment
of IMSI or Greentree, includes an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement to comply with the
Securities Act or the Regulations, or to file under the Exchange Act so as to
comply therewith any document incorporated by reference in the Registration
Statement or the Prospectus or in any amendment thereof or supplement thereto,
(i) IMSI will notify Greentree promptly and prepare and file with the Commission
an appropriate amendment or supplement (in form and substance satisfactory to
Greentree) which will correct such statement or omission or which will effect
such compliance and will use its best efforts to
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have any amendment to the Registration Statement docked declared effective by
the Commission as soon as possible and (ii) Greentree shall suspend trading in
the Shares until (A) such amendment or supplement to the Prospectus has been
filed or (B) any amendment to the Registration Statement has been declared
effective by the Commission.
e. IMSI will pay all fees and expenses with respect to the
preparation and filing of the Registration Statement and the registration of the
Shares. If however, Greentree requests that the Shares be registered
independently from another IMSI registration ("Accelerated Registration), the
Greentree shall pay all fees and expenses with respect to the preparation and
filing of the Registration Statement and the registration of the Shares that are
a result of such Accelerated Registration.
f. Upon successful completion of the Registration Statement,
Greentree will release and forever discharge payment of the Fees pursuant to the
terms and conditions of the License Agreement.
5. Indemnification.
a. IMSI agrees to indemnify and hold harmless Greentree, against any and all
losses, liabilities, claims, damages and expenses incurred (including but not
limited to attorneys' fees), to which it may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise solely out of any
untrue statement of a material fact contained in the Registration Statement, as
originally filed or any amendment thereof, or the Prospectus, or in any
supplement thereto or amendment thereof, 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;
provided, however, that IMSI shall not be liable to Greentree for any such
losses, liabilities, claims, damages or expenses which arise out of or are based
upon an untrue statement or alleged untrue statement or omission or alleged
omission contained or made in the Registration Statement or the Prospectus or
any amendment thereof or Supplement thereto in reliance upon and in conformity
with information furnished to IMSI by Greentree.
b. Promptly after receipt by any indemnified party under subsection a.
above of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party under
such subsection, notify the party against whom indemnification is to be sought
in writing of the commencement thereof. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof. Notwithstanding the foregoing,
the indemnified party or parties shall have the right to employ its own counsel
in any such
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case, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment of such counsel
shall have been authorized in writing by the indemnifying party in connection
with the defense of such action, (ii) the indemnifying party shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying party. Anything in this subsection to the
contrary notwithstanding, the indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent:
provided, however, that such consent was not unreasonably withheld.
6. Entire Agreement. This Agreement and the License Agreement (to the
extent not inconsistent herewith) constitute the entire agreement between the
parties hereto with respect to the subject matter hereof and supersede all prior
written agreements and negotiations and oral understandings, if any, with
respect thereto. This Agreement may not be amended or supplemented except by an
instrument in writing signed by each of the parties hereto.
7. Notices. All notices, requests and other communications hereunder
shall be in writing and delivered in person or by registered or certified mail
(postage prepaid, return receipt requested), overnight courier or facsimile,
addressed as follows:
if to Greentree, to:
▇▇▇▇▇▇ ▇▇▇▇
GreenTree Technologies
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
if to IMSI, to:
International Microcomputer Software, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The address of a party, for the purposes of this Section 8, may be changed by
giving written notice to the other party of such change in the manner provided
herein for giving notice. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five calendar days mailing, if sent
by registered or certified mail; the next business day
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after timely delivery to the courier, if sent by overnight courier; and when
receipt is acknowledged, if sent by facsimile transmission (except that a notice
of change of address shall not be deemed to have been given until actually
received by the addressee).
8. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of California, without regard to the conflicts of law
principles thereof.
9. Investment Representations. Greentree represents and warrants that it
is an "accredited investor" as defined by Regulation D: that it is acquiring the
Shares for its own account, for the purpose of investment and not with a view
to, or resale in connection with, any distribution thereof; that Greentree has
had access to all information regarding IMSI and its present business, assets,
liabilities and financial condition, that Greentree reasonably considers
important in making the decision to acquire the Shares under this Agreement; and
that Greentree understands that the Shares are restricted securities and may not
be sold except pursuant to the Form S-3, some other registration statement, or
pursuant to an applicable exemption from federal and state registration
requirements.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the date first set forth above.
Greentree Technologies INTERNATIONAL MICROCOMPUTER
SOFTWARE, INC.
By: _________________________ By: ______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President Title: Chief Operating Officer
