EXHIBIT 10.9
Investment Agreement
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(Series C Preferred Stock)
THIS IS AN INVESTMENT AGREEMENT (this "Agreement") made and dated as of
August 7, 1998,
between: Greenwich Technology Partners, inc., a Delaware corporation (the
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"Corporation");
and: FG-GTPC, a Florida partnership, (the "Investor");
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The Corporation and the Investor agree as follows:
1. DEFINITIONS. As used in this Agreement, each of the following terms
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means:
"Affiliate": With respect to any particular Person, any other
Person directly or indirectly, controlling, controlled by or under common
control with such Person.
"Books and Records": The books and records of the Corporation.
"Business": The computer networking and related consulting
business conducted by the Corporation.
"Corporation": Greenwich Technology Partners, Inc., a Delaware
corporation.
"Environmental Laws": All Laws governing the use, storage,
shipment, handling, disposal, discharge, release, cleanup, reporting, labelling,
warning, workplace disclosure or monitoring of Hazardous Materials, or otherwise
relating to environmental pollution or environmental protection, including, as
may be applicable to environmental matters, the common law respecting nuisance,
trespass, tortious liability and strict liability.
"Financial Statements": The Corporation's balance sheet as at
December 31, 1997 and the related statements of income, retained earnings and
changes in financial position for such fiscal year, and the Corporation's
interim balance sheet as at March 31, 1998 and the related interim statements of
income, retained earnings and changes in financial position for the fiscal
quarter then ended.
"Hazardous Materials": All substances, in whatever form or
concentration, which are classified as hazardous, toxic or dangerous or as
pollutants or contaminants under any Environmental Laws. "Hazardous Materials"
specifically include gasoline, oil and other petroleum products, their fractions
and their constituent and residual compounds and by-products, and radon,
asbestos, lead-based paint, ureaformaldehyde and PCB's. Where under applicable
Environmental Laws a jurisdiction exercises the authority to establish stricter
requirements regarding Hazardous Materials or to define Hazardous Materials more
inclusively, the stricter requirements and more inclusive definitions shall
apply with respect to the operations of the Business which are located or
conducted within such jurisdiction or which are otherwise subject to its
authority.
"Laws": All laws, statutes, ordinances, rules, regulations and
other requirements having the force of law promulgated by any governmental
authority, commission, agency or body which are applicable to the Corporation or
the Business, in each case whether local, state, territorial, or federal.
"Liabilities": All liabilities or obligations of the Corporation
of any kind or description, whether accrued, absolute, contingent or otherwise.
"Liens": All liens, security interests, pledges, mortgages,
encumbrances, claims, charges, agreements and rights of others of any nature
whatsoever.
"Losses": Any loss (including loss in the value of any Series C
Shares), claim, liability, penalty, damage, cost or expense, whether direct or
indirect, special or consequential, including reasonable attorneys' fees.
"Order": Any order, writ, decree, ruling, award, injunction or
other directive or requirement having the force of law issued by any court,
tribunal, administrative agency, other governmental authority, or arbitrator, in
each case whether local, state, territorial or federal which is applicable to
the Corporation.
"Person": Any natural person, corporation, partnership (general,
limited or otherwise), limited liability company, trust, association, joint
venture, governmental body or agency or other entity having legal status of any
kind.
"Preferred Shareholders": As defined in Section 2.2.
"Proceeding": Any litigation, lawsuit, arbitration, mediation,
grievance, hearing, investigation or other legal, administrative, governmental
or private party proceeding or enforcement action.
"Series A Shares": Share of Series A Convertible Preferred Stock
having the rights, preferences, privileges, restrictions and other matters set
forth in Articles 4, 5 and 6 of the Restated Certificate of Incorporation of the
Corporation.
"Series B Shares": Shares of Series B Convertible Preferred Stock
having the rights, preferences, privileges, restrictions and other matters set
forth in Articles 4, 5 and 6 of the Restated Certificate of Incorporation of the
Corporation.
"Series C Shares": Shares of Series C Convertible Preferred Stock
having the rights, preferences, privileges, restrictions and other matters set
forth in Articles 4, 5 and 6 of the Restated Certificate of Incorporation of the
Corporation.
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"Shareholders Agreement": As defined in Section 2.2.
2. PURPOSE AND BACKGROUND.
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2.1 Sale of Series C Shares. The Investor is the owner of certain
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Series C Shares. The Corporation desires to sell to the Investors and additional
number of Series C Shares as set forth opposite the Investor's name under the
heading "Second-II" on Schedule 2.1, and the Investor desires to purchase such
additional Series C Shares from the Corporation, all on the terms and conditions
set forth in this Agreement.
2.2 Shareholders Agreement. The Corporation, the Investor, the other
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holders of the Corporation's Series C Shares, and the holders of the
Corporation's Series A Shares and Series B Shares (collectively, the "Preferred
Shareholders") are parties to a Shareholders Agreement dated as of June 25, 1998
(the "Shareholders Agreement") setting forth, among other matters, certain
restrictions on disposition of, and options to purchase or sell, the Preferred
Shareholders' respective shares of the Corporation's capital stock.
3. PURCHASE AND SALE OF SHARES, USE OF PROCEEDS. Subject to the terms and
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conditions contained in this Agreement.
3.1 Purchase of Series C Shares. The Corporation hereby sells and
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issues to the Investor, and the Investor hereby purchases from the Corporation,
the number of Series C Shares set forth opposite the name of the Investor under
the heading "Second-II" on Schedule 2.1, free and clear of all Liens, for an
aggregate purchase price shown on Schedule 2.1, which is being paid concurrently
with this Agreement.
3.2 Use of Proceeds. The Corporation shall use the proceeds from the
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sale of the Series C Shares for working capital and general corporate purposes,
including the payment of legal fees and expenses of the Investor as provided in
Section 12.6.
4. THE CORPORATION'S REPRESENTATIONS AND WARRANTIES. The Corporation
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makes the following representations and warranties to the Investor:
4.1. Organization and Authority. The Corporation is a corporation
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duly organized, validly existing and in good standing under the Laws of
Delaware. The Corporation has full corporate power and authority to own its
assets and to carry on the Business as presently conducted. The Corporation is
duly qualified to do business as a foreign corporation and is in good standing
in Connecticut, New York and each other jurisdiction where the Corporation is
required to be so qualified. The Corporation has no subsidiaries and owns no
capital stock or other equity interests in any Person. The signing, delivery
and performance of this Agreement have been duly authorized by the Corporation's
Board of Directors and shareholders, and no further corporate or other action is
required on the part of the Corporation in order to authorize this Agreement or
the transactions contemplated by this Agreement. This Agreement is the legal,
valid and binding obligation of the Corporation, duly enforceable against the
Corporation in accordance with its terms.
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4.2. Capitalization. The Corporation's authorized capital stock
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consists solely of 46,666,666 shares, 30,000,000 of which shall be common stock,
par value $.01 per share and 16,666,666 of which shall be preferred stock, par
value $.01 per share. 4,100,000 of the authorized shares of preferred stock are
designated as Series A Preferred Stock, 5,723,000 of the authorized shares of
preferred stock are designated as Series B Preferred Stock, 6,666,666 of the
authorized shares of preferred stock are designated as Series C Preferred Stock
and 177,000 of the authorized shares of preferred stock are not designated as to
series. The only shares of stock which are presently issued are 177,000 shares
of common stock, 4,100,000 shares of Series A Preferred Stock and 5,722,954
shares of Series B Preferred Stock, and 3,060,000 shares of Series C Preferred
Stock. Except as provided in the Certificate of Incorporation and except for
stock options granted to employees of the Corporation's employees, directors or
consultants which are set forth in Schedule 4.13, the Corporation has no shares
of capital stock reserved for issuance, and the Corporation has no outstanding
options, warrants, rights, calls or commitments relating to its shares of
capital stock or any outstanding securities or obligations convertible into or
exchangeable for, or giving any Person any right to subscribe for or acquire
from the Corporation, any shares of capital stock. There are no preemptive or
other subscription rights with respect to any shares of capital stock. All of
the shares of capital stock which are issued and outstanding have been duly
authorized and validly issued and are fully paid and are nonassessable. The
Series C Shares to be issued to the Investor pursuant to this Agreement have
been duly authorized and when issued, they will be validly issued, fully paid
and nonassessable.
4.3. No Conflict or Violation. Neither the signing and delivery of
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this Agreement by the Corporation nor the performance by the Corporation of the
transactions contemplated by this Agreement will result in: (i) a violation of
or conflict with the Corporation's certificate of incorporation or bylaws; (ii)
a violation of any Laws or any Order to which the Corporation is subject; (iii)
the imposition of any material Lien against the Corporation's assets; or (iv) a
breach or default under any mortgage, indenture, deed of trust, real property or
personal property lease, license, contract, or other agreement.
4.4. Financial Statements. The Financial Statements present fairly
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the financial condition and results of operations of the Corporation of and for
periods covered by the Financial Statements, subject only to ordinary course
adjustments for normal, recurring accruals resulting from the year-end audit.
4.5. Absence of Certain Changes or Events. Since March 31, 1998, the
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Business has operated only in the ordinary course and there has been no: (i)
material adverse change in the Business, the financial condition of the
Corporation, the results of operations of the Corporation or the prospects for
the Business; (ii) damage, destruction or loss (whether or not covered by
insurance) involving any of the Corporation's assets; (iii) sale or lease or
other disposition of any of the Corporation's assets, except for dispositions in
the ordinary course; (iv) declaration or payment of any dividend or distribution
on any shares of its capital stock or other equity interests; (v) repurchase or
other acquisition of any shares of its capital stock or of any option, warrant,
right, call or commitment relating to shares of capital stock or other equity
interests or any outstanding securities convertible into shares of capital
stock, or, except as set forth in Schedule 4.13, any grant to any Person of any
right to subscribe for or acquire from it,
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any shares of capital stock or other equity interests; (vi) the granting or
creation by the Corporation of any material Lien affecting any of the
Corporation's assets; or (vii) to the Corporation's best knowledge, any
transaction by the Corporation outside the ordinary course of the Business.
4.6. Consents and Approvals. The signing, delivery and performance
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by the Corporation of this Agreement and the transactions contemplated by this
Agreement do not require the consent, approval or authorization of, or any
declaration, filing, registration or notice with or to any governmental or
regulatory authority, or any other Person, except where the failure to obtain
such would not have a material adverse effect on the Corporation.
4.7. Material Agreements. Schedule 4.7 contains a complete and
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correct list, as of the date of this Agreement, of all agreements, contracts,
commitments, undertakings and other obligations, whether written or oral,
involving the Corporation or otherwise relating to the Business, which (i)
entail a commitment of $10,000 or more, or (ii) have a stated duration of one
(1) year or longer, or (iii) are not cancelable on thirty (30) days' notice or
less without penalty. True and complete copies of all written agreements,
contracts and commitments listed in Schedule 4.7, including all amendments, have
been made available to the Investor.
4.8. Absence of Litigation. There is no material Proceeding which is
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either pending or, to the Corporation's best knowledge, threatened against the
Corporation or otherwise involving its assets or the Business, and there are no
outstanding Orders against the Corporation or with respect to the Business or
the Corporation's assets.
4.9. Compliance with Laws. The Corporation is currently in
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compliance and has in the past complied, in each case in all material respects,
with the Laws applicable to the Corporation, except where the failure to do so
would not have a material adverse effect on the Corporation. The Corporation
has not received notice of violation or alleged violation of any Laws relating
to the conduct of the Business which has not been rectified or which remains
outstanding.
4.10. Accounts Receivable. All accounts receivable reflected on the
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Financial Statements and all accounts receivable of the Business that have
arisen since the respective dates of the Financial Statements derive from bona
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fide transactions in the ordinary course of the Business and are payable on
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ordinary terms, less adequate reserves for doubtful accounts as reflected in the
Books and Records. No person has asserted or threatened to assert any counter-
claims or offsetting claims or defenses to collection of the Corporation's
accounts receivable. The Books and Records as of the date of this Agreement
reflect an accurate aging of all accounts receivable. Except as stated in
Schedule 4.10, the Corporation is not aware that any of the accounts receivable
as of the date of this Agreement are uncollectible or are likely to be
uncollectible in the ordinary course within 60 days after origination.
4.11. Intellectual Property. Schedule 4.11 is a true and complete
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listing, as they relate to or are used in the Business, of all: (i) trademark
registrations and applications in the United States, any state or any other
jurisdiction; (ii) common law or unregistered trademarks; (iii) tradenames, (iv)
patents and patent applications; (v) registered copyrights; and
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(vi) technical know-how, license or similar agreements to which the Corporation
with respect to the Business is party, or from which the Business otherwise
benefits (collectively, the "Intellectual Property"). No proceedings are pending
or, to the Corporation's best knowledge, threatened, which challenge the
validity of the Corporation's ownership or use of the Intellectual Property. All
licensing and similar agreements relating to the Intellectual Property are
listed on Schedule 4.11 and are in full force and effect, and there is no
default by the Corporation or any other party to such agreements. The
Corporation has not received notice of conflict with the asserted rights of
other Persons. To its best knowledge, the Corporation is not infringing any
patents, trademarks or copyrights and is not misappropriating or violating trade
secrets or other proprietary rights of any other Person.
4.12. Environmental Matters. The Corporation is in compliance with
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applicable Environmental Laws. To the Corporation's best knowledge, there is no
past or existing event, condition, circumstance or practice or procedure
involving or relating to Hazardous Materials or other environmental matters
which might interfere with or adversely affect the conduct of the Business as
now being conducted, or which would require disclosure, reporting, monitoring,
cleanup, remediation or other action on the part of the Corporation or at the
Corporation's expense, or which might result in the Corporation's being in
violation of or in noncompliance with Environmental Laws.
4.13. Employees. To the Corporation's best knowledge, the
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Corporation has satisfied in full all of its obligations to date to its
employees, including obligations under employee benefits plans. Except as
specified in Schedule 4.13, employees of the Business are employed "at will",
and, except as otherwise provided in this Agreement, the employment of each
employee may be terminated at any time, without obligation to pay severance or
other payments or benefits. None of the Corporation's employees are represented
by any labor union or other organization and, there have been no attempts by or
on behalf of the Corporation's employees to be represented by a labor union.
Except as set forth in Schedule 2.1, there are no controversies pending or, to
the Corporation's best knowledge, threatened between the Corporation and its
employees or consultants, present or former. The Corporation considers its
relations with employees to be good. Schedule 4.13 also contains a complete and
correct list, as of the date of this Agreement, of all bonus, deferred
compensation, severance, pension, profit-sharing, retirement, insurance, stock
purchase, stock option and other fringe benefit plans, written or otherwise,
maintained or sponsored by the Corporation or any of its Affiliates in which
employees or former employees of the Business are eligible to participate.
4.14. Undisclosed Liabilities. To the Corporation's best knowledge,
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neither the Corporation nor the Business is liable for or subject to any
material Liabilities, except material Liabilities adequately and specifically
disclosed or reserved for in the Financial Statements or, if incurred subsequent
to the date of the Corporation's balance sheet included in the Financial
Statements, disclosed and adequately reserved for in the Books and Records.
4.15. Books of Account; Returns and Reports; Taxes. The Corporation
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has paid in full all Taxes which were due and payable to date, and the Books and
Records reflect appropriate accruals and reserves for Taxes in respect of
current periods which are not yet due and payable. The Corporation has duly and
timely filed all Tax returns required to have been
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filed to date in all applicable jurisdictions with respect to the Business or
otherwise. The Corporation has made all deposits required with respect to
withholding Taxes for employees of the Business.
4.16. Transactions With Affiliates. Except as set forth in Schedule
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4.16, the Corporation has no outstanding contract, agreement or other
arrangement with an Affiliate of the Corporation with respect to the Business,
and none of the Corporation's assets is owned by or leased, licensed or
otherwise used by the Corporation under grant from any of such Affiliate.
4.17. Broker's or Finder's Fees. No broker, finder or other Person
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acting in a similar capacity has acted directly or indirectly for the
Corporation in connection with this Agreement or the transactions contemplated
by this Agreement.
4.18. No Misleading Statements. This Agreement and all documents
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furnished or to be furnished by the Corporation to the Investor referenced in
this Agreement do not and will not contain any untrue statement of material fact
or omit to state any material fact necessary to make the statements made and to
be made not misleading in any material respect.
5. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor makes the
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following representations and warranties to the Corporation:
5.1 Organization and Authority. The Investor is duly organized,
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validly existing and in good standing under the laws of its jurisdiction of
formation. The Investor has full power and authority to enter into this
Agreement and to perform its or his obligations under this Agreement. The
signing, delivery and performance of this Agreement by the Investor have been
duly authorized by all necessary action on the part of the Investor, and no
further action is required on the Investor's part in order to authorize this
Agreement or the transactions contemplated by this Agreement. This Agreement
is, and the Shareholders Agreement continues to be, the legal, valid and binding
obligation of the Investor, duly enforceable against the Investor in accordance
with the respective terms of such agreements.
5.2. No Conflict or Violation. Neither the signing and delivery of
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this Agreement by the Investor nor the performance by the Investor of the
transactions contemplated by this Agreement or the Shareholders Agreement will
result in (i) a violation of or conflict with the governing documents of the
Investor; (ii) a violation of any Laws or any Order to which the Investor is
subject; or (iii) a breach or default under any mortgage, indenture, deed of
trust, real property or personal property lease, license, contract or other
agreement to which the Investor is subject.
5.3. Consent and Approvals. The signing, delivery and performance by
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the Investor of this Agreement and the transactions contemplated by this
Agreement do not require the consent, approval or authorization of, or any
declaration, filing, registration or notice with or to any governmental or
regulatory authority, or any other Person.
5.4. Purchase of Investment. The Investor is an Accredited Investor
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as defined under Rule 501(a) of the Securities Act of 1933, as amended. The
Investor is purchasing the
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Series C Shares pursuant to this Agreement for its or his own account and not
with a view to the distribution thereof.
5.5 Broker's or Finder's Fees. No broker, finder or other Person
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acting in a similar capacity has acted directly or indirectly for the Investor
in connection with this Agreement and the transactions contemplated by this
Agreement.
6. OTHER COVENANTS.
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6.1 All Shares Subject to Shareholders Agreement. The Investor
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acknowledges that all of the Investor's shares of the Corporation's capital
stock, including the Series C Shares that the Investor is purchasing pursuant
to this Investment Agreement, are and shall remain subject to and shall be
governed by the terms and provisions of the Shareholders Agreement.
6.2. Insurance. The Corporation shall keep in full force and effect,
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and shall pay all premiums on, a term life insurance policy on the life of
Xxxxxx Xxxxxxxx in the amount of $5,000,000 as to which the Corporation shall be
the owner and the beneficiary.
6.3. Financial Statements. The Corporation shall furnish the
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following financial statements to the Investor:
6.3.1. as soon as practicable and in any event within 90 days
after the end of each fiscal year of the Corporation, the balance sheet of the
Corporation as at the end of such fiscal year and the related statements of
income, retained earnings and changes in financial position for such fiscal
year, setting forth in each case in comparative form (for each year other than
the first fiscal year) corresponding figures from the preceding annual audit,
prepared in accordance with generally accepted accounting principles
consistently applied and certified by independent public accountants selected by
the Corporation and reasonably satisfactory to the Investor; and
6.3.2. as soon as practicable and in any event within 45 days
after the end of each of the first three quarters in each fiscal year of the
Corporation, the balance sheet of the Corporation as at the end of such
quarterly period and the related statements of income, retained earnings and
changes in the financial position for such quarterly period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly period, and
in each case setting forth comparative figures for the related periods in the
prior fiscal year, all of which shall be prepared in accordance with generally
accepted accounting principles, consistently applied, subject to normal year-end
audit adjustments.
7. CLOSING DELIVERIES.
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7.1 Closing. The closing of the transactions contemplated by this
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Agreement (the "Closing") shall take place concurrently with the signing and
delivery of this Agreement.
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7.2 The Corporation's Closing Deliveries. Concurrently with this
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Agreement, the Corporation is delivering the following items:
7.2.1. A certificate dated as of the date of this Agreement,
of the secretary of the Corporation certifying as to (i) the absence of any
amendments to the certificate of incorporation and bylaws of the Corporation;
since June 25, 1998; and (ii) resolutions of the Board of Directors and the
shareholders of the Corporation authorizing the execution, delivery and
performance of this Agreement, all documents contemplated by this Agreement and
the transactions contemplated by this Agreement.
7.2.2. Certificates of "good standing" of the Corporation from
the Secretaries of State of Delaware, Connecticut and New York.
7.2.3. Consent of Directors, among other things, authorizing
the transactions contemplated by this Agreement.
7.2.4. A stock certificate issued to the Investor for the number
of Series C Shares set forth under the heading "Second-II" on Schedule 2.1.
7.3. Closing Deliveries of the Investor. At the Closing, the
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Investor shall deliver or cause to be delivered the following items to the
Corporation:
7.3.1. The sum set forth opposite its name under the heading
"Second-II" on Schedule 2.1, by wire transfer for the purchase price of the
Series C Shares to be purchased pursuant to this Agreement.
8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All covenants,
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representations and warranties in this Agreement or in any documents delivered
pursuant to this Agreement shall survive the Closing.
9. INDEMNIFICATION.
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9.1. Indemnification by the Corporation to the Investor. The
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Corporation shall indemnify, defend and hold each of the Investor, its
Affiliates, and their respective shareholders, officers, directors, employees,
assignees and successors, harmless against, and shall reimburse each of the
indemnified Persons on demand on account of, any Losses which may be asserted
against, imposed on or incurred by any of them as a result of or arising out of
or in any manner relating or attributable to any inaccuracy in or breach of the
representations, warranties or covenants on the part of the Corporation in this
Agreement or in any document delivered by the Corporation pursuant to this
Agreement.
9.2. Indemnification by the Investor to the Corporation. The
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Investor shall indemnify, defend and hold the Corporation and the Corporation's
officers, directors, employees, assignees and successors, harmless against, and
shall reimburse each of the indemnified Persons on demand on account of, any
Losses which may be asserted against, imposed on or incurred by any of them as a
result of or arising out of or in any manner relating or attributable to any
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inaccuracy in or breach of the Investor's representations or warranties in this
Agreement or in any document delivered by the Investor pursuant to this
Agreement.
10. MISCELLANEOUS.
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10.1. Notices. Notices given pursuant to this Agreement must be in
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writing. They shall be deemed to have been duly given: (i) upon delivery or
refusal to accept delivery, if hand-delivered; (ii) when transmitted, if sent by
fax with confirmed receipt, followed by a "hard" copy delivered by any other
method specified in this Section 10.1; or (iii) one (1) business day after being
deposited for next-day delivery with Federal Express or other national overnight
courier service. In each case, notice shall be addressed to the parties as
follows:
If to the Corporation:
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Greenwich Technology Partners, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
If to the Investor:
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Xxxxx Capital LLC
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
and
FG-GTPC
0000 Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxx
With a copy to:
Orloff, Lowenbach, Xxxxxxxxx & Xxxxxx, P.A.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
or to such other place and with such other concurrent copies as the parties may
subsequently designate by written notice.
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10.2. Amendment; Waiver. None of the provisions of this Agreement
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may be changed, modified, waived or cancelled orally or otherwise except in
writing, signed by the party against whom the change, modification, waiver or
cancellation is sought to be enforced.
10.3. Binding Effect; Assignment. This Agreement is binding on the
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Corporation, the Investor and their respective successors in interest. Neither
party may assign his or its rights and obligations under this Agreement without
the prior written consent of the other parties. There are no third-party
beneficiaries of this Agreement, and any intention to afford any right or
benefit under this Agreement to any third party is specifically disclaimed.
10.4. Entire Agreement. This Agreement and the Shareholders
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Agreement embody the entire understanding among parties with respect to the
subject matter of this Agreement. There are no binding agreements or
understandings among the parties with respect to the transactions contemplated
by this Agreement other than as expressly set forth in this Agreement or the
Shareholders Agreement.
10.5. Interpretation; Construction.
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10.5.1. The terms of this Agreement have been fully negotiated
by the parties in consultation with counsel, and the wording of this Agreement
has been arrived at by all of them as a result of their joint discussions.
Accordingly, no provision of this Agreement shall be construed against a
particular party or in favor of another party merely because of which party (or
its representative) drafted or supplied the wording for such provision.
10.5.2. Except where otherwise noted in context, all
references to "Sections", "Exhibits" or "Schedules" shall be deemed to refer to
the sections or subsections, as appropriate, exhibits or schedules of this
Agreement.
10.5.3. Section headings appearing in this Agreement are
inserted solely as reference aids for the ease and convenience of the reader;
they shall not be deemed to modify, limit or define the scope or substance of
the provisions they introduce, nor shall they be used in construing the intent
or effect of such provisions.
10.5.4. Where the context requires: (i) use of the singular or
plural incorporates the other, and (ii) pronouns and modifiers in the masculine,
feminine or neuter gender shall be deemed to refer to or include the other
genders.
10.5.5. As used in this Agreement, the terms "include[s]" and
"including" mean "including but not limited to"; that is, in each case the
example or enumeration which follows the use of either term is illustrative but
not exclusive or exhaustive.
10.6 Expenses. The Corporation shall pay at the Closing (or
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reimburse the Investor for, as the case may be) the fees and disbursements of
counsel to the Investor for services rendered and expenses incurred in
connection with the negotiation and consummation of the transactions
contemplated by this Agreement.
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10.7. Prevailing Party. In any Proceeding to enforce any provision
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of this Agreement, the substantially prevailing party shall be entitled to
recover reasonable attorneys' fees and out-of-pocket expenses from the other
party, as determined by a court having jurisdiction.
10.8. Multiple Counterparts. This Agreement may be signed in one or
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more counterparts, all of which shall be considered one and the same agreement
and shall become effective when each of the parties has signed and delivered a
counterpart to the other.
10.9. Further Assurances. The parties agree, upon request and for no
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additional consideration, to sign, acknowledge and deliver any documents and to
do anything else which the other may reasonably request in order to carry out
more completely the purpose and intent of this Agreement consistent with its
terms.
10.10 Governing Law. This Agreement shall be governed by and
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interpreted according to the Laws of Delaware, but without giving effect to any
Delaware choice of law provisions which might otherwise make the Laws of a
different jurisdiction govern or apply.
[Signature Page follows]
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Greenwich Technology Partners, Inc.
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, Chief Executive Officer
FG-GTPC
By: /s/ X.X. Xxxxxxxxx
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Print Name and Title:
Xxxxxxxx X. Xxxxxxxxx
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________________________________
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