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AGREEMENT
This Agreement ("Agreement") is entered into by and between Granite
Financial Inc., a Delaware corporation ("Granite"), and BrokerWare, Inc., an
Illinois corporation ("BrokerWare"). The effective date of this Agreement is
December 13, 1996.
RECITALS
BrokerWare has developed certain software for use in the equipment
leasing industry (commonly referred to as BrokerTrac Network and BrokerTrac
Remote) and Granite desires a non-exclusive license to use such software in its
business. Granite also desires to obtain the services of BrokerWare in
connection with the installation and customization of such software on
Granite's existing computer system.
AGREEMENT
The parties hereby agree as follows:
1. Term of Agreement.
Granite hereby contracts BrokerWare and BrokerWare accepts such
contract for a term of one year commencing December 13, 1996, and terminating
December 12, 1997, unless sooner terminated as hereinafter provided.
1.1 General Provisions.
1.1.1 Survival of Agreement. This Agreement shall not be terminated
by a restructuring of Granite or of BrokerWare. If either of the parties
restructures but remains in the business, the contract shall survive and shall
be binding upon the successor entity.
1.1.2 Legal Representation. Each party acknowledges that they were
advised that they were entitled to separate counsel and they have either
employed such counsel or voluntarily waived their right to consult with counsel.
1.1.3 Notices. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be made by hand delivery,
first class mail, telex or telecopier, addressed as follows:
If to BrokerWare:
BrokerWare, Inc.
0000 X. Xxxx Xx.
Xxxxx, XX 00000
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Telecopy Number: 000-000-0000
With a copy to:
Xxxxxx X. Xxxxxxxx
Huck, Bouma, Xxxxxx, Xxxxxxxx & Xxxxxxxx, P.C.
0000 X. Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000
If to Granite:
Xx. Xxxxxxx Skip Xxxxxx
Granite Financial, Inc.
0000 X. 00xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Telecopy Number: 000-000-0000
All such notices and communications shall be deemed to have been duly given
when delivered by hand, if personally delivered; three (3) business days after
deposit in any United States Post Office in the Continental United States,
postage prepaid, if mailed; when answered back, if telexed, and when receipt is
acknowledged, if telecopied.
1.1.4 Attorney Fees. In the event that a dispute arises with respect
to this Agreement, each party is responsible for its own legal expenses,
including, without limitation, reasonable attorney's fees and expenses,
incurred in ascertaining such party's rights or in preparing to enforce, or in
enforcing, such party's rights under this Agreement, whether or not it was
necessary for such party to institute suit.
1.1.5 Complete Agreement of the Parties. This Agreement, the
BrokerTrac Software Support Agreement attached hereto as Exhibit A (the
"Support Agreement"), the BrokerTrac Remote Software License Agreement attached
hereto as Exhibit B (the "Remote License") and the BrokerTrac Network Software
License Agreement attached hereto as Exhibit C (the "Network License") are the
complete agreement of the parties and they supersede any agreement that has
been made prior to this Agreement.
1.1.6 Assignment. This Agreement is of a personal nature and may not
be assigned without the prior written consent of the other party hereto, which
consent shall not be unreasonably withheld or delayed.
1.1.7 Binding. This Agreement shall be binding both of the parties
hereto and their successors and permitted assigns.
1.1.8 Number and Gender. Whenever the singular number is used in this
Agreement and
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when required by the context, the same shall include the plural. The masculine
gender shall include the feminine and neuter genders, and the word "person"
shall include a corporation, firm, partnership, or other form of association.
1.1.9 Governing Law. The parties hereby expressly acknowledge and
agree that this Agreement is entered into in the State of Illinois and, to the
extent permitted by law, this Agreement shall be construed, and enforced in
accordance with the laws of the State of Illinois.
1.1.10 Failure to Object Not a Waiver. The failure of a party to
object to, or to take affirmative action with respect to, any conduct of the
other which is in violation of the terms of this Agreement shall not be
considered as a waiver of the violation or breach or of any future violation,
breach, or wrongful conduct.
1.1.11 Unenforceable Terms. Any provision hereof prohibited or
unenforceable under any applicable law of any jurisdiction shall as to such
jurisdiction be ineffective without affecting any other provision of this
Agreement. To the full extent, however, that the provisions of such applicable
law may be waived, they are hereby waived to the end that this Agreement be
deemed to be a valid and binding agreement enforceable in accordance with its
terms.
1.1.12 Execution in Counterparts. This Agreement may be executed in
several counterparts and when so executed shall constitute one agreement
binding on all the parties, notwithstanding that all the parties are not
signatories to the original and same counterpart.
1.1.13 Further Assurance. From time to time each party shall execute
and deliver such further instruments and shall take such other action as any
other party may reasonably request in order to discharge and perform their
obligations and agreements hereunder and to give effect to the intentions
expressed in this Agreement.
1.1.14 Incorporation by Reference. All exhibits referred to in this
Agreement and the Recitals are incorporated herein in their entirety by such
reference.
1.1.15 Cross-References. All cross-references in this Agreement,
unless specifically directed to another agreement or document, refer to
provisions in this Agreement, and shall not be deemed to be references to any
overall transaction or to any other agreements or documents.
1.1.16 Miscellaneous Provisions. The various headings and numbers
herein and the grouping of provisions of this Agreement into separate divisions
are for the purpose of convenience only and shall not be considered a part
hereof. The language in all parts of this Agreement shall in all cases be
construed in accordance to its fair meaning as if prepared by all parties to
the Agreement and not strictly for or against any of the parties.
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2. General Scope.
Concurrent with the execution of this Agreement, Granite and BrokerWare
are entering into the Remote License and the Network License, whereby
BrokerWare is granting to Granite a non-exclusive license to use the software
described therein (the "Software"). The amounts to be paid by Granite to
BrokerWare under Section 4 of this Agreement constitutes consideration for this
Agreement, the Remote License and the Network License.
BrokerWare shall provide the following services to Granite:
a. Installation of the BrokerTrac Network Software for 25
workstations (Granite shall be responsible for installation of
the WinFrame server and NT clients for 25 workstations);
b. Modification of BrokerTrac Network and BrokerTrac Remote
according to Granite's requirements as detailed below:
1. Add to BrokerTrac Network a function to collect broker
applications from BrokerTrac Remote clients and export
appropriate data to Granite's X. Xxxxxx application as
well as place transaction in Granite's BrokerTrac
Network database.
2. Add to BrokerTrac Network a function to allow brokers
access to status and notes on their application.
3. Add a BrokerTrac Network function to allow brokers to
download their lease documentation and print onsite.
4. Add to BrokerTrac Network a function to allow brokers
to update automatically buy rates from Granite for
their Lease Pricing Module.
5. Add to BrokerTrac Network a function to check decisions
made by X. Xxxxxx system and update status of
transactions in Granite BrokerTrac database.
c. Up to 40 hours of training of Granite's personnel at Granite's
offices in the period immediately following installation of
the Software; the fee for training is $40 per hour and is in
addition to any other fees paid pursuant to this Agreement or
any exhibit thereto (training in excess of 40 hours will be
billed at a rate of $120 per hour);
d. Other general advice, services and project management to ensure
that the Software is properly installed and fully operational
on Granite's system;
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e. Assistance with the configuration of the WinFrame server, when
needed; and
f. Preparation, configuration and delivery of ten (10) BrokerTrac
Remote client pieces.
The Software shall be fully installed and operational (the "Completion Date")
on Granite's system on or prior to January 31, 1997. All of BrokerWare's
services shall be personally provided by BrokerWare and its employees.
3. Necessary Services; Software Evaluation Period.
3.1 Performance of Duties. BrokerWare agrees that it shall perform at
all times faithfully, industriously, and to the best of its ability,
experience, and talents all of the obligations and duties set forth under this
Agreement, the Support Agreement, the Remote Licenses and the Network License
and such additional duties that may be reasonably assigned to it hereunder or
thereunder and, shall devote such time to the performance of such obligations
and duties as may be necessary therefor.
3.2 Software Evaluation Period. To allow Granite a period of time
following the Completion Date to evaluate the Software for the purpose of
ensuring that such Software meets Granite's business needs, Granite shall have
the right to terminate this Agreement, the Remote License, the Network License
and the Support Agreement (collectively, the "Software Documents"), without
cause, upon notice given to BrokerWare within 30 days following the Completion
Date (the "Software Evaluation Period"). If Granite terminates the Software
Documents within the Evaluation Period, (i) Granite shall return all copies of
the Software to BrokerWare and (ii) Granite shall not be required to make the
final installment of the license fee.
4. Compensation.
In consideration for the services required of BrokerWare hereunder
and the licenses granted under the exhibits, Granite agrees to compensate
BrokerWare as follows:
4.1 License Fees. The license fees for the BrokerTrac Network and
BrokerTrac Remotes are as follows:
One BrokerTrac Network $ 5,500.00 - $2,750.00
Ten BrokerTrac Remotes ($500 per Remote) $ 5,000.00 - $2,500.00
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Total license costs: $10,500.00
Payment of the license fees shall be as follows:
$5,250.00 due upon execution of this Agreement, with the remaining
$5,250.00 due upon completion of the Software Evaluation Period.
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4.2 Fees for Services. For purposes of this paragraph, "services" refers
to the installation of the BrokerTrac Network, software development, and any
project management and consulting services provided. All services will be billed
at an hourly rate of $120 per hour, subject to an overall cap on fees under
this paragraph 4.2 of $12,840.00. An advance payment of $4,000 shall be paid
upon execution of this Agreement, which advance payment shall be applied
against the hourly fees incurred hereunder. Fees earned under this paragraph
4.2 shall be invoiced on a biweekly basis and payment shall be made within 10
days following receipt of such invoice.
4.3 Expense Reimbursement. Granite shall reimburse BrokerWare for any
out-of-pocket expenses incurred in connection with the performance of services
required of BrokerWare hereunder. Out-of-pocket expenses include normal and
reasonable lodging, transportation and meal expenses (but does not include any
overhead, labor or similar charges). Examples of other types of expenses are
phone calls, shipping charges, and miscellaneous hardware. If any one item of
expense may exceed $200, BrokerWare will call Granite for authorization before
incurring the expense.
5. Independent Contractor.
In performing services and duties hereunder, BrokerWare and any person
acting on BrokerWares's behalf shall do so as independent contractors and are
not, and are not to be deemed, employees or agents of Granite or any other
person acting on behalf of Granite. BrokerWare shall be responsible for meeting
any legal requirements imposed on BrokerWare or any person acting on its behalf
as a result of this Agreement, including but not limited to the filing of
income tax returns and the payment of taxes; and BrokerWare agrees to indemnify
Granite for the failure to do so, if Granite is required to make any such
payment otherwise due by BrokerWare or any such person acting on BrokerWare's
behalf.
6. Remedy for Breach.
BrokerWare acknowledges that the services to be rendered by it hereunder
are of a special, unique and extraordinary character which gives this Agreement
a peculiar value to Granite, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law, and that a breach by
BrokerWare of this Agreement shall cause Granite irreparable injury. Therefore,
BrokerWare expressly acknowledges that this Agreement may be enforced against
it by injunction and other equitable remedies, without bond. Such relief shall
not be exclusive, but shall be in addition to any other rights or remedies
Granite may have for such breach.
Granite acknowledges that the obligations to be performed by it hereunder
are of a special, unique and extraordinary character which gives this Agreement
a peculiar value to BrokerWare, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law, and that a breach by
Granite of this Agreement shall cause BrokerWare irreparable injury. Therefore,
Granite expressly acknowledges that this Agreement may be enforced against it
by injunction and other equitable remedies, without bond. Such relief shall not
be exclusive, but shall be in addition to any other rights or remedies
BrokerWare may have for such breach.
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7. Termination.
7.1 Causes for Termination. This Agreement shall terminate immediately
upon the occurrence of any one of the following events:
7.1.1 The expiration of the term hereof;
7.1.2 The written agreement of the parties;
7.1.3 BrokerWare's breach of its duties hereunder, unless waived by
Granite or cured by BrokerWare within 30 days after Granite's having given
written notice thereof to BrokerWare;
7.1.4 Granite's breach of its duties hereunder, unless waived by
BrokerWare, or cured by Granite within 30 days after BrokerWare's having given
written notice thereof to Granite.
Termination of this Agreement shall not terminate or affect either parties
rights and obligations under the Support Agreement, Remote License or Network
License, all of which shall survive any termination or expiration of this
Agreement. Termination of this Agreement shall not affect any obligations or
liabilities of the parties incurred or arising prior to such termination.
8. Source Code. Upon the occurrence of any of the following events, BrokerWare
shall provide Granite with a complete copy of the source and object
codes for the Software (i) BrokerWare sells all or substantially all of its
assets to a person or entity engaged in the leasing business (a "Leasing
Acquiror") or more than 10% of the outstanding stock of BrokerWare is sold to
or acquired by a Leasing Acquiror in one or a series of transactions or (ii) an
adjudication of BrokerWare as a bankrupt. In the event of a transfer of source
code and/or object code under this paragraph, Granite's interest in the source
and/or object codes shall be a perpetual, nonexclusive license, which will
preclude Granite, or its affiliates, from disclosure of the source or object
code or from the sale, license or transfer of the software.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first written above.
GRANITE FINANCIAL, INC.
By: /s/ Xxxxxxx Xxxxxx
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Title: V.P. Operations
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BROKERWARE
By: /s/ Xxxx Xxxxxx
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Title: Vice President
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EXHIBIT A
BROKERWARE, INC.
SOFTWARE, NETWORKING, AND CONSULTING FOR the SMALL
TICKET LEASING INDUSTRY
0000 X Xxxx Xx. Xxxxx, XX 00000
Telephone/Fax 000-000-0000
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BROKERTRAC SOFTWARE SUPPORT AGREEMENT
This Software Support Agreement (the "Agreement") is made and entered into
as of this __ day of December 1996. BrokerWare, Inc. ("BrokerWare") will
provide Granite Financial, Inc. ("Granite") service and maintenance for the
Granite site BrokerTrac Network system on the following basis:
1. Telephone support (via toll call) for Granite employees.
2. For the services to be rendered by BrokerWare hereunder and as
additional consideration for the licenses granted to Granite under
the BrokerTrac Network Software License Agreement, Granite shall pay
to BrokerWare an amount equal to $1.00 per lease application inputted
by Granite or its brokers into the Software. There shall be no lease
application charge on applications which are data transfers from past
systems, and such data exists on the first day of the first term of
this Agreement. Amounts accrued hereunder shall be paid on a
quarterly basis at the end of each quarter.
3. Xxxxxxxx shall be done by BrokerWare on a quarterly basis. Granite
shall notify BrokerWare of the total applications inputted for each
quarter within 15 days following the end of such quarter. BrokerWare
shall periodically monitor the number of inputted applications,
either electronically or otherwise. Granite shall disclose such
information and documentation of Granite or its affiliates as
BrokerWare shall reasonably require to verify the accuracy of the
information required to compute BrokerWare's fees.
4. BrokerWare shall provide Granite with free updates or upgrades of the
regular BrokerTrac Network software while this Agreement is in effect.
5. Upon request by Granite, BrokerWare shall also provide Granite with
programming services at BrokerWare's standard rates for such
services. Fifty percent of all amounts paid by Granite under this
Agreement shall be credited for use by Granite
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against such programming charges. For example, if Granite pays BrokerWare
$10,000 under this Agreement for the first Year, Granite shall have a
credit of $5,000 for use against programming charges. Any programming
charges in excess of the credit shall be paid by Granite. Programming
credits shall be computed on an annual basis, and the amount of such
credit not used by the completion of the first quarter of the year
following of the end of the year, shall be forfeited.
6. Granite shall pay to BrokerWare the sum of $3,000.00 upon execution of
this Agreement, such sum estimating the approximate charge Granite will
incur for lease applications inputted during the first quarter of this
Agreement. At the close of each quarter, BrokerWare shall invoice or
credit Granite as appropriate to reflect the actual number of applications
inputted by Granite or its brokers. Granite will then be invoiced for the
actual number of applications inputted during the previous quarter, as an
estimated charge for Granite's inputting for the current quarter. At the
end of each such quarter, a like adjustment and estimation will be made.
7. Termination of this Agreement shall terminate the BrokerTrac Network
Software License Agreement.
The initial term of this Agreement shall commence as of the date first set
forth above and shall terminate one year thereafter. The term of this Agreement
shall automatically extend for additional one year periods at the end of the
initial term or any extended term unless terminated by Granite upon notice to
BrokerWare given 30 days prior to the expiration of the term.
GRANITE FINANCIAL, INC.
By: /s/ Xxxxxxx Xxxxxx
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Title: V.P. Operations
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BROKERWARE, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President
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EXHIBIT B
BROKERWARE, INC.
BROKERTRAC REMOTE SOFTWARE LICENSE AGREEMENT
LICENSE: BrokerWare, Inc. ("BrokerWare") Grants to Granite Financial Inc.
("Granite") The non-exclusive right to install/use the enclosed BrokerTrac
Remote software programs ("Software"). Granite will not use, copy, modify,
rent, sell or transfer the Software or any portion thereof except as provided
in this Agreement.
Granite may:
1. Install/use the Software, on ten (10) separate workstations not
connected to a network; and
2. Copy the Software solely for backup or archival purposes.
RESTRICTIONS:
Granite will not:
1. Sub-license the Software.
2. Reverse engineer, de-compile, or disassemble the Software;
3. Copy the Software, in whole or in part, except as provided in this
Agreement.
TRANSFER: Granite may transfer the Software to another party if the receiving
party agrees to the terms of this Agreement and Granite retains no copies of
the Software and accompanying documentation. Transfer of the Software
terminates Granite's right to use the Software.
OWNERSHIP AND COPYRIGHT OF THE SOFTWARE: Title to the Software and all copies
thereof remain with BrokerWare. The Software is copyrighted and is protected by
United States and international copyright laws. Granite will not remove the
copyright notice from the Software. Granite agrees to prevent any unauthorized
copying of the Software.
LIMITED WARRANTY: BrokerWare warrants that it has the right to license Granite
to use the Software and such Software does not infringe on the rights of any
third parties. The Software is provided "AS IS." BrokerWare warrants that the
media on which the Software is furnished will be free from defects in material
and workmanship for a period of one (1) year from the date of purchase. Upon
return of such defective media, BrokerWare's entire liability and Granite's
exclusive remedy shall be the replacement of the Software.
THE PREVIOUS WARRANTIES ARE THE ONLY WARRANTIES OF ANY KIND EITHER EXPRESS OR
IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE.
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LIMITATION OF LIABILITY: BROKERWARE SHALL NOT BE LIABLE FOR ANY LOSS OF
PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTIONS OF BUSINESS, NOR FOR INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS
AGREEMENT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
AUDIT: BrokerWare, at its own cost, reserves the right to have audits conducted
to verify Granite's compliance with this Agreement.
TERM AND TERMINATION OF THIS LICENSE: This license shall continue in full force
and effect for so long as the BrokerTrac Software Support Agreement between
Granite and BrokerWare remains in effect. BrokerWare may terminate this license
at any time if Granite is in breach of any of its terms and conditions and
fails to cure such breach within 30 days following notice from BrokerWare. Upon
termination, Granite will immediately destroy the Software or return all copies
of the Software and documentation to BrokerWare.
EXPORT LAWS: Granite agrees that the distribution and export/re-export of the
Software shall be in compliance with the laws, regulation, orders or other
restrictions of the US Export Administration Regulations.
APPLICABLE LAW: This Agreement is governed by the laws of the State of Illinois
and the United States, including patent and copyright laws. Any claim arising
out of this Agreement will be brought in Dupage County, Illinois.
ADDITIONAL WORKSTATIONS: Granite may install and use the Software on additional
workstations (in excess of the authorization for ten workstations set forth
above) upon payment of a fee to BrokerWare in an amount determined based on the
number of additional workstations as follows:
Number of Additional Amount of Fee
WorkStations Added per Additional Workstation
1 through 10 $500.00
11 though 29 $400.00
30 or more $300.00
GRANITE FINANCIAL, INC.
By: /s/ Xxxxxxx Xxxxxx
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Title: V.P. Operations
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BROKERWARE, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President
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EXHIBIT C
BROKERWARE, INC.
BROKERTRAC NETWORK SOFTWARE LICENSE AGREEMENT
LICENSE: BrokerWare, Inc. ("BrokerWare") grants to Granite Financial, Inc.
("Granite") the non-exclusive right to install/use the enclosed BrokerTrac
Network software programs ("Software"). Granite will not use, copy, modify,
rent, sell or transfer the Software or any portion thereof except as provided
in this Agreement.
Granite may:
1. Install/use the Software, on one PC network;
2. Copy the Software solely for backup or archival purposes.
RESTRICTIONS:
Granite will not:
1. Sub-license the Software.
2. Reverse engineer, de-compile, or disassemble the Software;
3. Copy the Software, in whole or in part, except as provided in this
Agreement.
TRANSFER: Granite may transfer the Software to another party if the receiving
party agrees to the terms of this Agreement and Granite retains no copies of
the Software and accompanying documentation. Transfer of the Software
terminates Granite's right to use the Software.
OWNERSHIP AND COPYRIGHT OF THE SOFTWARE: Title to the Software and all copies
thereof remain with BrokerWare. The Software is copyrighted and is protected by
United States and international copyright laws. Granite will not remove the
copyright notice from the Software. Granite agrees to prevent any unauthorized
copying of the Software.
LIMITED WARRANTY: BrokerWare warrants that it has the right to license Granite
to use the Software and such Software does not infringe on the rights of any
third parties. The Software is provided "AS IS." BrokerWare warrants that the
media on which the Software is famished will be free from defects in material
and workmanship for a period of one (1) year from the date of purchase. Upon
return of such defective media, BrokerWare's entire liability and Granite's
exclusive remedy shall be the replacement of the Software.
THE PREVIOUS WARRANTIES ARE THE ONLY WARRANTIES OF ANY KIND EITHER EXPRESS OR
IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE.
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LIMITATION OF LIABILITY: BROKERWARE SHALL NOT BE LIABLE FOR ANY LOSS OF
PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTIONS OF BUSINESS, NOR FOR INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER THIS
AGREEMENT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
AUDIT: BrokerWare, at its own cost, reserves the right to have audits conducted
to verify Granite's compliance with this Agreement.
TERM AND TERMINATION OF THIS LICENSE: This license shall continue in full force
and effect for so long as the BrokerTrac Software Support Agreement between
Granite and BrokerWare remains in effect. BrokerWare may terminate this license
at any time if Granite is in breach of any of its terms and conditions and
fails to cure such breach within 30 days following notice from BrokerWare. Upon
termination, Granite will immediately destroy the Software or return all copies
of the Software and documentation to BrokerWare.
EXPORT LAWS: Granite agrees that the distribution and export/re-export of the
Software shall be in compliance with the laws, regulation, orders or other
restrictions of the US Export Administration Regulations.
APPLICABLE LAW: This Agreement is governed by the laws of the State of Illinois
and the United States, including patent and copyright laws. Any claim arising
out of this Agreement will be brought in Dupage County, Illinois.
GRANITE FINANCIAL, INC.
By: /s/ Xxxxxxx Xxxxxx
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Title: V.P. Operations
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BROKERWARE, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President
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