AGREEMENT
AGREEMENT (this "Agreement"), dated as of March 20, 2003, by and
between PaperClip Software, Inc., a Delaware corporation ("PaperClip"), and
Access Solutions International, Inc., a Delaware corporation ("ASI"). PaperClip
and ASI are sometimes individually referred to herein as a "Party" and together
as the "Parties."
WHEREAS, a promissory note in the principal amount of $405,530.00 was
issued by PaperClip to ASI on November 1, 2000 (the "Note");
WHEREAS, PaperClip and ASI are parties to a Security Agreement, dated
as of January 29, 1997 (the "Security Agreement"), which secures the payments of
all amounts due under the Note;
WHEREAS, the remaining principal amount on the Note as of the date
hereof is $135,176.64; and
WHEREAS, PaperClip has offered to prepay the Note for the consideration
set forth herein in complete satisfaction of the Note, and ASI is willing to
accept such amount, as payment in full of all obligations arising under the
Note, and ASI wishes to release PaperClip from any and all claims and
obligations arising under the Note and the Security Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Note Repayment.
1.01. Repayment. On the date hereof, PaperClip shall pay to ASI an
amount, in cash, equal to $101,382.48 as payment in full of all obligations
arising under the Note. Such payment shall be made in immediately available
funds by wire transfer to an account specified in writing by ASI. In
consideration of such payment, ASI shall deliver to PaperClip an Affidavit of
Loss and Indemnification for the original Note and ASI authorizes the filing of
UCC-3 financing statements amendments and any other documentation necessary in
connection with the termination of any UCC-1 financing statements filed against
PaperClip in favor of ASI.
1.02. Termination of Security Agreement. Upon receipt by ASI of such
payment, the Security Agreement is terminated and of no further force and
effect.
1.03. Termination of Financing Statements. ASI hereby covenants and
agrees to assist in all reasonable respects PaperClip's endeavors to terminate
any UCC-1 financing statements filed against PaperClip in favor of ASI.
2. Representations and Warranties of ASI. ASI hereby represents and
warrants to PaperClip as follows:
2.01. Authority. ASI is a corporation organized under the laws of the
State of Delaware. ASI has all necessary power and authority to enter into this
Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. ASI has taken all necessary action to
authorize the execution, delivery and performance by it of this Agreement.
2.02. Binding Obligation. This Agreement has been duly executed and
delivered by ASI and, and assuming due authorization, execution and delivery of
the Agreement by PaperClip, this Agreement constitutes the legal, valid and
binding obligation of ASI enforceable against ASI in accordance with its terms,
except as such enforceability may be subject to the effects of any applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting creditors' rights generally and subject to the effects of
general equitable principles.
2.03. No Consent; No Conflict. The execution and delivery of this
Agreement by ASI do not, and the performance of this Agreement by ASI will not,
require any prior consent, approval, authorization or other action by, or prior
filing with or notification to, any governmental or regulatory authority. The
execution, delivery and performance of this Agreement by ASI do not (i) conflict
with or violate the organizational documents of ASI, or (ii) conflict with or
violate any law, rule, regulation, order, writ, judgment, injunction, decree,
determination, award or agreement applicable to ASI.
2.04. Ownership. ASI owns, beneficially and of record, and has good,
valid and marketable title to the Note, free and clear of any and all liens,
claims and encumbrances.
3. Representations and Warranties of PaperClip. PaperClip hereby
represents and warrants to ASI as follows:
3.01. Authority. PaperClip is a corporation organized under the laws of
the State of Delaware. PaperClip has all necessary power and authority to enter
into this Agreement, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby. PaperClip has taken all necessary action
to authorize the execution, delivery and performance by it of this Agreement.
3.02. Binding Obligation. This Agreement has been duly executed and
delivered by PaperClip and, and assuming due authorization, execution and
delivery of the Agreement by ASI, this Agreement constitutes the legal, valid
and binding obligation of PaperClip enforceable against PaperClip in accordance
with its terms, except as such enforceability may be subject to the effects of
any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights generally and subject to
the effects of general equitable principles.
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3.03. No Consent; No Conflict. The execution and delivery of this
Agreement by PaperClip do not, and the performance of this Agreement by
PaperClip will not, require any prior consent, approval, authorization or other
action by, or prior filing with or notification to, any governmental or
regulatory authority. The execution, delivery and performance of this Agreement
by PaperClip do not (i) conflict with or violate the organizational documents of
PaperClip, or (ii) conflict with or violate any law, rule, regulation, order,
writ, judgment, injunction, decree, determination, award or agreement applicable
to PaperClip.
4. Release.
Except for any claims, actions or causes of action with respect to this
Agreement, each of the Parties does hereby for itself, its respective
successors, assigns and affiliates release and discharge the other Party, and
its successors, assigns and affiliates of any and all claims, actions, causes of
action, liabilities, obligations or demands of any kind and nature whatsoever,
whether at law or in equity, whether known or unknown, which such Party now has
or hereafter may have against the other Party with respect to events, matters or
transactions arising out of or in connection with related to, directly or
indirectly, the Note, the Security Agreement and any other documents, agreements
or understandings executed in connection therewith or demands of any kind and
nature whatsoever which ASI now has or hereafter may have against PaperClip.
5. Miscellaneous.
5.01. Expenses. Each Party shall pay all costs and expenses incurred by
such Party in respect of the transactions contemplated hereby.
5.02. Entirety of Agreement. This Agreement states the entire agreement
of the Parties, merges all prior negotiations, agreements and understandings, if
any, and states in full all representations, warranties, covenants, and
agreements which have induced this Agreement. No Party shall make any contrary
representations in dealing with third parties. There are no representations or
warranties, express or implied, except as specifically set forth in this
Agreement.
5.03. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier to the Parties
at the following addresses or sent by electronic transmission, with confirmation
received, to the telecopy numbers specified below (or at such other address or
telecopy number for a Party as shall be specified by like notice):
(a) If to ASI:
Access Solutions International Inc.
c/o Point Xxxxxx Corporation
One Providence Xxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Chairman
Telecopy: (000) 000-0000
Confirm: (401) 854-0520 ext. 17
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With a copy to:
Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
(b) If to PaperClip: PaperClip Software, Inc.
000 Xxxxx 00 Xxxx Xxxxxxxxx Xxxxxxx, XX
00000
Attn: Xxxxxxx Xxxxx, Chief Executive Officer
Telecopy: (000) 000-0000
Confirm: (201) 487-2266 ext. 209
With a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
5.04. Waiver. No waiver by any Party of any term, provision, agreement,
representation, or warranty contained in this Agreement (or any breach thereof)
shall be effective unless it is in writing executed by the Party against which
such waiver is to be enforced. No waiver shall be deemed or construed as a
further or continuing waiver of any such term, provision, agreement,
representation or warranty (or breach) on any other occasion or as a waiver of
any other term, provision, agreement, representation or warranty (or of the
breach of any other term, provision, agreement, representation or warranty)
contained in this Agreement on the same or any other occasion.
5.05. Further Assurances. Each of the Parties agrees to execute and
deliver such other documents or agreements as may be necessary or desirable for
the implementation of this Agreement and the consummation of the transactions
contemplated hereby.
5.06. Assignment; Binding Nature; No Beneficiaries. This Agreement may
not be assigned by any Party without the prior written consent of ASI and
PaperClip. This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the parties hereto and their respective heirs, personal
representatives, legatees, successors and permitted assigns. This Agreement
shall not confer any rights or remedies upon any Person other than the parties
hereto and their respective heirs, personal representatives, legatees,
successors and permitted assigns.
5.07. Severability. If any provision of this Agreement is found
unenforceable by a court of competent jurisdiction, such unenforceable provision
shall not affect the other provisions but shall be deemed modified to the extent
necessary to render it enforceable, preserving to the fullest extent permissible
the intent of the Parties.
5.08. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of Delaware applicable to
contracts executed and fully performed within the State of Delaware.
5.09. Execution and Delivery. This Agreement may be executed in two or
more counterparts, each of which when executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
This Agreement may be delivered by facsimile transmission with the same legal
effect as if delivery of an original were made in person.
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[Signatures Appear on Following Page.]
IN WITNESS WHEREOF, the Parties hereto have duly executed and delivered
this Agreement as of the date first set forth above.
PAPERCLIP SOFTWARE, INC.
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer
ACCESS SOLUTIONS INTERNATIONAL, InC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman
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