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MANAGEMENT AGREEMENT
BETWEEN
PAPERCLIP SOFTWARE, INC.
AND
ACCESS SOLUTIONS INTERNATIONAL, INC.
APRIL 15, 1997
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MANAGEMENT AGREEMENT
MANAGEMENT AGREEMENT dated as of the 15th day of April, 1997, by and
between PaperClip Software, Inc. ("Owner"), a Delaware corporation, and Access
Solutions International, Inc. ("Manager"), a Delaware corporation.
W I T N E S S E T H:
WHEREAS, Owner is engaged in the business of developing and
distributing computer software for document management and imaging systems
(the "Business"); and
WHEREAS, Owner and Manager are contemporaneously entering into an Asset
Purchase Agreement (as such agreement may hereafter be amended from time to
time, the "Purchase Agreement"; initially capitalized and other terms used but
not defined herein shall have the meanings ascribed to them in the Purchase
Agreement), pursuant to which substantially all of the assets of the Business
will be sold to Manager; and
WHEREAS, in anticipation of the Closing, Owner and Manager, desire to
enter into this Agreement whereby Manager shall be responsible for the
management of the day-to-day operations of the Business, subject, at all
times, to the supervision and control of the Owner, and the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. APPOINTMENT OF MANAGER
1.1 AGREEMENT. Owner hereby agrees to retain the Manager and the
Manager hereby agrees to provide or cause to be provided the services
specified in this Agreement with respect to the operation of the Business.
2. SERVICES
2.1 MANAGER'S DUTIES. Subject to the Owner's oversight, review,
supervision and control, the Manager shall be responsible for the management
and operation of the Business. The Manager shall render or obtain all services
and perform or cause to be performed all duties as shall be reasonably
necessary or appropriate to discharge its duties and responsibilities
hereunder, including, without limitation, the following:
2.1.1 ASSET MANAGEMENT. Acquire on behalf of and in the
name of the Owner (unless otherwise consented to by Owner) assets or rights to
use assets necessary for the operation of the Business, including any
modification thereof;
2.1.2 ACCOUNTS. Use reasonable efforts to collect all
accounts due the Business, and take such steps as are reasonably necessary to
collect overdue accounts and minimize the amount of bad debts. All revenues
and other income derived from said operations that are collected by Manager
shall be deposited in an account of Owner;
2.1.3 PERSONNEL. Undertake the recruitment, hiring,
promotion, and assignment of all administrative, operating and service
personnel necessary for the operation and maintenance of the Business,
establish appropriate employee benefits for the employees of the Business,
implement general changes in the pay scale paid to employees, and discharge
employees; in all cases subject to: (i) Owner's approval of the Business's
general personnel policies; (ii) Owner's right to review and revise the terms
and conditions of employment of any employee; and (iii) Owner's consent being
obtained prior to the employment of any person whose annual salary (exclusive
of commissions, bonuses and benefits) exceeds $75,000. (The parties agree that
personnel provided by the Manager after the date of this Agreement shall be
employees or agents of Manager and not of Owner, and that persons employed by
Owner in connection with the operation of the Business prior to the date of
this Agreement shall continue to be employees of Owner);
2.1.4 MARKETING. Develop and implement a marketing
program for the Business including, but not limited to, recommendations with
respect to the types of products and services to be offered, the prices to be
charged for such products and services, and advertising and promotional
campaigns, and enter into, on behalf of the Owner (unless otherwise consented
to by Owner), such agreements (with respect to the foregoing or otherwise) as
the Manager may from time to time deem necessary, appropriate or beneficial
for the profitable operation of the Business;
2.1.5 BILLING. Assure the continuance of the billing and
collection of all fees, charges or other compensation and for the payment of
all expenses and fees incurred or payable in connection with the operation of
the Business in accordance with past practices of the Business;
2.1.6 BUDGET. Prepare and submit to Owner, for its
approval as set forth in Section 3.1, operating budgets for the Business for
subsequent fiscal quarters;
2.1.7 ADVANCES. Advance, on behalf of Owner, funds as may
be contemplated by the Operating Budget (as defined below) ("Advances"),
provided, however, that Manager shall have no obligation to advance funds in
excess of those contemplated by the Operating Budget;
2.1.8 BUSINESS SYSTEMS. Develop and implement procedures
and controls to enable disbursements and sales transactions meet the operating
budget, including, without limitation, upgrades of business software or
systems as required.
2.1.9 EQUIPMENT MAINTENANCE. Assure the continuance of
the maintenance of the equipment owned by the Business according to industry
norms and standards and for the provision of all reasonably necessary repairs
and replacements to such equipment; and
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2.1.10 OTHER ACTIONS. Generally, do any and all other
acts or execute such other agreements, documents or affidavits, as may
reasonably be necessary to carry out the duties and responsibilities of the
Manager contemplated hereunder, whether or not specifically enumerated herein.
2.2 BUSINESS CONTROL. All of the foregoing services shall
be rendered by the Manager subject to Owner's approval. Manager understands
that ultimate discretion and control over the Business shall remain vested in
the Owner, and the Manager shall do nothing inconsistent with Owner's
directions. Facilities and equipment owned by the Business shall remain the
property of the Owner. Records of property purchased will be kept by the
Manager, and will be subject to audit by Owner at any time.
2.3 APPROVALS. The Owner shall not unreasonably withhold or
delay its consent to any action taken or proposed to be taken by the Manager
in connection with the performance of its duties hereunder.
2.4 CONSOLIDATED PURCHASES. In arranging for the provision of
goods and services to the Owner, including without limitation the services
referred to in Section 2.1 above, the Manager may make any arrangements to
consolidate the purchase of such goods and services with purchases for
Manager's business, provided that all such purchases are on terms no less
favorable than could be obtained by the Manager on an unconsolidated basis.
2.5 LIMITATION ON MANAGER'S AUTHORITY. Notwithstanding
anything to the contrary contained in section 2.1 above, without the Owner's
prior written consent the Manager shall not be authorized on behalf of the
Owner to:
2.5.1 Borrow money from any party other than Manager, or
pledge Owner's assets for any purpose; or
2.5.2 Sell, lease, trade, exchange or otherwise dispose
of any capital assets of the Owner; or
2.5.3 Commit Owner to any single obligation in excess of
$15,000 that is not in the Operating Budget, or exceed the total expenditures
in the Operating Budget by more than 110% of those contemplated in the
Operating Budget.
2.6 MANAGER AS OWNER'S AGENT. All permitted actions taken by
the Manager under the provisions of this Section 2 shall be taken as agent of
the Owner and all obligations or expenses incurred hereunder shall be for the
account, on behalf of and at the expense of the Owner, whether such
obligations or expenses are incurred with respect to independent third parties
or with respect to affiliates of the Manager. Any payments to be made by the
Manager hereunder on behalf of the Owner shall be made from such sums as are
available in one or more accounts of the Owner or as may be provided by the
Owner. Except as otherwise specifically provided in any written agreement
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to which the Manager is a party, the Manager shall not be obligated to make
any advance to or for the account of the Owner or to pay any sum, other than
from funds held or provided as stated above.
2.7 STANDARD OF PERFORMANCE. Manager agrees to perform its
duties and obligations under this Agreement in accordance with all applicable
laws. Manager and Owner agree that Manager will have no liability to Owner or
any third party for the performance by Manager of its duties under this
Agreement, except if it is determined that Manager shall have acted with gross
negligence or willful misconduct, or shall have committed a willful breach of
this Agreement.
3. BUDGETS
3.1 OPERATING BUDGET. Attached as Exhibit A to this Agreement
is an operating budget (the "Operating Budget") for the Business which has
been jointly prepared by Manager and Owner and approved by Owner and which
comes within the Owner's estimate of operating costs. Manager shall exercise
its reasonable best efforts to adhere to the Operating Budget in operating the
Business. The Manager shall notify the Owner promptly in the event that it
projects that total expenditures shall exceed 110% of those contemplated by
the then current Operating Budget. Any such excess expenditures shall require
the Owner's written consent and the Manager shall submit a revised Operating
Budget for the Owner's approval. Within seven (7) days prior to the end of
each fiscal quarter of Owner, Manager shall prepare and submit to Owner for
approval an Operating Budget for the subsequent fiscal quarter.
4. REIMBURSEMENT OF COSTS AND MANAGEMENT FEE
4.1 OUT-OF-POCKET EXPENSES. "Out-of-Pocket Expenses" means all
out-of-pocket expenses reasonably incurred and documented by the Manager in
the performance of its responsibilities under this Agreement, including, but
not limited to, meals, travel and other out-of-pocket expenditures.
4.2 MANAGEMENT FEE. The Manager shall be paid a fee for
management services (the "Management Fee") equal to $50,000 per month, up to a
maximum of $300,000, after which time the Management Fee shall be $1 per month
for any succeeding months. Subject to the provisions of Section 4.3, the
Manager shall submit an invoice for the Management Fee for the prior month
within thirty (30) days after the close of each calendar month and the Manager
shall be paid that amount within thirty (30) days of the submission of such
invoice.
4.3 CANCELLATION OF OBLIGATIONS. Notwithstanding anything set
forth herein to the contrary, the Owner shall have no obligation to pay the
Management Fee, Out-of-Pocket Expenses and Advances (such obligations being
referred to as "Payment Obligations") prior to the consummation of the
purchase and sale of the Business as contemplated by the Purchase Agreement or
the earlier termination of the Purchase Agreement. Upon the consummation of
such purchase and sale of the Business, the Owner's Payment Obligations shall
be canceled and of no further force and effect. In the event the Purchase
Agreement is terminated for any reason without the purchase and sale of the
Business as contemplated thereby being consummated, then the Owner shall, upon
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such termination, be obligated to pay the Management Fee, Out-of-Pocket
Expenses and Advances owing to the Manager hereunder, together with interest
on the unpaid portion thereof at the rate of nine percent per annum, until
paid in full; provided, however, that if the Purchase Agreement is terminated
due to the failure of Access to obtain the Access Stockholder Approval or the
Access Director Approval, then the Management Fee, the Out-of-Pocket Expenses
and the Advances and any interest thereon will not be due and payable until
June 30, 1998.
4.4 DISPUTES. If Owner disputes the amount of expenses or fees
claimed by the Manager, it shall notify the Manager in writing before payment
is due and, if the matter cannot be resolved informally between the parties,
either party may request arbitration pursuant to Section 9 of this Agreement.
5. ACCOUNTING AND REPORTS
5.1 RECORD KEEPING. The Manager shall keep accounts and
complete books and records with respect to the Business in accordance with
generally accepted accounting principles, showing all costs, expenditures,
receipts, revenues, assets and liabilities.
5.2 FINANCIAL STATEMENTS. If requested by the Owner, within
ninety (90) days after the end of each fiscal quarter, the Manager shall
prepare and transmit to the Owner unaudited financial statements, which shall
include a balance sheet and a profit and loss statement, together with all
supporting schedules and such other information as the Owner shall from time
to time reasonably require. Manager shall also provide, at the Owner's
request, any and all such additional statements or reports as may be
reasonably necessary to facilitate the Owner's oversight and control of the
Business.
5.3 ACCESS. Manager shall provide to the Owner and its
employees, agents and representatives full, complete and unrestricted access
to the facilities, books, records and accounts of the Manager relating to or
generated in connection with the operation of the Business, and permit such
persons, at the Owner's expense, to make such copies of such books, records
and accounts as the Owner shall reasonably request. In addition, the Manager
shall from time to time upon reasonable request by the Owner make the persons
involved in the management and operation of the Business available to discuss
freely and without restriction the management and operation of the Business
with the Owner and its employees, agents and representatives.
6. OTHER ACTIVITIES; AFFILIATED TRANSACTIONS
Manager may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, whether
currently existing or hereafter created, including the acquisition,
management, operation and sale of computer software and hardware systems, and
the Owner shall not have any rights in or to such independent ventures or the
income or profits derived therefrom; provided, however, Manager shall not
engage in any other business venture if the same would preclude the Manager
from satisfying its obligations hereunder. Nothing in this Agreement shall
preclude Manager from operating its own business in the manner Manager
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deems appropriate or shall preclude transactions between the Manager acting in
and for its own account and the Owner, provided that any services performed by
the Manager are services which the Manager reasonably believes, at the time of
rendering such services, to be in the best interests of the Owner, and are on
terms no less favorable than could be obtained from an unrelated third party
on an arms length basis.
7. TERM
7.1 TERM. This Agreement shall commence on the date of this
Agreement and, unless sooner terminated pursuant to Section 8 below, shall
terminate on the day the Purchase Agreement is terminated pursuant to Article
XII thereof or the Closing Date, whichever occurs first.
8. EVENT OF DEFAULT
8.1 MANAGER'S DEFAULT. Each of the following events shall
constitute a default by the Manager under this Agreement and shall entitle the
Owner to terminate this Agreement upon ten days prior written notice to the
Manager (specifying the reasons therefor) with respect to a default pursuant
to Section 8.1.1, or immediately upon written notice to Manager (specifying
the reasons therefor) with respect to a default pursuant to Section 8.1.2, in
each case without any further obligation or liability to the Owner:
8.1.1 Any willful breach by the Manager of a material
term of this Agreement, the willful failure by the Manager to perform the
material duties required under this Agreement, or any act or omission by the
Manager constituting gross negligence with respect to the operation of the
Business, and, in the case of gross negligence, the continuation of or failure
to cure the same (to the extent the same is susceptible to cure) for a period
of 45 days after the Manager's receipt of written notice thereof from the
Owner (and the parties agree that the Manager shall not be liable to the Owner
in performing its duties hereunder except in the case of any such willful
breach or failure or gross negligence); or
8.1.2 The Manager's dissolution, liquidation, bankruptcy,
or insolvency, including (i) the filing of a voluntary petition seeking
liquidation or reorganization of its debts under Title 11 of the United States
Code or any other federal or state insolvency law, or its filing of an answer
consenting to or acquiescing in any such petition, or (ii) the expiration of
60 days after the filing of an involuntary petition under Title 11 of the
United States Code, and application for the appointment of a receiver for its
assets, or an involuntary petition seeking liquidation or reorganization of
its debts under any other federal or state insolvency law, provided that the
same shall not have been vacated, set aside or stayed within such 60-day
period.
8.2 OWNER'S DEFAULT. Each of the following events shall
constitute a default by the Owner under this Agreement and shall entitle the
Manager to terminate this Agreement upon ten days prior written notice to the
Owner (specifying the reasons therefor), without any further obligation or
liability of the Manager.
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8.2.1 The Owner's continuing failure to pay any amount to
the Manager as contemplated by Section 4 of this Agreement for 15 days after
the Manager gives the Owner written notification that such payment is past
due.
8.2.2 The Owner's willful interference with the Manager's
ability to carry out its duties under this Agreement, and the continuation of
or failure to cure the same for a period of 45 days after Owner's receipt of
written notice thereof from Manager provided that the Manager is not then
itself in breach of this Agreement.
9. DISPUTE RESOLUTION; JUDICIAL PROCEEDINGS;
WAIVER OF JURY TRIAL.
9.1 ARBITRATION. Any controversy, dispute or claim, including,
but not limited to, a claim for specific performance, between the Manager and
the Owner arising out of or in connection with, or relating to, this Agreement
or the breach, termination or validity hereof or thereof, shall be finally
settled by arbitration conducted expeditiously in accordance with the
Commercial Arbitration Rules (the "AAA Rules") of the American Arbitration
Association (the "AAA") in effect at the time of the commencement of the
arbitration proceeding by a sole arbitrator appointed by the AAA. The
arbitrator shall be an attorney with no less than 15 years experience in the
practice of corporate law (preferably, experience in the acquisition and
financing of computer software companies and similar enterprises). Judgment
upon the award rendered by the arbitrator may be entered and specifically
enforced in any court having jurisdiction thereof. The situs for any such
arbitration shall be New York City, New York. A final award shall be rendered
as soon as reasonably possible and in any event within 90 days of the filing
with AAA of any demand for arbitration. The arbitrator shall have the right
and power to shorten the length of any notice periods or other time periods
provided in the AAA Rules and to implement Expedited Procedures under the AAA
Rules in order to ensure that the arbitration process is completed within the
time frames provided herein. The arbitrator shall further have the right and
power to award, in whole or in part, to the prevailing party(ies) in any
arbitration proceeding the right to receive from the other party(ies) to such
proceeding the reasonable attorneys' fees and expenses incurred by such
prevailing party(ies) in connection with such arbitration proceeding. The
arbitration award shall be in writing.
9.2 JUDICIAL PROCEEDINGS. WITHOUT IN ANY WAY LIMITING THE
MANDATORY ARBITRATION PROVISIONS OF SECTION 9.1, EACH OF THE PARTIES HEREBY
CONSENTS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AS WELL AS
TO THE JURISDICTION OF ALL COURTS FROM WHICH AN APPEAL MAY BE TAKEN FROM SUCH
COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT, ANY OF THE OTHER TRANSACTION DOCUMENTS
AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, AND EXPRESSLY WAIVES ANY
AND ALL OBJECTIONS IT MAY HAVE AS TO VENUE IN ANY OF SUCH COURTS. EACH OF THE
PARTIES CONSENTS TO THE SERVICE OF PROCESS BY U.S. CERTIFIED
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OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH PARTY AT THE
ADDRESS TO WHICH NOTICES ARE TO BE GIVEN HEREUNDER.
9.3 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY WAIVES
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, HEARING OR OTHER PROCEEDING
BROUGHT ON, WITH RESPECT TO OR IN CONNECTION WITH THIS AGREEMENT, ANY OF THE
OTHER TRANSACTION DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY.
10. INSURANCE AND INDEMNIFICATION
10.1 INSURANCE. Manager agrees to take all necessary action,
at Owner's expense, to obtain and maintain in force such insurance policies,
bonds and other sureties as have been historically maintained by the Business.
10.2 INDEMNIFICATION OF OWNER. Manager hereby agrees to defend
(with counsel approved by Owner, which approval shall not be unreasonably
withheld or delayed), indemnify and hold Owner and its Affiliates (other than
Manager) harmless from and against any and all loss, liability, claims,
litigation, damage, penalties, actions, demands and expenses of any kind or
nature, arising out of, connected with or incidental to: (a) any gross
negligence or willful misconduct or willful breach of this Agreement by
Manager in connection with the performance by Manager of its obligations
contained in this Agreement, or (b) any breach of any representation made by
Manager in this Agreement. This obligation to indemnify shall include
reasonable attorneys' fees and investigation costs and all other reasonable
costs, expenses and liabilities incurred by Owner or its counsel from the
first notice that any claim or demand is to be made or may be made.
10.3 INDEMNIFICATION OF MANAGER. Owner hereby agrees to defend
(with counsel approved by Manager, which approval shall not be unreasonably
withheld or delayed), indemnify and hold Manager and its Affiliates (other
than Owner) harmless, from and against any and all loss, liability, claims,
litigation, damage, penalties, actions, demands and expenses arising out of,
connected with or incidental to: (a) the performance by Manager of its duties
under this Agreement, except if it is determined that Manager shall have acted
with gross negligence or willful misconduct or shall have committed a willful
breach of this Agreement, or (b) any breach of any representation by Owner in
this Agreement. This obligation to indemnify shall include reasonable costs,
expenses and liabilities incurred by Manager or its counsel from the first
notice that any claim or demand is to be made or may be made.
10.4 PERSONS INDEMNIFIED. Except as otherwise provided in
Section 10.2 or 10.3, respectively, all agreements by either Manager or Owner
to indemnify or hold the other harmless shall inure to the benefit not only of
the respective indemnitee but also to that of its respective Affiliates, and
shall also inure to the benefit of the directors, officers, employees,
partners and agents of any of the foregoing.
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10.5 INDEMNIFICATION PROCEEDINGS. Each party entitled to
indemnification pursuant to this Section 10 (the "indemnified party") shall
give notice to the party required to provide indemnification pursuant to this
Section 10 (the "indemnifying party") promptly after such indemnified party
acquires actual knowledge of any claim as to which indemnity may be sought,
and shall permit the indemnifying party (at its expense) to assume the defense
of any claim or any litigation resulting therefrom; provided that counsel for
the indemnifying party, who shall conduct the defense of such claim or
litigation, shall be reasonably acceptable to the indemnified party, and the
indemnified party may participate in such defense at the indemnified party's
expense; and provided, further, that the failure by any indemnified party to
give notice as provided in this Section 10.5 shall not relieve the
indemnifying party of its obligations under this Section 10 except to the
extent that the failure results in a failure of actual notice to the
indemnifying party and such indemnifying party is prejudiced solely as a
result of the failure to give notice.
11. LIMITATIONS
11.1 LIMITED WARRANTY. EXCEPT FOR THE EXPRESS WARRANTIES OF
MANAGER PROVIDED IN THIS AGREEMENT, MANAGER MAKES NO REPRESENTATIONS OR
WARRANTIES WITH RESPECT TO THE PERFORMANCE OF ITS SERVICES UNDER THIS
AGREEMENT, AND DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR
IMPLIED.
11.2 LIMITATION ON DAMAGES. UNLESS IT IS DETERMINED THAT
MANAGER HAS ACTED WITH WILLFUL MISCONDUCT, MANAGER SHALL NOT, UNDER ANY
CIRCUMSTANCES, BE LIABLE TO OWNER, OR ANY OFFICER, DIRECTOR, EMPLOYEE OR
SECURITY HOLDER OF OWNER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING OUT OF THIS AGREEMENT OR RESULTING
FROM THE PROVISION OF SERVICES BY MANAGER, EVEN IF MANAGER HAS BEEN NOTIFIED
OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 FORCE MAJEURE. Manager shall have no liability to Owner
for non-performance or defective or late performance of any obligation under
this Agreement, except for the nonpayment of money under this Agreement, to
the extent and for such periods of time as such non-performance or defective
or late performance is due to reasons outside the Manager's reasonable
control.
12. GENERAL PROVISIONS
12.1 AFFILIATE. For purposes of this Agreement, an affiliate
is: (i) an individual, association, partnership, corporation or joint stock
company, limited liability company or trust (hereafter "person") that directly
or indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with another person, or (ii) an officer, director
or general partner of any affiliate within the meaning of (i) above.
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12.2 ENTIRE AGREEMENT. This Agreement, together with the
Purchase Agreement and the Confidentiality Agreement (as defined in the
Purchase Agreement) embodies the entire understanding between the parties with
respect to its subject matter and supersedes all prior agreements or
understandings between the parties with respect to such matters.
12.3 AMENDMENT AND WAIVER. This Agreement may not be amended
nor may any rights hereunder be waived except by an instrument in writing
signed by the party sought to be charged with such amendment or waiver. The
failure of a party to insist upon adherence to any term of this Agreement on
any occasion shall not be considered a waiver or deprive that party of the
right thereafter to insist upon adherence to that term or any other term of
this Agreement.
12.4 CHOICE OF LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, without
giving effect to the provisions thereof relating to conflict of laws.
12.5 ASSIGNMENT. This Agreement may not be assigned, other
than to an affiliate of the assigning party, without the prior written consent
of the other party, which consent will not be unreasonably withheld. Except as
otherwise provided herein, this Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective successors, heirs,
and permitted assigns.
12.6 HEADINGS. The section and other headings contained in
this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
12.7 OWNER'S COOPERATION. The Owner agrees to render
reasonable assistance and cooperation to the Manager in connection with the
Manager's performance of its duties under this Agreement, and to take no
action in contravention of this Agreement which will interfere with the
performance by the Manager of such duties.
12.8 CONFIDENTIALITY. In light of the confidential nature of
the non-public, proprietary information which will be developed and received
by the parties during the term of this Agreement, each party will receive and
treat all confidential, proprietary, non-public information of the parties,
including, without limitation, business records, correspondence, cost data,
customer lists, estimates, market surveys, trade secrets and other trade
information as confidential except as may be required by any applicable law.
The foregoing covenant shall survive the termination of this Agreement.
12.9 NOTICES. Notices hereunder shall be deemed given when:
(a) personally delivered, (b) sent by telecopier (with written confirmation of
receipt), provided that a copy is mailed by certified mail, return receipt
requested, or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested), in each case
addressed as follows:
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If to the Owner: PaperClip Software, Inc.
Xxxxx Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Chief Executive Officer
Telecopy No.: (000) 000-0000
With a copy (which Xxxxxxx X. Xxxxxxxx, Esq.
shall not constitute Shereff, Friedman, Xxxxxxx & Xxxxxxx, L.L.P.
notice) to: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
If to the Manager: Access Solutions International, Inc.
000 Xxx Xxx Xxxx
Xxxxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
With a copy (which Xxxx X. Xxxxxxxxx, Esq.
shall not constitute Xxxxxxx & Xxxxxx
notice) to: 0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Any party may change the address and/or facsimile number to which notices are
to be addressed by giving the other parties notice in the manner herein set
forth.
12.10 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein.
12.11 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PAPERCLIP SOFTWARE, INC.
BY: /s/ Xxxxxxx Xxxxx
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XXXXXXX XXXXX
CHIEF EXECUTIVE OFFICER
ACCESS SOLUTIONS
INTERNATIONAL, INC.
BY: /s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, PRESIDENT AND
CHIEF EXECUTIVE OFFICER