EXHIBIT 10.6
SERVICES AGREEMENT
This Services Agreement is made as of December 31, 1998, by and between
Xyvision, Inc., a Delaware corporation ("Xyvision"), and Xyvision Enterprise
Solutions, Inc., a Delaware corporation ("XES").
WITNESSETH:
WHEREAS, Xyvision and XES have entered into a Contribution and Assumption
Agreement of equal date herewith (the "Contribution Agreement") which
contemplates the contribution, transfer, assignment and delivery to XES of
substantially all of the assets and certain of the liabilities of the
publishing business of Xyvision (the "Contribution"); and
WHEREAS, each of Xyvision and XES wishes to provide for an orderly and
efficient Contribution; and
WHEREAS, the successful operation of Xyvision's post-Contribution business
will require the performance of certain administrative services which Xyvision
has previously provided itself and XES is willing to provide to Xyvision;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. SERVICES
1.1. Services to be Made Available. In accordance with the terms and
provisions of this Agreement, XES agrees to perform for Xyvision the services
described in the Annexes hereto (collectively, the "Services"), which Annexes
may be amended, and additional Annexes may be added, from time to time by
mutual agreement of the parties hereto, in the amounts and to the extent
specified with respect to each such Service in the applicable Annex.
1.2. Fees for Services. Xyvision agrees to pay to XES a fee for each of the
Services as specified in the applicable Annex hereto.
Not more often than once per fiscal month, XES shall forward to Xyvision
invoices for the Services listing the Services provided hereunder and listing
the fees for such Services, setting forth in reasonable detail the calculation
of the amounts charged. Invoices for Services provided for partial fiscal
months and relating to Services for which the fees are to be calculated on a
monthly basis shall be based upon (a) the number of business days during which
Services were provided, divided by (b) the number of business days in such
fiscal month. Within fifteen days of receiving an invoice, Xyvision shall pay
to XES the amount invoiced unless it shall in good faith dispute the types
and/or amounts of Services set forth on such invoice as having been provided
during the period covered by such invoice. In the event of such good faith
dispute, Xyvision shall pay the fees set forth on such invoice for all Services
the amounts of which are not in dispute and the parties hereto agree to use
their respective best efforts to resolve such dispute within ten days. If such
dispute is not resolved within ten days, either party hereto may seek binding
arbitration of such dispute in accordance with the provisions of Section 3.8
hereof. With respect to any task that XES agrees to perform hereunder, XES
shall, at Xyvision's request, inform Xyvision of the person(s) who are expected
to perform such tasks, hourly rates applicable thereto and an estimate of the
time such tasks will require to complete.
1.3. Term of Agreement. This Agreement shall become effective as of the
date of the Contribution (the "Contribution Date") and shall terminate with
respect to each Service on the date specified for such Service in the
applicable Annex hereto.
1.4. Timely Performance and Cooperation. XES shall use all reasonable
efforts in the timely performance of the Services and Xyvision shall use all
reasonable efforts to cooperate with XES in connection with the provision of
the Services.
2. REPRESENTATIONS AND WARRANTIES.
As an inducement to enter into this Agreement, each party represents to
and agrees with the other that:
(a) it is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
to own, lease and operate its properties, to carry on its business as presently
conducted and to carry out the transactions contemplated by this Agreement;
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(b) it has duly and validly taken all corporate action necessary to
authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby; and
(c) this Agreement has been duly executed and delivered by it and constitutes
its legal, valid and binding obligation enforceable against it in accordance
with its terms, except as such enforceability may be affected by laws of
general application relating to bankruptcy, insolvency and the relief of
debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies.
3. OTHER TERMS AND PROVISIONS
3.1. Independent Contractor Status. XES shall perform all services under
this Agreement as an "independent contractor" and not as an agent of Xyvision.
XES is not authorized to assume or create any obligation or responsibility,
express or implied, on behalf of, or in the name of Xyvision or to bind
Xyvision in any manner.
3.2. Limitation of Liability and Reimbursement. Neither XES, nor any of
its officers, employees, agents or affiliates (including its attorneys and
accountants), shall in any event be liable for any damages, including but not
limited to loss of profits or revenue, which arise out of XES' (or any such
officer's, employee's, agent's or affiliate's) performance or failure to
perform any of its obligations under this Agreement, other than those damages
caused by XES' (or such person's) willful misconduct or gross negligence.
Xyvision hereby agrees to indemnify XES and hold XES harmless for all costs
(including attorneys' fees) and damages incurred by XES to third parties as a
result of the provision by XES pursuant to this Agreement of the Services,
other than costs or damages incurred by XES as a result of its willful
misconduct or gross negligence. Notwithstanding any other provision of this
Agreement, XES shall under no circumstances have any liability or
responsibility for Xyvision's compliance with any law or regulation, including
but not limited to any law or regulation relating to securities.
3.3. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any
of such which may be hereafter declared invalid, void or unenforceable, and the
parties hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction.
3.4. Assignment. Except by operation of law or in connection with the sale
of all or substantially all the business or assets of a party hereto, this
Agreement shall not be assignable, in whole or in part, directly or indirectly,
by either party hereto without the prior written consent of the other, and any
attempt to assign any rights or obligations arising under this Agreement
without such consent shall be void; provided, however, that the provisions of
this Agreement shall be binding upon, inure to the benefit of and be
enforceable by XES and Xyvision and their respective successors and permitted
assigns.
3.5. Further Assurances. Subject to the provisions hereof, each of XES and
Xyvision shall make, execute, acknowledge and deliver such other agreements,
documents or instruments and take or cause to be taken such other actions as
may be reasonably required in order to effectuate the purposes of this
Agreement and to consummate the transactions contemplated hereby. Subject to
the provisions hereof, each of XES and Xyvision shall, in connection with
entering into this Agreement, performing its obligations hereunder and taking
any and all actions relating hereto, comply with all applicable laws,
regulations, orders and decrees, obtain all required consents and approvals and
make all required filings with any governmental agency, or other regulatory or
administrative agency, commission or similar authority and promptly provide the
other with all such information as the other may reasonably request in order to
be able to comply with the provisions of this sentence.
3.6. Parties in Interest. Nothing in this Agreement expressed or implied
is intended or shall be construed to confer any right or benefit upon any
person or entity other than XES and Xyvision and their respective successors
and permitted assigns.
3.7. Waivers, Etc. No failure or delay on the part of XES or Xyvision in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No modification or waiver of any provision of this Agreement
nor consent to any departure by XES or Xyvision therefrom shall in any event be
effective unless the same shall be in writing and signed by the party against
whom such modification or waiver is asserted and then such modification or
waiver shall be effective only in the specific instance and for the purpose for
which given.
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3.8. Arbitration. Each party hereto may refer any dispute arising under
this Agreement or the matters contemplated hereby (including without limitation
the fees for Services provided hereunder) to binding arbitration in the
Commonwealth of Massachusetts under the commercial arbitration rules of the
American Arbitration Association before a panel of three arbitrators, one
selected by each party and the third selected by the other two arbitrators or,
if they are unable to agree, by the American Arbitration Association. Any award
made in such arbitration may be enforced in any court of competent
jurisdiction.
3.9. Confidentiality. Subject to any contrary requirement of law and the
right of each party to enforce its rights hereunder in any legal action, each
party shall keep strictly confidential and shall cause its employees and agents
to keep strictly confidential any information which it or any of its agents or
employees may acquire pursuant to, or in the course of performing its
obligations under, any provision of this Agreement; provided, however, that
such obligation to maintain confidentiality shall not apply to information
which (a) at the time of disclosure was in the public domain not as a result of
acts by the receiving party, (b) was in the possession of the receiving party
at the time of disclosure, or (c) was received by the receiving party from a
third party that does not require the receiving party to maintain the
confidentiality of such information, and that is not in violation of any
contractual, legal or fiduciary obligation to the disclosing party with respect
to such information.
3.10. Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the provisions of Services from XES to Xyvision.
3.11. Titles and Headings. Titles and headings to sections herein are
inserted for the convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
3.12. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
3.13. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the Commonwealth of
Massachusetts without regard to any choice or conflict of law rule or provision
that would result in the application of the domestic substantive laws of any
other jurisdiction.
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IN WITNESS WHEREOF, the parties have caused this Services Agreement to be
duly executed as of the day and year first above written.
XYVISION, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
XYVISION ENTERPRISE SOLUTIONS, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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