CONSULTING AGREEMENT
This Agreement is made as of the 31st day of July,1995, by and
between Joseph Ben-Gal of Farmington Hills, Michigan ("Executive") and
CimSoft, Inc., a Delaware and/or ACCESS Corporation, an Ohio corporation
(the "Company").
Simultaneously with the execution and delivery of this Agreement,
ACCESS Corporation, an Ohio corporation, ("ACCESS") is acquiring
all of the stock of the Company from William Manning. In order to induce
ACCESS to make such acquisition, Executive hereby agrees as follows:
1. Executive Services.
(a) Until January 31, 1997, Executive will provide consulting
and executive services to the Company with respect to:
(i) The operations of the Company as they relate to
those of ACCESS;
(ii) Collection of the Company's receivables;
(iii) Booking of new business from both new and existing
customers of Cimage systems;
(iv) Recruiting and retention of key employees of the
Company; and
(v) Such other duties as may reasonably be requested by
the Company.
(b) Prior to November 1, 1995 (other than during a two-week
vacation in August) Executive will devote his full
business time to the services to be performed
thereunder. From November 1, 1995 through
January 31, 1996, Executive may seek and accept other
part time or full time employment, but will devote a
reasonable portion of his business time to performing
his service hereunder. From February 1, 1996 through
January 31, 1997, Executive will provide such
consulting services to the Company as it may request,
subject to his other business and personal commitments.
2. Compensation. As compensation for Executive'services hereunder,
the Company shall pay him:
(a) A bonus of $20,000 on the later to occur of
(i) the execution of a written reseller agreement between
Cimage Enterprise Systems, Ltd. and the Company
in form and substance satisfactory to the Company and
(ii) the execution of an employment agreement between the
Company and Marc Baines in form and substance
satisfactory to the Company;
(b) $4,231.00, payable biweekly, for each two week period
through January 1996;
(c) $7,500 per month, payable monthly in arrears, for each
month from February 1996 through January 1997;
(d) 10% of the Company's Free Cash to be paid thirty days after
the date hereof. "Free Cash" shall mean the excess on the
date hereof of the Company's cash on hand and in bank
deposits less the Company's accounts payable and other
liabilities (exclusive of accrued payroll and other
commissions) in excess of $12,000 and excluding $183,545
accounts payable to Cimage Enterprise Systems for software
purchased to fulfill orders revenued in July;
(e) 10% of the Company's Cimage Corporation accounts receivable
purchased from the NBD Bank outstanding on the date hereof
and collected prior to January 1, 1996 ("Collections") to
be paid by the end of the month following the month in which
such Collections are received by the Company;
(f) an additional 10% (in total 20%) of Collections on the
amount that such Collections plus Free Cash exceed $700,000
to be paid by the end of the month following the month in
which such Collections are received by the Company;
(g) An amount equal to 7.5% of the invoice value of valid
Cimage software orders booked by the Company during the
period from July 1, 1995 to July 28, 1995 and 5% of the
invoice value of such orders booked by the Company during
the period from July 29, 1995 through October 31, 1995.
The amount described in this Paragraph 2(g) shall be paid
by the end of the month following the month in which such
order is taken into revenue by the Company.
(h) Executive shall be entitled to review the books and records
of the Company at reasonable times and on reasonable notice
to verify the calculations required by Paragraphs 2(d)-2(g).
3. Termination. Notwithstanding anything contained herein to the
contrary, the Company shall have the right, upon written notice to
Executive, to terminate Executive's services hereunder for cause,
if Executive (i) defrauds the Company or misappropriates property
or opportunities belonging to the Company, (ii) materially
breaches any of the provisions set out in Paragraphs 1 or 6
hereof and fails to cure such breach within thirty (30) days from
the time Executive becomes aware or should have become aware of
such material breach, or (iii) is convicted of any crime which is
classified as a felony.
4. Reimbursement of Expenses. The Company will reimburse Executive
for all reasonable travel and other expenses incurred by him in
the performance of his obligations under this Agreement consistent
with the policies of the Company approved by ACCESS in advance.
5. Death and Disability.
(a) If, prior to November 1, 1995, Executive dies or contracts
an illness or other injury which prevents performance by
him of his duties as described herein, the Company, at its
option, may at any time thereafter terminate this Agreement
by serving five (5) days' prior written notice thereof on
Executive. Executive's rights under this Agreement shall
terminate and come to an end upon the date set forth in
said notice as if such date were the termination date of
this Agreement. If prior to the date specified in such
notice, Executive's illness or incapacity shall have been
terminated and he is physically and mentally able to perform
his duties as described herein and shall have taken up and is
performing such duties on a full-time basis, he shall be
entitled to resume employment hereunder as though such notice
had not been given.
(b) During any period of disability which occurs during the term
of this Agreement after October 31, 1995, Executive shall
continue to be paid in full by the Company in accordance with
the provisions of Paragraph 2 of this Agreement, except that
the Company shall deduct from Executive's compensation as
therein provided an amount equal to any disability insurance
payments received by Employee for such period pursuant to
disability insurance policies paid for and maintained by
the Company for the benefit of Executive.
(c) In the event Executive dies during the term of this
Agreement after October 31, 1995, Executive shall continue
to be paid in full by the Company in accordance with the
provisions of Paragraph 2 of this Agreement, except that
Company shall deduct from Executive's compensation as therein
provided an amount equal to any life insurance proceeds
payable with respect to Executive's life pursuant to life
insurance policies paid for and maintained by the Company for
the benefit of Executive.
6. Confidentiality. Executive will not at any time either during
the term of this Agreement or for two years after the termination
of this Agreement, except as authorized by the Company, divulge,
furnish or make accessible to any person, firm, corporation or
other entity any such confidential and sensitive information
and any other information not otherwise publicly available which
he presently possesses or which he may obtain during the course
of his services to Access or the Company with respect to (a) the
business, services, customers and affairs of the Company or
Access and/or any subsidiary or affiliate of the Company or
Access or (b) any trade secrets, developments, know-how, methods
or other information and data pertaining to practices, processes,
formulas, developments or business of the Company or Access, or
(c) any confidential or secret aspect of the business of the
Company or Access and/or any subsidiary or affiliate of the
Company or Access. Executive will keep all such matters and
information strictly and absolutely confidential. Executive,
upon the termination of his services hereunder, irrespective of
the time, manner or cause of termination, will surrender and
deliver to the Company all lists, books, records and data of
every kind relating to or in connection with the customers,
suppliers, products and business of the Company or Access and/or
any subsidiary or affiliate of the Company or Access and all
property belonging to the Company or Access and/or any subsidiary
or affiliate of the Company or Access.
7. Assignability. Executive recognizes that this Agreement is
personal to the Company and none of Executive's obligations
under this Agreement may be assigned or delegated by him. The
Company may not assign its rights and obligations hereunder,
except upon a merger, consolidation or sale of all or
substantially all of its assets and business, and it shall be a
condition of any such assignment that the purchaser agree to
assume all obligations of the Company hereunder.
8. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given when
delivered personally, or delivered to a United States post office,
first-class postage prepaid, or given by prepaid telegram as
follows (or to such changed address of which notice shall
have been given in the manner provided in this Paragraph):
To Executive: Joseph Ben-Gal
30123 Fox Grove
Farmington Hills, Michigan 48334
To Company: CimSoft, Inc.
4350 Glendale-Milford Road
Suite 250
Cincinnati, Ohio 45242
Attn: Newton D. Baker
9. Miscellaneous.
(a) This Agreement may not be amended except by a writing signed
by each of the parties.
(b) This Agreement and its interpretation and construction shall
be governed by the laws of the State of Ohio.
(c) This Agreement shall be binding upon and inure to the benefit
of the parties and their respective heirs, executors,
personal representatives or successors.
(d) Except as otherwise provided herein, neither this Agreement
nor any of the obligations or benefits of the parties
hereunder may be assigned without the written consent of
the other party.
(e) Executive's status hereunder shall be that of an employee
of the Company until the earlier of February 1, 1996 or the
first week during which he shall work fewer than thirty (30)
hours (other than vacation time agreed upon by Company and
Executive) and thereafter shall be that of independent
contractor to, and not an employee of, the Company.
Executive shall make when due all income tax, FICA,
unemployment insurance and other payments required by law.
Executive shall not be entitled to any benefits of employment
except as specifically set forth herein or which are incident
to his status as an employee. In Witness Whereof the parties
have hereunto set their hands the day and year first above
written.
ACCESS CORPORATION
By:NEWTON B. BAKER By:JOESPH BEN-GAL
____________________________ ___________________________
Newton D. Baker Joseph Ben-Gal
Executive Vice President