Exhibit 10.10
REDACTED
ALLIANCE AGREEMENT
THIS AGREEMENT is made as of this 23rd day of March, 2000, by and between
New England Business Service, Inc., a Delaware corporation, on behalf of itself
and its U.S. subsidiaries as described on Schedule S (collectively, "NEBS"),
with offices located at 500 Main Street, Groton, MA 01471, and Advantage
Business Services Holdings, Inc., a Delaware corporation ("Advantage"), with
offices located at 126 Merrow Road, Auburn, ME 04211-1330.
This Agreement describes the terms and conditions of the strategic alliance
between NEBS and Advantage, pursuant to which Advantage will provide payroll
processing and related services on a private label basis to NEBS' customers, and
NEBS will actively market such services to its existing and prospective
customers in the United States.
1. Private Label Program.
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(a) During the term of this Agreement, Advantage agrees to provide private
label versions of its payroll processing and related services, identified
in Exhibit A (the "Services"), which NEBS will actively market under its
various brand names as identified on Schedule S (the "Program").
(b) NEBS and Advantage will consult with each other on a routine basis on
current and future payroll processing-related product/service development
initiatives. New payroll processing-related products or services developed
or sourced by Advantage will be made available to NEBS for inclusion in the
Program if, in Advantage's reasonable judgment, such product or service
offerings (i) can reasonably be expected to provide operating margins
comparable to the margins provided by the Services, and (ii) are reasonably
appropriate for inclusion in the Program and such inclusion would not
constitute a violation of law; provided, however, that Advantage will make
available to NEBS for inclusion in the Program any new payroll
processing-related products or services that are compatible with clause
(ii) above and that Advantage makes available to any other private label or
semi-private label program in which Advantage participates. If NEBS agrees
to add a new product or service to the Program, such new product or service
will be included within the definition of the "Services" for purposes of
this Agreement.
(c) During the term of this Agreement, Advantage shall offer the Services to
NEBS at prices at least as favorable to NEBS as the prices at which
Advantage offers such Services to any similar channel of distribution with
a similar number of customers. Notwithstanding the foregoing, nothing in
this Agreement shall require Advantage to offer pricing to NEBS which is
similar to that offered to Advantage Associates. For purposes of this
Agreement, the term "Advantage Associates" means those persons or entities
which have executed an Associate License Agreement or Associate's Contract.
(d) Upon general commercial release of its web-based versions of the Services,
Advantage will offer to provide to NEBS on a private-label basis as part of
the
Program such of the web-based Services as Advantage, in its reasonable
judgment, deems compatible with the criteria set forth in Section 1(b)(i)
and (ii), (the "Web Product"). NEBS will designate which of its web sites
are to feature the Web Product and the parties will cooperate in
implementing the Web Product.
(e) NEBS will determine, in its sole discretion, which of its trademarks,
service marks, trade names, logos and other distinctive brand features will
be utilized from time to time during the term of this Agreement in
connection with the Program, which may include special trademarks, service
marks, logos or other distinctive brand features developed specifically for
use in connection with the Program (collectively, the "NEBS Brand
Features").
(f) It is the intent of the parties that the NEBS Brand Features will be
utilized predominantly in the marketing and provision of the Services,
including related sales and customer support. Both parties acknowledge that
certain elements of the Program will require the use of Advantage's name
due to various operational and statutory requirements. Advantage agrees to
use only its corporate name, or the abbreviated version (i.e., "ABSHI" or
"Advantage" in a non-stylistic version) in its processing agreements and
communications to the customers of the Program ("Program Customers") when
such identification is reasonably necessary to respond to operational or
regulatory requirements.
(g) NEBS will defend, indemnify and hold harmless Advantage and its
subsidiaries, directors, officers, employees and agents, with respect to
any losses, damages, liabilities, claims, costs and expenses (including
reasonable attorneys' fees and disbursements) suffered or incurred as a
result of any claim that the NEBS Brand Features violate or infringe any
trademark, service mark, trade name, trade dress, copyright, right of
privacy, right of publicity or other proprietary right of any third party.
2. Advantage's Responsibilities.
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(a) Advantage agrees to provide the Services to all qualified prospective
Program Customers, subject to the customary terms and conditions offered by
Advantage generally in connection with each such Service. Advantage will be
solely responsible for determining whether a prospective Program Customer
for the Services requested is qualified, and that it has received and
completed the verification and acceptance of all documentation necessary to
enroll prospective customers. Advantage will provide the Services in
compliance with all applicable federal, state and local laws, in all
material respects.
(b) Advantage will establish, at its sole expense, a dedicated facility to
support the Program adjacent to its processing and telesales center located
in Sarasota, Florida, or such other location designated by Advantage. It is
the parties' intent that all Services processing and sales and customer
support will be conducted by a dedicated workforce at the dedicated
facility; provided, however, that during the initial roll-out of the
Program the required service levels may not require a full-time dedicated
workforce, in which event Advantage will supply adequate staffing to
support the
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Program from its regular workforce. Notwithstanding the foregoing, tax
processing and certain other services for the Program will be integrated
into Advantage's overall processing for Advantage clients where such
functions are generally centralized. The performance standards for the
Services and related sales and customer support provided under the Program
will be consistent with the standards, procedures and best practices
employed at Advantage's other processing centers. Advantage will include
the dedicated facility in its ongoing "disaster recovery planning". NEBS
acknowledges that in the event of such a disaster that Advantage may not,
in all cases, be able to use the NEBS Brand Features during the disaster.
(c) Advantage will provide sales and customer support for the Program in three
components, consisting of sales support representatives, new account
representatives and customer service representatives, all as more fully
described in Exhibit B. Sales and customer support will be provided by
Advantage personnel who are trained and knowledgeable in the provision of
assistance to NEBS and Program Customers. Advantage will establish
dedicated toll-free telephone numbers for the provision of telephonic sales
and customer support from 8:00 a.m. to 8:00 p.m., Eastern time, Monday
through Friday. Advantage will also establish dedicated toll-free fax
numbers and e-mail addresses for the provision of sales and customer
support.
(d) Advantage agrees to provide training to certain NEBS personnel ("NEBS
Trainers") to enable them in turn to train other NEBS marketing and sales
personnel, and will provide support for such follow-on field or group
training sessions as mutually agreed by the parties. Such training will be
for the purpose of enabling NEBS personnel to effectively advise
prospective customers of the Services offered through the Program, and to
market, sell and support such Services. All training programs must be
approved by NEBS. Prior to the implementation of the training program,
Advantage's trainers will visit NEBS to acquire a better understanding of
NEBS' culture, customers and methods of marketing products and services.
Advantage will utilize its existing training materials appropriately
customized to support the Program, and the training program will be
analogous to its then current training program provided to Advantage's own
sales force. Elements of the training program will include "job shadowing"
key Advantage personnel, as well as onsite training at a mutually agreed
upon Advantage or NEBS office. Advantage will provide routine updates of
the training program for the services offered through the Program, and will
provide appropriate training to the NEBS Trainers as new Services are added
to the Program. Advantage will be responsible for the costs associated with
its personnel providing such training, and NEBS will be responsible for all
costs associated with its personnel related to such training.
(e) Advantage, at its cost, will develop all application and enrollment
documentation, appropriately customized to support the Program. Use of all
such documentation in connection with the Program will be subject to the
prior review and approval of NEBS, which approval shall not be unreasonably
withheld or delayed. NEBS, at its cost, will actively produce and
distribute such documents, in appropriate quantities, throughout its sales
and distribution channels who are participating in the Program.
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3. NEBS' Responsibilities.
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(a) NEBS agrees to use its reasonable best efforts to actively promote, market
and sell the Services pursuant to the Program to its existing and
prospective customers in the United States. The parties understand and
agree that NEBS' marketing efforts in furtherance of the Program will be
implemented in accordance with a mutually agreed upon schedule to be
developed by NEBS, which will designate which of its sales channels are to
participate in the Program, and the timing and manner of the phase-in of
each such channel. NEBS will routinely consult with Advantage with respect
to its marketing roll-out plans for the Program.
(b) NEBS will be responsible for the design and production, at its sole
expense, of all marketing materials to be utilized in connection with the
Program. Advantage will provide assistance to NEBS, upon request, with
respect to the development of all such materials, and NEBS' use of any
marketing materials will be subject to the prior review and approval of
Advantage, which approval shall not be unreasonably withheld or delayed.
(c) NEBS' Trainers who have received training from Advantage as contemplated by
Section 2(d) above will, at NEBS' sole expense, provide appropriate and
sufficient ongoing training and education to NEBS' sales and distribution
channels participating in the Program. Advantage will provide assistance to
NEBS Trainers, upon reasonable request, with respect to the development of
such training programs, and NEBS' implementation of any training program
will be subject to the prior review and approval of Advantage, which
approval shall not be unreasonably withheld or delayed.
(d) As part of a new customer sale and setup, NEBS, at its sole expense, shall
be responsible for the complete and accurate completion of the New Client
Check List, as described in Exhibit C, for all Program Customers.
4. Fees and Commissions.
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(a) Advantage will collect, for its own account, all processing and related
fees and charges from the Program Customers in connection with the
provision of Services under the Program. Advantage will be responsible for
collecting and remitting any applicable sales, use or similar tax imposed
on the provision of Services under the Program. The parties shall be
jointly responsible for determining whether sufficient nexus exists for
purposes of state tax determination in any state in which the Services are
provided based upon either NEBS' or Advantage's operations.
(b) Advantage will pay commissions to NEBS on account of all Services provided
under the Program equal to the difference between the Wholesale Price for
the particular Service set forth in Exhibit D and the retail price
established by NEBS and paid by Program Customers. Amounts collected by
Advantage in respect of sales, use or similar taxes, delivery charges or
special research fees will be excluded for purposes of determining NEBS'
commissions. Advantage agrees to collect any handling charge imposed by
NEBS with the processing fees and to remit the entire amount of
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such handling charge to NEBS; provided, however, that such handling charge
is not inconsistent with industry practices and would not have a negative
impact upon the success of the Program.
(c) Advantage may from time to time, but not more often than once each calendar
year without NEBS' prior written consent, change the Wholesale Prices set
forth in Exhibit D, upon not less than sixty (60) days prior written notice
to NEBS; provided, however, that Advantage will receive relief from its
obligations under this Section 4(c) in the event of a change in regulatory
requirements, regarding the performance of the Services, which would have a
materially negative impact on Advantage's operating margins as it relates
to the Program, in which event Advantage shall have the opportunity to make
reasonable adjustments in its fees and commissions in response to such
regulatory requirement, which adjustments shall become effective ten days
after written notice provided to NEBS.
(d) Within thirty (30) days after the end of each month, Advantage will pay the
commissions due NEBS under the terms of this Agreement for the immediately
preceding month, by check or wire transfer, as instructed by NEBS,
accompanied by an accounting in a mutually agreed upon format, which will
include information with respect to Program Customers (including name,
address, phone number and e-mail address, if any), Services provided, and
commissions payable.
(e) Advantage will, for a period of three (3) years following the date of each
monthly report issued hereunder, keep records adequate to verify the
substance of the report and the associated commission payment. NEBS will
have the right, no more than once each year, to have representatives
inspect Advantage's records, on reasonable notice and during regular
business hours at Advantage's corporate offices, to verify the reports and
payments made hereunder. The cost of such audit will be borne by NEBS,
provided that if the audit reveals that Advantage has under-reported
commissions due NEBS by more than five percent (5%) for the period being
audited, then Advantage will reimburse NEBS for the reasonable costs of the
audit, and NEBS will be entitled to a second audit in that year in which an
error of more than five percent (5%) was detected. In the event of any
dispute, such dispute shall be resolved in accordance with provisions of
Section 12 hereof.
5. Exclusivity.
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(a) During the term of this Agreement, NEBS will not market or sell to its
customers or prospective customers in the United States products or
services substantially similar to the Services other than pursuant to the
Program.
(b) Notwithstanding the foregoing, nothing contained in this Agreement shall
prevent NEBS from entering into referral relationships or other marketing
arrangements relating to NEBS' other products and services with third
parties who also offer products or services substantially similar to the
Services ("Competing Services"), provided that NEBS will not, as part of
any such relationship or arrangement: (i) actively market or sell such
third party's Competing Services, except that NEBS' direct sales force may
distribute third party literature describing various products and
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services, including Competing Services, and may complete and return third
party survey cards indicating customer interest in any such Competing
Services; and (ii) accept commissions from such third party with respect to
the sale of such third party's Competing Services (unless such services are
provided on behalf of such third party by Advantage or one of its
affiliates), except that NEBS may receive commissions that are based on
total revenue from customers obtained by the third party through NEBS'
marketing efforts where NEBS has marketed only the third party's
non-Competing Services.
6. Insurance.
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(a) Each of the parties agrees to maintain at all times during the term of this
Agreement the following insurance coverages: (i) worker's compensation;
(ii) disability benefits law coverage; (iii) employee dishonesty coverage
(also known as a fidelity bond); (iv) commercial general liability
insurance; and (v) automobile liability insurance covering owned, leased,
non-owned and hired vehicles; in each case in amounts customary and
appropriate for the businesses in which the parties are respectively
engaged, or otherwise engage in self-insurance arrangements for such
coverages, and provided that such insurance can be obtained at commercially
reasonable rates. The coverages maintained by each party and described in
clauses (iv) and (v) shall name the other party and its subsidiaries as
additional insureds.
(b) In addition, Advantage agrees to maintain at all times during the term of
this Agreement errors and omissions insurance for third party claims
arising from Advantage's acts or omissions in connection with the provision
of the Services under the Program, in an amount appropriate for Advantage's
business, provided that such insurance can be obtained at commercially
reasonable rates. The foregoing coverage shall name NEBS and its
subsidiaries as additional insureds.
(c) All coverages will be maintained with insurers licensed to transact
insurance business in the state(s) where the insuring party will perform
its obligations under this Agreement with an A.M. Best rating of at least
A- or better. Each party will provide the other party with a certificate of
insurance evidencing the foregoing coverages promptly following execution
of this Agreement and thereafter as the other party may reasonably request.
7. Indemnification. Each party agrees that it shall defend, indemnify and hold
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harmless the other party, its subsidiaries, and their respective directors,
officers, employees and agents with respect to any losses, damages,
liabilities, claims, costs and expenses (including reasonable attorneys'
fees and disbursements) that such other party, subsidiary, director,
officer, employee or agent may suffer or incur by reason of (a) the
indemnifying party's material breach of this Agreement and (b) any claim by
a third party brought against such other party, subsidiary, director,
officer, employee or agent because of the acts or omissions of the
indemnifying party, its employees or agents or other persons acting on its
behalf.
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8. Trademarks.
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(a) NEBS hereby grants Advantage a non-exclusive, limited license to use the
NEBS Brand Features solely in connection with the performance of its
obligations under this Agreement, including by way of illustration and not
limitation, Advantage's use of the NEBS Brand Features in the provision of
sales and customer support under the Program, on reports, newsletters and
other correspondence provided to Program Customers, and on the Web
Products. Advantage's use of the NEBS Brand Features will be subject to
NEBS' prior approval. Advantage will promptly update its use of the NEBS
Brand Features as reasonably directed by NEBS. Upon expiration or
termination of this Agreement for any reason, Advantage will immediately
cease to use the NEBS Brand Features except as necessary to fulfill its
obligations during the Winding Down Period (as hereinafter defined).
(b) Advantage hereby acknowledges NEBS' ownership of the NEBS Brand Features,
and the goodwill related thereto, and agrees that all use of the NEBS Brand
Features in connection with the Program shall inure to the benefit, and be
on behalf, of NEBS. Advantage hereby acknowledges that its use of the NEBS
Brand Features will not create in it nor will it represent that it has, any
right, title or interest in or to the NEBS Brand Features other than the
license granted herein. Advantage agrees not to do anything contesting or
impairing NEBS' intellectual property rights in the NEBS Brand Features.
(c) NEBS hereby acknowledges Advantage's ownership of Advantage's trademarks,
service marks, logos and other distinctive brand features, including,
without limitation, the name "Advantage" and the distinctive Advantage logo
(collectively, the "Advantage Brand Features"), and the goodwill associated
therewith. NEBS acknowledges that, except as may be necessary to identify
Advantage to Program Customers as the reporting Agent as necessary to
comply with applicable law, it has no right to use the Advantage Brand
Features without Advantage's prior written consent. NEBS agrees that it
will not represent that it has any license, right, title or interest in or
to the Advantage Brand Features. NEBS agrees not to do anything contesting
or impairing Advantage's intellectual property rights in the Advantage
Brand Features.
9. Confidential Information.
------------------------
(a) Each party acknowledges that Confidential Information (as hereinafter
defined) may be disclosed to the other party during the course of this
Agreement, or pursuant to the Purchase and Sale Agreement of even date
herewith between the parties and the Agreements referred to therein. Each
party agrees that it will protect the other party's Confidential
Information by using the same degree of care, but no less than a reasonable
degree of care, to prevent the unauthorized disclosure of such Confidential
Information as the receiving party uses to protect its own confidential or
proprietary information. The receiving party will not use the other party's
Confidential Information for any purpose other than in pursuance of the
business relationship contemplated by this Agreement. The receiving party
will neither disclose nor copy the other party's Confidential Information
except as necessary for its employees,
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agents or contractors with a need to know, provided that any such employee,
agent or contractor shall have agreed, as a condition to his or her
employment or engagement or in order to obtain Confidential Information, to
be bound by non-disclosure and non-use obligations substantially similar to
this Section. The receiving party's obligations under this Section will
survive the termination of this Agreement.
(b) "Confidential Information" means any information relating to or disclosed
in the course of this Agreement which is or should reasonably be understood
to be confidential and proprietary to the disclosing party, including but
not limited to the existence and terms of this Agreement, sales, cost and
other unpublished financial information, product and business plans,
projections and marketing data, customer information and mailing lists,
information received from others that the disclosing party is obligated to
treat as confidential, and other technical, financial or business
information. Confidential Information may be furnished in any tangible or
intangible form, including written or printed documents, visual
demonstrations or inspections, computer disks or tapes, other electronic
media or oral communications.
(c) The receiving party's obligations under this Section will not apply, or
will cease to apply, to that Confidential Information which the receiving
party can establish: (i) is or hereafter becomes generally known or
available to the public or interested persons through no breach of this
Section by the receiving party; (ii) is rightfully known to the receiving
party without restriction on disclosure at the time of its receipt from the
disclosing party; (iii) is rightfully furnished to the receiving party by a
third party without breach of an obligation of confidentiality; (iv) is
independently developed by the receiving party without use or reference to
the Confidential Information; (v) is required to be disclosed by applicable
law or pursuant to the order of a court, administrative agency or other
governmental body (provided that the receiving party shall give the
disclosing party reasonable notice prior to such disclosure and shall
comply with any applicable protective order or equivalent); or (vi) is
approved for release by written authorization of the disclosing party.
(d) During the term of this Agreement and any Winding Down Period, Advantage
agrees that it will not disclose to any third person or organization (other
than NEBS), or use in any manner other than in pursuance of its obligations
under the Program, the list of Program Customers without the prior written
consent of NEBS. The foregoing obligation shall survive the expiration of
the Winding Down Period with respect to any Program Customer that is
converted by NEBS in accordance with the provisions of Section 10.
Advantage acknowledges that following the expiration or termination of this
Agreement, NEBS may continue to use the list of Program Customers who have
been converted by Advantage in accordance with the provisions of Section 10
to market and sell the other products and services offered from time to
time by NEBS, subject to the restrictions set forth in Section 10(j). To
the extent that any such Program Customer has also purchased one or more of
NEBS' other products or services, NEBS may disclose information with
respect to such customer to third parties for purposes other than offering
or selling Competing Services, provided that such disclosure does not
target the Program Customers specifically but only includes them in a
larger list of NEBS' customers generally, and that such disclosure does not
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identify such NEBS customers as customers of Advantage. The restrictions
imposed on Advantage and NEBS in this Section 9(d) will be coterminous in
duration with the restrictions set forth in Section 10(j).
(e) The parties agree that during the term of this Agreement and for an
additional period of two (2) years from the termination hereof, for any
reason, neither party will employ nor agree to employ any person who was
employed during such term by the other party; provided that from and after
March 31, 2003, the foregoing restriction shall apply only with respect to
persons employed by the other party within three (3) years preceding the
date at issue.
10. Term and Termination.
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(a) The term of this Agreement will commence on the date hereof, and will
remain in effect for an initial ten-year term ending on March 31, 2010,
subject to earlier termination as provided herein. Thereafter, it will
continue in effect for successive five-year periods, subject to earlier
termination as provided herein, unless and until canceled by either party
upon written notice provided at least eighteen (18) months prior to the end
of the then current contract term.
(b) Either party may immediately terminate this Agreement at any time in the
event: (i) the other party fails to substantially perform any of its
material obligations hereunder, and such breach remains uncured after
thirty (30) days following written notice thereof; (ii) the other party
becomes insolvent, or voluntary or involuntary proceedings are instituted
against the other party under any federal, state or other bankruptcy or
insolvency law, or a receiver is appointed for the other party or any of
its assets, or the other party makes a general assignment for the benefit
of its creditors; or (iii) the other party fails to maintain operations as
a going concern for more than twenty (20) consecutive days.
(c) If either party elects not to renew this Agreement at any time as provided
in Section 10(a), at the same time such party (the "Terminating Party")
delivers its notice of non-renewal it will also deliver to other party an
offer to purchase the right to continue providing Services to the Program
Customers following expiration of this Agreement. The offer shall state the
amount to be paid per Program Customer based on the Services being provided
and the number of employees. The other party (the "Non-Terminating Party")
shall, within thirty (30) days of receipt of the notice of non-renewal and
purchase offer, either (i) accept such offer, or (ii) agree to purchase the
right to continue providing Services to the Program Customers upon payment
to the Terminating Party of the same amount stated in the Terminating
Party's offer. The Non-Terminating Party's election pursuant to clause (i)
or (ii) of the preceding sentence will be final and binding on both
parties, and failure by the Non-Terminating Party to notify the Terminating
Party of its election within the required thirty-day period will be deemed
conclusively to be an election to accept the Terminating Party's offer.
(d) The party that has agreed to purchase the right to continue providing
Services to the then active Program Customers as a result of the procedures
described in Section
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10(c) (referred to in this Section as the "Purchaser") shall have no more
than six months from the expiration date of this Agreement (the "Winding
Down Period") to convert such customers, in the case of Advantage, to its
own branded Services, and in the case of NEBS, to a new payroll service
provider, which may be NEBS or a third party designee. The non-purchasing
party shall be referred to in this Section as the "Seller".
(e) The parties will coordinate their activities at all times during the
Winding Down Period and thereafter to ensure that Program Customers do not
experience any interruption or deterioration in the Services. During the
Winding Down Period, the Seller will take no steps to solicit Program
Customers to convert to the Seller or discourage Program Customers from
converting to the Purchaser. During the Winding Down Period, Advantage will
continue to use the NEBS Brand Features in connection with the delivery of
the Services and related customer support with respect to each Program
Customer until such time as such customer has been converted. NEBS will be
entitled to commissions in accordance with Section 4 with respect to
Services provided to Program Customers during the Winding Down Period until
such customers have been converted.
(f) Within thirty (30) days following the end of the Winding Down Period, the
Purchaser will deliver to the Seller a report detailing the Program
Customers who were converted by the Purchaser prior to the expiration of
the Winding Down Period, together with payment for such Program Customers
as determined pursuant to Section 10(c). In addition, if Advantage is the
Purchaser, and NEBS notifies Advantage no later than thirty (30) days prior
to the termination date of this Agreement that it does not intend to
provide Services to Program Customers following such termination date,
Advantage will automatically convert all Program Customers to its own
branded Services immediately following the termination date and, within
thirty (30) days following the expiration date, make the payment to NEBS as
determined pursuant to Section 10(c).
(g) If, at the end of the Winding Down Period, any then current Program
Customers have not been converted by the Purchaser and have indicated a
desire to obtain the Services from the Seller, the Purchaser will
immediately so notify the Seller, and the Seller may elect to convert such
customers. The parties will cooperate to the extent reasonable and
necessary to ensure that such Program Customers do not experience any
interruption in the delivery of the Services or related customer support in
connection with this transition. Within thirty (30) days following the end
of the Winding Down Period, the Seller will deliver to the Purchaser a
report detailing the Program Customers which it converted pursuant to this
Section 10(g), together with payment for such Program Customers determined
on the same basis as the payment made by the Purchaser pursuant to Section
10(c). If NEBS is the Purchaser, all active Program Customers as of the
expiration of the Winding Down Period who have not been converted by NEBS
will immediately be converted by Advantage to its own branded Services, and
Advantage will make payment to NEBS in respect of such customers in
accordance with this Section.
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(h) If this Agreement is terminated pursuant to Section 10(b), the purchase
arrangements of this Section 10 will apply, except that for purposes of
this Section 10(h), the non-breaching party shall have the first option of
exercising the Terminating Party's rights under Section 10(c). If the
non-breaching party elects to exercise such rights, it shall deliver, with
its notice of termination, the offer to purchase the right to continue
providing Services to the Program Customers following termination of this
Agreement as contemplated by Section 10(c), and the other purchase
arrangements set forth in this Section 10 will follow accordingly. Failure
by the non-breaching party to deliver such offer with its notice of
termination will be deemed conclusively to be an election not to exercise
such offer rights. If the non-breaching party elects, or is deemed to have
elected, not to exercise the Terminating Party's rights under Section
10(c), then the breaching party must, within thirty days thereafter,
exercise the Terminating Party's rights under Section 10(c), and the other
purchase arrangements set forth in this Section 10 will follow accordingly.
The effective date of any termination of this Agreement pursuant to Section
10(b) will be deferred until the Purchaser and Seller have been determined
in accordance with Section 10(d) specifically including the applicable time
limits, and the "Winding Down Period" shall be the period, not to exceed
one hundred and eighty (180) days, following the effective date of
termination of this Agreement.
(i) Except to the extent required by applicable law, neither party will
disclose to the public generally or to the Program Customers that the
Program is to be discontinued, through either the expiration or termination
of this Agreement, prior to the effective date of such expiration or
termination. All notices regarding the discontinuation of the Program will
be made only with the prior review and approval of both parties, which will
not be unreasonably withheld.
(j) For a period of five (5) years following the expiration or termination of
this Agreement, neither party will solicit any Program Customers converted
by the other party in accordance with this Section 10 with respect to the
provision of the Services.
(k) Sections 7 through 13, inclusive, and Advantage's obligation to make
payments in accordance with Section 4 with respect to commissions that have
accrued prior to the effective date of expiration or termination of this
Agreement, will survive such expiration or termination, for the applicable
statutes of limitation.
11. Representations and Warranties. Each party represents and warrants to the
------------------------------
other party that: (a) such party has the full corporate right, power and
authority to enter into this Agreement and to perform the acts required of
it hereunder; (b) the execution and delivery of this Agreement by such
party, and the performance by such party of its obligations and duties
hereunder, do not and will not violate any agreement to which such party is
a party or by which it is otherwise bound; and (c) when executed and
delivered by such party, this Agreement will constitute the legal, valid
and binding obligation of such party, enforceable against such party in
accordance with its terms. These representations and warranties shall
survive until the second anniversary of the expiration or termination of
this Agreement, any statutes of limitations otherwise applicable hereto
notwithstanding.
11
12. Dispute Resolution. Except for proceedings seeking immediate injunctive
------------------
relief, all disputes between Advantage and NEBS arising out of or relating
to this Agreement which cannot be settled amicably within thirty (30) days
(or such longer period as mutually agreed upon) from the date that either
party informs the other in writing that such dispute exists, shall be
finally settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association in effect on the
date that such notice is given. The site of arbitration shall be (a)
Boston, Massachusetts, if arbitration is initiated by Advantage, and (b)
Portland, Maine, if arbitration is initiated by NEBS. Any arbitration award
shall be final and binding upon the parties and judgment may be entered
thereon, upon the application of either party by any court having
jurisdiction. Each party shall bear the costs of preparing and presenting
its case, and the cost of arbitration, including the fees and expenses of
the arbitrator(s), shall be shared equally, or as the award otherwise
provides. Either party may at its option request a final decision of the
arbitrator(s) within sixty (60) days of submission.
13. General.
-------
(a) Remedies. Each party acknowledges that money damages would not be a
sufficient remedy for any breach by such party of Section 8 or 9, and the
non-breaching party will be entitled to seek specific performance and
injunctive relief as remedies for any such breach.
(b) Notices. All notices, requests, demands, claims and other communications
hereunder will be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient
as set forth below:
If to Advantage:
Advantage Business Services Holdings, Inc.
126 Merrow Road
Auburn, ME 04211-1330
Attn: Charles W. Lathrop, Jr., President
telecopy: 207-784-0102
telephone: 207-784-0178
e-mail: charlie_lathrop@advpayroll.com
12
with a copy to:
Peter B. Webster, Esq.
Verrill & Dana, LLP
One Portland Square
P.O. Box 586
Portland, ME 04112-0586
telecopy: 207-774-7499
telephone: 207-774-4000
e-mail: pbw@verdan.com
If to NEBS:
New England Business Service, Inc.
500 Main Street
Groton, MA 01471
Attn: George P. Allman, Senior Vice President
telecopy: 978-449-3018
telephone: 978-449-3002
e-mail: gallman@nebs.com
with a copy to:
New England Business Service, Inc.
500 Main Street
Groton, MA 01471
Attn: General Counsel
telecopy: 978-449-3018
telephone: 978-449-3302
e-mail: cbarrows@nebs.com
Either party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth
above using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, certified or registered mail,
or electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Either party may change the
address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
(c) Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes any
prior or contemporaneous agreements or understandings, written or oral,
concerning the subject matter hereof.
(d) Amendments and Waivers. This Agreement may be amended, modified or revoked
only by a written instrument executed by all parties hereto. Failure to
enforce any
13
provision of this Agreement shall not constitute a waiver of any other
provision(s) or of the same provision on another occasion.
(e) No Assignment. Neither party may assign its rights or delegate its duties
hereunder without receiving the prior written consent of the other party;
provided, however, that each party hereto (the "Assigning Party") shall
have the right to assign its respective rights and obligations under this
Agreement, upon reasonable prior written notice to the other party, to an
affiliate of the Assigning Party or to a successor in interest to
substantially all of the business of the Assigning Party to which this
Agreement relates; provided that the Assigning Party shall not avoid the
provisions of this Agreement by making one or more assignments and then
disposing of all or any portion of the Assigning Party's interest in any
such assignee; and provided, further, that notwithstanding any such
assignment the Assigning Party shall continue to be fully liable to the
other party for the discharge of its duties and obligations hereunder.
(f) Parties in Interest. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maine applicable to agreements
under seal made and to be performed within the State.
(h) Severability. If any provision of this Agreement shall be held by a court
of competent jurisdiction to be illegal, invalid or unenforceable, the
remaining provisions shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as an agreement under seal as of the date and year first
written above.
ADVANTAGE BUSINESS SERVICES HOLDINGS, INC.
By: /s/ Charles W. Lathrop, Jr.
---------------------------
Name: Charles W. Lathrop, Jr.
Title: President and CEO
NEW ENGLAND BUSINESS SERVICE, INC.
By: /s/ George P. Allman
------------------------
Name: George P. Allman
Title: Senior Vice President
14
SCHEDULES
TO
ALLIANCE AGREEMENT
DATED AS OF MARCH 23, 2000
BY AND BETWEEN
NEW ENGLAND BUSINESS SERVICE, INC.
AND
ADVANTAGE BUSINESS SERVICES HOLDINGS, INC.
NEBS will perform its obligations pursuant to the Program through one or more of
the following corporate entities:
1. New England Business Service, a Delaware corporation [parent corporation].
2. Rapidforms, Inc., a New Jersey corporation and a direct wholly-owned
subsidiary of NEBS.
3. McBee Systems, Inc., a Colorado corporation and an indirect wholly-owned
subsidiary of NEBS.
4. Chiswick, Inc., a Massachusetts corporation and a direct wholly-owned
subsidiary of NEBS.
5. Russell & Miller, Inc., a Delaware corporation and an indirect wholly-owned
subsidiary of NEBS.
6. NEBS may establish other subsidiaries through which it will perform its
obligations pursuant to the Program, subject to the prior consent of
Advantage, which consent will not be unreasonably withheld or delayed.
NEBS will utilize one or more of the following brand names in connection with
the performance of its obligations under the Program:
1. NEBS, Rapidforms, McBee, Chiswick, R & M;
2. NEBS may create special purpose brand names in connection with the Program
that are variants of its existing brands (e.g., McBeePay) or are unique to
the Program. Use of any such unique brand names will be subject to the
prior consent of Advantage, which consent will not be unreasonably withheld
or delayed.
EXHIBIT A
Advantage Products and Services
1. Automated Payroll Processing and Tax Filing Services
2. Automated Tax Payments
3. Electronic Funds Transfer Services
4. Payroll and Third Party Checks
5. New Hire Reporting
6. User Reports
7. Payroll Processing Software
8. Tax Filing Software
9. Time Clock Interfaces
10. 401k Administrative Services
11. Section 125 Administrative Services
12. Workers Compensation Insurance Interfaces
13. Accounting Software Interfaces
Exhibit B
Sales & Customer Support Process
-------------------- -------------------- -------------------- --------------------
McBeePayroll(SM) Rep Key Account McBeePayroll(SM) McBeePayroll(SM)
PROCESS Or => Representative => New Account Rep => Customer Service
McBee Rep Reps
Staffed by McBee Staffed by Advantage Staffed by Advantage Staffed by Advantage
-------------------- -------------------- -------------------- --------------------
ACTIVITY Generate new Payroll sales Process application & accurate data "conversations" Customer relationship
Conversion paperwork. With McBeePayroll(SM)" adminis- maintenance once a
trator. payroll runs without
issue.
LOCATION Decentralized Centralized Centralized Centralized
(Sarasota) (Sarasota) (Sarasota)
-----------------------------------------------------
McBeePayroll(SM)
"800 Sales Support Line
SALES SUPPORT Centralized (Sarasota)
Staffed by Advantage Payroll
-----------------------------------------------------
TIME -> -> -> -> -> -> ->
- ------------------------------------------------------------------------------------------------------------------------------------
Payroll Pre-Sell Payroll Run 3 Times
Exhibit C
New Client Set Up Checklist
- -----------------------------------------------------------
[ ] Voided Check
[ ] Proof of Federal and State ID Numbers
[ ] Employee information for all active and terminated employees in the current
year:
[ ] Name [ ] Social Security Number
[ ] Address [ ] Marital Status
[ ] Rate of Pay [ ] Exemptions claimed
[ ] Departmental information [ ] Voluntary deductions
[ ] SUI Rate for current year
[ ] Forms 941 for the lookback period and remainder of previous year
[ ] Federal (941) and state tax returns for previous quarters in current year
[ ] 1st quarter [ ] 3rd quarter
[ ] 2nd quarter [ ] 4th quarter
[ ] Federal and state tax deposits made in the current quarter
[ ] SUI tax deposits made in the current year
[ ] 1st quarter [ ] 3rd quarter
[ ] 2nd quarter [ ] 4th quarter
[ ] FUTA tax deposits made in the current year
[ ] 1st quarter [ ] 3rd quarter
[ ] 2nd quarter [ ] 4th quarter
[ ] Year-to-date and quarter-to-date company totals:
[ ] Gross wages [ ] Social security
[ ] Federal withholding [ ] Medicare
[ ] State withholding [ ] Voluntary deductions with
[ ] Local withholding tax implications
[ ] State disability
[ ] Company totals for each pay period in the current quarter:
[ ] gross wages [ ] social security
[ ] federal withholding [ ] Medicare
[ ] state withholding [ ] Voluntary deductions with
[ ] local withholding tax implications
[ ] state disability
Exhibit D
[Intentionally omitted.]*
- ----------------
* This material has been omitted pursuant to a request for confidential
treatment and has been filed separately with the Securities and Exchange
Commission.
AMENDMENT TO ALLIANCE AGREEMENT
THIS AMENDMENT TO ALLIANCE AGREEMENT is made as of the 23rd day of March,
2000 (the "Amendment"), by and among New England Business Service, Inc., a
Delaware corporation ("NEBS"), with offices located at 500 Main Street, Groton,
MA 01471, McBee Systems, Inc., a Colorado corporation ("McBee") and an indirect
wholly owned subsidiary of NEBS, with offices located at 299 Cherry Hill Road,
Parsippany, NJ 07054, and Advantage Business Services Holdings, Inc., a Delaware
corporation ("Advantage"), with offices located at 126 Merrow Road, Auburn, ME
04211-1330.
RECITALS
--------
WHEREAS, NEBS and Advantage have entered into an Alliance Agreement, dated
as of March 23, 2000 (the "Alliance Agreement"); which Alliance Agreement
describes the terms and conditions of the strategic alliance between NEBS and
Advantage, pursuant to which Advantage will provide payroll processing and
related services on a private label basis to NEBS' customers, and NEBS will
actively market such services to its existing and prospective customers in the
United States; and
WHEREAS, as part of the Program, McBee desires to market Advantage payroll
processing and related services to its existing and prospective customers in the
United States under the "McBee Payroll" brand, and Advantage desires to provide
its services in connection with the McBee Payroll program, all in accordance
with the terms and conditions of the Alliance Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made and the recitals above which are incorporated into this Amendment,
and in consideration of the representations, warranties, covenants, agreements
and understandings herein contained, the parties agree as follows:
1. Capitalized terms used and not otherwise defined in this Amendment shall
have the meaning ascribed to them in the Alliance Agreement.
2. McBee hereby becomes a party to the Alliance Agreement which is
incorporated into this Amendment by reference, and agrees to be bound by all the
terms and conditions thereof, and hereby assumes and shall be entitled to all
NEBS' rights and responsibilities thereunder with respect to the McBee Payroll
program. Each reference in the Alliance Agreement to "NEBS", or any related or
derivative term, when applied to the McBee Payroll program, shall be deemed to
apply to McBee, except as the context may otherwise require. By adding
additional parties to the Alliance Agreement, it is not the parties' intention
to require Advantage to duplicate services, such as dedicated facilities,
staffing or training, except as mutually determined by the parties to be
desirable to maximize the success of the Program.
3. Notwithstanding anything herein to the contrary, NEBS shall continue to
be fully liable for the discharge of the responsibilities of its subsidiaries,
including without limitation McBee, under the Alliance Agreement.
1
4. Section 14 of the Alliance Agreement is hereby amended to add the
following notice provisions with respect to McBee:
If to McBee:
McBee Systems, Inc.
299 Cherry Hill Road
Parsippany, NJ 07054
Attn: President
telecopy: 973-263-8535
telephone: 973-263-3225
with copies to:
New England Business Service, Inc.
500 Main Street
Groton, MA 01471
Attn: George P. Allman, Senior Vice President
telecopy: 978-449-3018
telephone: 978-449-3002
e-mail: gallman@nebs.com
and
New England Business Service, Inc.
500 Main Street
Groton, MA 01471
Attn: General Counsel
telecopy: 978-449-3018
telephone: 978-449-3302
e-mail: cbarrows@nebs.com
5. Except to the extent expressly amended hereby, the provisions of the
Alliance Agreement shall remain in full force and effect.
[SIGNATURE PAGE FOLLOWS]
2
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered as an agreement under seal as of the date and year first
written above.
ADVANTAGE BUSINESS SERVICES HOLDINGS, INC.
By: /s/ Charles W. Lathrop, Jr.
------------------------------
Name: Charles W. Lathrop, Jr.
Title: President and CEO
NEW ENGLAND BUSINESS SERVICE, INC.
By: /s/ George P. Allman
------------------------------
Name: George P. Allman
Title: Senior Vice President
McBEE SYSTEMS, INC.
By: /s/ Daniel M. Junius
------------------------------
Name: Daniel M. Junius
Title: Treasurer
3