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EXHIBIT 10.2
MASTER ESCROW AGREEMENT
MasterNumber 1502013-00001
This Agreement is effective NOVEMBER 11, 1998 among Data Securities
International, Inc. ("DSI") and ObjectSpace, Inc., a Delaware corporation with
offices at 14850 Quorum Drive, Suite 500, Dallas, Texas 75240 ("ObjectSpace"),
and any additional parties signing the Acceptance Form attached to this
Agreement ("Preferred Beneficiary") who collectively may be referred to in this
Agreement as "the parties."
A. ObjectSpace has entered or will enter into a license agreement,
development agreement, and/or other agreement with a third party (the
"Preferred Beneficiary") regarding certain proprietary technology of
ObjectSpace (the "License Agreement").
B. ObjectSpace desires to avoid disclosure of its proprietary technology
except under certain limited circumstances.
C. ObjectSpace desires to establish an escrow with DSI to provide for the
retention, administration and controlled access of certain proprietary
technology materials of ObjectSpace that are the subject of the License
Agreement.
D. The parties desire this Agreement to be supplementary to the License
Agreement pursuant to 11 United States [Bankruptcy] Code, Section
365(n).
ARTICLE I -- DEPOSITS
1.1 OBLIGATION TO MAKE DEPOSIT. Upon the signing of this Agreement by the
parties, including the signing of the Acceptance Form, ObjectSpace
shall deliver to DSI the proprietary information and other materials
("Deposit Materials") required to be deposited by the License
Agreement, or if the License Agreement does not identify the materials
to be deposited with DSI, then such materials will be identified on
Exhibit B as specified below.
1.2 IDENTIFICATION OF TANGIBLE MEDIA. Prior to the delivery of the Deposit
Materials to DSI, ObjectSpace shall conspicuously label for
identification each document, magnetic tape, disk, or other tangible
media upon which the Deposit Materials are written or stored.
Additionally, ObjectSpace shall complete a description of the Deposit
Materials ("Deposit Description") in the form of Exhibit B to this
Agreement by listing each such tangible media by the item label
description, the type of media and the quantity. The Deposit
Description must be signed by ObjectSpace and delivered to DSI with the
Deposit Materials. Unless and until ObjectSpace makes the initial
deposit with DSI, DSI shall have no obligation with respect to this
Agreement, except the obligation to notify the parties regarding the
status of the deposit account as required in Section 2.2 below.
1.3 DEPOSIT INSPECTION. When DSI receives the Deposit Materials and the
Deposit Description, DSI will conduct a deposit inspection by visually
matching the labeling of the tangible media containing the Deposit
Materials to the item descriptions and quantity listed on the Deposit
Description. In addition to the deposit inspection, Preferred
Beneficiary may elect to cause a verification of the Deposit Materials
in accordance with Section 1.6 below.
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EXHIBIT 10.2
1.4 ACCEPTANCE OF DEPOSIT. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item
descriptions and quantity on Deposit Description, DSI will date and
sign the Deposit Description and mail a copy thereof to ObjectSpace and
Preferred Beneficiary. If DSI determines that the labeling does not
match the item descriptions or quantity on the Deposit Description, DSI
will (a) note the discrepancies in writing on the Deposit Description;
(b) date and sign the Deposit Description with the exceptions noted;
and (c) provide a copy of the Deposit Description to ObjectSpace and
Preferred Beneficiary. Dsrs acceptance of the deposit occurs upon the
signing of the Deposit Description by DSI. Delivery of the signed
Deposit Description to Preferred Beneficiary is Preferred Beneficiary's
notice that the Deposit Materials have been received and accepted by
DSL.
1.5 OBJECTSPACE'S REPRESENTATIONS. ObjectSpace represents as follows:
a. ObjectSpace lawfully possesses all of the Deposit Materials
deposited with DSI;
b. With respect to all of the Deposit Materials, ObjectSpace has
the right and authority to grant to DSI and Preferred
Beneficiary the rights as provided in this Agreement;
C. The Deposit Materials are not subject to any lien or other
encumbrance;
d. The Deposit Materials consist of the proprietary information
and other materials identified in Exhibit B; and
e. The Deposit Materials are readable and useable in their
current form or, if the Deposit Materials are encrypted, the
decryption tools and decryption keys have also been deposited.
1.6 VERIFICATION. Preferred Beneficiary shall have the right, at Preferred
Beneficiary's sole expense, to request and receive a verification of
any Deposit Materials. A verification determines, in different levels
of detail, the accuracy, completeness, sufficiency and quality of the
Deposit Materials. If a verification is elected after the Deposit
Materials have been delivered to DSI, then only an employee of DSI
under signed confidentiality obligations to DSI may perform the
verification. Any DSI employee performing the verification must
individually agree in writing to adhere to the confidentiality
restrictions and provisions of Section 2.1 of this Agreement.
1.7 DEPOSIT UPDATES. Unless otherwise provided by the License Agreement,
ObjectSpace shall update the Deposit Materials within 60 days of each
release of a new version of the product which is subject to the License
Agreement. Such updates will be added to the existing deposit. All
deposit updates shall be listed on a new Deposit Description and the
new Deposit Description shall be signed by ObjectSpace. Each Deposit
Description will be held and maintained separately within the escrow
account. An independent record will be created which will document the
activity for each Deposit Description. The processing of all deposit
updates shall be in accordance with Sections 1.2 through 1.6 above. All
references in this Agreement to the Deposit Materials shall include the
initial Deposit Materials and any updates. DSI shall provide
ObjectSpace with a written invoice (when applicable) and a copy of the
new Deposit Description within 30 days following DSI's receipt of a
deposit update.
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EXHIBIT 10.2
1.8 REMOVAL OF DEPOSIT MATERIALS. The Deposit Materials may be removed
and/or exchanged only on written instructions signed by ObjectSpace and
the Preferred Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 CONFIDENTIALITY. DSI shall maintain the Deposit Materials in a secure,
environmentally safe, locked facility which is accessible only to
authorized representatives of DSI. DSI shall have the obligation to
protect the confidentiality of the Deposit Materials. Except as
provided in this Agreement, DSI shall not disclose, transfer, make
available, or use the Deposit Materials. DSI shall not disclose the
existence or content of this Agreement to any third party. If DSI
receives a subpoena or other order of a court or other judicial
tribunal pertaining to the disclosure or release of the Deposit
Materials, DSI will immediately notify the parties to this Agreement.
It shall be the responsibility of ObjectSpace and/or the Preferred
Beneficiary to challenge any such order; provided, however, that DSI
does not waive its rights to present its position with respect to any
such order. DSI will not be required to disobey any court or other
judicial tribunal order. (See Section 7.4 below for notices of
requested orders.)
2.2 STATUS REPORTS. DSI will issue to ObjectSpace and the Preferred
Beneficiary a report profiling the deposit history ("Escrow Account
History") at least semi-annually. DSI may provide copies of the Escrow
Account History pertaining to this Agreement upon the request of
ObjectSpace or the Preferred Beneficiary. However, DSI understands and
agrees that this Escrow Account History shall not contain any
information regarding the fee amounts, fee payment schedule or other
fee arrangements made between DSI and ObjectSpace related to this
Agreement. Under no condition will DSI disclose to the Preferred
Beneficiary or other third party any information regarding the fee
arrangements made in conjunction with this Agreement.
2.3 AUDIT RIGHTS. During the term of this Agreement, only ObjectSpace and
the Preferred Beneficiary shall have the right to inspect the written
deposit records of DSI pertaining to this Agreement. DSI understands
and agrees that this right shall not apply or extend to the examination
or inspection of any financial information or fee records by the
Preferred Beneficiary. Any inspection shall be held during normal
business hours and following reasonable prior notice.
2.4 USE OF NAMES. DSI recognizes and agrees that nothing in this Agreement
shall be construed as to grant any right or license to DSI to use the
name ObjectSpace, Inc. In particular, DSI understands and agrees that
the name ObjectSpace, Inc. will not be used by DSI for the purposes of
marketing or otherwise disclosing the existence of this Agreement.
ARTICLE 3 -- GRANT OF RIGHTS TO DSI
3.1 TITLE TO MEDIA. ObjectSpace hereby transfers to DSI the title to the
media upon which the proprietary information and materials are written
or stored. However, this transfer does not include the ownership of the
proprietary information and materials contained on the media
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EXHIBIT 10.2
such as any copyright, trade secret, patent or other intellectual
property rights to the works fixed on such media.
3.2 RIGHT TO MAKE COPIES. DSI shall have the right to make copies of the
Deposit Materials as reasonably necessary to perform this Agreement.
DSI shall copy all copyright, nondisclosure, and other proprietary
notices and titles contained on the Deposit Materials onto any copies
made by DSI. With all Deposit Materials submitted to DSI, ObjectSpace
shall provide any and all instructions as may be necessary to duplicate
the Deposit Materials including but not limited to the hardware and/or
software needed.
3.3 RIGHT TO TRANSFER UPON RELEASE. ObjectSpace hereby grants to DSI the
right to transfer Deposit Materials to the Preferred Beneficiary upon
the occurrence of a Release Condition as defined by and in accordance
with Article 4 for use by the Preferred Beneficiary. Except upon such a
release or as otherwise provided in this Agreement, DSI shall not
transfer the Deposit Materials.
ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 RELEASE CONDITIONS. As used in this Agreement, "Release Conditions"
shall mean the following:
a. ObjectSpace becomes the subject of proceedings for its
liquidation pursuant to an order for relief entered in a case
under Chapter 7 of Title II of the United States [Bankruptcy]
Code; or
b. ObjectSpace voluntarily elects to cease conducting business
and wind up its affairs in accordance with the law of its
state of incorporation.
4.2 FILING FOR RELEASE. If the Preferred Beneficiary believes in good faith
that a Release Condition has occurred, the Preferred Beneficiary may
provide to DSI written notice of the occurrence of the Release
Condition and a request for the release of the Deposit Materials. Upon
receipt of such notice, DSI shall provide a copy of the notice to
ObjectSpace, by certified mail, return receipt requested, or by
commercial express mail.
4.3 CONTRARY INSTRUCTIONS. From the date DSI mails the notice requesting
release of the Deposit Materials, ObjectSpace shall have ten business
days to deliver to DSI Contrary Instructions. "Contrary Instructions"
shall mean the written representation by ObjectSpace that a Release
Condition has not occurred. Upon receipt of Contrary Instructions, DSI
shall send a copy to the Preferred Beneficiary by certified mail,
return receipt requested, or by commercial express mail. Subject to
Section 5.2, DSI will continue to store the Deposit Materials without
release pending (a) joint instructions from ObjectSpace and the
Preferred Beneficiary; or (b) order of a court.
4.4 RELEASE OF DEPOSIT. If DSI does not receive Contrary Instructions from
the ObjectSpace, DSI is authorized to release the Deposit Materials to
the Preferred Beneficiary or, if more than one beneficiary is
registered to the deposit, to release a copy of the Deposit Materials
to the Preferred Beneficiary. However, DSI is entitled to receive any
fees due DSI before making the release. This Agreement will terminate
upon the release of the Deposit Materials held by DSI.
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EXHIBIT 10.2
ARTICLE 5 -- TERM AND TERMINATION
5.1 TERM OF AGREEMENT. The initial term of this Agreement is for a period
of one year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) ObjectSpace and the Preferred Beneficiary
jointly instruct DSI in writing that the Agreement is terminated; or
(b) the Agreement is terminated by DSI for nonpayment in accordance
with Section 5.2. If the Acceptance Form has been signed at a date
later than this Agreement, the initial term of the Acceptance Form will
be for one year with subsequent terms to be added to match the
anniversary date of this Agreement. If the Deposit Materials are
subject to another escrow agreement with DSI, DSI reserves the right,
after the initial one year term, to adjust the anniversary date of this
Agreement to match the then prevailing anniversary date of such other
escrow arrangements.
5.2 TERMINATION FOR NONPAYMENT. In the event of the nonpayment of fees owed
to DSI, DSI shall provide written notice of delinquency to ObjectSpace
and the Preferred Beneficiary. Any such party shall have the right to
make the payment to DSI to cure the default. If the past due payment is
not received in full by DSI within one month of the date of such
notice, then at any time thereafter DSI shall have the right to
terminate this Agreement to the extent it relates to the delinquent
party by sending written notice of termination to such affected
parties. DSI shall have no obligation to take any action under this
Agreement so long as any payment due to DSI remains unpaid.
5.3 DISPOSITION OF DEPOSIT MATERIALS UPON TERMINATION. Upon termination of
this Agreement by joint instruction of ObjectSpace and each Preferred
Beneficiary, DSI shall destroy, return, or otherwise deliver the
Deposit Materials in accordance with such instructions. Upon
termination for nonpayment, DSI may, at its sole discretion, destroy
the Deposit Materials or return them to ObjectSpace. DSI shall have no
obligation to return or destroy the Deposit Materials if the Deposit
Materials are subject to another escrow agreement with DSI.
5.4 SURVIVAL OF TERMS FOLLOWING Termination. Upon termination of this
Agreement, the following provisions of this Agreement shall survive:
a. ObjectSpace's Representations (Section 1.5);
b. The obligations of confidentiality with respect to the Deposit
Materials and the fee arrangements;
c. The rights granted in the sections entitled Right to Transfer
Upon Release (Section 3.3) and Right to Use Following Release
(Section 4.5), if a release of the Deposit Materials has
occurred prior to termination;
d. The obligation to pay DSI any fees and expenses due;
e. The provisions of Article 7; and
f. Any provisions in this Agreement which specifically state they
survive the termination or expiration of this Agreement.
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EXHIBIT 10.2
ARTICLE 6 -- DSI'S FEES
6.1 FEE SCHEDULE. DSI is entitled to be paid the fees and expenses set out
and described in a separate fee agreement signed by DSI and ObjectSpace
(the "Fee Arrangement") that references this Agreement. DSI reserves
the right to inflate the fees covering this Agreement and described in
the Fee Arrangement at an increase of no greater than 10% each year.
DSI shall notify ObjectSpace at least 90 days prior to any increase in
fees. DSI shall not disclose the existence or contents of this Fee
Arrangement to the Preferred Beneficiary or any other third party.
6.2 PAYMENT TERMS. DSI shall not be required to perform any service unless
the payment for such service and any outstanding balances owed to DSI
are paid in full. All other fees are due within 30 days upon receipt of
invoice. If invoiced fees are not paid, DSI may terminate this
Agreement in accordance with Section 5.2. Late fees on past due amounts
shall accrue at the rate of one and one-half percent per month (18% per
annum) from the date of the invoice.
ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 RIGHT TO RELY ON INSTRUCTIONS. DSI may assume that any individual
designated by ObjectSpace or a Preferred Beneficiary either on Exhibit
D or the Acceptance Form, as the case may be, or in the list of
authorized personnel ("Authorized Personnel List") in the form of
Exhibit C who gives any written notice, request, or instruction on
behalf of either ObjectSpace or the Preferred Beneficiary has the
authority to do so. DSI may act in reliance upon any instruction,
instrument, or signature of an individual designated in the Authorized
Personnel List if DSI has a reasonable belief that the instruction,
instrument, or signature is genuine. ObjectSpace or a Preferred
Beneficiary may amend the list of individuals designated in the
Authorized Personnel List by having an already listed individual notify
DSI in writing of the amendment. DSI shall not be responsible for
failure to act as a result of causes beyond the reasonable control of
DSI.
7.2 INDEMNIFICATION. DSI shall be responsible to perform its obligations
under this Agreement and to act in a reasonable and prudent manner with
regard to this Agreement. Provided DSI has acted in the manner stated
in the preceding sentence, ObjectSpace and Prefer-red Beneficiary shall
agree to indemnify, defend and hold harmless DSI from any and all
claims, actions, damages, arbitration fees and expenses, costs,
attorney's fees and other liabilities incurred by DSI relating in any
way to this Agreement
7.3 CONTROLLING LAW. This Agreement is to be governed and construed in
accordance with the laws of the State of Texas, without regard to the
conflict of law provisions, principles, or statutes of this or any
jurisdiction. The parties agree to submit to the jurisdiction and venue
of the state and federal courts of Texas.
7.4 NOTICE OF REQUESTED Order. If any party intends to obtain an order from
a court of competent jurisdiction which may direct DSI to take, or
refrain from taking, any action, that party shall:
a. Give DSI reasonable prior notice of the hearing;
b. Include in any such order that, as a precondition to DSI's
obligation, DSI be paid in full for any past due fees and be
paid for the reasonable value of the services to be rendered
pursuant to such order; and
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EXHIBIT 10.2
c. Ensure that DSI not be required to deliver the original (as
opposed to a copy) of the Deposit Materials if DSI may need to
retain the original in its possession to fulfill any of its
other escrow duties.
ARTICLE 8 -- GENERAL PROVISIONS
8.1 ENTIRE AGREEMENT. This Agreement, which includes the Acceptance Form
and the Exhibits described herein, embodies the entire understanding
between all of the parties with respect to its subject matter and
supersedes all previous communications, representations or
understandings, either oral or written that are not referred to herein.
No amendment or modification of this Agreement shall be valid or
binding unless signed by all parties hereto, except that Exhibit B need
not be signed by Preferred Beneficiary, Exhibit C and Exhibit D need
not be signed, and the Acceptance Form and Fee Arrangement will be
signed by the parties identified therein.
8.2 NOTICES. All notices, invoices, payments, deposits and other documents
and communications shall be given to the parties at the addresses
specified in the list of designated contacts ("Designated Contact
Listing") in the form of Exhibit D. It shall be the responsibility of
the parties to notify each other as provided in this Section in the
event of a change of address. The parties shall have the right to rely
on the last known address of the other parties. Unless otherwise
provided in this Agreement, all documents and communications may be
delivered by First Class mail.
8.3 SEVERABILITY. In the event any provision of this Agreement is found to
be invalid, voidable or unenforceable, the parties agree that unless it
materially affects the entire intent and purpose of this Agreement,
such invalidity, voidability or unenforceability shall affect neither
the validity of this Agreement nor the remaining provisions herein, and
the provision in question shall be deemed to be replaced with a valid
and enforceable provision most closely reflecting the intent and
purpose of the original provision.
8.4 SUCCESSORS. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties. However, DSI
shall have no obligation in performing this Agreement to recognize any
successor or assign of ObjectSpace or the Preferred Beneficiary unless
DSI receives clear, authoritative and conclusive written evidence of
the change of parties.
ObjectSpace, Inc. Data Securities International, Inc.
By: /s/ LAUREL W. FITZGERALD By: /s/ CHRISTIE WOODWARD
----------------------------- ------------------------------
Name: Laurel W. Fitzgerald Name: Christie Woodward
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Title: VP-Operations Title: Sr. Contract Administrator
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Date: 10/30/98 Date: 11/3/98
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EXHIBIT 10.2
EXHIBIT A
ACCEPTANCE FORM
Account Number 1502013-00001 - 3202002
ObjectSpace, Preferred Beneficiary, and Data Securities International, Inc.
("DSI"), hereby acknowledge that 2Bridge Software, Inc. is the Preferred
Beneficiary referred to in the Master Preferred Escrow Agreement effective
_____________________, ________ with Data Securities International, Inc. as the
escrow agent and ObjectSpace as the Depositor. Preferred Beneficiary hereby
agrees to be bound by all provisions of such Agreement.
By:
--------------------------
Name:
------------------------
Title:
-----------------------
Date:
-----------------------
Notices and communications should be addressed to:
Company Name: OBJECTSPACE, INC.
------------------------- -------------------------
Address: 14850 QUORUM DRIVE
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SUITE 500
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DALLAS, TEXAS 75240
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Designated:
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Telephone:
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Facsimile:
------------------------- -------------------------
ACCOUNT NAME ACCOUNT NUMBER
1502013-00001
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ObjectSpace Data Securities International, Inc.
By:
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Name:
------------------------- -------------------------
Title:
------------------------- -------------------------
Date:
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EXHIBIT 10.2
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name________________________________________________________
Account Number________________________________________________________________
Product Name___________________________________ Version_______________________
(PRODUCT NAME WILL APPEAR ON ACCOUNT HISTORY REPORT)
DEPOSIT MATERIAL DESCRIPTION
<TABLE>
<CAPTION>
Quantity Media Type & Size Label Description of Each Separate Item
(PLEASE USE OTHER SIDE IF ADDITIONAL SPACE
IS NEEDED)
<S> <C> <C>
_________ Disk 3.5" or ____
_________ DAT tape ____mm
_________ CD-ROM
_________ Data cartridge tape ____
_________ TK 70 or ____ tape
_________ Magnetic tape ____
_________ Documentation
_________ Other ____
</TABLE>
PRODUCT DESCRIPTION:
Operating System_______________________________________________________________
Hardware Platform______________________________________________________________
DEPOSIT COPYING INFORMATION:
Is the media encrypted? Yes/No If yes, please include any passwords and the
decryption tools.
Encryption tool name_____________________________________Version_______________
Hardware required______________________________________________________________
Software required______________________________________________________________
I certify for DEPOSITOR that the DSI has inspected and accepted
above described Deposit Materials the above materials (ANY
have been transmitted to DSI: EXCEPTIONS ARE NOTED ABOVE):
Signature_________________________ Signature__________________________
Print Name________________________ Print Name_________________________
Date______________________________ Date Accepted______________________
Exhibit B#_________________________
Send materials to: DSI, 9265 Sky Park Court, Suite 202, San Diego, CA 92123
(858) 499-1600.
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EXHIBIT 10.2
EXHIBIT C
AUTHORIZED PERSONNEL LIST
Account Number ____________
Name: Laurel W. Fitzgerald
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Title: VP - Operations
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Contact Information:
-----------------------------
-----------------------------
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EXHIBIT 10.2
EXHIBIT D
DESIGNATED CONTACT LISTING
Account Number _________________
Notices, deposit material returns and Invoices to ObjectSpace should be
communications to ObjectSpace should addressed to:
be addressed to:
Company Name: Objectspace, Inc. Laurel Fitzgerald
------------------------------ ------------------------------
Address: 14850 Quorum Drive Objectspace, Inc.
------------------------------ ------------------------------
Suite 500 14850 Quorum Drive
------------------------------ ------------------------------
Dallas, TX 75240 Suite 500
------------------------------ ------------------------------
Designated Contact: Laurel Fitzgerald Dallas, TX 75240
------------------------ ------------------------------
Telephone: 972-726-4241
--------------------------------- ------------------------------
Facsimile: 972-715-9041
--------------------------------- ------------------------------
Requests from ObjectSpace to change the designated contact should be given in
writing by one of the individuals designated in the Authorized Personnel List in
the form of Exhibit C.
Contracts, Deposit Materials Invoice inquiries and fee
and notices to DSI remittances to
DSI should be addressed to: should be addressed to:
DSI DSI
Contract Administration Accounts Receivable
Suite 200 Suite 1450
9555 Chesapeake Drive 425 California Street
San Diego, CA 92123 San Francisco, CA 94104
Telephone: (619) 694-1900 (415) 398-7900
Facsimile: (619) 694-1919 (415) 398-7914
Date: ______________________________
9
