GENERAL SERVICES AGREEMENT
This GENERAL SERVICES AGREEMENT (this "AGREEMENT") is made as of the
1st day of October, 2000 by and between Vertica Software, Inc., a Colorado
corporation (the "COMPANY") and X. X. Xxxxx & Associates, Inc., a ____________
corporation ("Xxxxx ").
RECITALS
WHEREAS, the Company desires to retain Xxxxx and Xxxxx desires to be so
retained, subject to the terms, conditions and covenants hereinafter set forth;
WHEREAS, Xxxxx provides business consulting services, assists new and
existing enterprises as they seek to take full advantage of global marketplace
opportunities, and has relationships with and knowledge of companies and
individuals in the industrial and agricultural chemical industries and sources
of financial investment, and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and Xxxxx
hereby agree as follows:
ARTICLE I
CONSULTING SERVICES
1.1. Agreement. The Company hereby retains Xxxxx and Xxxxx hereby accepts
such engagement, pursuant to the terms and conditions set forth herein;
1.2. Term. This Agreement commences on October 1, 2000 and ends on December
31, 2001 (the "CONSULTING Term"). Notwithstanding the provisions of
this SECTION 1.2, this Agreement may be terminated prior to the
expiration of the Consulting Term in accordance with the provisions of
ARTICLE II hereof;
1.3. Duties of Xxxxx. Xxxxx agrees:
(a) Xxxxx will serve as a Consultant and will act as part of the
Executive Management Team in assisting the Company in
achieving stated goals represented in the Company's Business
Plan;
1
(b) to introduce financing resources to the Company; to introduce
the Company to potential sources of revenue and strategic
alliances for the Business;
(c) to perform such other related duties as the Company may, from
time to time, reasonably request.
1.4 Independent Contractor. Xxxxx and the Company expressly acknowledge
that no employment, partnership or joint venture relationship is
created by this Agreement, and hereby agree as follows:
(a) Xxxxx shall act at all times as an independent contractor
hereunder;
(b) Neither Xxxxx nor anyone employed by or acting for or on
behalf of Xxxxx shall ever be or be construed as an employee
of the Company and the Company shall not be liable for taxes
respecting Xxxxx or any employee of Xxxxx;
(c) Xxxxx shall determine when and how Xxxxx shall perform its
services hereunder, providing, however, that Xxxxx provides to
the Company, at the beginning of each month, a schedule of the
services Xxxxx shall perform during that month, and the
Company agrees with that schedule and to those services;
(d) Xxxxx and the Company shall take all steps to ensure that
Xxxxx is treated as an independent contractor of the Company;
(e) The Company shall have the right to conduct inspections and
reviews of, and determine satisfactory performance of, the
services performed by Xxxxx hereunder;
(f) Xxxxx shall provide Xxxxx'x own "know-how" and equipment in
performing the services; and
(g) Xxxxx shall not make any commitment or incur any charge or in
the name of the Company without the prior written approval of
the Company;
ARTICLE II
TERMINATION/ATTORNEY FEES
2.1. Termination/Attorneys' Fees. In the event of a breach of any provision
of this Agreement, this Agreement may be immediately terminated by the
non-breaching party, and the breaching party shall pay to the
non-breaching party, in addition to any other damages or remedies which
may be available at law or in equity, all of its attorneys' fees and
costs reasonably incurred as a result of such breach. In the event this
Agreement is terminated, the provisions of ARTICLE IV will remain in
full force and effect in accordance with their terms.
2
ARTICLE III
COMPENSATION
3.1 Fees. In consideration for the performance of Xxxxx'x services
hereunder, the Company will compensate Xxxxx as follows:
(a) X. X. Xxxxx & Associates shall receive share options valued at
$10,000 each month for the term of this Agreement. The options
shall vest monthly and the exercise price for the term of this
Agreement shall be the closing sale price of Vertica's common
stock as of the last day of each month.
(b) X. X. Xxxxx and Associates will receive, upon the signing of
this Agreement, 176,838 share options at the following
exercise prices:
Share Options Exercise Price
------------- --------------
58,695 $ 1.15/share
4,444 $ 2.25/ "
4,000 $ 2.50/ "
8,000 $ 1.25/ "
9,416 $ 1.062/"
9,433 $ 1.06/ "
10,330 $ .968/ "
10,672 $ .937/ "
11,848 $ .844/ "
50,000 $ .49 / "
In the event Xxxxx (or sources originated by Xxxxx) provides
to Vertica, by February 28, 2001, an additional $109,645.00 in
financing, Xxxxx will receive an additional 200,000
unrestricted share options at an exercise price equal to 85%
of the closing sale price of Vertica's common stock as
reported on the OTCBB on June 1, 2001.
(c) X. X. Xxxxx and Associates will receive a fee (the "Fee") of
seven percent (7%) of the Qualified Financing and seven
percent (7%) of the Qualified Gross Revenue generated
resulting from efforts by Xxxxx. Xxxxx agrees to submit,
monthly, a list of any claims for compensation under this
section.
"Qualified Financing" is defined as financing
provided to or investment in the Company by sources
originated by Xxxxx and which result in closure
through efforts made by Xxxxx. This includes stock
subscriptions greater than $10,000.00.
3
"Qualified Gross Revenue" is defined as gross revenue
generated by Company where the sources of such
revenue are originated by Xxxxx and which result in
closure through efforts made by Xxxxx.
The Qualified Financing and Qualified Gross Revenue shall
continue through the term of the specific transaction
concluded, regardless of the earlier termination of this
Agreement.
In the event the Company is sold, merged into, acquired by or
is in any other way transferred in whole or in part to another
party or parties, the entire option (or remaining options) in
compensation earned or to be earned, as specified above, shall
immediately vest and/or be paid.
3.2 Reimbursement of Expenses. In addition to the consideration described
in SECTION 3.1, the Company shall reimburse Xxxxx for all reasonable,
necessary and approved expenses incurred by Xxxxx while performing its
duties under this Agreement, subject to Xxxxx providing documentation
satisfactory to the Company, and in accordance with SECTION 1.4 (G).
Until funding, the reimbursement of expenses may be in the form of cash
or share options, at the Company's discretion. The exercise prices for
share options shall be the share price as of the last day of each month
in which the expenses were incurred.
ARTICLE IV
PROPRIETARY INFORMATION; NON-SOLICITATION;
REMEDIES
4.1. Proprietary Information. The parties acknowledge that this Agreement
creates a relationship of confidence and trust with respect to all
information of a confidential, proprietary or trade secret nature
disclosed by or on behalf of the Company or Xxxxx ("PROPRIETARY
INFORMATION"). Such Proprietary Information includes any material, data
or information disclosed by the Company or Xxxxx that is not generally
known or disclosed to the public or to third parties, including,
without limitation, the following:
(a) technical information, including without limitation, computer
software, algorithms, processing systems, techniques, new
ideas, discoveries, inventions, developments, know-how and
trade secrets (whether developed by the Company, Xxxxx or by
an affiliate, employee or representative thereof);
(b) business information, including without limitation,
information relating to costs, pricing, profit margins,
markets and suppliers, business plans and projections,
financial, accounting, legal and regulatory data, names,
addresses and telephone numbers of current or prospective
customers and their respective service or product
requirements, credit histories and trade names, sales,
marketing and advertising plans, prospective or actual
strategies, licenses or similar agreements, and other
commercial information;
4
(c) technical and/or business information furnished by third
parties to the Company, including prospects, customers,
suppliers, licensers, franchisers and vendors; and any other
information which the Company reasonably designates should be
confidential.
Each party shall keep all Proprietary Information in confidence and
shall not at any time, during the Consulting Term or at any time
thereafter, directly or indirectly disclose, copy, distribute,
republish or allow access to, any Proprietary Information to anyone, or
directly or indirectly use any Proprietary Information of the other
party for its own benefit. Upon termination of this Agreement, or upon
the request of a party, the other party shall promptly deliver to the
requesting party all Proprietary Information, as well as all documents
and materials of any nature pertaining to the services performed by it
hereunder and all copies thereof in whatever form, and the other party
shall not retain any documents or materials or copies thereof
containing any Proprietary Information. Either party shall, upon
learning of the unauthorized disclosure or use of its Proprietary
Information or any requirement that it disclose Proprietary Information
by operation of law, regulation or other legal process, notify the
other party immediately and in writing, and cooperate fully with the
other party to protect the other party's Proprietary Information.
4.2. Non-Solicitation. At all times during the term of this Agreement, and
for a period of one year following termination, each party agrees that
it shall not, directly or indirectly, for its or on behalf of any
person or entity, solicit or contact any employees, customers or
clients of the other party, for the purpose of inducing them to
terminate their agreements with the other party or to become employees,
independent contractors, customers or clients of the party or such
other person or entity to the competitive detriment of the other party.
4.3. Remedies. The parties hereby acknowledge and agree that it would be
very difficult or impossible to measure the damages resulting from a
breach of this Agreement. The parties hereby further acknowledge and
agree that the restrictions herein are reasonable and necessary for the
protection of the goodwill and the business of the parties and that a
violation by either party of any such covenant will cause irreparable
damage to the other party. Each party therefore agrees that any breach
or threatened breach by it of any of the restrictions or provisions of
this ARTICLE IV shall entitle the other party, in addition to any other
legal remedy available to it, to apply to any court of competent
jurisdiction for a temporary and permanent injunction or any other
applicable decree of specific performance, in order to enjoin such
breach or threatened breach. The parties understand and intend that
each covenant, provision and restriction agreed to in this ARTICLE IV
shall be construed as separate and divisible from every other provision
and restriction and that the unenforceability of any one provision or
restriction shall not limit the enforceability, in whole or in part, of
any other provision or restriction and that one or more of all of such
provisions or restrictions may be enforced, in whole or in part, as the
circumstances warrant.
5
ARTICLE V
MISCELLANEOUS
5.1. Indemnity. Xxxxx and the Company hereby agree to defend, indemnify and
hold harmless the other party and its affiliates, shareholders,
directors, members, managers, officers, agents, employees,
representatives, successors and assigns from and against any and all
claims, demands, causes of action, losses, damages, costs and expenses
(including, without limitation, litigation costs, reasonable attorneys'
fees and any appellate bonds) arising out of or relating to: (a) its
gross negligence or willful misconduct in performing its obligations
hereunder; or (b) the violation by it of any non-competition,
non-solicitation or non-disclosure agreement.
The Company hereby agrees to defend, indemnify and hold harmless Xxxxx
and its affiliates, shareholders, directors, members, managers,
officers, agents, employees, representatives, successors and assigns
from and against any and all claims, demands, causes of action, losses,
damages, costs and expenses (including without limitation, litigation
costs, reasonable attorneys' fees and any appellate bonds) arising our
of or relating to any and all financial projections or representations
made by company or contained in any Company documents.
5.2. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be addressed as follows:
If to Xxxxxxx X. Xxxxx & Associates, Inc.:
Xxxxxxx Xxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
If to the Company:
Vertica Software, Inc.
Attn: Xxxx Xxxxx
or to such other address or addresses as may hereafter be specified by
notice given by any of the above to the others. Notices sent in
accordance with this SECTION 5.2 shall be deemed given (1) the fifth
day after mailing via certified mail, return receipt requested, or (2)
the next business day after they are sent by reputable overnight
courier service.
5.3. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and permitted
assigns. In the case of the Company, the successors and permitted
assigns hereunder shall include, without limitation, any affiliate of
6
the Company as well as the successors in interest to such affiliate
(whether by merger, liquidation (including successive mergers or
liquidations) or otherwise). This Agreement or any right or interest
hereunder is one of personal service and may not be assigned by Xxxxx.
Nothing in this Agreement, expressed or implied, is intended or shall
be construed to confer upon any person other than the parties and
successors and assigns permitted by this SECTION 5.3 any right, remedy
or claim under or by reason of this Agreement.
5.4. Entire Agreement; Amendments. This Agreement and the Recitals contain
the entire understanding of the parties hereto with regard to the
subject matter contained herein, and supersede all prior agreements,
understandings, term sheets or letters of intent between or among any
of the parties hereto. This Agreement shall not be amended, modified or
supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.
5.5. Interpretation. Articles, titles and section headings contained herein
are inserted for convenience of reference only and are not intended to
be a part of or to affect the meaning or interpretation of this
Agreement.
5.6. Expenses. Each party will pay its own costs and expenses incident to
the negotiation and preparation of this Agreement and any related
documentation, including the fees, expenses and disbursements of
counsel and accountants.
5.7. Waivers. Any term or provision of this Agreement may be waived, or the
time for its performance may be extended, by the party or parties
entitled to the benefit thereof. Any such waiver shall be validly and
sufficiently authorized for the purposes of this Agreement if, as to
any party, it is authorized in writing by an authorized representative
of such party. The failure of any party hereto to enforce at any time
any provision of this Agreement shall not be construed to be a waiver
of such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of any party thereafter to
enforce each and every such provision. No waiver of any breach of this
Agreement shall be held to constitute a waiver of any other or
subsequent breach.
5.8. Partial Invalidity. Wherever possible, each provision hereof shall be
interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such provision shall be ineffective to
the extent, but only to the extent, of such invalidity, illegality or
unenforceability without invalidating the remainder of such invalid,
illegal or unenforceable provision or provisions or any other
provisions hereof, unless such a construction would be unreasonable.
5.9. Execution in Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be considered an original
instrument, but all of which shall be considered one and the same
agreement, and shall become binding when one or more counterparts have
been signed by each of the parties hereto and delivered to each of
Xxxxx and the Company.
5.10. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of California.
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
VERTICA SOFTWARE, INC.
By: ________________________________
Title: _____________________________
X. X. XXXXX & ASSOCIATES, INC.
By: ________________________________
Title:______________________________
8