EXHIBIT 10.14
CONFIDENTIAL TREATMENT REDACTED FOR
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REQUESTED CONFIDENTIALITY
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The astericked portions of this document have
been omitted and are filed separately with
the Securities and Exchange Commission
MANAGEMENT SUPPORT AGREEMENT
This MANAGEMENT SUPPORT AGREEMENT ("Agreement") is entered into as of the
11th day of June 1999, by and between VICINITY CORPORATION ("Vicinity") and
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APERTO MULTIMEDIA GMBH ("Aperto").
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RECITALS:
(A) Vicinity and Aperto are parties to that certain Channel Partner
Agreement, dated as of the date hereof, relating to the appointment by
Vicinity of Aperto as an "Integration Partner" of Vicinity pursuant to
Vicinity's Channel Partner Program (the "Channel Partner Agreement").
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(B) In connection with the Channel Partner Agreement, each of Vicinity and
Aperto has agreed to provide services to the other in order to advance
the business interests of the other in Europe and in the United
States, respectively.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
contained herein, the parties hereto agree as follows:
1. DEFINITIONS
Unless otherwise specified herein, capitalized terms used in this Agreement
shall have the same meaning as set forth in the Channel Partner Agreement. For
purposes of this Agreement, the following terms shall have the following
meanings.
(a) "Interim Service Period" shall mean the period commencing on the
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Effective Date and ending on the date six months following the
Effective Date, unless extended by mutual agreement of the parties.
(b) "Performance Milestones" shall mean the performance milestones set
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forth on Schedule I hereto.
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(c) "Qualified Revenues" shall mean the cumulative amount of Vicinity
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Services ordered by Customers located in Europe that are not Reserved
Accounts due to a prior business relationship with Vicinity; provided
that Vicinity has been fully paid for providing such services.
(b) "Vicinity Business" shall mean the identification of Customers and the
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sale of Vicinity Services.
2. RESPONSIBILITIES OF APERTO
(a) Interim Services. During the Interim Service Period, Aperto shall
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provide the following services to Vicinity:
(1) Agent of Vicinity. Aperto shall serve as a non-exclusive business
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agent of Vicinity in Europe. In such capacity, Aperto shall use
commercially reasonable efforts to support and promote the
Vicinity Business. Aperto is hereby authorized to incur expenses
on behalf of Vicinity in support of the Vicinity Business;
provided, however, that prior to the parties' agreement on a
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budget with respect to promotion of the Vicinity Business, Aperto
shall receive Vicinity's prior written approval for any
expenditure in excess of $500.
(2) Aperto Employees. Aperto shall appoint and direct a sufficient
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number of its employees to work with Vicinity as shall from time
to time be necessary to successfully promote the Vicinity
Business and fulfill the Performance Milestones. Without
limiting the generality of the foregoing, within thirty (30) days
of the Effective Date, Aperto shall assign at least the
equivalent of three full-time Europe-based employees (the
"Interim Representatives") to the promotion of the Vicinity
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Business and the fulfillment of the Performance Milestones.
(3) Office Space. Aperto shall provide the Interim Representatives
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with the office space, administrative support, telephone and
computer support as such individuals shall reasonably require to
accomplish the objectives set forth within the Performance
Milestones.
(4) Vicinity Access to Aperto Equipment and Premises. Aperto shall
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provide employees and representatives of Vicinity with access to
Aperto's premises for the purpose of training, supervising and
providing support services to the Interim Representatives and for
other purposes related to the Vicinity Business.
(b) Continuing Services. Commencing on the Effective Date and continuing
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until the Termination Date, Aperto shall provide the following
services to Vicinity:
(1) Performance Milestones. Aperto shall use its reasonable
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commercial efforts to cause the Performance Milestones to be met
within the time period set forth herein.
(2) Channel Partners. Aperto shall coordinate Vicinity's efforts to
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identify, educate and train potential Channel Partners in Europe.
(3) Opportunities; Competition. Aperto shall consult with Vicinity
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concerning new business opportunities and shall advice Vicinity
concerning any competitive threats to the Vicinity Business.
(4) Product Development; Promotion. Aperto shall provide input and
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guidance to Vicinity with regard to product development and
product promotion.
(5) Web Development Services; Special Projects. At Vicinity's
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request, Aperto shall provide web development services and
provide advice and resources for special projects, in each case
chargeable at Aperto's normal rates for such services.
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(6) Recruiting. Aperto shall, as requested, provide Vicinity with
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reasonable assistance in recruiting qualified individuals to
represent Vicinity in Europe.
(7) Vicinity Europe. Aperto shall, as requested, provide Vicinity
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with reasonable assistance with respect to Vicinity's efforts to
locate and establish offices in Europe and shall advise Vicinity
on general human resource matters related to the establishment of
such offices.
3. RESPONSIBILITIES OF VICINITY
(a) Interim Services. Vicinity shall provide the following services to
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Aperto:
(1) Office Space. For a period of six months commencing on October
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1, 1999, Vicinity shall provide Aperto with office space suitable
for use by up to six full-time representatives of Aperto. Such
office space shall be made available at Vicinity's Palo Alto
location and shall be comparable to the office space provided for
Vicinity's own employees.
(2) Aperto Access to Vicinity Equipment and Premises. Commencing on
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the Effective Date and continuing through the period referred to
in the immediately preceding paragraph, Vicinity shall provide
employees and representatives of Aperto with access to Vicinity's
premises for the purpose of supervising the performance of
Aperto's representatives located in the United States and for
other purposes specifically related to the Aperto's business
within the United States.
(b) Continuing Services. Commencing on the Effective Date and continuing
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until the Termination Date, Vicinity shall provide the following
services to Aperto:
(1) Opportunities. Vicinity shall consult with Aperto concerning new
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business opportunities for Aperto in the United States,
including, without limitation, offering Aperto's services to
Vicinity customers who desire web development work that is
outside Vicinity's normal remit for internal work.
(2) Product Development. Vicinity shall provide input and guidance
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to Aperto with regard to product development.
(3) Recruiting. Vicinity shall, as requested, provide Aperto with
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reasonable assistance in recruiting qualified individuals to
represent Aperto in the United States.
(4) Aperto U.S. Vicinity shall, as requested, provide Aperto with
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reasonable assistance with respect to Aperto's efforts to locate
and establish an office in the United States and shall, as
requested, advise Aperto on general human resource matters
related to the establishment of such office.
(c) Excluded Services. Vicinity shall not be obligated, at any time, (i)
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to provide Aperto with any human resources services, (ii) to purchase
computer hardware, software or services for Aperto or any of its
representatives, (iii) to provide any services not identified herein.
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4. COMPENSATION; COSTS
(a) General. Except as expressly set forth herein, each of the support
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services to be provided by Vicinity and Aperto shall be provided
without cost to the other party. Notwithstanding the foregoing, each
the parties shall work together to address and agree upon the
allocation of costs and expenses incurred from time to time for
special projects or work not otherwise contemplated by this Agreement.
(d) Incentive Payments. To provide an incentive to the performance of
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Aperto hereunder, the parties agree as follows:
(1) Performance Milestones. Vicinity shall issue to Aperto options or
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warrants exercisable for up to 50,000 shares (the "Milestone
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Shares") of the Common Stock of Vicinity at an exercise price of
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$0.50 per share based upon the attainment of the Performance
Milestones set forth on Schedule I hereto.
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(2) Revenue Targets. Vicinity shall make payments to Aperto equal to
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(i) 2,000 multiplied by (ii) the then current fair market value
of Vicinity's Common Stock for each $1 million of revenue
recognized by Vicinity for Customer orders attributed to Aperto
(as provided in the Channel Partner Manual) after $10 million of
Qualified Revenues have been recorded. In lieu of the payment
described above, Vicinity may, at its option, issue to Aperto
shares of its Common Stock with a fair market value equal to the
required payment.
(3) Channel Partners. Vicinity shall make payments to Aperto equal to
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(i) 700 multiplied by (ii) the then current fair market value of
Vicinity's Common Stock for each new person or entity that shall
enter into a Channel Partner Agreement with Vicinity as an
"Integration Partner" in Europe through the direct action of
Aperto hereunder. In lieu of the payment described above,
Vicinity may, at its option, issue to Aperto shares of its Common
Stock with a fair market value equal to the required payment.
(4) Incentive Payment Period. Except as otherwise provided herein,
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Aperto's right to earn Milestone Shares or payments under
paragraphs (2) and (3) above shall commence on the Effective date
and shall terminate upon the third anniversary of the Effective
Date (the "Milestone Period").
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(5) Reports of Vicinity. Within thirty (30) days following the end of
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each fiscal quarter of Vicinity during the Milestone Period,
Vicinity shall deliver to Aperto a written report setting forth
the Milestone Shares earned during such fiscal quarter and the
payments due under paragraphs (2) and (3) above with respect to
such fiscal quarter. Vicinity shall be the sole arbiter of the
number of Milestone Shares earned and any payments due under this
Section with respect to any quarter and the decision of Vicinity
shall be final.
(6) Agreements. As a precondition to the issuance of any shares of
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Common Stock or other equity interests of Vicinity hereunder,
Aperto shall execute and deliver such documents and certificates
as Vicinity customarily requires with respect to the issuance of
similar securities.
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5. CONFIDENTIALITY
(a) Definition. As used herein, "Confidential Information" means any non-
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public information of either party, including but not limited to
information related to the Vicinity Business, technical or business
information relating to inventions, products, research and
development, costs, profit, margins, employee skills or salaries,
finances, customers, marketing, operations or business plans, and any
other information identified by either party as proprietary or
confidential. Each party shall retain sole and exclusive ownership,
right, title and interest in and to all of its Confidential
Information.
(b) Maintaining Confidentiality
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(1) Obligations. Should either party disclose to the other any of
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such party's Confidential Information (the "Disclosing Party"),
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the party receiving the Confidential Information (the "Receiving
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Party") shall maintain the Confidential Information in
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confidence, shall use at least the same degree of care to
maintain the secrecy of the Confidential Information as it uses
in maintaining the secrecy of its own proprietary, confidential
and trade secret information, shall always use at least a
reasonable degree of care in maintaining the secrecy of the
Confidential Information, shall use the Confidential Information
only for the purpose of performing its obligations under this
Agreement and exercising its rights under this Agreement unless
otherwise agreed in writing by the Disclosing Party, and shall
deliver to the Disclosing Party, in accordance with any request
from the Disclosing Party, all copies, notes, packages, diagrams,
computer memory media and all other materials containing any
portion of the Disclosing Party's Confidential Information which
reasonably is not required by the Receiving Party to perform its
obligations under and/or to exercise its rights under this
Agreement. No Receiving Party shall disclose any Disclosing
Party's Confidential Information to any person except those of
the Receiving Party's employees and consultants having a need to
know in order to accomplish the purposes and intent of this
Agreement, and shall ensure that each such employee and
consultant has signed a confidentiality agreement covering the
Confidential Information of the Disclosing Party.
(2) Exceptions. A Receiving Party shall not have any obligation with
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respect to any portion of Confidential Information of the
Disclosing Party which (i) was known to the Receiving Party prior
to receipt from the Disclosing Party, (ii) is lawfully obtained
by the Receiving Party from a third party under no obligation of
confidentiality, (iii) is independently developed by the
Receiving Party without use of the Confidential Information of
the Disclosing Party, (iv) is or becomes publicly available other
than as a result of any act or failure to act of the Receiving
Party or (v) is disclosed pursuant to subpoena or other legal
process, provided that the Disclosing Party is given prior notice
of such disclosure.
(3) Injunctive Relief. The parties acknowledge that (i) the
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restrictions and obligations contained in this Section 5 are
reasonable and necessary to protect each party's legitimate
interests, (ii) in the event of a violation of these
restrictions, remedies at law may be inadequate and such
violation may cause irreparable damages to the Disclosing Party
within a short period of time, and
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(iii) the Disclosing Party will be entitled to seek injunctive
relief against each and every violation without the necessity of
posting a bond.
(4) Source Code Protections. Aperto shall not under any circumstance
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attempt, or knowingly permit others to attempt, to decompile,
decipher, disassemble, reverse engineer or otherwise determine
any source code related to the Vicinity Services.
6. OTHER MATTERS
(a) Independent Contractors. The parties are independent contractors and
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nothing contained in this Agreement shall be construed to (i) give
either party the power to direct and control the day-to-day activities
of the other, (ii) constitute the parties as partners, joint
venturers, co-owners or otherwise as participants in a joint or common
undertaking, or (iii) except as set forth herein, allow either party
to create or assume any obligation on behalf of the other for any
purpose whatsoever.
(b) Liability.
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(1) Liability for Negligence and Willful Misconduct. The obligation
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for damages, losses and liabilities that arise in connection with
the negligence or willful misconduct of any employee of Vicinity
in connection with the provision of any services hereunder shall
be assumed by Vicinity and fully indemnified by Vicinity. The
obligation for damages, losses and liabilities that arise in
connection with the negligence or willful misconduct of any
employee of Aperto in connection with the provision of any
services hereunder shall be assumed by Aperto and fully
indemnified by Aperto.
(2) Matters Beyond Control. No party shall be liable for any failure
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of performance attributable to acts or events (including but not
limited to war, conditions or events of nature, industry wide
supply shortages, civil disturbances, work stoppage, power
failures, failure of telephone lines and equipment, fire and
earthquake, or any law, order, proclamation, regulation,
ordinance, demand or requirement of any governmental authority)
beyond its control which prevent in whole or in part performance
by such party hereunder.
(c) Cooperation. The parties agree to cooperate in good faith to realize
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their intent. Each party shall act in good faith to achieve the
benefits expected and to resolve any problems that may occur in a
commercially reasonable way. As part of that cooperation, each agrees
as follows:
(1) Supervision. Each party shall, consistent with past practice,
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supervise the activities of its officers, employees and
representatives with respect to the services to be provided
hereunder.
(2) Books and Records. Each party shall maintain books and records
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relevant to the provision of the services provided hereunder in a
manner consistent with the continuing needs of the parties and
shall make such books and records available to the other party.
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(3) Applicable Laws. The parties will ensure that all transactions
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and activities contemplated hereunder are conducted in compliance
with all applicable laws.
(d) Non-solicitation of Employees. Each party agrees that during the term
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of this Agreement, neither party will, and will cause each of its
affiliates not to, directly or indirectly, solicit for employment or
hire any officer, director or employee of the other party, except that
neither party shall be precluded from hiring any such employee who (i)
initiates discussions regarding such employment without any direct or
indirect solicitation by such party (it being understood that a
general advertisement shall not be deemed a solicitation in violation
of this paragraph) or (ii) has been terminated by the other party
prior to commencement of employment discussions with such party.
7. TERM AND TERMINATION
(a) Term. This Agreement shall commence on the Effective Date, and shall
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continue for a period of three (3) years from the Effective Date (the
"Termination Date").
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(b) Termination for Cause. If either party defaults in the performance of
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any material provision of this Agreement (including, but not limited
to, misconduct in the discharge of its duties), then the non-
defaulting party may give notice to the defaulting party of such
default. If the default is not cured during the thirty-day (30)
period after such notice, then this Agreement automatically shall
terminate at the end of that period.
(c) Termination for Insolvency. This Agreement shall terminate
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immediately, without notice, (i) upon the institution by or against
either party of insolvency, receivership or bankruptcy proceedings or
any other proceedings for the settlement of either party's debts, (ii)
upon either party making a general assignment for the benefit of
creditors, or (iii) upon the either party's dissolution.
(d) Return of Materials. Within thirty (30) days after the expiration or
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termination of this Agreement, each party shall return or destroy all
Confidential Material of the other remaining in such party's
possession. Effective upon the expiration or termination of this
Agreement, Aperto shall cease to indicate that it is a representative
or agent of Vicinity.
(e) Additional Remedies. Except as expressly limited by this Agreement,
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termination of this Agreement shall be without prejudice to any other
remedy which may be available to a party due to default of this
Agreement. The parties agree that violation of obligations under this
Agreement may cause irreparable harm and significant injury to the
extent that may be extremely difficult to ascertain. Accordingly, the
parties agree that each party will have, in addition to any other
rights or remedies available to it at law or in equity, the right to
seek injunctive relief to enjoin any breach or violation of this
Agreement.
(f) Limitation on Liability. IN THE EVENT OF TERMINATION BY EITHER PARTY
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IN ACCORDANCE WITH ANY OF THE PROVISIONS OF THIS AGREEMENT, EXCEPT AS
SPECIFIED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE
LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF
EXPENDITURES, INVESTMENTS,
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LEASES OR COMMITMENTS IN CONNECTION WITH THE BUSINESS OR GOODWILL OF
VICINITY OR REPRESENTATIVE BECAUSE OF SUCH TERMINATION.
(g) Survival of Certain Terms. The provisions of Sections 4, 5, 6, 7(d),
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7(e), 7(f), and 8 shall survive the termination of this Agreement for
any reason. All other rights and obligations of the parties shall
cease upon termination of this Agreement.
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8. MISCELLANEOUS
(a) Governing Law. This Agreement shall be governed in all respects by the
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substantive laws of the State of California, United States of America
(excluding conflict of laws rules) as applied to agreements entered
into and to be performed entirely within the State of California
between California residents.
(b) Attorneys' Fees. In the event of any litigation or arbitration by the
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parties under this Agreement, the prevailing party shall be entitled
to its costs and reasonable attorneys' fees.
(c) Assignment: No Third-Party Beneficiaries. Neither this Agreement nor
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any part hereof shall be assignable by operation of law or otherwise
by any party without the prior written consent of the other party;
provided, however, that Vicinity may assign this Agreement to a
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wholly-owned subsidiary of Vicinity without the prior written consent
of Aperto. Nothing contained in this Agreement, express or implied, is
intended to confer upon any person or entity other than the parties
hereto and their successors in interest and permitted assignees, any
rights or remedies under or by reason of this Agreement unless
expressly so stated.
(d) Waiver. Failure by any party to enforce any of its rights under this
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Agreement shall not be deemed a waiver of any right which that party
has under this Agreement.
(e) Notices. All notices, requests, consents and other communications
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hereunder shall be in writing and delivered personally, by recognized
international courier (such as DHL or Federal Express) or by facsimile
(with facsimiles to be promptly confirmed in writing). All such
written communications delivered by courier shall be delivered to the
parties hereto at their respective addresses, subject to the right of
either party to change its address by delivering written notice to the
other. Such notices shall be deemed to be effective upon three (3)
business days following the date of deposit of such written notice
with the courier or upon receipt if by facsimile or personal delivery.
(f) English Language. This Agreement was negotiated and executed in
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English, and the original English language version shall be
controlling.
(g) Severability. Should any provisions of this Agreement contravene any
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law or valid regulation of any government jurisdiction over the
parties, then such provision shall be automatically terminated and
performance thereof by the parties waived, and all other provisions of
this Agreement shall continue in full force and effect.
(h) Dispute Resolution and Arbitration. Any and all disputes,
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controversies or differences arising from or in connection with this
Agreement shall be settled by mutual consultation between the parties
hereto in good faith as promptly as possible, but failing an amicable
settlement shall be resolved by arbitration in the English language
before a panel of three arbitrators (unless a single arbitrator can be
agreed upon by the parties) in San Francisco, California, United
States of America, in accordance with the International Arbitration
Rules of the American Arbitration Association ("AAA"). The panel shall
render a final opinion and award in writing stating the reasons
therefor, and the award shall be final and binding upon the parties
hereto. Judgment upon the award may be entered in any court of
applicable jurisdiction.
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(i) Entire Agreement. This Agreement (including the Schedules attached
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hereto) reflects the entire agreement of the parties regarding the
subject matter hereof, and supersedes all prior and contemporaneous
agreements between the parties, whether written or oral. This
Agreement shall not be amended, altered or changed except by written
agreement signed by both parties.
(j) Counterparts. This Agreement may be executed in counterparts, each of
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which constitutes an original, and together which constitute the
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives, effective as of the date first set forth
above.
VICINITY CORPORATION APERTO MULTIMEDIA GMBH
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
Schedule I
Performance Milestones
Milestone Shares Performance Milestone
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2500 $2 million of Qualified Revenues
2500 $4 million of Qualified Revenues
2500 $6 million of Qualified Revenues
2500 $8 million of Qualified Revenues
2500 $10 million of Qualified Revenues
2500 $12 million of Qualified Revenues
2500 $14 million of Qualified Revenues
2500 $16 million of Qualified Revenues
2500 $18 million of Qualified Revenues
2500 $20 million of Qualified Revenues
1667 Office established in ***********
833 Key Account sales managers hired
500 Office established in ***********
1000 Product launch (with one sale) in ***********
250 Office established in ***********
500 Product launch (with one sale) in ***********
250 Office established in ***********
500 Product launch (with one sale) in ***********
250 Office established in ***********
500 Product launch (with one sale) in ***********
4167 Three high-quality channel partners signed by Vicinity Europe
mgmt team
2083 Three more high-quality channel partners signed
1667 Marketing plan approved by both US and Europe and $200,000
spent against such amount
833 Additional $200,000 spent against approved marketing plan
1667 CEO, Marketing, Sales permanent managers hired
833 Rest of management team hired
1667 25% of Vicinity's multinational customer base also in Europe
833 Cumulative 33% of Vicinity's multinational customer base also
in Europe
1667 MapBlast launched in local-language versions in 5 countries
833 Wireless Business Finder launched in 3 countries
1667 Promotional relationships in place with 2 major portals (i.e.
AOL)
833 Promotional relationships with 3 further major portals
