EXHIBIT 10.4
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into this 15th
day of March, 2001, by and between Stockbroker Associates Corporation, a
Delaware corporation (the "Consultant") whose principal place of business is
0000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 and
Vertica Software, Inc., a Colorado corporation (the "Client") whose principal
place of business is 0000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxxx, XX 00000.
RECITALS
1. The Consultant is engaged in the business of providing various consulting and
public relation services for and on behalf of clients whose equity securities
are publicly traded. The Consultant's services on behalf of clients include
interactions with broker/dealers, shareholders, and members of the general
public. In accordance with and subject to rules, regulations and policies of the
Securities and Exchange Commission, Consultant also provides services on behalf
of clients over the Internet.
2. The Client is a company with a class of equity securities that are publicly
traded on one or more markets or exchanges. The Client desires to retain the
Consultant as an independent consultant for various consulting and public
relation services, including interaction with broker/dealers, shareholders and
members of the general public.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
I. CONSULTING AND PUBLIC RELATION SERVICES
The Client hereby retains the Consultant as an independent consultant to the
Client and the Consultant hereby accepts and agrees to such retention. The
Consultant shall provide to the Client such services of an advisory and
consultative nature so as to inform the brokerage community, the client's
shareholders and the general public concerning financial public relation and
promotional matters related to the Client and its business (the "Consulting
Services"). The Consulting Services which Consultant shall provide to the Client
are on a best efforts basis. Consultant makes no representation, warranty or
guarantee that as a result of the Consulting Services the trading price of the
Client's stock will increase, the volume of shares traded will increase or that
Client will experience increased revenues.
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Consultant will:
a. Gather all publicly available information relating to Client and confer
with officers and directors of the Client in an effort to consolidate the
information obtained into appropriate form for dissemination to interested
parties;
b. In accordance with rules, regulations and policy of the Securities and
Exchange Commission, make available to the general public, information
concerning the Client through the Internet on a website developed and
maintained by Consultant;
c. Distribute information concerning the Client to registered
representatives of broker/dealer, and other persons who the Consultant
determines, in its sole discretion, are capable of effectively
disseminating such information to the general public.
II. TIME, MANNER AND PLACE OF PERFORMANCE
The Consultant provides services similar to those provided for herein to other
publicly traded companies. The Client agrees that the Consultant does not and
shall not be required to devote its full time and efforts to the Client. The
Consultant shall devote such time to the Client as is reasonable and necessary
to provide the Consulting Services to the Client. Consultant shall be available
for advice and counsel to the officers and directors of the Client at such
reasonable and convenient times and places as may mutually be agreed upon.
III. TERM OF THE AGREEMENT
The term of this Agreement shall be three (3) months, commencing March 15, 2001
to June 15, 2001, subject however, to prior termination as provided in Section
XII of this Agreement.
IV. COMPENSATION
In consideration of the Consulting Services to be provided to the Client by the
Consultant, Client hereby agrees to compensate Consultant as follows:
a. Upon execution of the Agreement, the Client shall pay the Consultant a
fee in the amount of 100,000 restricted shares of the client's $0.0001 par
value common stock (the "Shares");
b. Client shall issue the Shares to Consultant or any person (s) designated
by Consultant, providing such designation complies with all appropriate
laws and regulations. THE SHARES TO BE ISSUED SHALL BE RESTRICTED SHARES.
The Shares shall be deemed fully earned upon receipt by Consultant. The
shares issued pursuant to this subparagraph shall be issued free and clear
of any liens and encumbrances.
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V. EXPENSES
The Client shall reimburse the Consultant for all reasonable and necessary
expenses and other disbursements, including but not limited to, travel,
entertainment, mailing, printing and postage incurred by the Consultant on
behalf of Client in connection with the performance of the Consulting Services
pursuant to the Agreement, providing Consultant submits detailed invoices and
supporting documentation. Expenses and disbursements in excess of $500.00 shall
have the Client's prior approval.
VI. SALES OF SHARES RECEIVED
Shares received by the Consultant from the Client pursuant to Paragraph IV of
this Agreement are compensation to the Consultant for:
a. The initial time which Consultant must devote to the Client to
familiarize itself with Client's business so as to provide the Consulting
Services;
b. Consulting Services to be provided during the course of this Agreement;
c. The business which Consultant must decline from other potential clients
in order to be able to provide Consulting Services called for under this
Agreement to Client.
It is Consultant's intention to sell the Shares received during the term of this
Agreement. The Client agrees that during the term of this Agreement, the
Consultant may sell the Shares at such times and in such manner as may be
determined in the sole discretion of the Consultant. Client understands that any
sales of the Shares by Consultant may have the effect of decreasing the trading
price of the Client's stock, particularly if Client's stock is thinly traded.
The Consultant will use reasonable efforts to make such sales at such times and
in such a manner so as to minimize any adverse effect to the Client from sales
of the Shares. Under no circumstances will the Client place stop transfer
instructions ("Stop Transfer Instructions") with its transfer agent with respect
to the Shares. In the event Client places Stop Transfer Instructions with
respect to the Shares, Consultant may deliver this Agreement to the transfer
agent of Client, and notwithstanding the Stop Transfer Instructions, transfer
agent may then transfer the Shares at the direction of the Consultant or
Consultant's agent.
VII. WORK PRODUCT
Client acknowledges that in the course of performing under this Agreement,
Consultant, will be contacting various persons about the Client. It is agreed
that Consultant retains all intellectual property rights with respect to such
contact list (the "Contact List") and all material specifically created or
developed by Consultant in connection with the Consulting Services performed for
the Client (the "Materials"). Consultant hereby grants Client the right to use
the Materials (but not the Contact List) after their distribution solely for the
purpose of promoting the Client to existing and prospective investors, but the
Contact List and Material shall be and remain the physical and intellectual
property of the Consultant and all proprietary rights thereto shall remain with
Consultant.
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VIII. DISCLOSURE OF INFORMATION
The Consultant recognizes and acknowledges that it has and will have access to
certain confidential information of the Client's and its affiliates that are
valuable, special and unique assets and property of the Client and such
affiliates ("Confidential Information"). The Consultant will not, during and
after the term of this Agreement, disclose, without the prior written consent or
authorization of the Client, any Confidential Information to any person, except
authorized representatives of the Consultant or its affiliates, for any reason
or purpose whatsoever. In this regard, the Client agrees that such authorization
or consent to disclose may be conditioned upon the disclosure being made
pursuant to a secrecy agreement, protective order, provision of statute, rule,
regulation or procedure under which the confidentiality of the information is
maintained in the hands of the person to whom the information is to be disclosed
or in compliance with the terms of a judicial order or administrative process.
Any information which has been disclosed to the public by the Client or upon the
authorization of the client shall not be considered Confidential Information.
IX. NATURE OF RELATIONSHIP
Nothing in this Agreement shall render any party a general partner of the other.
Except as set forth in this Agreement neither party is nor shall be a general
agent for the other and neither party is given authority to act on behalf of the
other. The Consultant is retained by the Client in an independent capacity and,
except as set forth in this Agreement, Consultant shall not enter into any
agreement or incur any obligation on behalf of the Client.
X. CONFLICT OF INTEREST
This Agreement is non-exclusive. The Consultant shall be free to perform
services for other companies and persons. Consultant will use its best efforts
to avoid conflicts of interest. Client agrees that it shall not be a conflict of
interest that Consultant devotes time and resources to companies and persons
other than Client. In the event that Consultant believes a conflict of interest
arises which may affect the performance of the Consulting Services for Client,
Consultant shall promptly notify the Client of such conflict. Upon receiving
such notice, the Client may terminate this Agreement pursuant to Section XIII.
Failure to terminate this Agreement within 30 days of notification of any
conflict of interest shall constitute the Client's ongoing consent to the
Consultant's continued activities, which would be in conflict with client.
XI. INDEMNIFICATION FOR SECURITIES LAWS VIOLATIONS
a. The Client agrees to indemnify and hold harmless the Consultant and each
officer, director and controlling person of the Consultant against any
losses,
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claims, damages, liabilities and/or expenses (including any legal or other
expenses reasonably incurred in investigating or defending any action or
claim in respect thereof) to which the Consultant or such officer, director
or controlling person may become subject under the Securities Act of 1933
as amended or the Securities Exchange Act of 1934 as amended, because of
actions of the Client or its agent, Client's material publicly available to
the Consultant, or materials provided to Consultant by Client for use by
Consultant in its performance under this Agreement.
b. The Consultant agrees to indemnify and hold the Client and each officer,
director and controlling person of the Client against any loses, claims,
damages, liabilities and/or expenses (including any legal or other expenses
reasonably incurred in investigating or defending any action or claim in
respect thereof) to which the Client or such officer, director or
controlling person may become subject under the Securities Act of 1933 as
amended or the Securities Exchange Act of 1934 as amended, due to the
actions or negligence of the Consultant or its agent (s).
XII. TERMINATION
Notwithstanding Section III of this Agreement, this Agreement may be terminated:
a. By the Client upon 10 days prior written notice to Consultant. Any
compensation by Consultant, including the Shares received, shall be deemed
fully earned up to the date of termination;
b. By Consultant upon 10 days prior written notice to the Client in the
event;
(i) Client requests Consultant to perform acts or services in
violation of any law, rule, regulation, policy or order of any federal
or state regulatory agency,
(ii) Client provides information to the Consultant for public
distribution, which contains material representations or material
omissions,
(iii) Clients distributes to the public information containing
material misrepresentations or omissions, or
(iv) Client is engaging in conduct in violation of any law, including
rules, regulations, orders and policies of any federal or state
regulatory agency.
In the event of termination by the Consultant pursuant to the provisions of this
subparagraph, all compensation received by Consultant from Client will be deemed
fully earned.
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XIII. ACCURACY OF INFORMATION
In the distribution and dissemination of information about the Client by the
Consultant, the Consultant is relying upon the accuracy of information provided
to it by the Client. The Client shall use its best efforts to ensure that all
information provided by Client to Consultant, and all information which Client
makes otherwise available to the general public, is full, complete and accurate
and contains no material misrepresentations or omissions.
XIV. NOTICES
Any notices required or permitted to be given under this Agreement shall be
sufficient if in writing and delivered via FAX, to the FAX number set forth
below, or if sent by registered or certified mail, return receipt requested, to
the address set forth below.
a. If to Consultant:
Stockbroker Associates, Inc.
0000 Xxxxx Xxxxxx Xxxx Xxx 000
Xxxxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
b. If to Client:
Vertica Software, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax: (510) 595 - 3398
XV. ASSIGNMENT
Neither party to this Agreement may assign its rights or obligations hereunder
without the prior written consent of the other party to this Agreement.
XVI. APPLICABLE LAW
This Agreement shall be interpreted and construed in accordance with and
pursuant to the laws of the State of California.
XVII. ARBITRATION
Any controversy or claim arising out of or related to this Agreement, or the
breach thereof, shall be settled by arbitration administrated by the American
Arbitration Association under its Commercial Arbitration Rules, with the
arbitration proceeding and any hearing thereon being held in San Francisco,
California, and judgment on the award rendered by the arbitrator(s) being
entered in any court having jurisdiction thereof.
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XVIII. SEVERABILITY
The provisions contained herein are severable and in the event any of them shall
be held invalid, the Agreement shall be interpreted as if such invalid
provisions were not contained herein.
XIX. ENTIRE AGREEMENT
This Agreement constitutes and embodies the entire understanding and agreement
of the parties and supersedes and replaces all prior understandings, agreements
and negotiations of the parties. This Agreement may not be modified, except in
writing and signed by all parties hereto.
XX. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall constitute
and be deemed an original, but both of which taken together shall constitute one
and the same document.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement the day and year first above written.
CONSULTANT
Stockbroker Associates Corporation
By:
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Xxxxxxx X. Xxxx, President
CLIENT
Vertica Software, Inc.
By:
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Xxxx Xxxxx, CEO.
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