EXHIBIT 10.3
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into this 1st
day of March, 2001, by and between Xxxxxxx Xxxx (the "Consultant") whose
principal place of business is 0000 X Xxxxxxx Xxxx., Xxxxx X0 Xxx Xxxxx, XX
00000 and Vertica Software, Inc., a Colorado corporation(the "Client") whose
principal place of business is 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxxxx 00000.
RECITALS
(a) The Consultant is engaged in the business of providing corporate consulting
services for and on behalf of clients. The Consultant's services, on behalf of
clients, include corporate image advertising, business development and strategy,
and corporate compensation policies.
(b) The Client desires to retain the Consultant as an independent consultant to
provide corporate consulting services, including corporate image advertising,
business development and strategy, and corporate compensation policies.
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 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 consulting services as may be requested
by the Client, including:
(a) Corporate image advertising so as to increase the visibility of the Client;
(b) Business development and business strategy; and,
(c) Corporate compensation policies.
The foregoing are collectively referred to as the "Consulting Services".
The Consulting Services which the Consultant shall provide to the Client are on
a best efforts basis. Consultant makes no representation, warranty or guaranty
that as a result of Consulting Services the Client's image will improve, or the
Client's business will increase.
The Consultant will:
(d) Gather all material information relating to the Client and confer with the
officers and directors of the Client and provide those Consulting Services as
may from time to time be requested by the Client.
II. TIME, MANNER AND PLACE OF PERFORMANCE
The Consultant provides services similar to those provided for herein to other
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 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 naturally be agreed upon.
III. TERM OF THE AGREEMENT
The term of this Agreement shall be ninety (90) days, commencing March 1, 2001
and terminating June 1, 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 issue the Consultant a fee
for the Term in the amount of two hundred fifty thousand (250,000) shares of
Common Stock of Client, such shares to be free trading and unrestricted.
(b) The Client shall issue the Shares to Consultant or any person(s) designated
by Consultant. The Shares shall be deemed fully earned upon receipt by
Consultant. The Shares issued pursuant to this Agreement shall be issued free
and clear of any liens and encumbrances.
V. EXPENSES
The Client shall reimburse the Consultant for all 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. All expenses and disbursements shall require the Client's prior
approval.
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VI. SALES OF SHARES RECEIVED
Shares received by the Consultant from the Client pursuant to 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 and that any such sales
may occur during the term of this Agreement. The Client agrees that during the
term of this Agreement, the Consultant may sell the Shares at such time 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 the Consultant (the "Materials"). 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.
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 of 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
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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
has arisen 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
(a) The Client agrees to indemnify and hold harmless the Consultant and each
officer, director and controlling person of the Consultant against any losses,
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 may become subject, including those
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, or material
provided to Consultant by Client for use by Consultant in his performance under
this Agreement.
(b) The Consultant agrees to indemnify and hold harmless the Client and each
officer, director and controlling person of the Client against any losses,
claims, damages, liabilities and/or expenses (including any legal or other
expenses reasonably incurred in investigating or defending any action or claim
in request thereof) to which the Client or such officer, director or controlling
person may become subject, including those under the Securities Act of 1933 as
amended or the Securities Exchange Act of 1934 as amended, because of actions of
the Consultant or its agent(s).
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XII. TERMINATION
Notwithstanding Section III of this Agreement, this Agreement may be terminated
if:
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 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 and any compensation due and owing as of the date of termination
shall be paid by Client to Consultant.
XIII. 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:
Xxxxxxx Xxxx
0000 X Xxxxxxx Xxxx., Xxxxx X0
Xxx Xxxxx, XX 00000
(b) If to Client:
Vertica Software, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
FAX (000) 000-0000
XIV. 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.
XV. APPLICABLE LAW
This Agreement shall be interpreted and construed in accordance with and
pursuant to the laws of the State of California.
XVI. ARBITRATION
Any controversy or claim arising out of or related to this Agreement, or the
breach
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hereof, shall be settled by arbitration administered 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) may be entered in any court
having jurisdiction thereof.
XVII. 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 provision
were not contained herein.
XVIII. ENTIRE AGREEMENT
This entire 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.
XIX. 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 to
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
Xxxxxxx Xxxx
CLIENT
VERTICA SOFTWARE, INC.
By:
Xxxx Xxxxx,CEO
