Exhibit 10.2
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M & A ADVISORY SERVICES AGREEMENT
This M&A Advisory Services Agreement (the "Agreement") is entered into,
effective March 30, 2005, by and between Sand Hill IT Security Acquisition
Corp., a Delaware corporation, having its principal place of business at Suite
240, Building 1, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 (the
"Client") and Software Equity Group, L.L.C. ("SEG").
1. SCOPE OF SERVICES. Software Equity Group, L.L.C. ("SEG") agrees to perform
for Client the services ("Services") described in the Special Terms and
Conditions(s) attached as Exhibit "A" to this Agreement. The scope of services
shall only be modified or extended beyond the Special Terms and Conditions by a
written modification signed by both parties. Nothing herein shall preclude SEG
from providing the same or similar services to other persons or entities.
2. DELIVERABLES. All services and specific deliverables to be provided by SEG
shall be in accordance with this Agreement and the Special Terms and Conditions.
3. LOCATION OF SERVICES. Services shall be provided at locations determined by
the parties on a project by project basis. If Services are to be provided at
Client's place of business, Client shall supply SEG with suitable office or
meeting space, telephone service, and support services as reasonable and
necessary to the performance of Services.
4. ESTIMATES. Except as to a fixed price project specified in the Special Terms
and Conditions, any estimates provided by SEG concerning Services, including
time of completion, costs or otherwise, are given in good faith, but are not to
be construed as a guaranty or warranty by SEG, and no such estimate shall be
deemed to change this Agreement into a fixed price contract.
5. PAYMENT. Client shall pay to SEG for Services rendered the fees set forth in
the Special Terms and Conditions, attached hereto as Exhibit A. Unless otherwise
specified, invoices will be issued monthly, on the last day of the month in
which any Services were rendered, and are due and payable by Client not later
than ten (10) days after receipt.
6. REIMBURSEMENT FOR EXPENSES. Client shall reimburse SEG for all reasonable
expenses incurred by SEG in the performance of Services, including but not
limited to travel and living expenses resulting from travel authorized by Client
and incurred by employees of SEG while away from SEG's principal offices, long
distance telephone calls, postage, messenger service and overnight delivery.
Client shall further reimburse SEG for any and all special or unusual expenses
incurred at the request of Client and authorized by Client in writing.
7. NON-INFRINGEMENT AND OWNERSHIP. The Deliverables developed by SEG in
performing Services hereunder, including without limitation, the Valuation
Report, list of prospective buyers and Confidential Memorandum, as well as any
and all reports, data, computer programs, drawings, notes and specifications,
and any discoveries, inventions and other information and material conceived,
developed or made during the term of the Agreement relating in any manner to the
Deliverables a) will not infringe upon or violate the patent, copyright or other
intellectual property rights of any third party, and b) will be and remain the
exclusive property of SEG.
8. LICENSE. Upon delivery of the Deliverables by SEG to Client, SEG grants to
Client a perpetual, nonexclusive, nontransferable right to use the Deliverables
solely for Client's internal use. Client shall reproduce and include in all
copies of the Deliverables prepared by Client as set forth herein any copyright
notice(s) and proprietary legend(s) of SEG as they appear in the Deliverables
and on the media containing the Deliverables delivered by SEG.
9. CONFIDENTIALITY AND NONDISCLOSURE. Both parties acknowledge that each may
gain access to confidential and proprietary information of the other which is
not publicly known and which is designated as confidential or proprietary at the
time of disclosure ("Proprietary Information"). Client and SEG agree that a
party receiving Proprietary Information ("Receiving Party) from the other party
("Disclosing Party") will maintain same in confidence and not use such
Proprietary Information for any purpose outside the scope of this Agreement
during the term of this Agreement and for a period of two (2) years following
expiration or termination of this Agreement for any reason. The Receiving Party
agrees to use at least the same degree of care with Proprietary Information of
the Disclosing Party as it uses with its own. For purposes of this Agreement,
Proprietary Information does not include information which (a) is known to the
Receiving Party on a non-confidential basis prior to disclosure by the
Disclosing Party; (b) is or hereafter becomes publicly known without breach of
this Agreement or fault of the Receiving Party; (c) is disclosed to the
Receiving Party by a third party without restriction on disclosure and without
breach of any nondisclosure obligation; (d) is independently developed by
Receiving Party without the use of Confidential Information of the Disclosing
Party.; or e) is received by the Receiving Party after the effective date of
termination of this Agreement. Notwithstanding the foregoing SEG may disclose to
a prospective buyer that has executed a confidential information agreement with
Client certain Client Proprietary Information, such as Client's financial
statements, reasonably requested by such prospective buyer.
10. RESPONSIBILITY FOR FINANCIAL AND BUSINESS INFORMATION. Client agrees it is
solely responsible for any and all financial and business information provided
to SEG or directly to third parties with respect to any transaction contemplated
hereunder, including the truthfulness and accuracy thereof and the validity or
attainability of financial projections, estimates and assumptions.
11. CLIENT COOPERATION. Client agrees to respond promptly to SEG's requests for
financial, technical and other business information reasonably required by SEG
in providing Services hereunder, and further agrees to use its best efforts to
attend and participate in meetings, teleconferences and the like relating to
such Services.
12. WARRANTIES. SEG warrants to Client that the Services to be provided
hereunder (i) do not conflict with or result in the breach of any other
agreement entered into by SEG, and (ii) will be provided in a workmanlike
manner. Client warrants that (i) entering into this Agreement with SEG does not
conflict with or result in the breach of any other agreement entered into by
Client, and (ii) Client is authorized to use and disclose, or owns, all right,
title and interest in and to any programs, systems, data and materials furnished
to SEG hereunder. EXCEPT FOR THE FOREGOING, THERE ARE NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT
OR THE SERVICES RENDERED BY SEG HEREUNDER.
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13. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY TO THIS AGREEMENT BE
LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF
PROFITS, LOSS OF DATA OR LOSS OF GOOD WILL, EVEN IF SUCH PARTY HAS BEEN INFORMED
OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL SURVIVE
THE EXPIRATION OR ANY TERMINATION OF THIS AGREEMENT. IN NO EVENT WILL SEG BE
LIABLE TO CLIENT FOR DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE,
STRICT LIABILITY OR OTHERWISE, EXCEEDING THE AMOUNT PAYABLE HEREUNDER FOR THE
SERVICES GIVING RISE TO SUCH LIABILITY, OR $5,000, WHICHEVER IS LESS.
14. INDEPENDENT CONTRACTOR. SEG is an independent contractor and shall not be
considered or deemed to be an agent, employee, joint venturer or partner of
Client. Except as otherwise authorized in writing by Client, SEG shall have no
authority to contract for or bind Client in any manner and shall not represent
itself as an agent of Client or as otherwise authorized to act for or on behalf
of Client. SEG shall have no status as an employee or any right to any benefits
that Client grants its employees. SEG acknowledges that, as an independent
contractor, SEG is fully responsible for withholding and payment of its federal,
state and local taxes and those of its employees.
15. FINANCIAL ADVISOR ROLE. Client understands and agrees: (i) SEG is not acting
as a broker-dealer, investment company, investment advisor or dealer in
securities with respect to any transaction contemplated hereunder, (ii) any
securities which may be sold with respect to such transaction are being sold
directly by or to Client, or by other principal parties to such transaction,
(iii) the terms or structure of any such transaction, and the registration of
securities issued or transferred in connection therewith which Client
undertakes, are to be decided by, and are the responsibility of, Client and
Client's own legal counsel, and (iv) any fees payable SEG hereunder are paid
solely for financial and business advice.
16. NON-SOLICITATION OF EMPLOYEES. Both parties agree they will not solicit the
employment of, or employ, any employee of the other party during the term of
this Agreement and for a period of one year following the last day consulting
services are rendered by SEG hereunder.
17. TERM AND TERMINATION. This Agreement will become effective on the Effective
Date specified on the cover page and remain in full force and effect until
expiration of the Term set forth in Exhibit A , unless earlier terminated by
mutual written agreement signed by both Client and SEG.
18. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California, and any action relating to
this Agreement must be brought in a court of competent jurisdiction situated in
San Diego County, California.
19. GENERAL. This Agreement, inclusive of the cover sheet, these Standard Terms
and Conditions and the Special Terms and Conditions set forth in Exhibit A,
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede and replace all prior and contemporaneous
understandings and agreements, whether written or oral, regarding the subject
matter hereof. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law or unenforceable, the remaining
provisions shall continue in full force and effect. The parties may not sell,
assign or transfer any right or obligation hereunder or this Agreement without
the prior written consent of the other party. Any notice required to be provided
herein shall be given in writing and will be sufficiently made or given on the
date of mailing if sent to such party, postage pre-paid, addressed as set forth
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on the cover page or to such other address as a party shall designate by written
notice to the other. Client agrees to indemnify and hold SEG harmless from any
loss, claim, damage or liability arising under or related to this Agreement
except to the extent same is solely attributable to or caused by SEG. The
performance by SEG of Services hereunder shall at all times be subject to delay
and/or extension on account of circumstances beyond the control of SEG
including, without limitation, the unavailability of required materials, or any
sickness or other unavailability of any of SEG's staff assigned to the
performance of Services. No amendment or modification of this Agreement shall be
binding unless in writing and signed by a representative of both parties.
CLIENT ACKNOWLEDGES IT HAS READ, UNDERSTANDS AND ACCEPTS THIS ENTIRE AGREEMENT,
INCLUSIVE OF THE SPECIAL TERMS AND CONDITIONS ATTACHED AS EXHIBIT "A".
CLIENT:
SAND HILL SECURITY CORPORATION SOFTWARE EQUITY GROUP, L.L.C.
By: /s/ Xxxxxxxx X. Polanen By: /s/ Xxxxxxx X. Xxxxxx
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Printed Name: Xxxxxxxx Polanen Printed Name: Xxxxxxx X. Xxxxxx
Title: CEO and Chairman Title: Managing Director
Date: March 30, 2005 Date: March 30, 2005
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