EXHIBIT 10.15
MANAGEMENT SUPPORT AGREEMENT
This MANAGEMENT SUPPORT AGREEMENT (this "Agreement") is entered into as of
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the 27th day of July 1999, by and between VICINITY CORPORATION ("Vicinity") and
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INVISION AG ("Invision").
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RECITALS:
(A) Vicinity and Invision are parties to that certain Series F Preferred
Stock, dated as of the date hereof, pursuant to which Invision is
purchasing equity securities of Vicinity.
(B) Invision is an affiliate of Metro AG (together with its affiliates
other than Invision, "Metro"), with Invision primarily engaged in
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investment activities and Metro involved in operations.
(C) It is anticipated that, among other things, Invision will intercede
with Metro in order to promote the sale of Vicinity's products and
services (the "Vicinity Business") in Europe.
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AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
contained herein, the parties hereto agree as follows:
1. RESPONSIBILITIES OF INVISION
(a) Promotion of the Vicinity Business. Invision shall use its
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commercially reasonable efforts to promote the Vicinity Business both
to Metro and within Europe generally.
(b) Opportunities; Competition. Invision shall consult with Vicinity
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concerning new business opportunities and shall advise Vicinity
concerning any competitive threats to the Vicinity Business in Europe.
2. RESPONSIBILITIES OF VICINITY
(a) Training. Vicinity shall provide training to the employees of
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Invision and Metro in connection with Invision's performance hereunder
as reasonably requested by Invision.
(b) Assistance; Promotional Materials. Vicinity shall, upon Invision's
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reasonable request, (i) advise Invision in connection with Invision's
promotion of the Vicinity Business, and (ii) furnish to Invision
reasonable quantities of sales promotion materials and other documents
necessary or advisable for promotion of the Vicinity Business in
Europe.
(c) Expenses. Vicinity shall reimburse Invision for the direct costs
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incurred by Invision up to a limit of U.S$100,000; provided that such
costs are directly related to the promotion of the Vicinity Business
in Europe. Such amount shall be payable in two equal installments with
the first payment due on the three month anniversary of this Agreement
and the second payment due on the six month anniversary of this
Agreement. To receive such reimbursements, Invision shall on or before
such dates, provide Vicinity
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Confidential
with copies of the expense receipts related to all costs for which
Invision seeks such reimbursement.
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Confidential
3. INCENTIVE STOCK GRANTS
To provide an incentive to the performance of Invision hereunder, the
parties agree as follows:
(a) Project Scout. Vicinity shall issue to Invision options or warrants
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exercisable for up to 75,000 shares of the Common Stock of Vicinity in
the following increments and based upon the attainment of the
following performance milestones related to the proposed business
directory to be made available to consumers containing a free listing
for all businesses holding a Metro customer card ("Project Scout"):
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(1) 25,000 shares upon execution and delivery of an agreement between
and acceptable to Vicinity and Metro relating to Project Scout;
(2) 25,000 shares when the cumulative gross revenues collected
pursuant to Project Scout exceed 12 million DM; and
(3) 25,000 shares when the cumulative gross revenues collected
pursuant to Project Scout exceed 30 million DM.
(b) Project Telegate. Vicinity shall issue to Invision options or
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warrants exercisable for up to 50,000 shares of the Common Stock of
Vicinity in the following increments and based upon the attainment of
the following performance milestones related to the proposed business
relationship between and acceptable to Vicinity and Telegate whereby
Vicinity's Telephone Business Finder service will be made available to
Telegate ("Project Telegate"):
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(1) 20,000 shares upon (x) execution and delivery of an agreement
between Vicinity and Telegate and (y) public launch of Project
Telegate based upon such agreement;
(2) 20,000 shares upon sale by Telegate of the Vicinity Telephone
Business Finder service to ten or more customer brands in
Germany; and
(3) 10,000 shares upon sale by Project Telegate of the Vicinity
Telephone Business Finder service to five or more customers
brands in major European markets outside Germany.
(c) Additional Projects. Vicinity shall issue to Invision options or
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warrants exercisable for up to 150,000 shares of the Common Stock of
Vicinity in connection with up to three projects to be agreed between
the parties, each eligible for up to 50,000 shares subject to
performance milestone(s) to be agreed upon between the parties. The
general structure of each such equity grant shall be as follows:
(1) 20,000 shares upon execution and delivery of a mutually
acceptable agreement relating to each such project;
(2) 20,000 shares upon successful launch of each such project, the
criteria for a "successful launch" to be agreed between the
parties prior to each such launch; and
(3) 10,000 shares upon attainment of performance milestone(s) that
shall be agreed between the parties prior to the launch of each
such project to represent success for such project.
(d) Exercise Price. The exercise price per share for each block of
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options or warrants issued under the terms of this Agreement shall be
determined as of the date that each such block is earned by Invision
and such exercise price shall be (i) the price per share received by
Vicinity in the most recent private equity financing round of Vicinity
(currently $5.00), or (ii) following Vicinity's initial public
offering, the average trading price of Vicinity's
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Common Stock over the five trading days immediately prior to the date
of issuance of such block of options or warrants.
(e) Publicity. Neither party shall, without the prior consent of the
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other party, issue any press release or make any public statement
relating to any specific transaction described in paragraphs (a), (b)
or (c) of this Section 3, which specific transaction may reasonably be
anticipated to result in the grant to Invision of the right to acquire
the shares of Common Stock referred to in such paragraphs, prior to
the date that the agreement(s) relating to such transaction has or
have been finalized and the exercise price of the options or warrants
relating thereto have been set pursuant to the terms hereof.
(f) Performance Period; Exercise Period. The right of Invision to earn
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shares of incentive stock under this Section 3 shall terminate on July
1, 2002. No options or warrants shall be earned pursuant to this
Section 3 after July 1, 2002. Any option or warrant issued to Invision
pursuant to this Section 3 shall provide that such option or warrant
must be exercised within two years of the issue date and following
such two year period such option or warrant shall be terminated,
become unexercisable, and shall be null and void.
(g) Agreements. As a precondition to the issuance of any options or
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warrants hereunder or any shares of Common Stock or other equity
interests of Vicinity thereunder, Invision shall execute and deliver
such documents and certificates as Vicinity customarily requires with
respect to the issuance of similar securities, including, without
limitation, representations and warranties with respect to securities
laws and agreements with respect to rights of first offer.
4. 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) 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.
(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.
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5. MISCELLANEOUS
(a) Term. This Agreement shall commence on the date hereof and shall
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terminate on July 1, 2002 unless extended by mutual agreement of the
parties.
(b) Governing Law. This Agreement shall be governed in all respects by
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the 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.
(c) 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.
(d) Assignment: No Third-Party Beneficiaries. Neither this Agreement
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nor 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 Invision. 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.
(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
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any 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
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binding upon the parties hereto. Judgment upon the award may be
entered in any court of applicable jurisdiction.
(i) Entire Agreement. This Agreement reflects the entire agreement of the
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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
By: ______________________________
Name:
Title:
INVISION AG
By: _______________________________
Name:
Title:
