Exhibit - 10.42
FINANCIAL PUBLIC RELATIONS AGREEMENT
THIS FINANCIAL PUBLIC RELATIONS AGREEMENT ("Agreement") is made and entered into
this 1st day of November, 1999 (the "Effective Date") by and between Versant
Corporation, a California Corporation ("Company") and Liolios Group, Inc., a
California Corporation ("Consultant").
RECITALS
Company desires to engage Consultant to perform certain financial public
relations services for it, and Consultant desires, subject to the terms and
conditions of this Agreement, to perform financial public relations services for
Company.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND UNDERTAKING HEREIN
CONTAINED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED THE PARTIES AGREE AS FOLLOWS:
1. ENGAGEMENT OF CONSULTANT
Company hereby engages Consultant and Consultant hereby agrees to
hold itself available to render, and to render at the request of the
Company, independent advisory and consulting services for the Company
to the best of its ability, upon the terms and conditions hereinafter
set forth. Such consulting services shall include but not be limited
to the development, implementation and maintenance of an on-going
stock market support system that increases broker awareness of the
company's activities and stimulates investor interest in the Company.
The stock market support system shall include but not be limited to a
Shareholder Communication System, and Media Relation Systems, which
will be defined and developed by Consultant. It is understood that
Consultant's ability to relate information regarding the Company's
activities is directly proportionate to information availed by the
company to the Consultant.
2. TERM
The term of this Agreement ("Term") shall begin as of the Effective
Date and shall terminate twelve (12) months thereafter ("Anniversary
Date"), unless terminated or extended in accordance with the
provisions of this Agreement.
3. COMPENSATION
As compensation for the services rendered by the Consultant under
this Agreement, Company agrees to pay to Consultant $60,000 annually,
at a rate of $5,000 per month in advance of each month. This is in
addition to reimbursement of reasonable out-of-pocket authorized
expenses.
Further as compensation to the consultant for services rendered
pursuit to this agreement, the Company shall, upon execution of this
agreement, issue warrants (collectively, the "Warrants") to purchase
up to 125,000 shares of common stock of VSNT (the "Stock") at a price
of $.001 per share ($125.00 in the aggregate). The warrants shall
vest and become exercisable, and shall terminate, pursuant to the
following schedule:
(a) 25,000 Warrants shall vest upon the execution of this
agreement at an exercise price of $3.00 per share of Stock.
(b) 25,000 Warrants shall vest at an exercise price of $3.75 per
share of Stock, if and when the Stock trades at $4.00,
provided that such Warrant shall terminate if not vested
within (9) nine months of the Effective Date or if
Consultant terminates this Agreement prior to vesting.
(c) 25,000 Warrants shall vest at an exercise price of $4.50 per
share of Stock, if and when the Stock trades at $6.00,
provided that such Warrant shall terminate if not vested
within (12) twelve months of the Effective Date or if
Consultant terminates this Agreement prior to vesting.
(d) 25,000 Warrants shall vest at an exercise price of $5.25 per
share of Stock, if and when the Stock trades at $8.00,
provided that such Warrant shall terminate if not vested
within (21) twenty-one months of the Effective Date or if
Consultant terminates this Agreement prior to vesting.
(e) 25,000 Warrants shall vest at an exercise price of $6.00 per
share of Stock, if and when the Stock trades at $10.00,
provided that such Warrant shall terminate if not vested
within (30) thirty months of the Effective Date or if
Consultant terminates this Agreement prior to vesting.
Provided however, in the case of (d) and (e) above, in the event of
termination of the Agreement by Company, the number of Warrants shall
be multiplied by a fraction equal to the full or partial months
served prior to termination by Company divided by twelve (12) months
(and not to exceed one), the remainder of such Warrants terminating
on the date of termination.
For purposes of determining when Warrants vest under the foregoing
paragraphs, the Stock "trades" at a price when the last reported
trade, as quoted by the NASDAQ Stock Market, equals or exceeds the
price specified for ten (10) continuous trading days.
The vested Warrants shall have a term of three (3) years from the
Effective Date of this agreement.Despite the foregoing, 100,000 of
the Warrants shall vest on the fourth anniversary of the Effective
Date of this Agreement at a strike price of $10.00 unless the
Agreement terminates prior thereto.
4. INDEPENDENT CONTRACTOR
It is expressly agreed that the Consultant is acting as an
independent contractor in performing its services hereunder. Company
shall carry no workmen's compensation insurance or any health or
accident insurance to cover Consultant. Company shall not pay any
contributions to social security, unemployment insurance, Federal or
state withholding taxes nor provide any other contributions or
benefits which might expected in an employer-employee relationship.
5. ASSIGNMENT
This Agreement is a personal one being entered into in reliance upon
and in consideration of the singular personal skills and
qualifications of Consultant.
Consultant shall therefore not voluntarily or by operation of law
assign or otherwise transfer the obligations incurred on its part
pursuant to the terms of this Agreement without the prior written
consent of the Company. Any attempt at assignment to transfer by
Consultant of its obligation with out such consent shall be wholly
void.
6. CONFIDENTIAL INFORMATION
6.1 The term "Confidential Information" shall include, but not be limited
to, information regarding Company's business, plans, customers,
technology, and/or products that is confidential and of substantial
value to Company, which value would be impaired if such information
were disclosed to third parties. Company's Confidential Information
shall also include any and all non-public information, data know-how
and documentation which is related to Company's object-oriented
database system, language interfaces, database utilities, development
tools, Company supplied benchmarks or similar test results, system
internals, program strategies, and business plans.
6.2 Confidential Information shall not include information which (i) is
or becomes a part of the public domain through no act or omission of
the receiving party; or (ii) was in the receiving party's lawful
possession prior to the disclosure and had not been obtained by the
receiving party either directly or indirectly from the disclosing
party; or (iii) is lawfully disclosed to the receiving party by a
third party without restriction on disclosure; or (iv) is
independently developed by the receiving party; or (v) is required to
be disclosed by law provided that the disclosing party has had seven
(7) days to respond to the request.
6.3 Consultant agrees, both during the term of this Agreement and for a
period of two years thereafter, to hold Company's Confidential
Information in confidence, and agrees not to make such Confidential
Information available in any form to any third party, or use such
Confidential Information for any other purpose than the
implementation of this Agreement. Consultant agrees to take all
reasonable steps to ensure that Company's Confidential Information is
not disclosed or distributed by its employees or agents in violation
of the provisions of this Agreement. Termination of the Agreement
shall not relieve Consultant of its obligations under this Section 6.
7. TERMINATION
This Agreement may be terminated by either party for any reason upon
thirty (30) days notice in writing. In the event the Agreement is
terminated, Consultant shall cease rendering its services to Company
as of the effective date of termination and Company shall pay
Consultant for the services performed and approved expenses through
the date of termination. Any materials created as the result of
Consultant's provision of services to Company shall be delivered to
Company within ten (10) days of the date of termination.
8. GENERAL PROVISIONS
8.1 Governing Law and Jurisdiction
This Agreement shall be governed by and interpreted in accordance
with the laws of the State of California. Each of the Parties hereto
consents to such jurisdiction for the enforcement of this Agreement
and matters pertaining to the transaction and activities contemplated
hereby.
8.2 Non-Circumvention and Non-Disclosure Neither the Company nor its
directors, officers, agents attorneys, employees, affiliates,
representatives, successors, or assigns (collectively referred to as
the "Company") will attempt to consummate a transaction with any
financing sources, or potential acquisition, introduced by the
Consultant without first notifying Consultant, and satisfying
Consultant's right to a two percent (2%) fee, on a per transaction
basis. This provision will inure for a period of three (3) years form
the date affixed to this document. However, any contacts introduced
to the Company in the "normal course" of Consultant's primary
contracted services shall not apply; further, all sources of business
shall not be unreasonably withheld. The Company shall keep completely
confidential the identity of all such financing parties. It is
understood that this Agreement is a reciprocal one between the
signatories concerning the privileged information and contacts.
8.3 Notices
As such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five (5)
business days after
deposit in any United States Post Office in the continental United
States, postage prepaid, if mailed; when answered back, if telexed,
when receipt is acknowledged or confirmed, if telecopies.
8.4 Attorney's Fees
In the event a dispute arises with respect to this Agreement, the
party prevailing in such dispute shall be entitled to recover all
expenses, including, without limitation, reasonable attorney's fees
and expenses incurred in ascertaining such party's rights, in
preparing to enforce or in enforcing such party's rights under this
Agreement, whether or not it was necessary for such party to
institute suit. Further, in the event the Company, its officers, and
or its directors cause a dispute in which Consultant is involved, the
Company agrees to hold Consultant harmless, and provide reasonable
attorney fees. Company further agrees to notify Consultant
immediately of such event.
8.5 Complete Agreement
This Agreement supersedes any and all of the other agreements, either
oral or in writing, between the Parties with respect to such subject
matter in any manner whatsoever. Each Party to this Agreement
acknowledges that no representations, inducements, promises or
agreements, oral or otherwise, have been made by any Party, or anyone
herein, and that no other Agreement, statement or promise not
contained in the Agreement may be changed or amended only by an
amendment in writing signed by all of the Parties or their respective
successors-in-interest.
8.6 Binding
This Agreement shall be binding upon and inure to the benefit of the
successors-in-interest, assigns and personal representatives of the
respective Parties.
8.7 Unenforceable Terms
Any provision hereof prohibited by law or unenforceable under the law
of any jurisdiction in which such provision is applicable shall
adhere to such jurisdiction only be ineffective without affecting any
other provision if this Agreement. To the full extent, however, that
such applicable law may by waived to the end that this Agreement be
deemed to be a valid and binding agreement enforceable in
accordance with its terms, the Parties hereto hereby waive such
applicable law knowingly and understanding the effect of such waiver.
8.8 Execution in Counterparts
This Agreement may be executed in several counterparts and when so
executed shall constitute one agreement binding on all the Parties,
notwithstanding that all the Parties are not signatory to the
original and same counterpart.
8.9 Further Assurances
From time to time each Party will execute and deliver such further
instruments and will take such other action as any other Party may
reasonably request in order to discharge and perform their
obligations and agreements hereunder and to give effect to the
intentions expressed in this Agreement.
8.10 Incorporation By Reference
All exhibits referred to in this Agreement are incorporated herein
in their entirety by such reference.
8.11 Miscellaneous Provisions
The various headings and numbers herein and the grouping of
provisions of this Agreement into separate articles and paragraphs
are for the purpose of convenience only and shall not be considered a
part hereof. The language in all parts of this Agreement shall in all
cases be construed in accordance with its fair meanings as if
prepared by a all Parties to the Agreement and not strictly for or
against any of the Parties.
9. Notices
Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission (provided acknowledgement of
receipt thereof is delivered to the sender) or sent by certified,
registered or express mail, postage prepaid. Any such notice shall be
deemed given when so delivered personally, telegraphed, telexed, sent
by facsimile transmission or, if mailed, three days after the date of
deposit in the United States mails as follows:
If to Consultant, to:
Liolios Group, Inc.
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If to Company, to:
Versant Corporation
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or such address as any of the above shall have
specified by notice hereunder.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the day and year first hereinabove written.
VERSANT CORPORATION
By:_________________________
Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
LIOLIOS GROUP, INC.
By:_________________________
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President