JOINT VENTURE AGREEMENT
This Joint Venture Agreement is entered into as of April 8, 1998 (the EFFECTIVE
DATE") between Sagent Technology, Inc. with offices at 2225 East Bayshore Road,
Suite 100, Palo Alto, CA 94303, ("SAGENT") and ISAR-VERMOGENSVERWALTUNG GBR MBH
a German limited liability partnership within the meaning of the German Civil
Code with the following address at Gut Keferloh 1B, D-85630 Grasbrunn/Munich,
Germany ("INVESTOR").
RECITALS
A. WHEREAS the Investor is a German limited liability partnership which
desires to incorporate and invest in a new German Company, referred to
herein as "JVC" which will distribute the software and services of a
software company in the Territory.
B. WHEREAS Sagent is a software company which seeks expanded distribution
of its software and its related services in the Territory.
C. WHEREAS the Investor, will incorporate the JVC, and the JVC will
receive a license for the Territory from Sagent to (i) resell Sagent
products, (ii) provide authorized maintenance, training and consulting
services and (iii) manage new VARs and Resellers.
D. WHEREAS the Investor's responsibilities related to the JVC will
include: (1) proper incorporation of the JVC (2) the provision of
start-up and operating capital for the JVC, (3) appointing three
appropriate and responsible individuals of the Advisory board of the
JVC and (4) voting of stock shares of the JVC.
E. WHEREAS Investor and Sagent have expressed a desire to work together
to create the JVC which shall be governed by its Shareholder
Agreement, its board, and the Exclusive Software Distribution
Agreement and to have the JVC granted rights and privileges to
distribute the software and services of Sagent in the Territory.
NOW THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
1.1 "DISTRIBUTION AGREEMENT" shall mean the Exclusive Distribution
Agreement executed on April 8, 1998 between Sagent and JVC.
1.2 Intentionally left blank.
1.3 "JVC" shall mean the company which is incorporated by Investor
pursuant to the terms and conditions of this Agreement.
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1.4 "RULES OF PROCEDURE FOR THE ADVISORY BOARD" shall mean the Rules of
Procedure for the Advisory Board of the JVC which are set out as
Exhibit D hereto.
1.5 "SHAREHOLDERS' AGREEMENT" shall mean the Shareholders' Agreement of
JVC which is set out as Exhibit C hereto.
1.6 "TERRITORY" shall mean those countries / accounts set out in the
Distribution Agreement.
1.7 "SAGENT PRODUCT AND SERVICES" shall mean those products and services
developed or licensed by Sagent and provided by Sagent from time to
time and which are distributed by the JVC in the Territory pursuant to
the Terms and Conditions of the Distribution Agreement.
1.8 "SAGENT VISITING DIRECTOR" shall be that person appointed by Sagent
that Investor shall establish as a visiting board member of the JVC
Advisory Board. When used in this Agreement the term "approval of
Sagent's Visiting Director of the JVC's Advisory Board" or similar
term shall mean the affirmative approval of the Sagent Visiting
Director and accordingly the failure of the Sagent Visiting Director
to attend or vote will preclude the required approval.
1.9 "COMPETITOR" shall mean a Data Mart and/or Data Warehouse company or
company that sells Data Access and/or Data Movement tools such as but
not limited to Informatica, Microstrategy, Information Advantage,
Brio, SAS.
"INDIRECT COMPETITOR" shall mean any other software company providing
Database tools or any other business competing with JVC for the same
customers in Data Warehousing tools licensing transactions.
"NON-COMPETITOR COMPANY" shall mean any company which is not a
"Competitor" or an "Indirect Competitor".
ARTICLE 2 FORMATION OF JVC
2.1 INCORPORATION Promptly after the Effective Date of this Agreement, the
Investor shall cause the JVC to be incorporated in the form of a
German GmbH (Gesellschaft mit beschrankter Haftung), or be
incorporated by using an existing German GmbH. In connection with the
foregoing action the Investor shall cause the JVC to adopt the charter
documents (GmbH Shareholders' Agreement and Rules of Procedure for the
Advisory Board) which shall include but not be limited to the identity
and voting rights of the Advisory Board and Shareholders of the JVC
and which are substantially in the form of Exhibits D and E hereto.
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2.2 FUNDING OF INITIAL CAPITALIZATION. The Investor agrees to provide
sufficient funding up to a maximum of one and a half million Deutsche
Marks (DM 1,500,000) over a three year period to enable JVC to hire
personnel, obtain space and otherwise conduct its business. In no
event shall Investor be required to increase its investment or have
any other liability or responsibility to JVC other than the funding
requirements in this section and as otherwise provided in this
Agreement.
2.3 EXCEPTION. Investor shall not be required to meet its investment
obligations and JVC shall not be required to meet its minimum royalty
payment obligation if (i) Sagent has materially defaulted in any of
its obligations set out in this Agreement between the parties and such
default is not cured within ten (10) days of Investor's written notice
to Sagent; or (ii) Sagent's overall revenues, commencing on the
Effective Date, and excluding European revenue do not grow by at least
thirty (30) percent annually or (iii) Sagent does not continue to make
all reasonable commercial efforts in its pursuit of becoming a
publicly traded entity.
2.4 FUNDING REQUIREMENTS.
(a) JVC shall carry all expenses related to the foundation/incorporation
of JVC including but not limited to notary and legal fees. Sagent
shall carry all expenses related to the acquisition of JVC including,
but not limited to notary and legal fees.
(b) The Investor expects that the above investment amount will be
sufficient, however it shall have the right to invest more if
necessary but shall not be obligated to do so.
(c) Sagent shall have the right to lend funds in the form of subordinated
loans to JVC if the Investor has reached its maximum limit.
(d) Apart from disbursements which are normally required in the ordinary
course of business, during the first three (3) years of JVC's
operation the approval of the Advisory Board of JVC and in particular
the Sagent Visiting Director shall be required prior to the Investor
taking any money or other asset out of JVC in any form including but
not limited to cash, profits or dividends. Without approval of the
Sagent Visiting Director, investor shall be entitled to withdrawal of
amounts it has loaned to JVC.
(e) Any amounts lent by Sagent shall bear prevailing market rates of
interest and otherwise comply with all US laws.
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2.5 STRUCTURE OF JVC
(a) The Advisory Board of JVC will have three Members of the Advisory
Board, one of whom shall be nominated by Sagent and two by the
Investor. The Board will meet at least quarterly in person or by
telephone with at least five (5) days advance written notice of all
meetings.
(b) At the outset of the Agreement, one hundred percent of the
shareholdings of the JVC will be owned by Investor, however the
Sagent Visiting Director shall have the right to approve or reject
alternative ownership. Further, any transfer is subject to Sagent's
right of first refusal found elsewhere in this Agreement.
(c) Decisions of JVC for which the approval of Sagent's appointed member
of JVC's Advisory Board is required shall be set out in the Rules of
Procedures, the Shareholders Agreement and in the Actions requiring
Approval set out in Exhibits C, D and E hereto.
ARTICLE 3 MANAGEMENT OF THE JOINT VENTURE COMPANY
3.1 MANAGEMENT GENERALLY. The JVC shall be managed and administered in
accordance with the applicable provisions of its charter documents.
The JVC shall be managed in a manner consistent with prudent business
practices.
3.2 INTENT. The parties will agree to guide JVC to achieve the
objectives of Sagent in the "Territory" and the desire by the
Investor to achieve a substantial return from its efforts.
3.3 INVESTOR RESPONSIBILITY. The Investor shall use its best efforts as
the sole shareholder of JVC to ensure that the General Manager of the
JVC understands and works diligently to fulfill all of JVC's
obligations under the Distribution Agreement between JVC and Sagent
which is dated April 8, 1998.
3.4 The advisory board of Sagent GmbH will provide a person acceptable to
Sagent as General Manager of Sagent GmbH.
ARTICLE 4 ALLOCATIONS, DISTRIBUTIONS AND OTHER FISCAL MATTERS
4.1 AUDITORS. The firm of Coopers & Lybrand is hereby designated as the
initial Auditors for the JVC; Auditors shall not be changed without
the approval of the Sagent Visiting Director.
4.2 INFORMATION AND ACCESS. The JVC shall keep its accounting and Tax
records on Sagent's fiscal year (calendar year) basis and shall
provide Sagent with financial statements (to include a balance sheet,
income statement, and
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statement of cash flows) no less frequently than within 21 days after
the end of each calendar quarter. JVC shall also provide Sagent with
a personnel roster at such time, listing each employee and significant
consultant of the JVC by name, position held and salary. Sagent shall
have the right at any time to inspect JVC's books records and
facilities and to talk with the officers, Members of the Advisory
Board, employees and consultants of the JVC.
4.3 LIMITATION ON LIABILITY. In the event of termination by either party
in accordance with any of the provisions of this Agreement, neither
party shall be liable to the other, because of such termination for
compensation, reimbursement or investments, leases or commitments in
connection with the business or goodwill of Sagent or JVC. Termination
shall not, however, relieve either party of obligations incurred prior
to the termination.
4.4 Regardless of whether any remedy fails of its essential purpose, in no
event will either party be liable to the other party for incidental,
indirect, special or consequential damages, notwithstanding being
aware of the possibility of such damages. Neither party's liability
for any damages or claims shall exceed US $ 500,000 or DM 900,000
whichever amount is lower.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES
Each party hereby severally represents and warrants to each other party as
follows:
5.1 DUE ORGANIZATION AND EXISTENCE.
(a) In the case of the Investor, that it is a limited liability
partnership duly organized, validly existing and in good standing
under the laws of Germany.
In no event shall Investor be required to increase its investment or
have any other liability or responsibility other than the investment
and as otherwise provided in this Agreement.
(b) In the case of Sagent, that it is a corporation duly organized and
validly existing in accordance with the laws of California, USA.
5.2 QUALIFICATION. The parties acknowledge that each of them are duly
qualified, licensed or registered to transact business and is in good
standing under the laws of each jurisdiction in which the nature of
its business or the location of its assets requires it to be so
qualified.
5.3 POWER AND AUTHORITY. The parties warrant that each has all requisite
power and authority to transact the business in which it is currently
engaged or proposes to engage, to own or hold under lease its
properties and assets, and to execute and deliver, and to perform its
obligations under this Agreement.
5.4 NO CONFLICT. Neither the Agreement's execution and delivery of other
documents contemplated hereunder, (a) requires or will require
approval of its
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equity owners or the holders of any of its indebtedness or
obligations, (b) contravenes or will contravene any law applicable to
or binding upon it or any of its properties, (c) contravenes or will
contravene any provision of its charter documents, (d) does or will
contravene or result in a breach of or constitute a default under any
instrument, indenture, agreement or other obligation to which it is a
party or by which it or any of its assets may be bound, or (e)
requires or will require the consent or approval of, the giving of
notice to, the registration with, the recording or filing of any
document with, or the taking of any other action by or in respect of,
any governmental commission, authority or agency, or any other person
or entity whether foreign or domestic the violation of which would
have a material effect on the transaction contemplated herein.
5.5 EXECUTION, DELIVERY AND PERFORMANCE. Each party warrants that it has
duly executed and delivered this Agreement, and this Agreement
constitutes a legal, valid and binding obligation enforceable against
it in accordance with the terms hereof.
5.6 ABSENCE OF LITIGATION. Each party warrants that there are no
actions, suits or proceedings pending or, to the best of its
knowledge, threatened against or affecting it or any of its assets.
5.7 NO LIABILITIES OR OBLIGATIONS. Investor warrants that it has not
incurred any liabilities or obligations on behalf of the JVC, other
than liabilities or obligations required by German law.
5.8 NON COMPETITION. During the first three years of the Agreement, JVC
will not sell any products except the Sagent Products and Services.
During this three-year period, Investor and any of its companies where
investor is the majority shareholder shall have the right to otherwise
conduct their business, however in no event may Investor and its
companies sell or otherwise promote the products of a Competitor or
Indirect Competitor of Sagent without Sagent's prior written
permission and if such permission is granted by Sagent, Investor and
its companies will be responsible for making sure that any affiliate
who may be working with competitors will not receive any confidential
information of Sagent.
ARTICLE 6 ADDITIONAL COVENANTS AND AGREEMENTS
6.1 EXCLUSIVE DEALING. The parties shall work together exclusively to
develop this venture. No party may unilaterally take any action or
enter into any agreement granting any rights to or associated with
this venture to any person or entity that is not a party hereto.
6.2 RESTRICTIONS ON TRANSFERABILITY OF EQUITY INTEREST IN JVC. Except
for transfers or other dispositions to other wholly owned companies,
Investor may not sell, assign, pledge or otherwise dispose of its
equity interest in the JVC, in whole or in part, unless Investor (the
"TRANSFERRING PARTY") has received a
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bona fide offer it is willing to accept for such interest (or part
thereof), and Investor thereafter offers Sagent (the "NON-TRANSFERRING
PARTY") a right of first refusal to purchase such interest (or part
thereof) (the "OFFERED INTEREST") at the same price and upon the same
terms and conditions as the bona fide offer, in accordance with the
following procedure:
(a) The Transferring Party shall provide notice to the Non-Transferring
Party, which notice shall (i) state that the Transferring Party
received a bona fide third party offer for the Offered Interest, (ii)
state the price offered for the Offered Interest, on a per-share or
other unitary basis, and (iii) describe the terms and conditions to
which the bona fide offer is subject (the "OFFER NOTICE") and shall
provide the Non Transferring Party with any other information it
reasonably requests regarding the Offer, or JVC.
(b) If the Non-Transferring Party elects to exercise its right of first
refusal, notice of such election (an "ELECTION NOTICE") shall be given
to the other party within sixty (60) days following the date on which
the Office Notice was given. The closing of the purchase and sale
transaction shall take place on the sixty (60th) day after expiration
of the initial sixty day period. At the closing, the Transferring
Party shall sell, and the Non-Transferring Party or Parties shall
purchase, the Offered Interest at the price and upon the terms and
conditions set forth in the Offer Notice. If the offer price is in
other than cash, the Non Transferring Party may elect to pay the
consideration in fair market value in cash.
(c) If rights of first refusal are not timely exercised with respect to
the entire Offered Interest, or are waived, the Transferring Party may
thereafter dispose of the Offered Interest at a price equal to or
greater, and upon terms and conditions equal to or more favorable to
the Transferring Party, than those set forth in the Offer Notice.
However, if the Offered Interest is not so disposed of within ninety
(90) days after the date on which the Offer Notice was given, or if
the Transferring Party elects to dispose of the Offered Interest at a
lower price, or upon terms and conditions less favorable to the
Transferring Party, than those set forth in the Offer Notice, then
this Section 6 shall again become applicable to the Offered Interest.
(d) Notwithstanding anything to the contrary in this Section 6, as a
condition precedent to any sale, assignment or other disposition of an
equity interest in JVC, in whole or in part, the intended transferee
of such interest shall become a party to this Agreement, and shall
give the representations and warranties contained herein and be
subject to all obligations herein including section 7. Additionally,
under no circumstances can any interest be transferred to a Direct or
Indirect Competitor of Sagent except as provided in Section 7.4.
(e) If the Transferring Party sells, assigns, pledges or otherwise
disposes of any interest in JVC, whether in whole or in part, in
violation of this Section 6, such disposition shall be null and void
ab initio. Each party acknowledges that the restrictions on
transferability set forth in this Section are of unique value to the
other parties hereto, and that the payment of monetary damages could
not
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adequately compensate the other parties for any breach of the
obligations set forth in this Section. Accordingly, the rights of the
parties set forth herein shall be specifically enforceable in
accordance with their terms.
(f) Nothing herein shall limit Sagent's Buy-Out Option under Article 7.
6.3 PUBLIC DISCLOSURE. No party shall make any public disclosure
regarding confidential terms of this venture without the prior written
consent of the other parties hereto, except as required by law,
including the requirement of the United States Securities and Exchange
Commission. Confidential terms shall include all of the terms and
conditions of this Agreement, however the business relationship
between the parties and JVC necessary to carry out distribution of
products and other obligations under the Distribution and Trade mark
Agreement shall not be confidential.
6.4 CONFIDENTIALITY. Each party shall keep confidential all information
and documents received from the other parties in connection with the
transactions contemplated hereby, and shall not disclose the same to
any third party without the prior written consent of the party that
might be affected thereby. The limitations set forth in this Section
shall not apply to (a) information that is or becomes generally
available to the public other than as a result of a disclosure by any
person in breach of this Agreement, (b) information already in a
party's possession without restriction on disclosure, (c) information
that comes into a party's possession from a third party without
restriction on disclosure, other than through a breach of an agreement
with the original disclosing party, and (d) information the disclosure
of which is compelled by force of law.
6.5 NAME CHANGE OF JVC. In accordance with Sections 13.3 and 13.6 of the
Exclusive Software Distribution Agreement executed as of April 8, 1998
between Sagent and JVC, Investor as shareholder of JVC shall promptly
pass the resolution required to effect the name change and shall use
its best efforts to effect the legal name change of JVC.
ARTICLE 7 BUY OUT
7.1 In the event that Sagent is sold, (the is, a controlling interest is
sold to another firm that expects to operate Sagent rather than an
investment firm) by written notice the Investor can require Sagent to
purchase JVC at the Formula Price determined pursuant to section 7.3
herein within sixty (60) days following completion of the sale of
Sagent. Sagent may elect to purchase JVC as further described in
Section 7.2. The sale price shall be paid in cash or a combination of
cash and stock of Sagent, if stock is acceptable to Investor.
7.2 At any time, but not earlier than eight (8) months after the
incorporation of JVC, Sagent may elect to purchase JVC at the Formula
Price determined below in cash, or a combination of cash and stock by
giving written notice to Investor. If Sagent elects to purchase JVC
in exchange for stock, Investor may decide to have these shares
directly transferred to its individual partners.
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7.2.1 If Sagent is privately held, the value of the shares issued in
connection with any stock purchase shall be at the value declared by
an independent party knowledgeable in business valuation acceptable to
both parties as the fair market value on the date Sagent provides
notice of its desire to purchase JVC. Sagent and the Investor shall
share equally in the cost of the valuation. If Sagent is a publicly
reporting company, the share value shall be the average closing sales
price (or closing bid, if no sales are reported) of Sagent common
stock for the three (3) business days prior as well as three (3)
business days following the date on which written notice is provided
by Sagent for purchase of JVC.
7.2.2 In the case an SEC rule 144 transaction is applicable with respect to
the shares, Sagent shall fully support Investor's/the Partners'
efforts in this transaction.
7.3 FORMULA PRICE:
7.3.1 In the event that the proposed Buy-out Date is on or before the last
day of the first 12-month period of operation, the Purchase Price
shall be equal to the amount of [*] dollars (US $[*]).
In the event that the proposed Buy-out Date is after the last day of
the first 12-month period and on or before the last day of the second
12-month period of operation, the Purchase Price shall be equal to the
higher amount of [*] dollars (US $[*]) or the Gross Product Revenues
multiplied by the applicable monthly Revenue Multiple, less (i)
accounts receivable due greater than sixty (60) days after the Buy-out
Date and (ii) lease commitments or contingent liabilities, with the
exception of office space lease commitments, extending more than six
(6) months past the Buy-out Date. Accounts receivable that are
recovered within 120 days after the Buy-Out Date shall be added back
to the Purchase Price. Gross Product Revenues shall equal the
aggregate licensing, sale revenues from the distribution of Sagent
products recognized by Company during the twelve-month period
immediately preceding the Buy-out Date in accordance with the revenue
recognition policy of Sagent then in effect. The month during which
Sagent gives notice of the desired acquisition shall be accounted for
in the buy-out formula.
In the event that the proposed Buy-out Date is after the last day of
the second 12-month period of operation, the Purchase Price shall
equal the Gross Product Revenues multiplied by the applicable monthly
Revenue multiple.
7.3.2 REVENUE MULTIPLE: The Revenue Multiple in the first month of the
second 12-month period shall be equal to [*] ([*]) and shall be
increased each month by [*] until it reaches [*] ([*]).
7.3.3 Investor shall have the right to withdraw dividends after the third
year without change to the buyout price, provided that such dividends
do not exceed the amount invested in common equity pursuant to Section
2.2 (withdrawals
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exceeding this amount to be deducted from the buyout price). JVC's
retained earnings for the current or prior fiscal years shall be
included in the buy-out price and in that respect. Investor waives its
rights to revert to Article 102 BGB (German Civil Code). Exhibit B
attached hereto provides an example of the buyout amounts based on the
projections set out in Exhibit A.
7.3.4. During the thirty (30) day period following the notice of
acquisition, Sagent shall have the right to audit the buy-out price
and operations of JVC prior to closing of the buy-out. The audit may
be conducted by Sagent or a third party accounting firm hired by
Sagent. The Investor shall correct all errors noted by Sagent through
recalculation of the buy-out price. In the event there are material
errors or accounting deficiencies, Sagent may delay the closing
pending rectification of the material problems noted.
7.3.5. Notwithstanding the foregoing, the purchase price to be paid by
Sagent shall be reduced by any liabilities or obligations to which
the JVC is subject at the time of the buyout that are not necessary
to fulfill its intended business objectives.
7.3.6. The amount to be paid by Sagent shall be calculated (and if
applicable, paid) in US dollars. For the purpose of calculating the
buy-out price, the monthly revenues of the JVC shall be converted at
the respective average monthly exchange rates of German Marks/Euros
to US dollars in accordance with US GAAP.
7.3.7. Subject to 7.3.4, Sagent shall promptly complete the acquisition
following resolution of all audit or other issues disclosed, but in
no event shall the acquisition be completed later than ninety (90)
days after Sagent's written notice to buy JVC.
7.4 Intentionally left blank
7.5 REGISTRATION RIGHTS. If Sagent issues shares of common stock or
securities convertible into common stock to Investor in the future
pursuant to this Agreement, Sagent shall give Investor mutually
agreed-upon registration rights related to that common stock.
7.6 The rights to be granted to Sagent in this Section 7 can be exercised
also by a nominee named by Sagent, whereby such nominee shall be a
Sagent controlled company.
ARTICLE 8 GOVERNING LAW AND DISPUTE RESOLUTION
8.1 GOVERNING LAW. The rights and obligations of the parties under this
Agreement shall not be governed by the U.N. Convention on Contracts
for the International Sales of Goods; rather such rights and
obligations shall be governed and construed under the laws of the
State of California, without reference to conflict of laws and
principles. The jurisdiction of the courts of Germany is expressly
excluded to the maximum extent permitted by law.
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8.2 ARBITRATION. In the event of any dispute, controversy or claim
arising out of or relating to this Agreement, or to the breach or
termination hereof (a "DISPUTE"), the parties agree to resolve the
same as follows:
(a) The parties to the Dispute shall initially attempt to resolve it
through consultations and negotiations.
(b) If the Dispute has not been resolved amicably within thirty (30) days
after any party provides notice thereof, unless the parties agree
otherwise, the Dispute shall be resolved by final and binding
arbitration in Zurich, Switzerland, in accordance with the
Arbitration Rules of the United Nations Commission on International
Trade Law ("UNCITRAL"), as in effect on the date of this Agreement.
The language to be used in the arbitration proceeding shall be
English. The International Chamber of Commerce shall serve as the
appointing authority. The arbitrators shall render a written award
stating the reasons for the decision. An arbitration award or
decision may be entered by any court of competent jurisdiction, or
application may be made to such a court for judicial acceptance of
the award or decision and any appropriate order, including
enforcement.
(c) Each of the parties hereto consents to the submission of any Dispute
for settlement by final and binding arbitration in accordance with
paragraph (b) above. Such consent shall satisfy the requirements for
an "agreement in writing" pursuant to Article II of the United
Nations Convention on the Recognition and Enforcement of Foreign
Arbitration Awards, done at New York on June 10, 1958.
(d) Each of the parties hereby undertakes to carry out without delay the
provisions of any arbitration award or decision.
ARTICLE 9 TERM AND TERMINATION
9.1 TERM. This Agreement runs concurrently with, and will terminate
automatically with the termination of the Distribution Agreement,
unless terminated earlier under the provisions of this Section 9.
9.2 RESIGNATION OF SAGENT VISITING DIRECTOR. After three years JVC may
request the resignation of the Sagent nominated Visiting Director
from JVC's board provided that Sagent continues to be promptly
supplied with all relevant sales and distribution information related
to the continuing distribution of Sagent products and services by JVC.
9.3 INVESTOR'S RIGHT TO TERMINATE FOR CAUSE. The Investor shall have the
right to terminate the Agreement (i) if following investment totaling
DM 1,500,000 in JVC, it shall not have created a self-sustaining
entity, which cannot operate on its own without additional
contribution of outside funds, and it (and or Sagent) is not willing
to advance additional funds to continue operations or (ii) other
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material default of a provision of this Agreement by Sagent, however
if the default is such that it reasonably may be cured within 60 days
and Sagent restores its performance, the Agreement shall continue.
9.4.1 EFFECT OF TERMINATION PURSUANT TO SECTION 9.3: Following termination
under section 9.3 (which shall also act to terminate the Distribution
Agreement), the Investor shall have the right to liquidate JVC,
however if it does so, it shall allow Sagent to hire JVC employees
directly or through a third party to provide support to existing
customers.
9.4.2 In no event will the Investor be required to maintain the corporate
existence of JVC following termination.
9.5 TERMINATION FOR INSOLVENCY. Either party may terminate the Agreement
in the event of JVC's or Sagent's dissolution and liquidation or
inability financially to reasonably complete its responsibilities
under the Distribution Agreement.
9.6 SALE OF EQUITY INTEREST IN JVC. These may be an allowed sale of JVC
that will not invalidate this agreement, if Sagent has passed on its
right of first refusal. Either party may terminate this Agreement in
the event the other party ceases to hold a direct or indirect equity
interest in the JVC.
9.7 Intentionally left blank.
9.8 SURVIVAL. Notwithstanding anything to the contrary in this Agreement,
the provisions of Sections 2.4(a), 3.3, 5, 6.3, 6.4, 7.5, 8, 9, and 10
shall remain in full force and effect upon termination of this
Agreement.
ARTICLE 10 MISCELLANEOUS
10.1 NOTICES. Any and all notices and other communications that are
required or permitted to be given pursuant to this Agreement shall be
in writing, and shall be deemed given (a) upon personal delivery, or
(b) upon the sender's receipt of electronic confirmation of
transmission, if sent by telex or facsimile, or (c) upon 2 business
days after delivery to a recognized courier, fees prepaid. The
parties designate the following addresses for the foregoing legal
effects:
To Investor:
Isar-Vermogensverwaltung GbR mbH
c/o Buro Klaus Luft
Gut Keferloh 1B
D - 85630 Grasbrunn/Munich, Germany
Attention: Petra Beyer, Managing Partner
Facsimile number: (49-89) 464483
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To Sagent:
Sagent Technology, Inc.
2225 East Bayshore Road, Suite 100
Palo Alto, CA 94303
USA
Attention: W. Virginia Walker, Chief Financial Officer
Facsimile number: (650) 493-1290
The parties may amend the above-mentioned data by notice to all other
parties, as provided in this Section.
10.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the parties contained in this Agreement or in any
certificate delivered pursuant hereto shall survive the termination of
this Agreement and shall remain in full force and effect.
10.3 SPECIAL, INDIRECT, PUNITIVE AND CONSEQUENTIAL DAMAGES. No party shall
be liable to any other party in contract, tort or otherwise (including
negligence, warranty or strict liability) for any incidental, special,
indirect, punitive or consequential damages arising out of or in
connection with this Agreement or the transactions contemplated
hereby.
10.4 BINDING EFFECT; NONASSIGNABILITY. This Agreement shall be binding
upon and inure to the benefit of the parties hereto, and their
respective successors and assigns; provided, however, that neither
this Agreement, nor any rights or obligations hereunder, may be
assigned, delegated or otherwise conveyed by any party hereto without
the prior written consent of the other parties. The sale of Sagent
shall not be considered a violation of this section. The sale of JVC
following Sagent's passing on the right of first refusal shall not be
considered a violation of this section.
10.5 NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit
of, and may be enforced only by, the parties hereto. Neither the JVC
nor any other third party claiming through either of them or otherwise
shall have standing to enforce any provision of this Agreement.
10.6 SEVERABILITY. If one of the provisions of this Agreement should be,
or become invalid, or if this Agreement should have an omission, this
shall not affect the validity of the remaining provisions. In such an
event, the parties are obliged to assist in the incorporation of
provisions which form the closest possible economic equivalent to that
which the parties would have agreed if they had been aware of the
invalidity or if they had considered the point.
10.7 AMENDMENT. No modification of this Agreement shall be binding unless
made in writing and duly executed by the parties.
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10.8 WAIVER. The waiver by any party of a breach of any provision of this
Agreement shall not be deemed a continuing waiver or a waiver of any
subsequent breach, whether of the same or any other provision hereof.
10.9 RELATIONSHIP OF PARTIES. The relationship of the parties under this
Agreement shall be solely that of independent contractors. The
parties retain complete control over and responsibility for their own
respective operations and employees. Nothing contained in this
Agreement shall be construed to make any party a partner, agent,
employee or other representative of any other party, or to otherwise
authorize any party to represent or bind any other party.
10.10 COUNTERPARTS. This Agreement may be executed by one or more of the
parties hereto in any number of separate counterparts, each of which
when so executed shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and
the same instrument.
10.11 ENTIRE AGREEMENT. This Agreement, including its Exhibits, which form
an integral part hereof, constitutes the entire agreement of the
parties with respect to the subject matter hereof, and supersedes any
and all prior negotiations, correspondence, understandings and
agreements relating to the subject matter hereof, including without
limitation the Letter of Intent signed by the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first written above.
"SAGENT"
SAGENT TECHNOLOGY, INC.
By: /s/ THOMAS M. LOUNIBOS
-----------------------
Name: Thomas M. Lounibos
---------------------
Title: EVP OF SALES
---------------------
Date: April 8, 1998
---------------------
"INVESTOR"
ISAR-VERMOGENSVERWALTUNG GBR mbH
By: /s/ PETRA BEYER
-----------------------
Name: Petra Beyer
---------------------
Title: Managing Partner
--------------------
Date: April 8, 1998
---------------------
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15
EXHIBIT A
SAGENT GMBH - BUSINESS PROJECTIONS
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EXHIBIT B
BUY-OUT EXAMPLE
Date of written Notice: June 10, 1999
12-month Trailing Revenue: US$1,682,000
(-- July 1998 - including June 1999)
Monthly Revenue Multiplier: 1.541667
Buy-out Price: US$2,593,083
Minus Accounts Receivable
due greater than 60 days: US$153,000
Minus contingent liabilities or lease
commitments extending more than
6 months past the Buy-out Date: US$0
Plus recovered Accounts Receivable
within 120 days after the Buy-out Date: US$150,000
TOTAL BUY-OUT PRICE: US$2,590,083
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EXHIBIT C
SHAREHOLDERS' AGREEMENT
(ARTICLES OF INCORPORATION)
SECTION 1
COMPANY NAME AND REGISTERED OFFICE
(1) The name of the company shall be Magnolia II Vermogensverwaltung GmbH.
(2) The company's registered office shall be in Grasbrunn.
SECTION 2
PURPOSE OF THE ENTERPRISE
(1) The purpose of the enterprise is to produce and distribute software of all
kinds; also to offer consulting and technical services such as installation,
maintenance, and training. Further it manages and administers its own assets.
(2) Within these limits the company is authorized to perform all business
activities and steps that appear necessary or expedient to achieve the purpose
of the company, such as creating branch offices domestically and abroad.
(3) In particular, the company may acquire or obtain participating interests
in enterprises with the same or similar purposes.
SECTION 3
FISCAL YEAR AND DURATION
(1) The company existence is not limited to a certain length of time.
(2) The company's fiscal year shall coincide with the calendar year.
SECTION 4
SHARE CAPITAL AND COMPANY SHARES
(1) The company's share capital is DM 50,000 (fifty thousand German marks).
(2) Fully paid shares of a shareholder may be consolidated into a uniform
share through resolution of the shareholders.
(3) It is hereby precluded that further payments above and beyond the initial
capital contribution should be required.
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SECTION 5
REPRESENTATION
(1) The company shall have one or more general manager (Geschaftsfuhrer). If
only one general manager has been appointed, then he shall represent the company
alone. If more than one general manager has been appointed, then the company
shall be jointly represented by two general managers or a general manager and an
executive vested with a power of commercial representation under German law
(Prokura).
(2) Any general manager may be authorized through a shareholders' resolution to
represent the company without restriction when performing legal transactions
with himself in his own name or as representative of a third party.
(3) Any general manager may be empowered through a shareholders' resolution to
represent the company alone in case several general managers have been
appointed.
SECTION 6
RESOLUTIONS OF THE SHAREHOLDERS' MEETING
(1) Resolutions of the shareholders' meeting shall be adopted by simple
majority unless a larger majority or unanimity is required by law or these
articles of incorporation.
(2) Each DM 100 (one hundred German marks) in a share give one vote.
(3) Resolutions of the shareholders' meeting may be challenged through legal
action only within a period of one month after being adopted.
(4) Shareholders' resolutions may also be adopted in writing or by telephone
or telefax or electronic mail without holding a shareholders' meeting unless
another method is required by law and insofar as all shareholders approve of
the method. Resolutions adopted by telephone must be recorded in writing
immediately.
(5) A shareholder shall also be entitled to vote in matters concerning him
directly. This does not apply to resolutions concerning formal approval of his
actions, release from a liability, initiation or settlement of a legal dispute
against him, calling in his company share, or transfer of same to the
shareholders or to third parties.
SECTION 7
ACTIONS REQUIRING APPROVAL
Internally, the general managers must obtain the approval of the shareholders
for legal transactions designated as requiring approval by the shareholders'
meeting.
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SECTION 8
ADVISORY BOARD
(1) The shareholders' meeting may resolve to create an advisory board. The
number of its members should always be uneven. Members of the advisory board
may also be persons who are not shareholders.
(2) The advisory board shall be responsible for matters assigned to it by the
shareholders' meeting. It shall adopt resolutions by simple majority unless the
rules of procedure require another method in an individual instance.
SECTION 9
CALLING IN COMPANY SHARES
It is permissible to call in shares of the company with the consent of the
affected shareholder.
SECTION 10
PROHIBITION FROM COMPETITION
The shareholders are not subject to any competitive clause. General Managers
can be released of any competitive clause through a shareholders' resolution.
SECTION 11
NOTICES
To the extent public notices are required by law, they shall appear in the
Bundesanzeigar [Federal Gazette].
SECTION 12
MISCELLANEOUS PROVISIONS
(1) The provisions of the law regarding companies with limited liability shall
apply as supplements to the present Shareholders' Agreement (Articles of
Incorporation).
(2) Should any provision of this agreement be or become unenforceable or
should the agreement contain a loophole, the legal validity of the remaining
provisions shall remain unaffected thereby. In such cases the shareholders
shall be obligated to replace the invalid arrangement with a valid one
approximating as closely as possible the intended purpose of the invalid
provision. The same applies by analogy if this agreement should contain
loopholes.
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EXHIBIT D
RULES OF PROCEDURE FOR THE ADVISORY BOARD
SECTION 1. COMPOSITION OF THE ADVISORY BOARD AND
SELECTION OF ITS MEMBERS
(1)
The company shall have an Advisory Board consisting of three members.
(2)
Members of the Advisory Board shall be appointed through resolution of the
shareholders, one visiting member being nominated by Sagent and the other two
members being nominated from among the ISAR shareholders. Directors and
managerial employees or executives of the company or enterprises dependent on
the company are ineligible for membership on the Advisory Board.
(3)
The office of an Advisory Board member shall end upon closure of the
shareholders' meeting that resolves on the approval of actions for the second
fiscal year following the appointment, unless a shorter period of office is set
at the time of such appointment. The fiscal year during which the appointment
was made is not counted.
(4)
Advisory Board members may be dismissed without statement of cause before
expiration of their term of office through a shareholders' resolution. Any
Advisory Board member may resign from office without statement of cause before
expiration of his term of office through a written statement to the company. To
do so, the member must notify the company in writing three months in advance.
(5)
If an Advisory Board member leaves the Advisory Board prior to expiration of
his term of office, then a new member must be elected to the Advisory Board
without delay. Substitute appointments are for the retired member's remaining
term of office.
SECTION 2. CHAIRMANSHIP
(1)
The Advisory Board shall have a chairman appointed through resolution of the
shareholders.
(2)
The chairman represents the Advisory Board for issuing and receiving statements
and declarations.
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SECTION 3. RESPONSIBILITIES OF THE ADVISORY BOARD
(1)
As an institution of the company the Advisory Board shall execute the
responsibilities given to it through the Shareholders' Agreement, by the present
Rules of Procedure for the Advisory Board, and through resolution of the
shareholders. In particular, these include monitoring and advising the company's
management and approval of the annual financial statements.
(2)
In accordance with section 8 of the Shareholders' Agreement, the Advisory Board
is empowered to appoint and dismiss general managers and if appropriate to
adopt rules of procedure for the company's management. Appointments,
dismissals, and adoption of rules of procedure shall require the approval of
two-thirds of the Advisory Board members.
(3)
To perform his responsibilities, the chairman of the Advisory Board may at any
time require the general managers to report to the Advisory Board regarding the
company's affairs, in particular regarding the progress of business, the status
as to assets and liabilities, profitability, and liquidity, as well as the
intended business policies and other basic matters of future management of the
company.
(4)
The Advisory Board may inspect and examine the company's records and
correspondence; it may appoint individual members or experts to do so.
SECTION 4. MEETINGS OF THE ADVISORY BOARD
(1)
Meetings of the Advisory Board are to be held as required by the needs of the
company or when called for by the chairman or a majority of the Advisory Board
members or the company's management. A meeting should take place during each
quarter. The Advisory Board must convene at least twice during the fiscal year.
(2)
The general managers generally attend meetings of the Advisory Board. In cases
regarding personal matters, the Board may exclude the general managers.
(3)
Meetings of the Advisory Board are called by the chairman or a general manager
designated by the chairman.
(4)
Meetings of the Advisory Board shall be called in writing, by telefax,
telegram, telex or electronic mail with two weeks' notice. Shorter notice is
permitted only with the consent of all members. The agenda must be announced in
the invitation.
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(5)
The Advisory Board shall meet at the location of company's registered office.
The chairman may also call a meeting elsewhere in agreement with the company's
management. Meetings by telephone are also permitted if no member objects.
(6)
The chairman shall conduct meetings of the Advisory Board. A record of meetings
shall be made. It must be signed and kept by the chairman, and copies sent to
the other Advisory Board members.
SECTION 5. RESOLUTIONS
(1)
The Advisory Board shall make decisions through resolution. A quorum shall be
present only if all members take part in the resolution.
(2)
The Advisory Board adopts resolutions with a majority of the votes cast. In
case of a tie the resolution is considered to have been rejected. Consent of
the Visiting Board member nominated by Sagent shall be required for the
following resolutions in addition to the actions listed in the Annex entitled
"Actions requiring approval":
o Payments of any kind whatsoever to the shareholders
o Appointment and dismissal of general managers
(3)
Resolutions may be adopted in writing, by telex, telegram, telefax, electronic
mail or by telephone if no member objects.
SECTION 6. TRANSACTIONS REQUIRING APPROVAL
The affairs of management going beyond the normal business operations of the
company and requiring the approval of the Advisory Board in accordance with
sections 7 and 8, paragraph 2, of the Shareholders' Agreement particularly
include the activities listed in the Annex entitled "Actions requiring
approval".
Such approval shall require a two-thirds majority of Advisory Board members.
The list of actions requiring approval may be changed by resolution of the
shareholders.
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SECTION 7. REMUNERATION OF THE ADVISORY BOARD
(1) The members of the Advisory Board shall receive no remuneration for their
activities. The shareholders' meeting may adopt different arrangements.
(2) Members of the Advisory Board may not assert reimbursement claims for their
expenses. The shareholders may make an exception if a member does not perform an
active function either at Sagent or at the company or with the shareholder.
SECTION 8. FINAL PROVISIONS
(1) The rights of the Advisory Board shall devolve upon the shareholders'
meeting in case the Advisory Board should be either not available or not able
to function for some reason.
(2) The provisions governing supervisory boards of stock corporations (section
52, German Law on Limited-Liability Companies) are not applicable.
(3) These rules of procedure shall enter into force and effect today.
City, date
Signatures
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EXHIBIT E
Annex to JVC's Rules of Procedure for the Advisory Board
ACTIONS REQUIRING APPROVAL
I. ACTIONS OF JVC'S MANAGEMENT WHICH REQUIRE THE PRIOR APPROVAL OF
SAGENT'S VISITING BOARD MEMBER OF JVC'S ADVISORY BOARD
a) Moving the registered office of and selling the company in to or in
part.
b) Creating and discontinuing branch offices.
c) Establishing, acquiring, and selling other companies or participating
interests in other companies.
d) Starting and discontinuing a line of business.
e) Acquiring, selling, encumbering real estate property and equivalent
rights, and associated transactions creating an obligation.
f) Undertaking retirement benefit obligations.
g) Granting employees an interest in the assets of the company.
h) Rules regarding the granting of employee interests in profits or sales.
i) Mass dismissals, i.e. changing the number of employees by more than ten
percent within one month or more than 1 person per month whatever is
larger.
j) Providing guarantees and undertaking obligations on bills of exchange,
as well as taking loans exceeding DM 30,000 individually, excepting
conventional customer and supplier credits and excepting loans defined
in paragraph w) of the Actions requiring Approval. Purchasing or
selling securities (including derivative instruments) of any kind
whatsoever; carrying out foreign-exchange transactions, excepting
conventional payment transactions with customers, suppliers, and
associated or related companies, moreover excepting cash management in
the form of short-term money-market instruments.
k) Concluding, canceling, or modifying agreements with persons related by
blood or marriage or close friendship (e.g. spouse) to a partner or
general manager.
l) Business with interested parties.
m) Sale of additional stock.
n) Liquidation of the company.
o) Approval of the annual business plan.
p) Approval of General Manager.
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II. ACTIONS OF JVC'S MANAGEMENT WHICH REQUIRE THE PRIOR APPROVAL OF THE
ADVISORY BOARD BY MAJORITY VOTE
q) Investment and operations maintenance measures exceeding DM 15,000
individually, as well as leasing objects with individual purchase
prices exceeding DM 15,000.
r) Concluding loan or rental agreements lasting more than one year or
involving a monthly liability of more than DM 5,000.
s) Hiring, promoting, and dismissing management personnel (apart from
General Manager).
t) Granting security of any kind (such as pledges, transfers of ownership
by way of security) and approving loans outside conventional business
transactions, as well as assuming third-party liabilities. Exceptions
are loans to employees of the company not exceeding DM 10,000
individually or a total of DM 50,000 in the fiscal year.
u) Concluding, modifying, and terminating license and cooperation
agreements.
v) Initiating litigation for disputed values exceeding DM 50,000
individually.
w) Granting and revoking powers of commercial representation or other
commercial authority.
x) Issuance of debt to finance accounts receivables up to eighty per cent
(80%) of total accounts receivables and fixed assets up to one hundred
per cent (100%) of total fixed assets (e.g. leasing contracts).
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ADDITIONAL AGREEMENTS ACCOMPANYING THE JOINT VENTURE AGREEMENT AND THE
EXCLUSIVE SOFTWARE DISTRIBUTION AGREEMENT
1. In order to accelerate and facilitate the start-up of Sagent Germany,
the company Magnolia II Vermogensverwaltung GmbH will serve as Joint
Venture Company. ISAR-Vermogensverwaltung GbR mbH incorporated Magnolia
II Vermogensverwaltung GmbH in Munich, Germany on March 26, 1997 and
since its date of incorporation Magnolia II has not been active.
As soon as the required documentation has been received from Sagent,
Inc., the name of Magnolia II Vermogensverwaltung GmbH will be changed
to Sagent Technology GmbH.
2. Concerning Article 3.2. of the Exclusive Software Distribution
Agreement, the 30-day period for the development of a business plan
shall start on May 1, 1998 since the General Manager of Sagent Germany
will not join the company before this date.
3. The Trade Mark License Agreement has been signed under the assumption
that Sagent will promptly complete the respective exhibits.
4. All Agreements were signed under the assumption that a previously
discussed purchase of Sagent stock for key employees of Sagent Germany
and ISAR Partnership will be approved by the Board of Sagent, Inc.
Date: April 8, 1998
/s/ TOM LOUNIBOS
--------------------
Tom Lounibos
Vice President of Sales, Sagent Technology, Inc.
/s/ PETRA BEYER
--------------------
Petra Beyer
Managing Partner, ISAR-Vermogensverwaltung GbR mbH
/s/ INES BERGHOF
--------------------
Ines Berghof
General Manager, Magnolia II Vermogensverwaltung GmbH
27
EXCLUSIVE SOFTWARE DISTRIBUTION AGREEMENT
This Exclusive Software Distribution Agreement (the "AGREEMENT") is entered into
effective as of April 8, 1998 (the "EFFECTIVE DATE"), between Sagent Technology,
Inc., a California corporation with principal offices at 2225 East Bayshore
Road, Suite 100, Pala Alto, CA 94303 ("SAGENT") and Magnolia II
Vermogensverwaltung GmbH with offices at Gut Keferloh IB, D-85630
Grasbrunn/Munich, Germany ("DISTRIBUTOR").
RECITALS
A. Sagent is the owner or authorized licensor of the Software described
in Exhibit A hereto (as it may be amended in accordance with this
Agreement).
B. Distributor is a company formed concurrently with the signing of this
agreement that will hire sales, support and managerial personnel for
the purposes of distribution of Sagent Software products and provision
of Sagent services within the Territory.
C. The Parties agree to have Distributor distribute the Sagent product and
provide the Sagent services in the Territory and Distributor will
manage Sergeant's Existing Distributors in the Territory to the benefit
of the Existing Distributors, Distributor and of Sagent.
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE AS
FOLLOWS:
1. DEFINITIONS.
1.1. "ANNIVERSARY DATE" shall mean the day of the month in which the
Software was shipped to an End-User, VAR or Reseller by Distributor and
the same day in any subsequent year.
1.2. "APPLICATION" shall mean software programs which are deployed by a
Licensee and which consist of one of Sagent's software components.
1.3. "DOCUMENTATION" shall mean any manual(s) shipped by Sagent with the
Software and manuals made available through the Internet and on other
electronic media.
1.4. "END USER" shall mean any third party which licenses Software in order
to fulfill its own data processing needs.
1.5. "END USER LICENSE" shall mean a standard evaluation or run time license
agreement, as the case may be, approved and accepted by Sagent in
accordance with this Agreement, pursuant to which End Users are granted
the right to utilize Software on terms substantially similar to those
which are from time to time included on the then current Sagent
standard End-User License Agreements which are set out in Exhibit G,
and provided that the language relating to the Grant of License and the
related Definitions shall provide no more rights and are expressed as
closely as reasonably possible in the applicable local language as that
used by Sagent in the relevant agreement.
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1.6 Intentionally left blank.
1.7 "JOINT VENTURE AGREEMENT" shall mean the Agreement executed between
Sagent and ISAR-Vermogensverwaltung GbR mbH on April 8, 1998.
1.8.1 "LICENSE(S)" shall mean an End-User License, a Reseller Agreement
or a VAR License, as applicable.
1.8.2 "LICENSEE" shall mean any party which executes a License with
Distributor.
1.9 "MAINTENANCE" shall mean telephone consultation during Sagent's
normal business hours, bug fixes, error corrections and work-arounds,
as well as updates and new releases, if any, which are not separately
priced, that Sagent makes to the Software.
1.10 "MARKETING" shall mean all sales promotion activities by Distributor,
and conducted by or for Distributor in the Territory.
1.11 "RESELLER" shall mean any reseller which markets Software for resale
provided that this definition does not include VAR.
1.12 "RESELLER AGREEMENT" shall mean Distributor's Reseller agreements
related to the Software. Sagent shall approve the standard form of
Distributor's Reseller Agreement prior to execution by any Reseller.
1.13 "REVENUE" shall mean revenue regularly recognized, net of discounts,
and returns. The term "Revenue" may apply to Sagent's Revenue or
Distributor's revenue as the context requires.
1.14 "SOFTWARE" shall mean Sagent's Software Modules set out in Exhibit A
hereto.
1.15 "STRATEGIC PLANS" shall include but shall not be limited to those
plans established by Distributor for the overall marketing
distribution and sales direction of the Software and services in the
Territory including but not limited to the provision of product
maintenance, consulting and training services.
1.16 "TERRITORY" shall mean those countries set out in Exhibit B of this
Agreement.
1.17 "VAR" shall mean a Value Added Reseller who has integrated or
embedded Sagent's product in its own product offering and who has
executed a VAR Agreement.
1.18 "VAR LICENSE" shall mean Distributor's Standard VAR Agreements which
contain terms substantially similar to those which are from time to
time included on the then current Sagent Standard VAR Agreements,
which are set out as Exhibit H hereto, and provided that the language
relating to the Grant of License and the related Definitions shall
provide no more rights and are expressed as closely as reasonably
possible in the applicable local language to those used by Sagent.
1.19 "WHOLLY OWNED COMPANY(IES)" shall mean those companies which are
controlled by Distributor and which are used by Distributor to fulfill
Distributor's obligations under this Agreement. "Controlled shall
mean that Distributor owns all of the shares of
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such company (nominal share holdings which may be required by local
law are allowed) and is responsible for the day to day actions of the
company.
1.20 All references in this Agreement to the "sale" of or "selling" of
Software shall mean the sale of a license to use such Software. All
references in the Agreement to the "purchase" of or "purchasing" of
Software shall mean the purchase of a license to use such Software.
2. LICENSE TO DISTRIBUTOR.
2.1 GRANT OF EXCLUSIVE LICENSE FOR SOFTWARE. Subject to the terms and
conditions of this Agreement, Sagent hereby grants and Distributor
accepts a royalty-bearing, exclusive, nontransferable, nonassignable,
right and license to copy and distribute Licenses of the Software in
the Territory during term of this Agreement. Distributor shall not
engage in sales activities relating to the Software outside of the
Territory and shall not seek customers, or maintain a branch or
distribution facility outside of the Territory. Except as expressly
permitted herein, Distributor shall not copy, distribute or
sub-license the software except to the extent that such activities may
not be restricted under applicable law.
2.2 Intentionally left blank.
2.3 SUB LICENSE TO VAR. Subject to the terms and conditions of this
Agreement, Sagent hereby grants and Distributor accepts a
royalty-bearing, exclusive nontransferable, nonassignable right to sub
license the right to license and distribute Software through VAR
Agreements in the Territory provided that no VAR agreements granted
pursuant to this section shall remain in effect for a period longer
than five (5) years. Distributor may grant VAR Licenses which shall
be effective for longer periods provided that Sagent agrees in
writing. In any case the VAR agreements have to include maintenance
provisions from Sagent.
2.4 SUB LICENSE TO RESELLERS. Subject to the terms and conditions of this
Agreement, Sagent hereby grants and Distributor accepts a
royalty-bearing, exclusive nontransferable, nonassignable right to sub
license the right to license and distribute Software through Reseller
Agreements in the Territory. Resellers are explicitly not granted the
right to copy any of the Software. Distributor shall ensure that
Reseller shall not engage in active sales activities relating to the
Software outside of the Territory and shall not seek customers outside
of the Territory. Reseller Agreements granted pursuant to this
section shall remain in effect for a period no longer than five (5)
years from the Effective Date of this Agreement.
2.5 WHOLLY OWNED COMPANY. In order to fulfill its obligations under this
Agreement, Distributor may create Wholly Owned Companies within the
Territory provided that each Wholly Owned Company executes a written
agreement with Distributor acceptable to Sagent in its sole discretion
pursuant to which Wholly Owned Company is subject to the terms and
conditions of this Agreement and in no case shall a Wholly Owned
Company receive greater rights than are granted to Distributor
hereunder.
2.6 MAINTENANCE. Sagent shall grant to Distributor the right to sell
Software maintenance to end users of the Software provided that
Distributor shall provide maintenance
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services in compliance with Sagent guidelines for providing
maintenance services. These guidelines are attached as Exhibit J
hereto. A royalty will be paid to Sagent for each maintenance
contract which should be sold on a prepaid annual basis to end users.
Sagent will supply product updates, new versions, new releases and 2nd
line technical support. Distributor will provide first line customer
support to all customers in the Territory and all product distribution
to End Users required under the maintenance contracts.
2.7 REPRODUCTION OF COPIES. Subject to the terms and conditions of the
Agreement, Distributor may reproduce at no charge a reasonable
quantity of Software to be used solely for Software marketing purposes
by Distributor, Wholly Owned Companies or Resellers ("MARKETING
COPIES") provided that Distributor shall keep accurate records of all
copies made and such record shall be made available to Sagent at
Sagent's reasonable request. Distributor, acting reasonably, will
determine the number of Marketing Copies. Distributor shall ensure
that Wholly Owned Companies and Resellers are not permitted to retain
possession of Marketing Copies except pursuant to a written License
agreement.
2.8 SAGENT'S RESERVED RIGHTS.
(a) CUSTOMERS OUTSIDE TERRITORY. Distributor shall not have exclusivity
and shall receive no payment with respect to Sagent's End User
customers from locations outside the Territory that deploy
Applications within the Territory or VARs from outside the Territory
that sell proprietary end user applications that include Sagent
Software in the Territory. Sagent shall supply to Distributor a list
of multinational companies with which Sagent conducts sales in the US
or elsewhere such list may be updated at any time. Distributor shall
have the right to solicit direct business from those divisions or
subsidiaries of such companies that are located in the Territory, and
the Split policy, as set out in section 5.4 of this Agreement will
apply to situations of joint efforts.
(b) CHANGES IN SOFTWARE. Sagent reserves the right, from time to time,
in its sole discretion and without liability to Distributor, to add to
or delete from Exhibit A the Software which Distributor is authorized
to distribute. Sagent agrees to give Distributor ninety (90) days
notice prior to deleting Software from Exhibit A. Sagent cannot
delete from Exhibit A a product, and shall also add any product which
is directly or indirectly sold somewhere else, including but not
limited to new Software releases.
(c) Notwithstanding anything to the contrary in this Agreement, Sagent
will not be treated as in breach of its exclusivity obligations in the
event of Software sales from outside the Territory to inside the
Territory, by multi-national companies, whose importation Sagent is
unable to preclude by reason of application of law or which any third
party is entitled to make.
2.9 TITLE. Distributor acquires only the rights expressly granted in
this Agreement. All rights not expressly granted herein are reserved
by Sagent. Nothing contained in this Agreement shall be construed as
conferring upon Distributor, by implication, estoppel or otherwise,
any license or other right except the license and rights expressly
granted herein. The licenses granted herein are granted solely to
Distributor, and not, by implication or otherwise, to any parent or
affiliate of Licensee. Except to the extent the
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following activities may not be restricted under applicable law,
Distributor shall not create derivative works of, disassemble,
decompile or otherwise reverse-engineer the Software, and shall
prohibit its end users, Resellers and VARs from doing the same. All
right, title and interest in and to the Software and Documentation
delivered to Distributor, and all intellectual property rights therein
and related thereto, shall at all times remain the property of Sagent
or Sagent's licensors.
2.10 INDEPENDENT CONTRACTORS.
Distributor's relationship with Sagent during the terms of this
Agreement will be that of an independent contractor. Distributor will
not have, and will not represent that it has, any authority to bind
Sagent to assume or create any obligation, express or implied, to
enter into any agreements, or to make any warranties or
representation, on behalf of Sagent or in Sagent's name other than as
expressly authorized herein. Additionally, nothing in this Agreement
shall be construed to constitute the parties as partners, joint
venturers, co-owners or otherwise as participants in a joint or common
undertaking. The parties acknowledge and agree that neither
Distributor nor any Reseller is or will at any time be a "commercial
agent" within the meaning of EC Council Directive of 18 December 1986
on the coordination of the laws of the Member States relating to self
employed commercial agents of any related legislation.
3. DEVELOPMENT AND IMPLEMENTATION OF ANNUAL BUSINESS PLAN
3.1 Sagent and Distributor will develop an annual written business plan
that sets forth: (1) the initial hiring of Distributor personnel in
conformity with Exhibit C hereto; (2) selling and other revenue
activity by Distributor in conformity with Exhibit D hereto; (3)
marketing advertising and other promotion plans related to this
agreement; (4) establish German based consulting and training services
for the Software; (5) establish maintenance and technical support for
the Software in the Territory; and (6) all other activities of
Distributor contemplated by this Agreement.
3.2 The first annual business plan shall be finalized by the parties
within thirty (30) days of the Effective Date of this Agreement and
shall be incorporated herein as Exhibit D. The parties will meet
during Sagent's usual budget cycle to establish the annual business
plans for subsequent years. Each annual business plan will take into
account the projections set out in Exhibits C and D hereto.
Distributor shall use its best efforts to fully implement the plans.
3.3 The Advisory Board of Distributor must approve every annual business
plan before it is implemented as the requirement is set out in
specific detail in Exhibit E of the Joint Venture Agreement.
4. BUSINESS OPERATION OF DISTRIBUTOR
4.1 GENERAL MANAGER. The Distributor will provide a person acceptable to
Sagent as General Manager of Distributor.
4.2 AUTHORITY OF GENERAL MANAGER. The General Manager shall have the
authority to make all general business operation decisions related to
the day to day operations of Distributor.
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4.3 STRATEGIC PLANS. During the first three (3) years of Distributor's
operation the General Manager of Distributor shall review with Sagent
all Strategic Plans of Distributor. Sagent shall assist with the
Strategic Plans through suggestion and coordination with programs used
in other parts of the world.
4.4 DISTRIBUTOR TO BE OPERATIONAL WITHIN 90 DAYS. The General Manager of
Distributor shall use his best efforts to have Distributor in full
operation (sales and support functions in place) within 90 days
following the Effective Date of this Agreement.
4.5 SAGENT'S DUTIES AFTER INCORPORATION OF DISTRIBUTOR.
Sagent shall:
(a) turn over to Distributor all sales leads applicable to the Territory
and thereafter all sales transactions for the Territory shall be
quoted and invoiced by Distributor (or applicable VARs) to the end
user customers, Resellers and VARs.
(b) Sagent shall notify all Resellers, VARs and end user customers and
prospects in the Territory of the changes in responsibility.
(c) Sagent shall supply Distributor with a list of all current
maintenance customers in the Territory. Distributor shall have the
right to renew maintenance for such customers in the Territory.
(d) Sagent and Distributor shall negotiate local support for such
customers in the Territory during the remaining period of the
maintenance contract or if negotiations fail, Sagent may provide
direct support.
4.6 USE OF INTERNATIONAL PRICE LIST. Sagent recommends that Distributor
uses Sagent's International Price List as its basis for pricing under
this Agreement for distribution of Software and Services pursuant to
this Agreement. However, Distributor shall be absolutely free in
defining its resale prices and shall in no event be bound to follow
Sagent's price recommendation. Prices may be translated into German
Marks/Euros from time to time. Sagent shall periodically consult with
the General Manager as to the form and content of the International
Price List.
4.7 DISCOUNTING AUTHORITY OF GENERAL MANAGER. While Distributor shall be
absolutely free in deciding on whether and which discounts to grant to
customers, Sagent recommends that the General Manager of Distributor
authorizes the same discounts from the list prices (as set forth in
Sagent's then current International List Prices) as are allowed to
Sagent's sales department in Sagent's nonstandard pricing terms and
conditions procedure (hereinafter the "Pricing Policy") which is
attached as Exhibit F for strategic software licensing customers.
4.8 ACCESS TO SAGENT PRICING COMMITTEE. The General Manager may consult
with Sagent's pricing committee regarding the justification of larger
discounts than are recommended under Section 4.7, and or other sales
accommodation and to end users, on a case by case basis. Sagent and
Distributor agree to use their best efforts to ensure all requests for
additional discounts or other pricing accommodations are promptly
attended to. In those instances in which General Manager (in good
faith) must act without first seeking discount advice under the
Pricing Policy, Sagent shall honor the
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discount actually provided. However in no event will Sagent be
obligated to honor such discount (and the royalty payment shall be so
adjusted) if the discount provided exceeds two (2) times the allowable
discount expressed in the Pricing Policy.
4.9 HIRING BY DISTRIBUTOR. Distributor shall provide resumes of Key
Persons it plans to hire for review and approval by Sagent. If Sagent
shall not have objected within four (4) business days to any proposed
hire, then Sagent shall be deemed to have accepted the candidate. In
order that Sagent may assist in the hiring of all sales, technical and
consulting personnel, Distributor may at its option send candidates at
its expense to the US for interview. Any expenses of Sagent personnel
assisting the hiring process either in the US or Germany will be paid
by Sagent. For the purposes of this section the term "Key Persons"
shall mean all sales, systems engineer and marketing staff.
4.10 STAFFING LEVELS. Distributor and Sagent have agreed on a plan
regarding the appropriate staffing levels in order to sell and offer
the related services in the Territory. This staffing plan is set
out in Exhibit C hereto and should serve as a guideline only.
4.11 ASSESSMENT OF DISTRIBUTOR EMPLOYEES. Sagent shall participate in the
ongoing assessment of all employees of Distributor. Sagent may
provide written comment to the General Manager of Distributor
indicating that a particular employee(s) is/are not performing
employee's job in a manner acceptable to Sagent. Distributor shall
take active steps to remedy all such situations identified by Sagent
either through raising the employee's level of performance or
termination.
4.12 WRITTEN ASSESSMENTS. Distributor shall provide to the Sagent member
of Distributor's Advisory Board, on going written assessments at three
(3) month intervals for employees identified by Sagent as
non-performing.
4.13 SAGENT TO KEEP DISTRIBUTOR INFORMED OF PLANS. Sagent will keep the
Management of Distributor fully informed of developments within Sagent
and trends that it sees in the US and other world markets (including
Sagent business plan). Once Sagent is public, no information should
be provided to Distributor which could lead to insider knowledge.
4.14 ATTENDANCE AT SAGENT MEETINGS. Distributor's General Manager will be
allowed to participate in all major and relevant Sagent meetings
concerning trends, markets, products and strategy like a General
Manager of a Sagent subsidiary participating in Sagent's General
Manager meetings. Distributor may be excluded from any meeting if, in
the sole discretion of the President of Sagent it would be
inappropriate for a representative of Distributor to attend.
4.15 DISTRIBUTOR TO PROVIDE SALES AND MARKET INFORMATION TO SAGENT.
Distributor will promptly provide similar information to Sagent.
Samples of all marketing and advertising materials prepared by one
party will be promptly provided to the other with rights to use such
materials to further jointly the sales of Sagent products.
4.16 PROVISION OF QUARTERLY FINANCIAL REPORTS. Distributor will provide
Sagent a quarterly financial report of its operations including but
not limited to its balance sheet and income statement prepared in
accordance with generally accepted accounting principles (USA), and a
personnel roster by name, position held and location with new
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hires and termination's identified, and Distributor will keep its
books on a calendar-year basis.
4.17 PROVISION OF REVENUE PROCEDURES TO DISTRIBUTOR. Sagent will provide
to Distributor copies of its accounting and revenue recognition
procedures and Distributor will comply with these procedures to the
extent that it is able under German law. This provision also applies
to section 4.16 of this Agreement.
4.18 ANNUAL AUDIT OF DISTRIBUTOR. At its expense, Distributor will have
an annual audit by Coopers & Lybrand results of which will be promptly
supplied to Sagent.
4.19 PROVISION OF MONTHLY SALES REPORTS. Distributor shall also promptly
provide to Sagent monthly sales and a three month forecast of expected
orders, including identification of the top five revenue potential
projects, for Sagent products and services in a Sagent approved
format.
4.20 MARKET AND SALES STRATEGY. Distributor shall utilize the general
market and sales strategies used by Sagent. This strategy currently
has a focus on consumer goods industries, telecommunications and the
financial services industry, however the strategy may change from time
to time and is not an exclusive strategy.
4.21 COMPLIANCE WITH U.S. FOREIGN CORRUPT PRACTICES ACT. The Distributor
shall be managed so as to observe the following requirements in all
transactions: (a) No action shall be taken by or on behalf of the
Distributor which violates any applicable law or regulation of the
United States, or any country in the Territory; (b) no expenditure for
other than lawful purposes shall be made by or on behalf of the
Distributor; and (c) no payments shall be made and nothing of
value shall be given to government officials by the Distributor or any
of their respective agents, except such payments as are required by
law and made to such officials in other than their individual
capacities; or (d) otherwise taken any action that would constitute a
violation of the U.S. Foreign Corrupt Practices Act, 15 U.S.C. Section
78dd-1 et seq.
5. COMPENSATION.
5.1 (i) Royalties to Sagent shall be calculated based on amounts invoiced
to end users (exclusive of freight charges and any applicable sales
and consumption taxes (VAT)), and Royalties shall be adjusted for
credit invoices, using the following royalty rates:
Software Products 40%
Maintenance fees 15%
(ii) Royalties to Sagent resulting from Licenses sold through VARs and
Resellers in Territory shall amount to 40% of the then current
International Price List for Product Licenses. In case of special VAR
and Reseller deals where the General Manager uses the rules of Article
4.8. for pricing and discounting purposes, different royalties may be
negotiated with Sagent.
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5.2 Compensation to Sagent shall not be due from Distributor for
evaluations limited to thirty (30) days or less or copies used for
marketing or demonstration purposes only.
5.3 Sagent reserves the right to change its International list prices
with ninety (90) days prior written notice to Distributor.
5.4 SPLITS - "VAR Deals" and deals as defined in 2.8(a) where both Sagent
and Distributor are directly involved under this Agreement are subject
to revenue or royalty splits as agreed to by the General Manager of
Distributor and Sagent's applicable Vice President responsible for
European Sales. If no agreement is made as provided above, then the
split will be resolved by the President of Sagent following
consultation with Distributor. Splits may be appropriate in instances
where Sagent and Distributor must each provide sales and marketing
support to a customer in order to finalize an agreement. Such an
agreement would be one, which is closed outside the Territory, but
Distributor is involved in the transaction in the territory.
5.5 NO COMPENSATION FROM OUTSIDE THE TERRITORY. Distributor will receive
no compensation with respect to VAR's from outside of the Territory
that market Applications in the Territory except that Sagent or
Distributor may contract with a VAR that (i) intends to market
globally and (ii) is a major factor in its industry. In such
instance, it is necessary and desirable that Sagent and Distributor
cooperate to facilitate the entry of the VAR into respective markets
and assist such VAR in its marketing efforts. In such instances,
either Sagent or Distributor may receive a portion of the royalty paid
by the VAR, or some other negotiated payment for the services provided
in the respective territory. The amount of royalty or fee shall be
negotiated as provided for in Section 5.4 "Splits".
5.6 PAYMENT. Distributor will pay royalties bi-monthly, by wire transfer
within seven (7) days following the 15th and the end of each month,
based on payments received during the month from customers, Resellers,
and VARs. Payments to Sagent shall be due and payable from Distributor
once Distributor has received payment from a customer. Distributor
shall make all commercial efforts to ensure the credit worthiness of
each end user Licensed pursuant to this Agreement and Distributor
shall use all efforts to ensure that each customer pays all fees owed
to Distributor according to Distributor's invoice terms. Distributor
shall prepare and remit at the end of each month an Aged Receivable
document.
5.7 REPORTS. Along with each payment as described in section 5.6,
Distributor shall supply a report with copies of customer invoices,
(if possible with the name and location of the customer, and products
sold) and a calculation of the royalty due for the invoice.
5.8 MAINTENANCE. Distributor shall pay to Sagent the amounts set out in
section 5.1 of this Agreement for Maintenance provided to End Users.
Payment for Maintenance shall be made yearly in advance, and, unless
Maintenance is canceled by Distributor, Sagent or End-User, at least
thirty days before each subsequent Anniversary Date. Distributor
shall pay for Maintenance as provided in Section 5.6. Sagent policies
require that maintenance be purchased at the inception of a License
for extension of product warranties and that back maintenance is
required for reinstatement of customers that have let their
maintenance contracts lapse.
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5.9 TRAINING AND CONSULTING. Sagent shall grant to Distributor rights to
provide Sagent training courses with Distributor's own personnel to
End Users; and Distributor shall have the right to provide
Distributor's Sagent trained consultants to assist customers with use
of the Software Products. Such training and consulting shall meet
Sagent's quality standards. Distributor shall pay the reasonable
travel and living expenses for any Sagent consultants or agents
brought from the US to the Territory. For extended visits, over two
weeks, Sagent will invoice Distributor for a daily rate approximating
the compensation and benefits of the Sagent consultant or agent for
the period involved.
5.10 REPORTING. Distributor agrees to provide Sagent with a monthly sales
report in format and media reasonably requested by Sagent and also
meeting Distributor's needs, which details if possible purchase order
numbers, quantity of each type of Software licensed during the month
(including copies distributed by Distributor to Reseller, End User
orders delivered by Resellers, End-User orders delivered by
Distributor, and Marketing Copies made), machine class, unit and
extended price to Sagent the buyers' names and addresses and Reseller
numbers (if any), and any other related information reasonable
requested by Sagent. This report shall be forwarded to Sagent within
fifteen (15) days of the close of each calendar month. In addition,
Distributor shall ensure that Resellers provide similar such reports
to Distributor and that the information contained in such Reseller
reports is accurately reflected in Distributor's report to Sagent. If
Distributor orders Software directly from Sagent such information
shall be supplied on the order.
5.11 AUDIT. Distributor agrees to allow an independent auditor to review
Distributor's books and records related to the activities described in
this Agreement in order to determine the accuracy of the reports and
agrees to require Resellers to allow a similar independent auditor
review. The independent auditor will be chosen by Sagent and approved
by Distributor, whose approval shall not be unreasonably withheld.
The review will be paid by Sagent. The reviews occur at mutually
agreeable times during normal business hours and will not occur more
frequently than one time per year. The independent auditor shall be
instructed to keep all information learned strictly confidential.
5.12 WITHHOLDING TAXES. All payments by Distributor shall be made free
and clear of, and without reduction for, any withholding taxes. Any
such taxes arising in Territory which are otherwise imposed on
payments to Sagent shall be the sole responsibility of Distributor.
6. RESELLER AND END USER SERVICE.
6.1 PRODUCT SUPPORT. Distributor shall provide customer support
consistent with industry custom for all Software distributed
hereunder. Distributor shall maintain on site staff support personnel
sufficiently knowledgeable with respect to the Software to answer
Existing Distributor, Wholly Owned Company, Reseller, End User and
other customer questions regarding the use and operation of Software.
6.2 DISTRIBUTOR MAINTENANCE SUPPORT. Distributor shall ensure that all
Reseller or End User questions regarding the use or operation of
Software marketed by Distributor are initially addressed to and
answered by Distributor. Any Reseller or End-User service questions
resulting from Distributor's sales to Resellers or End-Users shall be
referred by Sagent back to Distributor.
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6.3 SAGENT SUPPORT TO DISTRIBUTOR. Sagent shall provide telephone
consultation to Distributor with respect to any Reseller/End-User
questions which Distributor cannot adequately answer. Distributor
shall not represent to any third party that Sagent is available to
answer questions from any Reseller, End-User or other customer
directly. To allow Distributor to offer proper support as Sagent for
severity 1 defects as defined in Exhibit I Distributor shall have
access to Sagent support. Sagent shall make maintenance support
available to Distributor on a 24-hour basis.
6.4 TRAINING. On the request of Distributor, Sagent will provide
training for a mutually agreed number of Distributor's technical
employees at no charge by sending them to Sagent Training Classes in
the US. Sagent Training Classes specifically requested by Distributor
in the Territory will be charged to Distributor at mutually agreed
cost.
7. WARRANTY.
7.1 Sagent warrants to Distributor that each individual Software product
for which Maintenance fees have been paid will substantially perform
the functions described in the documentation provided by Sagent for as
long a period as to enable Distributor to grant its customers the
legally required warranty (six months in Germany at the time of
signing this Agreement) so long as such Software product shall have
been properly shipped and not tampered with by Distributor. If Sagent
finds a material deviation in Software performance during the period,
as Distributor's sole and exclusive remedy, Sagent will replace,
modify, or issue a refund for the Software, at Sagent's option,
provided it is within the law, so that it performs substantially in
accordance with the documentation.
7.2 Other than as stated in this section 7, there is no representation or
warranty or condition, express or implied, as to any matter
whatsoever, including without limitation, the condition of software,
its merchantability or fitness for a particular purpose.
8. ADDITIONAL OBLIGATIONS OF SAGENT
8.1 HARMONY OF OPERATIONS. Sagent will provide to Distributor such
policies and procedures as are necessary to synchronize operations, so
that to the End User customer, Distributor would appear to be a
separate company, however closely aligned with Sagent.
8.2 CONSULTATION TO DISTRIBUTOR. Sagent will work closely with and
provide consultation to Distributor management through telephone
meetings or other appropriate manner of communication.
8.3 SAGENT COORDINATOR. Sagent agrees to appoint one person as the
designated coordinator between Distributor and Sagent. Sagent will be
responsible for ensuring that this employee will be knowledgeable in
Sagent's sales and marketing procedures.
8.4 SAGENT STAFF AT DISTRIBUTOR SITE. Sagent will provide to Distributor
persons with technical and sales knowledge to support Distributor in
the Territory during start-
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up phase with relevant direct expenses split equally between Sagent
and Distributor. The purpose of the supplied person is to "jump start"
operations of Distributor.
8.5 ISO 9001. Sagent will make its best effort to gain ISO 9001
registration within 12 months of the Effective Date of this Agreement.
8.6 RESPONSE TO INQUIRIES. Sagent shall promptly respond to all
inquiries from Distributor concerning matters pertaining to this
Agreement.
8.7 NEW RELEASES. Sagent shall promptly inform Distributor of new releases
of Software.
8.8 OTHER SOFTWARE PRODUCTS. Sagent shall offer to Distributor product
distribution rights in the Territory for all other products
distributed directly or indirectly by Sagent in accordance with
Exhibit A.
8.9 PRODUCT ANNOUNCEMENTS. Sagent shall use its best efforts to not make
or distribute product announcements related to the Software directly
to End Users in the Territory unless coordinated with Distributor.
8.10 PRODUCT RELEASE PLANS. Sagent shall use its best efforts to give
Distributor reasonable notice of plans for future software products
which Sagent intends to release for distribution during the term of
this Agreement. Sagent will provide to Distributor monthly product
release schedules and Quarterly product planning schedules.
8.11 CUSTOMER INFORMATION. Sagent will transmit to Distributor the names
and addresses of prospective customers in the Territory from whom
Sagent receives inquiries regarding the Software.
8.12 MARKETING AND TECHNICAL INFORMATION. At Distributor's request,
Sagent will either loan, or sell at Sagent's cost, to Distributor
marketing and technical information concerning the Software, as well
as catalogs and other sales aids, all in the English language, for
the use of Distributor in marketing and selling to end users.
8.13 SAGENT AND DISTRIBUTOR TO COOPERATE IN MARKETING ANNOUNCEMENTS.
Sagent shall make all reasonable efforts to consult and cooperate
with Distributor with respect to the timing and content of all
marketing, PR, and other announcements which may have an effect in
the Territory.
8.14 SAGENT OBLIGATION TO GO TO TERRITORY. Sagent employees shall not be
required to come to the Territory to support sales/marketing
activities. To the extent that both parties feel that such a visit is
in the best interest of Distributor, Distributor will pay the
reasonable travel and living expenses of the requested Sagent
Employee. For extended visits, over two weeks, Sagent will invoice
Distributor for a daily rate approximating the compensation and
benefits of the individual for the period involved. In the case of
Split deals as described at section 5.4 hereof, travel and
compensation costs will generally be considered in the split of
revenue to each party. In the case of support issues defined as
"severity 1 and 2" in Sagent's Maintenance And Technical Support
document set out as Exhibit J hereto, and for which the services of a
Sagent Employee are imperative, Sagent shall pay the relevant
expenses.
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9. ADDITIONAL OBLIGATIONS OF DISTRIBUTOR
The following are additional obligations to be undertaken by the Distributor at
the Distributor's sole expense:
9.1 MANUFACTURE OF PRODUCTS AND TRAINING MATERIAL. Distributor will
manufacture all Software and training materials to be distributed in
accordance with the Methods and Standard of Quality set out in Exhibit
K hereto in the Territory pursuant to this Agreement and deliver such
products to End Users. Sagent will supply masters of tapes, disks and
documentation as are required for Distributor to meet its
responsibilities under this section. Distributor shall be allowed to
buy from Sagent all Software media, documentation and training
materials which Sagent makes commercially available at Sagent's cost.
9.2 ENFORCEMENT OF INTELLECTUAL PROPERTY. Distributor will use its best
efforts to protect Sagent's Intellectual Property rights in the
Software in the Territory, including but not limited to thorough use
of Non Disclosure agreements and proper contract administration of the
software license agreements, and Distributor shall promptly report to
Sagent any infringement of such rights of which Distributor becomes
aware; provided, however, that Sagent reserves the sole and exclusive
right at its discretion to assert claims against third parties for
infringement or misappropriation of its Intellectual Property Rights in
the Software in the Territory, "Intellectual Property Rights" shall
mean patent right, copyright right (including, but not limited to,
rights in software, audiovisual works and moral rights), trade secret
rights, trade mark rights and any other intellectual property rights
recognized by the law of each applicable jurisdiction.
9.3 MARKETING AND PR EFFORTS. Distributor will use its best efforts to
vigorously and aggressively market and sell the Software within the
Territory and to satisfy those reasonable criteria and policies with
respect to Distributor's obligations under this Agreement developed and
announced and communicated in writing to Distributor by Sagent from
time to time. Distributor will provide Sagent sales forecast and
pipeline information monthly and as requested by Sagent. Distributor
will develop and implement effective marketing programs to assist in
the sale of the Software including those agreed upon in annual business
plans or otherwise between the parties.
9.4 SAGENT SALES MEETINGS. Distributor shall attend Sagent's scheduled
Sales meetings which are scheduled to occur at least annually. In
addition, business review meetings should be held between the General
Manager of Distributor and the Sagent Coordinator once in a quarter.
9.5 STAFF TRAINING. Distributor agrees to provide its staff and Resellers
with adequate training regarding the use and operation of the Software,
and to also provide its staff and Resellers with regular training
regarding updates of the Software.
9.6 FINANCES. Distributor shall maintain working capital sufficient, to
allow Distributor to perform fully and faithfully its obligations under
this Agreement. Distributor shall devote sufficient financial resources
and technically qualified sales and service personnel to the Software
to fulfill its responsibilities under this Agreement.
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9.7 STANDARD OF BUSINESS PRACTICES. Distributor shall establish and
maintain, and shall cause its Resellers, employees and agents to
establish and maintain a high standard of ethical business practices in
connection with the distribution of Software within the Territory,
including, without limitation, all applicable laws and regulations.
Distributors shall follow such applicable sales policies as are
established by Sagent from time to time.
9.8 INTELLECTUAL PROPERTY RIGHTS REGISTRATIONS AND GOVERNMENT APPROVALS.
Distributor shall promptly notify Sagent in writing of, and shall
assist Sagent with any registrations of filings required to obtain all
needed copyright, trademark or other intellectual property rights
protection, in Sagent's name, for the Software within the Territory,
and to obtain any necessary government approvals with respect to this
Agreement. Distributor agrees to promptly register this Agreement,
after notifying Sagent if the laws or regulation of any country in the
Territory require its registration for any purpose with any
governmental agency or instrumentality.
9.9 NO COMPETING PRODUCTS. During the first three years of the Agreement,
Distributor will not sell any products, for use in the Territory,
except the Software or software provided by Sagent which is later made
available under this Agreement. After three years, Distributor shall be
free to sell and service products of any manufacturer including those
products that could compete with Sagent products provided that
Distributor is otherwise in compliance with the terms of this
Agreement.
10. INDEMNIFICATION.
10.1 Sagent will defend at its expense any action brought against
Distributor to the extent it is based on a claim that the Software or
any part thereof, when used within the scope of this Agreement,
infringes a patent or copyright and Sagent will pay any settlements and
any costs, damages and attorney's fees finally awarded against
Distributor in such action which are attributable to such claim;
provided that the foregoing obligation will be subject to Distributor
notifying Sagent promptly in writing of the claim, giving Sagent the
exclusive control of the defense and settlement thereof, and providing
all reasonable assistance in connection therewith.
10.2 Notwithstanding the above, Sagent shall have no liability for any claim
of infringement of a patent or copyright based on: (i) use of a
superseded or altered release of the Software or portion thereof if
such infringement would have been avoided by the use of a current
unaltered release of the Software which Sagent provides to Distributor,
or (ii) the combination, operation or use of the Software furnished
under this Agreement with products or data not furnished by Sagent if
such infringement would have been avoided by the use of the Software
without such products or data.
10.3 In the event that the use of the Software becomes or in Sagent's
reasonable opinion is likely to become the subject of a claim of
infringement of patent or copyright rights, it is Sagent's option to
remedy the situation by: a) procuring the continuing right to use the
Software as contemplated or b) replacing or modifying the Software such
that use is no longer an infringement or c) terminating the License
and refunding the fees paid by Distributor to Sagent but prorated over
a thirty six (36) month period, to the extent that Distributor is
obligated to refund such fees to its customers.
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10.4 The foregoing states the entire liability and obligation of Sagent
with respect to infringement or claims of infringement of any patent,
copyright, trade secret, or any other proprietary right.
11. EXPORT ADMINISTRATION.
11.1 If the Software is to be used or distributed outside of the United
States, Distributor agrees to comply fully with all relevant
regulations of the United States Department of Commerce and with the
United States Export Administration Act to assure that the Software is
not exported in violation of United States Law. Distributor agrees
that neither the Software nor any other technical data nor the direct
product thereof is intended to be used for any purpose prohibited by
the Act or regulations promulgated thereunder, including, without
limitation, nuclear proliferation or chemical/biological weapons or
missiles.
12. MAINTENANCE.
12.1 Distributor shall be solely responsible for maintenance for its own
customers.
12.2 DISTRIBUTOR CONTACT. Distributor shall appoint one person as the
principal Maintenance Contact Point for the communication of bugs and
errors to Sagent and for the receipt of bug and error fixes,
work-arounds and updates, if any. Additionally, Distributor shall
appoint another person as a back-up to the principal contact point.
12.3 SAGENT CONTACT. Sagent shall appoint one person as the principal
Maintenance Contact Point for the receipt of bugs and errors from
Distributor and for the communication to Distributor of bug and error
fixes, work-arounds and updates, if any. Additionally, Sagent shall
appoint another person as a back-up to the principal contact point.
12.4 MAINTENANCE AVAILABILITY. Maintenance is available only for the most
recent version of the Software and the preceding version for no longer
than 12 months after the current version becomes generally available.
Sagent shall ensure that Maintenance is available for the period
mandated by local law in the Territory and Distributor shall use its
best efforts to inform Sagent of any local laws which may affect
Sagent pursuant to this section.
13. TERMINATION/DEFAULT.
13.1 TERM. This Agreement shall continue in force from the Effective Date
without a specific termination date, unless terminated under the
provisions of this Section 13. This Agreement shall survive the
termination of the Joint Venture Agreement executed as of April 8,
1998 between Sagent and ISAR-Vermogensverwaltung GbR mbH, unless the
provision of said Joint Venture Agreement contemplate that this
Agreement shall automatically and immediately terminate.
13.2 DISTRIBUTOR'S RIGHT TO TERMINATE: The Distributor shall have the
right to terminate the Agreement
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13.2.a) for Cause
(i) if Sagent shall have defaulted in a material way in its obligations to
provide and support its Software; or
(ii) if Sagent has became unable to meet its requirements under this
Agreement due to financial insolvency; or
(iii) other material default of a material provision of the Agreement.
Notwithstanding the foregoing, if Distributor desires to terminate
pursuant to this section, then Distributor shall give written notice to
Sagent that if the breach is not cured within sixty (60) days this
Agreement will be terminated. If Distributor gives such notice and the
breach is not cured during the sixty day period, then this Agreement
will terminate.
13.2.b) Furthermore, Distributor shall have the right to terminate this
Agreement upon twelve months notice following the fourth year of the
agreement.
13.3. EFFECT OF TERMINATION PURSUANT TO SECTION 13.2. Following termination
under 13.2., Distributor shall change its name and procedures to
eliminate all reference to Sagent and shall retain the right to
continue to support maintenance contracts with end users and otherwise
provide support.
13.4. SAGENT'S RIGHT TO TERMINATE.
13.4.a) for Cause:
Sagent shall have the right to terminate Distributor's exclusive distribution
rights if
(i) Distributor fails to meet its minimum royalty payment target in any
given 12-month period as set out in Exhibit E and Sagent and
Distributor also were in material disagreement with respect to the
operations or operating plan and have been unable to resolve such
disagreement; or
Sagent shall have the right to terminate the agreement if
(ii) a material number of customers or Resellers indicate substantial
dissatisfaction with Distributor's service levels; or
(iii) Distributor is financially or otherwise unable or unwilling to meet its
obligations under the Agreement; or
(iv) other material default of a material provision of the Agreement; or
(v) failure to establish during the first twelve months of the Agreement,
a training and consulting organization which functions pursuant to
standards agreed upon by Sagent and Distributor.
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Notwithstanding the foregoing, if Sagent desires to terminate pursuant
to this section, then Sagent shall give written notice to Distributor
that if the breach is not cured within sixty (60) days this Agreement
will be terminated. If Sagent gives such notice and the breach is not
cured during the sixty day period, then this Agreement will terminate.
13.4.b) Furthermore, Sagent shall have the right to terminate this Agreement
upon twelve months notice following the fourth year of the agreement.
13.4.1 EFFECT OF TERMINATION UNDER 13.4 Following termination under section
13.4 above, the Distributor shall have the right to liquidate its
business, however, if it does so, it shall allow Sagent to hire
Distributor's former employees directly or through a third party to
provide support to existing customers.
13.4.2 Following termination under section 13.4 a) Sub sections (i), or (ii)
if Distributor continues to operate, it shall change its name and
procedures to eliminate reference to Sagent and Distributor shall
retain (a) the right to License Sagent products in the Territory on a
non-exclusive basis for a period of one year (renewable annually upon
mutual agreement) and (b) provide support to existing and new
customers through the expiration of applicable maintenance contracts.
13.5 Following termination under section 13.4 a) Sub sections (iii) or
13.4. b), all Distributor rights to License and support Sagent
products shall cease, however, Sagent shall honor new purchase orders
during a transition period which are prepaid or for which direct
payment from a credit worthy customer can be arranged.
13.6 Following termination, under section 13.4 Sub-sections (iv) or (v)
above, Distributor shall change its name as indicated above, and have
the right to provide support to existing customers through the
expiration of applicable maintenance contracts.
13.7 POST TERMINATION COOPERATION: Following terminate pursuant to
sections 13.2 and 13.4 herein, the parties agree to cooperate with
each other for an orderly transition of selling and service activity
to established customers to Sagent directly or to an authorized third
party.
13.8 PROVISIONS OF UPDATES FOLLOWING TERMINATION. In the event of
termination pursuant to this Section 13 and to enable Sagent to
continue to provide updates of the Software to End Users and
Resellers, Distributor shall provide Sagent within thirty (30) days of
the effective date of termination with a complete customer list of all
such End Users and Resellers, showing, at a minimum, names, addresses,
type and amount of Software sold.
13.9 EFFECT OF TERMINATION. Unless provided otherwise above, on
termination or expiration of this Agreement, Distributor shall (a)
immediately cease using, copying and distributing the Software, and
(b) certify to Sagent within one month after termination that
Distributor has destroyed or has returned the Software and all copies.
This requirement applies to copies in all forms, partial and
complete, in all types of media and computer memory and whether or not
modified or merged into other materials.
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13.10 ASSIGNMENT OF EXISTING AGREEMENTS. On termination or expiration of
this Agreement Distributor shall immediately take all required actions
to assign all end user, VAR and Reseller Agreements to Sagent.
Distributor agrees to ensure that all Wholly Owned Companies shall
also assign all end user and VAR agreements related to the Software
and Services to Sagent.
13.11 RETURN OF MATERIALS. All trademarks, trade names, patents, copyrights,
designs, drawings, formulas or other data, photographs and samples of
every kind pertaining to the Software and to the Documentation which
shall include any which may relate to any localization and which shall
remain the property of Sagent. Within thirty (30) days after the
termination of this Agreement, Distributor shall prepare all tangible
such items in its possession to be returned pursuant to section 13.9,
for shipment, as Sagent may direct, at Sagent's expense. Distributor
shall not make or retain any copies of any confidential items or
information which may have been entrusted to it. Effective upon the
termination of this Agreement, Distributor shall cease to use all
trademarks, marks, and trade names of Sagent.
13.12 LIMITATION ON LIABILITY. In the event of termination by either party
in accordance with any of the provisions of this Agreement, neither
party shall be liable to the other, because of such termination, for
compensation, reimbursement or investments, leases or commitments in
connection with the business or goodwill of Sagent or Distributor.
Termination shall not, however, relieve either party of obligations
incurred prior to the termination.
13.12.1 LIMITATION OF LIABILITY - TRADE MARKS: Distributor acknowledges that
Sagent is, and will remain the sole and exclusive owner of all
goodwill associated with the trade marks of Sagent. Distributor
recognizes the value of the goodwill associated with the trade marks
of Sagent, and acknowledges that such value is owned by and belongs
solely and exclusively to Sagent. Distributor waives any right it may
have to receive any compensation or reparations prior to, upon or
following termination or expiration of this agreement under the law of
the territory or otherwise.
13.13 CUSTOMER SUPPORT. Following termination of this Agreement, Sagent and
Distributor shall cooperate to make available to Resellers and End
Users Software support and maintenance by Sagent at Sagent's then
current standard rates. Distributor agrees to pay such standard rates
to Sagent or, at Distributor's option, to reimburse to such Resellers
for the duration of the stated maintenance and support period.
13.14 SURVIVAL OF TERMS. The provisions of Sections 5, 7, 9.5, 10, 11, 12,
13, 15 and 21 shall survive the termination of this Agreement for any
reason.
14. LOCALIZATIONS.
14.1 Sagent shall have the obligation (at its expense) to provide software
localization/local language documentation whenever necessary based on
Sagent's English language documentation. Distributor shall (at its
expense) provide local language marketing and promotional materials
based on the English sales collateral used by Sagent which Sagent
shall provide. Distributor shall also have the right (at its expense)
to provide such localization/documentation and materials. All such
materials shall meet Sagent's published quality standards.
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14.2 Sagent shall retain ownership of all derivative works from its
materials and Distributor shall promptly supply copies of any
materials or documentation it prepares and executes any requested
documents necessary to perfect Sagent's ownership in the intellectual
property.
14.3 If Sagent elects to use local language Documentation or materials,
Sagent will obtain such materials from Distributor at Distributor's
cost or for a nominal royalty if Sagent has printed the material.
14.4 Distributor may suggest to Sagent Software changes that it considers
helpful in the Territory; however Sagent shall be entirely responsible
for the development and content of the Software.
14.5 Sagent may agree with Distributor to provide technical and engineering
support required to make localizations or new features to the Software
on a case by case basis as commercial conditions warrant. However, in
any case Sagent shall be required to create localizations for every
new software release.
14.6 Sagent agrees to implement as soon as is commercially reasonable any
localization or feature if License revenues in Germany will be
materially impacted if Sagent fails to do so. Due to SAP's significant
market penetration in territory. Sagent agrees to ensure access and
query capabilities to SAP data within three months from the date of a
final mutual decision on the best technical and business direction to
achieve this goal, but in any case no later than October 1, 1998.
15. NON-DISCLOSURE.
15.1 By virtue of this agreement, the parties may have access to
information that is confidential to one another ("CONFIDENTIAL
INFORMATION"). Confidential Information shall be limited to the
Software and all written information clearly marked as confidential.
Additionally, the terms and conditions of this Agreement are deemed to
be Confidential Information.
15.2 A party's Confidential Information shall not include information which
(a) is or becomes a part of the public domain through no act or
omission of the other party; or (b) was in the other party's lawful
possession prior to the disclosure and had not been obtained by the
other party either directly or indirectly from the disclosing party;
or (c) is lawfully disclosed to the other party by a third party
without restriction on disclosure; or (d) is independently developed
by the other party.
15.3 The parties agree, both during the term of this Agreement and for a
period of five (5) years after termination of the Agreement, to hold
each other's Confidential Information in confidence. The parties agree
not to make each other's Confidential Information available in any
form to any third party or to use each other's Confidential
Information for any other purpose than the implementation of this
Agreement. Each party agrees to take reasonable steps to ensure that
Confidential Information is not disclosed, distributed or used by its
employees or agents in breach of the provisions of this Agreement.
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16. GOVERNING LAW, JURISDICTION, AND COMPLIANCE WITH LAWS.
16.1 The rights and obligations of the parties under this Agreement shall
not be governed by the U.N. Convention on Contracts for the
International Sales of Goods; rather such rights and obligations shall
be governed and construed under the laws of the State of California,
without reference to conflict of laws and principles. The jurisdiction
of the courts of Germany is expressly excluded to the maximum extent
permitted by law. Distributor acknowledges that its breach of this
agreement may cause irreparable harm to Sagent for which Sagent may
obtain injunctive relief.
16.2 IMPORT LICENSES, EXCHANGE CONTROLS, OTHER GOVERNMENTAL APPROVALS.
Distributor represents and warrants that it shall, at its expense,
obtain any and all import licenses and Territory governmental
approvals that may be necessary to permit the license by Sagent and
Distributor of Software, comply with all registration requirements in
the Territory, obtain such approvals from the banking and governmental
authorities of the territory as may be necessary to guarantee payment
of all amounts due hereunder to Sagent in US dollars, and comply with
any and all governmental laws, regulations, and orders that may be
applicable to Distributor by reason of its execution of this
agreement, including but not limited to any requirement to be
registered as Sagent's independent Distributor with any governmental
authority, and including but not limited to any and all laws,
regulations or orders that govern or affect the ordering, export,
shipment, import, sale (including governmental procurement), delivery,
or redelivery of the Software in the Territory.
16.3 LIABILITY OF SAGENT. The provisions of this Agreement under which the
liability of Sagent is excluded or limited shall not apply to the
extent that such exclusions or limitations are declared illegal or
void under the laws applicable in the countries in which Software is
licensed hereunder, except to the extent such illegalities or
invalidities are cured under the laws of such countries by the fact
that the law of California governs this agreement.
17. ENTIRE AGREEMENT.
17.1 This Agreement sets forth the entire agreement and understanding of
the parties relating to the subject matter herein and merges all prior
agreements, discussions, and understandings between them. No
modification of or amendment to the Agreement, nor any waiver of any
rights under this Agreement shall be effective unless in writing
signed by an officer of Sagent and Distributor. The terms and
conditions of this Agreement shall supersede the terms and conditions
of Distributor's purchase order, if any.
18. NOTICES.
18.1 NOTICES. Any and all notices and other communications that are
required or permitted to be given pursuant to this Agreement shall be
in writing, and shall be deemed given (a) upon personal delivery, or
(b) upon the sender's receipt of electronic confirmation of
transmission, if sent by telex or facsimile, or (c) upon 2 business
days after delivery to a recognized courier, fees prepaid. The parties
designate the following addresses for the foregoing legal effects:
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TO DISTRIBUTOR:
Magnolia II Vermogensverwaltung GmbH
c/o Buro Klaus Luft
Gut Keferloh 1 B
D - 85630 Grasbrunn / Munich
Germany
Attention: General Manager
Facsimile number: (49-89)464483
TO SAGENT:
Sagent Technology, Inc.
2225 East Bayshore Road, Suite 100
Palo Alto, CA 94303
USA
Attention:
Facsimile number: (650) 493-1290
The parties may amend the above-mentioned data by notice to all other
parties, as provided in this Section.
19. FORCE MAJEURE.
19.1 Nonperformance of either party shall be excused to the extent that
performance is rendered impossible by strike, fire, flood,
governmental acts or order or restrictions, failure of suppliers or
any other reason where failure to perform is beyond the control and
not caused by the negligence of the non-performing party.
20. LIMITATION OF LIABILITY.
20.1 Regardless of whether any remedy fails of its essential purpose, in
no event will either party be liable to the other party for
incidental, indirect, special or consequential damages,
notwithstanding being aware of the possibility of such damages.
Neither party's liability for any damages or claims shall exceed
US $0.5 million.
21 DISPUTE RESOLUTION.
21.1 The Advisory Board of Distributor shall have the general
responsibility of resolving disputes between Sagent and Distributor
that relate to major issues concerning Agreement interpretation,
operations and implementation of the joint strategy. Following failure
of the Board to resolve a dispute, either party may request mediation
or arbitration under the Agreement to be held in Zurich Switzerland.
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21.2 ARBITRATION. In the event of any dispute, controversy or claim
arising out of or relating to this Agreement, or to the breach or
termination hereof (a "Dispute"), the parties agree to resolve the
same as follows:
(a) The parties to the Dispute shall initially attempt to resolve it
through consultations and negotiations as specified in 21.1.
(b) If the Dispute has not been resolved amicably within thirty (30) days
after any party provides notice thereof, unless the parties agree
otherwise, the Dispute shall be resolved by final and binding
arbitration in the City and county of Zurich, Switzerland, in
accordance with the Arbitration Rules of the United Nations
Commission on International Trade Law ("UNCITRAL"), as in effect on
the date of this Agreement. The language to be used in the
arbitration proceeding shall be English. The International Chamber of
Commerce shall serve as the appointing authority. The arbitrators
shall render a written award stating the reasons for the decision.
Judgment on an arbitration award or decision may be entered by any
court of competent jurisdiction, or application may be made to such a
court for judicial acceptance of the award or decision and any
appropriate order, including enforcement.
(c) Each of the parties hereto consents to the submission of any Dispute
for settlement by final and binding arbitration in accordance with
paragraph (b) above. Such consent shall satisfy the requirements for
an "agreement in writing" pursuant to Article II of the United Nations
Convention on the Recognition and Enforcement of Foreign Arbitration
Awards, done at New York on June 10, 1958.
(d) Each of the parties hereby undertakes to carry out without delay the
provisions of any arbitration award or decision.
22. NAME OF DISTRIBUTOR.
22.1 SAGENT TECHNOLOGY GMBH. Subject to Section 22.2, Distributor agrees
to perform its obligations under the name Sagent Technology GMBH or
such other name as is agreed to by the parties.
22.2 LICENSE AGREEMENT. Sagent agrees to execute a License agreement with
Distributor which will confer on Distributor limited rights to use the
appropriate Sagent trade marks and trade names for a minimum period of
three year.
22.3 CESSATION OF USE. Distributor agrees that if the License agreement
referred to in section 22.2 above terminates expires or if for any
reason Licensee breaches the License agreement, Licensee will
immediately cease using the Sagent trade marks and trademarks. This
section does not limit any other action Sagent may have against
Distributor for its breach. Distributor shall change its name
immediately to eliminate the name or reference to Sagent or its
products should it elect to sell products that compete with the
products of Sagent.
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23 SEVERABILITY.
23.1 If one of the provisions of this agreement should be or become invalid
or if this agreement should have an omission, this shall not affect
the validity of the remaining provisions. In such an event, the
parties are obliged to assist in the incorporation of provisions which
form the closest economic equivalent to that which the parties would
have agreed if they had been aware of the invalidity or if they had
considered the point.
SO AGREED BETWEEN THE PARTIES HERETO:
"SAGENT"
SAGENT TECHNOLOGY, INC:
By: /s/ THOMAS M. LOUNIBOS
------------------------------
Name: Thomas M. Lounibos
----------------------------
Title: EVP OF SALES
----------------------------
Date: April 8, 1998
----------------------------
"DISTRIBUTOR"
MAGNOLIA II VERMOGENSVERWALTUNG GMBH
By: /s/ INES BERGHOF
------------------------------
Name: Ines Berghof
----------------------------
Title: General Manager
----------------------------
Date: April 8, 1998
----------------------------
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EXHIBIT A
SOFTWARE TO BE DISTRIBUTED BY DISTRIBUTOR
Server: Data Movement Server
Web Link Server
Data Access Server
Power User Tools: Sagent Administration Tool
Sagent Design Studio Tool
Sagent Automation Tool
End-User Tools: Information Studio Tool
Analysis Tool
Reporting Tool
Crystal Reporting Tool
Statistical Tool
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EXHIBIT B
TERRITORY
The territory shall include the following countries and/or accounts:
o Germany
o Austria
o Switzerland
-- German-speaking regions
-- Nestle headquartered in Vevey/French-speaking Switzerland
-- The World Economic Forum (WEF) headquartered in
Geneva/French-speaking Switzerland.
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EXHIBIT C
DISTRIBUTOR'S HIRING PROJECTIONS
Joint Venture Agreement - Sagent Technology Inc. and Isar-Vermogensverwaltung GbR mbH
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