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EXHIBIT 10.30
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS Employment and Non-Competition Agreement (the "Agreement") is made
as of February 27, 1998, by and between Sagent Technology, Inc., a California
corporation ("Sagent"), Xxxxxxx Xxxxxxxxx, an employee (the "Employee") of
Sagent Professional Services, Inc. (formerly known as Talus, Incorporated), a
Delaware corporation ("Company") and the Company.
A. Employee has been employed as an employee of Company; and
B. Sagent, the Company, and the other parties thereto have entered into
an Agreement and Plan of Reorganization dated as of February 27, 1998 (the
"Acquisition Agreement"), pursuant to which the Company merged with and into
Talus Acquisition Corp. ("MergerSub"), a wholly-owned subsidiary of Sagent (the
"Merger"), and which required, among other things, that Employee enter into this
Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Employment.
(a) Effectiveness of Agreement. This Employment and
Non-Competition Agreement shall become effective as of the date hereof.
(b) Duties. Sagent and the Company agree to continue the
employment of Employee and Employee agrees to perform such reasonable
responsibilities and duties as may be required of him or her by Sagent or the
Company. It is currently contemplated that Employee's duties shall comprise
those listed on Exhibit A hereto.
(c) Employment At-Will. The Company and the Employee acknowledge
and agree that the Employee's employment is at-will as defined under applicable
law. Unless a longer period is required by applicable law, the Company and the
Employee may terminate Employee's employment hereunder by giving 30 days'
advance notice in writing.
2. Compensation.
(a) Employee's initial base annual salary as of the date hereof
shall be $123,000 per annum. In addition, Employee will receive all benefits
provided to other Sagent consulting and training employees with similar duties,
including but not limited to paid vacations, health, disability and life
insurance. Employee will participate in Sagent's quarterly objectives plan and
shall be eligible to earn up to 30% of base salary in bonus under this plan.
(b) An option (the "Option") to purchase 150,000 shares of Common
Stock of Sagent shall be granted to Employee pursuant to the Option Agreement
attached as Exhibit B. The
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Option exercise price shall be the fair market value of Sagent's common stock,
as determined by the Board of Directors of Sagent. Twenty percent (20%) of the
Common Stock underlying the Option shall vest on the first anniversary of the
date hereof. An additional twenty percent (20%) of the Common Stock underlying
the Option shall vest on the second anniversary of the date hereof. The
remaining sixty percent (60%) of the Common Stock underlying the Option shall
vest on the third anniversary of the date hereof. The Option shall be subject to
the Change of Control Policy attached hereto as Exhibit D. Sagent will prepare
and file a Registration Statement on Form S-8 relating to any unexercised
portion of the Option as soon as practicable after an initial public offering
the Sagent's securities. If Employee is terminated for Cause, as defined below,
or Employee voluntarily terminates his employment arrangement other than for
Good Reason, as defined below, the Option shall accelerate and be immediately
exerciseable.
3. Covenant Not to Compete.
(a) Employee agrees that, for a period of three years from the
date hereof, if Employee is terminated for Cause, as defined below, or Employee
voluntarily terminates his employment arrangement other than for Good Reason, as
defined below, Employee will not directly or indirectly engage in (whether as an
employee, consultant, proprietor, partner, director or otherwise), or have a
ownership interest in, or participate in the financing, operation, management or
control of, any person, firm, corporation or business that engages in a
"Restricted Business" in a "Restricted Territory," as such terms are defined
below. It is agreed that ownership of (i) no more than one percent (1%) of the
outstanding voting stock of a publicly traded corporation, or (ii) any stock
presently owned by Employee as of the date hereof, shall not constitute a
violation of this provision.
(i) As used in this Agreement:
1) "Cause" shall mean (i) willful failure by the
Employee to substantially perform his duties hereunder, other than a failure
resulting from the Employee's complete or partial incapacity due to physical or
mental illness or impairment; (ii) a willful act by the Employee which
constitutes misconduct and which is injurious to Sagent or the Company; (iii) a
willful breach by the Employee of a material provision of this Agreement; or
(iv) a material and willful violation of a federal or state law or regulation
applicable to the business of Sagent or the Company. No act, or failure to act,
by the Employee shall be considered 'willful' unless committed without good
faith without a reasonable belief that the act or omission was in the Company's
best interest.
2) "Good Reason" shall mean the following (unless
such event(s) applies generally to all senior management of the Company):
(A) without the Employee's express written
consent, the assignment to the Employee of any duties or the reduction of the
Employee's duties, either of which results in a significant diminution in the
Employee's position or responsibilities with the Company in
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effect immediately prior to such assignment, or the removal of the Employee from
such position and responsibilities;
(B) without the Employee's express written
consent, a substantial reduction, without good business reasons, of the
facilities and perquisites (including office space and location) available to
the Employee immediately prior to such reduction;
(C) a material reduction by the Company in the
base salary or bonus opportunity of the Employee as in effect immediately prior
to such reduction;
(D) a material reduction by the Company in the
kind or level of employee benefits to which the Employee is entitled immediately
prior to such reduction with the result that the Employee's overall benefits
package is significantly reduced;
(E) the relocation of the Employee to a facility
or a location more than 25 miles from the Employee's then present location,
without the Employee's express written consent;
(F) any purported termination of the Employee's
employment by the Company which is not effected for death, disability or for
Cause, or any purported termination for which the grounds relied upon are not
valid;
(G) the failure of the Company to obtain the
assumption of this Agreement by any successor; or
(H) any material breach by the Company of any
material provision of this Agreement.
3) "Restricted Business" shall mean any business that
is engaged in or (to Employee's knowledge after due inquiry) preparing to engage
in the design, manufacture, marketing, sale, servicing or distribution of
products of a type sold, reasonably anticipated to be sold, or competitive with
any product of Sagent or the Company, or the providing of consulting services
for such products, during Employee's employment with either Sagent or the
Company.
4) "Restricted Territory" shall mean any location in
which the Company or Sagent sells, markets, distributes or has distributed
products, or any location in which the Company or Sagent plans to sell, market,
distribute or has distributed products.
(b) Employee agrees that, for a period of three years from the
date hereof, if Employee is terminated for Cause or Employee voluntarily
terminates his employment arrangement other than for Good Reason, Employee shall
not:
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(i) solicit, encourage, or take any other action which is
intended to induce any other employee of Company or Sagent to terminate his
employment with Company or Sagent, or
(ii) interfere in any manner with the contractual or
employment relationship between Company or Sagent and any such employee of
Company or Sagent.
(c) The parties acknowledge that the market for computer software
consulting is world-wide, and that, in this market, products from any nation
compete with products from all other nations. Accordingly, in order to secure to
Sagent and the Company the benefits of the Acquisition Agreement, the parties
agree that the provisions of this Section 3 shall apply to each of the states
and counties of the United States, including each county in California, and to
each nation worldwide.
(d) In the event that the provisions of this Section 3 should
ever be deemed to exceed the time or geographic limitations, or the scope of
this covenant, permitted by applicable law, then such provisions shall be
reformed to the maximum time or geographic limitations, as the case may be,
permitted by applicable laws.
4. Reasonableness of Covenant. Employee represents that he (i) is
familiar with the covenants not to compete and not to solicit set forth in
Section 3, and (ii) is fully aware of his obligations hereunder, including,
without limitation, the reasonableness of the length of time, scope and
geographic coverage of these covenants.
5. Confidential Information.
(a) Company Information. Employee agrees at all times during the
term of Employee's employment and thereafter, to hold in strictest confidence,
and not to use, except for the benefit of the Company or Sagent, or to disclose
to any person, firm or corporation without written authorization of the Board of
Directors (or an officer so authorized by the Board of Directors) of the Company
or Sagent, any Confidential Information of the Company or Sagent. Employee
understands that "Confidential Information" means any Company proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, products, services, customer lists and
customers (including, but not limited to, customers of the Company on whom
Employee called or with whom Employee became acquainted during the term of
Employee's employment), markets, software, developments, inventions, technology,
designs, drawings, engineering, hardware configuration information, marketing,
finances or other business information disclosed to Employee by the Company
either directly or indirectly in writing, orally or by drawings or observation
of parts or equipment. Employee further understands that Confidential
Information does not include any of the foregoing items which has become
publicly known and made generally available through no wrongful act of Employee
or of others who were under confidentiality obligations as to the item or items
involved.
(b) Third Party Information. Employee recognizes that the Company
has received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the Company's part
to maintain the confidentiality of such
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information and to use it only for certain limited purposes. Employee agrees to
hold all such confidential or proprietary information in the strictest
confidence and not to disclose it to any person, firm or corporation or to use
it except as necessary in carrying out Employee's work for the Company
consistent with the Company's agreement with such third party.
6. Retaining and Assigning Inventions and Original Works
(a) Inventions and Original Works Retained by Me. Employee has
attached hereto, as Exhibit C, a list describing all inventions, original works
of authorship, developments, improvements, and trade secrets which were made by
Employee prior to Employee's employment with the Company, which belong to
Employee, which relate to the Company's proposed business and products, and
which are not assigned to the Company; or, if no such list is attached, Employee
repre sents that there are no such inventions.
(b) Inventions and Original Works Assigned to the Company.
Employee agrees that Employee will promptly make full written disclosure to the
Company, will hold in trust for the sole right and benefit of the Company, and
will assign to the Company all my right, title, and interest in and to any and
all inventions, original works of authorship, developments, improvements or
trade secrets which Employee may solely or jointly conceive or develop or reduce
to practice, or cause to be conceived or developed or reduced to practice,
during the period of time Employee is in the employ of the Company. However,
Employee recognizes, that Employee may exclude from such an assignment under
this provision, any invention as to which Employee can prove the following:
(i) it was developed entirely on Employee's own
time; and
(ii) no equipment, supplies, facility or trade secret
of Sagent or the Company was used in its
development; and
(iii) does not relate, at the time the invention was
conceived or reduced to practice, to Sagent's or
the Company's business or to Sagent's or the
Company's actual or demonstrably anticipated
research and development; and
(iv) does not result from any work performed by
Employee for Sagent or the Company.
Employee acknowledges that all original works of
authorship which are made by me (solely or jointly with others) within the scope
of Employee's employment and which are protectable by copyright are "works made
for hire," as that term is defined in the United States Copyright Act (17 USCA,
Section 101).
(c) Maintenance of Records. Employee agrees to keep and maintain
adequate and current written records of all inventions and original works of
authorship made by Employee (solely
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or jointly with others) during the term of Employee's employment with the
Company. The records will be in the form of notes, sketches, drawings, and any
other format that may be specified by the Company. The records will be available
to and remain the sole property of the Company at all times.
(d) Inventions Assigned to the United States. Employee agrees to
assign to the United States government all my right, title, and interest in and
to any and all inventions, original works of authorship, developments,
improvements or trade secrets whenever such full title is required to be in the
United States by a contract between the Company and the United States or any of
its agencies.
(e) Obtaining Letters Patent and Copyright Registrations.
Employee agrees that his obligation to assist the Company to obtain United
States or foreign letters patent and copyright registrations covering inventions
and original works of authorship assigned hereunder to the Company shall
continue beyond the termination of Employee's employment, but the Company shall
compensate Employee at a reasonable rate for time actually spent by Employee at
the Company's re quest on such assistance. If the Company is unable because of
Employee's mental or physical incapacity or for any other reason to secure
Employee's signature to apply for or to pursue any application for any United
States or foreign letters patent or copyright registrations covering inven tions
or original works of authorship assigned to the Company as above, then Employee
hereby irrevocably designates and appoints the Company and its duly authorized
officers and agents as Employee's agent and attorney in fact, to act for and in
Employee's behalf and stead to execute and file any such applications and to do
all other lawfully permitted acts to further the prosecution and issuance of
letters patent or copyright registrations thereon with the same legal force and
effect as if executed by Employee. Employee hereby waives and quitclaims to the
Company any and all claims, of any nature whatsoever, which Employee now or may
hereafter have for infringement of any patents or copyrights resulting from any
such application for letters patent or copyright registrations assigned
hereunder to the Company.
(f) Exception to Assignments. Employee understands that the
provisions of this Agreement requiring assignment to the Company do not apply to
any invention which qualifies fully under the provisions set forth in paragraph
6(b). Employee will advise the Company promptly in writing of any inventions,
original works of authorship, developments, improvements or trade secrets that
Employee believes meet the criteria in Subparagraphs 6(b)(i), (ii), and (iii)
above; and Employee will at that time provide to the Company in writing all
evidence necessary to substantiate that belief. Employee understands that the
Company will keep in confidence and will not disclose to third parties without
Employee's consent any confidential information disclosed in writing to the
Company relating to such inventions.
7. Conflicting Employment. Employee agrees that, during the term of
Employee's employment with the Company, Employee will not engage in any other
employment, occupation, consulting or other business activity directly related
to the business in which the Company is now involved or becomes involved during
the term of Employee's employment, nor will Employee engage in any other
activities that conflict with Employee's obligations to the Company.
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8. Returning Company Documents. Employee agrees that, at the time of
leaving the employ of the Company, Employee will deliver to the Company (and
will not keep in his possession or deliver to anyone else) any and all devices,
records, data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other documents or
property, or reproductions of any aforementioned items belonging to Sagent, the
Company, or either of its successors or assigns.
9. Representations. Employee agrees to execute any proper oath or verify
any proper document required to carry out the terms of this Agreement. Employee
represents that his performance of all the terms of this Agreement will not
breach any agreement to keep in confidence proprietary information acquired by
him in confidence or in trust prior to his employment by the Company. Employee
has not entered into, and Employee agrees he will not enter into, any oral or
written agreement in conflict herewith.
10. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California as applied to
agreements made and performed in California by residents of California.
11. Amendments. This Agreement shall not be changed or modified in whole
or in part except by an instrument in writing signed by each party hereto.
12. Attorneys' Fees. In the event of any legal action or proceeding to
enforce or interpret the provisions hereof, the provisions hereof, the
prevailing party shall be entitled to reasonable attorneys' fees, whether or not
the proceeding results in a final judgment.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
14. Effect of Headings. The section heading herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment and
Non-Competition Agreement as of the date first written above.
SAGENT TECHNOLOGY, INC.
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxx, President and Chief
Executive Officer
SAGENT PROFESSIONAL SERVICES, INC.
a Delaware Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxx, President and Chief
Executive Officer
EMPLOYEE
/s/ Xxxxxxx X. Venerable
------------------------------------------------
Xxxxxxx X. Venerable
00000 Xxxxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
------------------------------------------------
(Print Telephone Number)
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EXHIBIT A
Description of Employee's Duties
Position: Vice President of Professional Services
Operational responsibility for all profiessional services including product
support consulting, long term project consulting, OEM consulting, product
training and other education services. Includes responsiblity for additional
service headcount added through future acquisitions. Sets strategic direction of
service organization consistent with corporate objectives, to include revenue
objectives, margin objectives, service product definition, and service product
pricing. Responsible for defining organizational structure, recruiting, staffing
and personnel decisions within the service organization. Responsible for service
partner programs and standards for consulting, product training and other
educational services.
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EXHIBIT B
Form of Option Agreement
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EXHIBIT C
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
Identifying Number
Title Date or Brief Description
----- ---- --------------------
Book and associated CD 2/1/98 A book to be published by Xxxx Xxxxx &
Rom entitled "Data Associates, and an accompanying CD-ROM
Warehouse Design containing a series of designs for data
Solutions" warehouse, as well as report designs.
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EXHIBIT D
CHANGE OF CONTROL POLICY
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