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EXHIBIT 10.16
EXCLUSIVE CONCESSION AGREEMENT
This Exclusive Concession Agreement ("Agreement"), effective as of this
21st day of November, 1997 (the "Effective Date"), is entered into by and
between Sagent Technology, Inc., having offices at 0000 X. Xxxxxxxx Xx., Xxxxx
000, Xxxx Xxxx, Xxxxxxxxxx 00000, X.X.X. ("Sagent"), and Sagent France S.A.,
having offices at 000 Xxx Xxxxxxx, Xxxx Pereire Bat A, 78105 St. Germain En
Layes, France ("Concessionaire").
BACKGROUND
Sagent is in the business of developing and licensing computer
software. Concessionaire desires to market and distribute such computer software
in France, and Sagent agrees to authorize Concessionaire to so market and
distribute such computer software, pursuant to the terms and conditions set
forth below.
AGREEMENT
Now, therefore, in consideration of the foregoing and the mutual
covenants and conditions contained herein, the parties agree as follows:
1. DEFINITIONS
1.1 "Products" shall mean those products listed in Exhibit A attached
hereto, as such products may be added to or abandoned by Sagent in Sagent's sole
discretion from time to time during the term of this Agreement.
1.2 "Sagent Marks" shall mean those trademarks, tradenames and
servicemarks listed in Exhibit B attached hereto, as such trademarks, tradenames
and servicemarks may be added to or removed by Sagent in Sagent's sole
discretion from time to time during the term of this Agreement.
1.3 Sale and Purchase of Products. All references in this Agreement to
the "sale" or "selling" of Products shall mean a license to use such Products
and the sale of the tangible media on which the Products are distributed. All
references in this Agreement to the "purchase" of Products shall mean a license
to use such Products and the purchase of the tangible media on which the
Products are distributed.
1.4 "Territory" shall mean the member countries of the European Union.
1.5 "Year 1" shall mean the period commencing on the Effective Date and
ending on December 31, 1998.
1.6 "Year 2" shall mean the period commencing on January 1, 1999 and
ending on December 31, 1999.
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1.7 "Year 3" shall mean the period commencing on January 1, 2000 and
ending on December 31, 2000.
2. APPOINTMENT
2.1 Appointment of Concessionaire. Conditioned upon Concessionaire's
continued satisfaction of the terms and conditions of this Agreement, Sagent
hereby appoints Concessionaire, and Concessionaire hereby accepts appointment,
as Sagent's exclusive Concessionaire for the licensing and distribution of
Products to customers in the Territory only for use in the Territory only.
Concessionaire shall not reproduce or sell the Products, and Concessionaire
shall not license or distribute the Products except as expressly set forth in
this Agreement. Concessionaire agrees that it shall not offer for sale, sell,
license or otherwise distribute Products acquired by it from any entity other
than directly from Sagent without the prior written approval of Sagent.
2.2 Distribution outside the Territory. Concessionaire shall limit its
sales activities with respect to the Products to customers located in the
Territory, and shall refrain from marketing, licensing or selling the Products
outside of the Territory except to the extent such activities may not be
restricted under applicable law.
2.3 Appointment of Subdistributors. Concessionaire may appoint
subdistributors to act on the Concessionaire's behalf only on prior written
approval of Sagent; provided, however, that any compensation to such
subdistributors shall be solely the Concessionaire's responsibility. Any
agreement with such agent or subdistributor with respect to Products shall be
coterminous with this Agreement.
2.4 Independent Contractor Status. The relationship of Sagent and
Concessionaire established by this Agreement is that of independent contractors,
and neither party is an employee, agent, partner or joint venturer of the other.
Concessionaire shall not be considered an agent or legal representative of
Sagent for any purpose, and neither Concessionaire nor any director, officer,
agent, or employee of Concessionaire shall be, or be considered, an agent or
employee of Sagent. Concessionaire is not granted and shall not exercise the
right or authority to assume or create any obligation or responsibility on
behalf of or in the name of Sagent. All sales and other agreements between
Concessionaire and its customers are Concessionaire's sole responsibility and
will have no effect on Sagent's obligations under this Agreement.
2.5 Operations and Expense. The detailed operations of Concessionaire
under this Agreement are subject to the sole control and management of
Concessionaire. Concessionaire shall be responsible for all of its own expenses
and employees. Concessionaire shall provide, at its own expense, such office
space and facilities, and hire and train such personnel, as may be required to
carry out its obligations under this Agreement. Concessionaire agrees that it
shall incur no expense chargeable to Sagent, except as may be specifically
authorized in advance in writing in each case by Sagent.
2.6 No Other Rights. Except as expressly provided in this Agreement, no
right, title or interest is granted by Sagent to
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Concessionaire. No right, title or interest is granted by Sagent to
Concessionaire relating to products other than the Products. Notwithstanding
Section 2.1 above, Sagent reserves the right to sell and distribute the Products
directly to the customers that are set forth in Exhibit C attached hereto
("House Accounts").
2.7 No Conflicts. Concessionaire represents and warrants that, as of
the Effective Date, it is not involved, directly or indirectly, in any
activities involving products which compete or have the potential to compete
with the Products, including but not limited to the distribution of competing
product lines ("Competing Activities"). Concessionaire agrees that it shall not
enter into any Competing Activities in the Territory during the term of this
Agreement and for a period of five (5) years afterward. If Concessionaire
becomes involved in any Competing Activities, Concessionaire shall promptly
inform Sagent of such involvement, and Sagent shall have, in addition to all
other remedies to which it may be entitled, the right to terminate this
Agreement without liability at any time thereafter pursuant to Section 14.2.
3. LICENSE OF SAGENT MARKS
3.1 License. Subject to the terms and conditions of this Agreement,
Sagent grants to Concessionaire a non-transferable, revocable license, without
right of sublicense, to use the Sagent Marks in the Territory solely in
connection with the sale, distribution and advertisement of the Products.
Concessionaire shall not use the Sagent Marks except as expressly permitted
herein.
3.2 Restrictions. All representations of the Sagent Marks that
Concessionaire intends to use shall first be submitted to Sagent for approval of
design, color and other details or shall be exact copies of those provided by
Sagent. Concessionaire shall fully comply with all guidelines, if any,
communicated by Sagent concerning the use of the Sagent Marks. Concessionaire
shall not alter or remove any trademarks, servicemarks, tradenames or other
marks affixed to the Products by Sagent, nor affix the Sagent Marks to any
Product. Except as set forth in this Article 3, nothing contained in this
Agreement shall grant or shall be deemed to grant to Concessionaire any right,
title or interest in or to the Sagent Marks. All uses of the Sagent Marks shall
inure solely to the benefit of Sagent, and Concessionaire shall obtain no rights
with respect to any of the Sagent Marks, other than the right to distribute
Products as set forth herein, and Concessionaire hereby irrevocably assigns to
Sagent all right, title and interest held by Concessionaire, if any, in or to
any of the Sagent Marks. At no time during or after the term of this Agreement
shall Concessionaire challenge or assist others in challenging the Sagent Marks
(except to the extent expressly entitled by applicable law) or the registration
thereof or attempt to register any trademarks, servicemarks, marks or trade
names confusingly similar to the Sagent Marks. Upon any termination or
expiration of this Agreement, or the election of Sagent pursuant to Section 4.2
below, Concessionaire shall immediately cease to use any and all of the Sagent
Marks, and any listing by Concessionaire of any Xxxxxx Xxxx in any telephone
book, directory, public record or elsewhere shall be removed by Concessionaire
as soon as possible, but in any event not later than the subsequent issue of
such publication.
3.3 Infringement. Concessionaire shall promptly notify Sagent of any
actual or suspected infringements, imitations, or unauthorized use of the Sagent
Marks by third parties of which Concessionaire becomes aware. Sagent shall have
the sole right, at its expense, to bring any action on account of any such
infringements, imitations or unauthorized use, and Concessionaire shall
cooperate
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with Sagent, as Sagent may reasonably request, in connection with any such
action brought by Sagent. Sagent shall retain any and all damages, settlement
and/or compensation paid in connection with any such action brought by Sagent.
3.4 Registered User Agreements. Sagent and Concessionaire shall enter
into registered user agreements with respect to the Sagent Marks pursuant to
applicable trademark law requirements in the Territory, if any. Concessionaire
or Sagent, at Sagent's sole discretion, shall be responsible for proper filing
of registered user agreements and all such other required registrations relating
to the legal protection of the Sagent Marks with governmental authorities in the
Territory and shall pay all costs or fees associated with such filing(s).
4. OBLIGATIONS OF CONCESSIONAIRE
4.1 Diligence. Concessionaire shall use its best efforts to promote the
marketing and distribution of the Products.
4.2 Minimum Revenue Requirements. In the event Concessionaire fails to
meet the minimum revenue requirements set forth in Exhibit E attached hereto,
then, notwithstanding anything in this Agreement to the contrary, (i) Sagent
shall be free to appoint other distributors for its Products in the Territory,
(ii) Concessionaire shall not have any exclusive sale, marketing or distribution
rights to the Products, (iii) at Sagent's election, and in Sagent's sole
discretion, the license grant of Article 3 to the Sagent Marks shall terminate,
and (iv) notwithstanding anything to the contrary in Section 5.1 below, the
Prices paid by Concessionaire for the Products shall be equal to the applicable
List Prices.
4.3 Minimum Revenue Guarantee. Concessionaire hereby guarantees that
the aggregate amount of payments received by Sagent from Concessionaire under
this Agreement during each of Year 1, Year 2 and Year 3 shall equal or exceed
the amounts of [*] dollars ($[*]), [*] dollars ($[*]) and [*] dollars ($[*]),
respectively (the "Guaranteed Minimums"). Within thirty (30) days after the end
of each of Year 1, Year 2 and Year 3, Concessionaire shall pay Sagent the
difference between the applicable Guaranteed Minimum and the actual aggregate
amount of payments received by Sagent from Concessionaire under this Agreement
during such Year 1, Year 2 or Year 3, respectively, if such actual aggregate
amount is less than the applicable Guaranteed Minimum.
4.4 Costs and Expenses. Except as expressly set forth herein,
Concessionaire shall be solely responsible for all costs and expenses related to
the advertising, marketing, promotion, and distribution of the Products and for
performing its obligations hereunder.
4.5 Promotional Materials. Concessionaire shall maintain an adequate
inventory of Sagent's current sales materials and samples ("Sales Materials")
and shall use such Sales Materials in an efficient and effective manner to
promote the sale of the Products in the Territory. Concessionaire shall
translate Sales Materials into French at Concessionaire's sole expense for
distribution to customers, and Concessionaire shall prepare and distribute such
translated Sales Materials in a professional format consistent with Sagent's
original materials, subject to final approval by Sagent ("Translated Works").
Concessionaire agrees that all Translated Works created by Concessionaire,
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* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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and all intellectual property rights therein, shall be the sole property of
Sagent, and Concessionaire hereby assigns to Sagent all worldwide right, title,
and interest to the Translated Works and all intellectual property therein.
4.6 Reports.
4.6.1 Annual Financial Reports. Concessionaire shall provide
to Sagent annual audited financial reports, which reports shall (i) be provided
to Sagent no later than two (2) months after the close of Concessionaire's
applicable fiscal year, and (ii) be treated as Confidential Information pursuant
to the terms of Article 11 below.
4.6.2 General Market Information. Concessionaire shall provide
to Sagent information regarding general market conditions and competitors on a
regular basis, but no less than once per calendar quarter.
4.6.3 Sales Activities. Within thirty (30) days after the end
of each calendar quarter, Concessionaire shall send to Sagent a sales activities
report including the names of customers, quantities of Products purchased,
dollar amounts invoiced to and received from such customers, and customer
backlog and inventory status of Products, and further shall maintain records of
the same.
4.7 Inventory. Concessionaire shall purchase and maintain an inventory
of Products in quantity sufficient to meet the needs of its customers.
4.8 Relations with Customer. Concessionaire shall process and ship each
customer order in a timely fashion. Concessionaire shall provide to customers
any and all instructions, precautions, and other warnings provided by Sagent to
Concessionaire; and Sagent shall provide to Concessionaire any such
instructions, precautions, and other warnings as Sagent in its sole discretion
deems necessary or desirable.
4.9 Product Representations. Concessionaire shall not to make any
representations with respect to the Products other than those expressly
authorized in writing in Sagent's written data sheets.
4.10 Indemnification. Concessionaire agrees to indemnify and hold
Sagent, its officers, directors, employees, successors, and assigns harmless
from and against any and all losses, damages, or expenses of whatever form or
nature, including attorneys' fees and other costs of legal defense, whether
direct or indirect, that they, or any of them, may sustain or incur as a result
of any acts or omissions of Concessionaire or any of its directors, officers,
employees, or agents, including but not limited to (i) breach of any of the
provisions of this Agreement, (ii) negligence or other tortious conduct, (iii)
representations or statements not specifically authorized by Sagent herein or
otherwise in writing, or (iv) violation by Concessionaire (or any of its
directors, officers, employees, or agents) of any applicable law, regulation, or
order in or of the Territory or the United States.
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5. PRODUCTS
5.1 Product Prices. The prices to be paid by Concessionaire to Sagent
for Products hereunder shall be List Prices for the Products less the
discount(s) set forth in Exhibit D attached hereto ("Prices"). "List Prices" as
used herein shall mean the prices set forth in Sagent's then-current customer
price schedules or bulletins. Prices shall be F.O.B. Sagent's facilities in Palo
Alto, California, United States. All prices are expressed and shall be payable
in U.S. dollars. The difference between List Prices and Prices shall be
Concessionaire's sole remuneration from Sagent for the distribution and sale of
Products hereunder.
5.2 Price Changes. List Prices are subject to change by Sagent at any
time in its sole discretion. List Price changes shall be effective immediately
and applicable to all purchase orders whether or not accepted prior to the
effective date of the List Price change.
5.3 Product Changes. Sagent reserves the right from time to time in its
sole discretion, without incurring any liability to Concessionaire with respect
to any previously placed Purchase Order (as defined in Section 6.1 below), to
discontinue or to limit its production of any Product; to allocate, terminate or
limit deliveries of any Product in time of shortage; to alter the design or
construction of any Product; to add new and additional products to the Products;
and upon reasonable notice to Concessionaire, to change its sales and
distribution policies, not inconsistent with the terms of this Agreement.
5.4 Discontinued Product. In the event Sagent discontinues sale of any
Product, it shall give Concessionaire prompt notice thereof. Within sixty (60)
days following the date of such discontinuation notice, Concessionaire may elect
to return for credit against future purchases hereunder any of the discontinued
Products (including samples) purchased by Concessionaire during the three (3)
months prior to the date of such notice which have not been used or sold and
which are in Concessionaire's inventory as of the date of that notice from
Sagent.
6. PURCHASER ORDERS
6.1 Purchase Orders. All orders for Products submitted by
Concessionaire shall be initiated by written purchase order in form acceptable
to Sagent (each a "Purchase Order"); provided, however, that an order may
initially be placed orally or by fax if a confirmational Purchase Order is
received by Sagent within five (5) days of said oral or fax order. All Purchase
Orders for Products are subject to acceptance by Sagent in writing, and Sagent
shall have no liability to Concessionaire with respect to Purchase Orders that
are not accepted. No partial acceptance of a Purchase Order shall constitute the
acceptance of the entire Purchase Order, absent the written acceptance of such
entire Purchase Order.
6.2 Agreement Governs. Purchase Orders shall be governed by the terms
of this Agreement. Nothing contained in any Purchase Order shall in any way
modify or delete the terms and conditions contained herein or add any additional
or different terms or conditions to the terms and conditions of this Agreement.
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6.3 Order Changes. Purchase Orders may be canceled only with Sagent's
prior written approval. Cancellation of a Purchase Order is subject to a
restocking charge equal to ten percent (10%) of the aggregate value of such
Purchase Order.
7. PAYMENT; TAXES
7.1 Payment Terms. Payment of any and all amounts due under this
Agreement shall be in U.S. Dollars. Concessionaire shall either (i) pay for
Products within thirty (30) days of receipt of such Products by wire transfer or
check to Sagent's designated account; or (ii), at Concessionaire's option,
guarantee payment for all Products by an irrevocable letter of credit. The
letter of credit shall be upon terms acceptable to Sagent, shall provide for
payment upon delivery of Sagent's invoice and the xxxx of lading that relate to
the shipment, shall allow for partial shipments, and shall provide for payment
for all applicable taxes, shipping charges, and other charges to be borne by
Concessionaire as provided hereunder. All exchange, interest, banking,
collection and other charges shall be at Concessionaire's expense.
7.2 Offsets. Any credits, allowances, or other amounts payable to or
creditable by Distributor shall be subject to offset for any claims or other
amounts owed by Concessionaire to Sagent pursuant to the provisions of this
Agreement.
7.3 Taxes.
7.3.1 Taxes Generally. Prices do not include and are net of
any foreign or domestic governmental taxes or charges of any kind that may be
applicable to the sale, licensing, marketing or distribution of the Products,
including without limitation excise, sales, use, or value-added taxes; customs
or other import duties; or other taxes, tariffs or duties. Concessionaire shall
be responsible for and shall pay all such taxes and charges levied against
Sagent in a timely manner. When Sagent has the legal obligation to pay or
collect such taxes, excluding taxes on the income of Sagent, the appropriate
amount shall be invoiced to Concessionaire and paid by Concessionaire within
thirty (30) days of the date of invoice unless Concessionaire provides Sagent
with a valid tax exemption certificate authorized by the appropriate taxing
authority.
7.3.2 Withholding Taxes. All payments by Concessionaire shall
be made free and clear of, and without reduction for, any withholding taxes. Any
such taxes which are otherwise imposed on payments to Sagent shall be the sole
responsibility of Concessionaire. Concessionaire shall provide Sagent with
official receipts issued by the appropriate taxing authority or such other
evidence as is reasonably requested by Sagent to establish that such taxes have
been paid.
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8. DELIVERY; REJECTION
8.1 Shipment and Delivery. Products delivered pursuant to the terms of
this Agreement shall be suitably packed for shipment in Sagent's standard
shipping cartons, marked for shipment to the destination specified in
Concessionaire's Purchase Order, and delivered to the carrier agent F.O.B.
Sagent's facility in Palo Alto, California, United States, at which time risk of
loss shall pass to Concessionaire. Unless otherwise specified in writing by
Concessionaire in Concessionaire's purchase order, Sagent shall select the
carrier. All freight, insurance, and other shipping expenses, as well as
expenses for any special packing requested by Concessionaire and provided by
Sagent, shall be paid by Concessionaire. All shipment and freight charges shall
be deemed correct unless Sagent receives from Concessionaire, no later than
fifteen (15) days after the date of shipment, a written notice specifying the
shipment, the purchase order number, and the exact nature of the discrepancy
between the order and the shipment in number or type of Products shipped, or
freight or other charges, as the case may be. Sagent may cease any and all
shipments of Products until Concessionaire is in full performance of its
obligations under Article 7.
8.2 Title; Clause de Reserve de Propriete. Sagent shall retain all
right, title and interest in and to Products delivered to Concessionaire until
Sagent has received all applicable payments therefor.
8.3 Inspection; Rejection. Concessionaire shall inspect all Products
promptly upon receipt thereof and may reject any defective Product, provided
that Concessionaire shall (i) within the earlier of thirty (30) days after
receipt of such alleged defective Product or ten (10) days after discovery of
such alleged defect, notify Sagent of its rejection and request a Return
Material Authorization ("RMA") number, and (ii) within ten (10) days of receipt
of the RMA number from Sagent return such rejected Product to Sagent, freight
prepaid and properly insured. Products not rejected within the foregoing time
periods shall be deemed accepted by Concessionaire. In the event that Sagent
determines that the returned Product is defective and properly rejected by
Concessionaire, Sagent shall at its option, repair or replace such defective
Product, or accept return for credit of such defective Product. Sagent shall
return to Concessionaire, freight prepaid, all repaired or replaced Products
properly rejected by Concessionaire. In the event that any rejected Product is
determined by Sagent to not be defective or to have been modified or subjected
to unusual electrical or physical stress, misuse, abuse or unauthorized repair,
Concessionaire shall reimburse Sagent for all costs and expenses related to the
inspection, repair, if any, and return of such Product to Concessionaire.
8.4 Returned Product. Concessionaire shall only return Products to
Sagent with Sagent's prior written approval. Any Product returned to Sagent by
Concessionaire as authorized under this Agreement shall be shipped, freight
prepaid, F.O.B. Sagent's address first set forth above or such other location as
Sagent may instruct Concessionaire, and shall be packed in its original packing
material. Sagent may refuse to accept any Product not packed and shipped as
herein provided.
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9. TECHNICAL SUPPORT
9.1 Support by Concessionaire. Concessionaire shall be solely
responsible for supporting all Products distributed hereunder. Concessionaire
shall provide reasonable technical support to customers, including without
limitation (i) maintaining trained and competent technical and engineering
support personnel for the Products who are sufficiently knowledgeable with
respect to the Products to answer customer questions regarding the use and
operation of Products, (ii) designating a technical liaison to coordinate
Concessionaire's technical support provided to Customers, (iii) responding
promptly to requests for technical support from customers, and (iv) providing
technical support services to address and resolve customers' support requests
with respect to the Products. Concessionaire shall ensure that Concessionaire's
technical and engineering support personnel attend any training required by
Sagent with respect to the Products.
9.1.1 Frontline Support. Concessionaire shall ensure that all
customer questions regarding the use or operation of Products are initially
addressed to and answered by Concessionaire. Unless otherwise agreed in writing
by Sagent, Concessionaire shall not represent to any third party that Sagent is
available to answer questions from any customer directly.
9.1.2 Conformance with Sagent Policy. Concessionaire will
provide prompt and effective service and repair of Products in the Territory in
accordance with Sagent's standard support policies then in effect.
9.1.3 Additional Responsibilities. Without limiting the
foregoing and in addition to any other obligations set forth in Sagent's then
current support terms and conditions, Concessionaire also shall be responsible
for (i) providing sufficient information to Sagent for Sagent to duplicate any
reported error in the Products; (ii) incorporating updates into the Products
promptly upon receipt thereof; (iii) reporting errors promptly in English and in
writing in accordance with Sagent's standard support procedures; and (iv)
providing reasonable cooperation and full information to Sagent in the
furnishing of support for the Products.
9.2 Support by Sagent. Sagent shall use reasonable efforts to provide
to Concessionaire such back-up telephone or electronic-mail technical support as
Sagent makes generally available to its distributors other than Concessionaire.
Such telephone support shall be provided during Sagent's normal business hours
(Monday through Friday, 9:00 a.m. - 5:00 p.m. Pacific Standard Time, excluding
Sagent holidays). With respect to computer software Products, Sagent will
provide support for the then-current versions of such computer software Products
only.
10. DISCLAIMER OF WARRANTY
SAGENT MAKES NO WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, IMPLIED
OR OTHERWISE, AND SAGENT SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT, AND ALL OTHER IMPLIED WARRANTIES OR CONDITIONS ARISING FROM
COURSE OF DEALING, USAGE OF TRADE OR CUSTOM. NOTWITHSTANDING THE FOREGOING,
SAGENT DOES NOT EXCLUDE LIABILITY TO THE EXTENT THAT SUCH LIABILITY MAY NOT BE
EXCLUDED OR LIMITED BY LAW.
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11. CONFIDENTIALITY AND PROPRIETARY RIGHTS
11.1 Confidentiality. Concessionaire acknowledges that by reason of its
relationship to Sagent hereunder it will have access to certain information and
materials concerning Sagent's business, plans, customers, technology, and
products that are confidential and of substantial value to Sagent, which value
would be impaired if such information were disclosed to third parties
("Confidential Information"). Concessionaire agrees that it will not use in any
way for its own account or the account of any third party, nor disclose to any
third party, any Confidential Information revealed to it by Sagent.
Concessionaire shall take every reasonable precaution to protect the
confidentiality of Confidential Information. Upon request by Concessionaire,
Sagent shall advise whether or not it considers any particular information or
materials to be confidential. Concessionaire shall not publish any technical
description of the Products beyond the description published by Sagent. In the
event of termination of this Agreement, there shall be no use or disclosure by
Concessionaire of any Confidential Information of Sagent, and Concessionaire
shall not reproduce, manufacture, have reproduced or have manufactured any
computer software programs, devices, components or assemblies utilizing any of
Sagent's confidential information.
11.2 Proprietary Rights. Concessionaire agrees that Sagent retains all
of its right, title and interest in and to all patents, trademarks, trade names,
inventions, copyrights, know-how and trade secrets relating to the Products or
the product lines that include the Products, and the design, manufacture,
operation or service of the Products. The use by Concessionaire of any of these
property rights is authorized only for the purposes herein set forth and upon
termination of this Agreement for any reason such authorization will cease.
Concessionaire shall not (and shall require that its customers do not) remove,
alter, cover or obfuscate any copyright notices or other proprietary rights
notices placed or embedded by Sagent on or in any Product.
12. INTELLECTUAL PROPERTY INDEMNIFICATION
12.1 Limited Indemnity. Concessionaire agrees that Sagent has the right
to defend, or at its option to settle, and Sagent agrees, at its own expense, to
defend or at its option to settle, any third party claim, suit or proceeding
(collectively, ("Action") brought against Concessionaire alleging the Products
infringe any copyright or trademark in existence as of the Effective Date,
subject to the limitations hereinafter set forth. Sagent shall have sole control
of any such Action or settlement negotiations, and Sagent agrees to pay, subject
to the limitations hereinafter set forth, any final judgment entered against
Concessionaire on such issue in any such Action defended by Sagent.
Concessionaire agrees that Sagent will be relieved of the foregoing obligations
unless Concessionaire notifies Sagent in writing of such Action within five (5)
days after becoming aware of such action, gives Sagent authority to proceed as
contemplated herein, and gives Sagent proper and full information and assistance
to settle and/or defend any such Action. If it is adjudicatively determined, or
if Sagent believes, that the Products, or any part thereof, infringe any
copyright or trademark, or if the sale or use of the Products, or any part
thereof, is, as a result, enjoined, then Sagent may, at its election, option,
and expense: (i) procure for Concessionaire the right under such copyright or
trademark to sell or use, as appropriate, the Products or such part thereof;
(ii) replace the Products, or part thereof, with other noninfringing suitable
products or parts; (iii) suitably modify the Products
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or part thereof; or (iv) remove the Products, or part thereof, terminate
distribution or sale thereof and refund the payments paid by Concessionaire for
such Products less a reasonable amount for use and damage. Sagent shall not be
liable for any costs or expenses incurred without its prior written
authorization, or for any installation costs of any replaced Products.
12.2 Limitations. Notwithstanding the provisions of Section 12.1 above,
Sagent assumes no liability for infringement claims arising from (i) combination
of the Products or portions thereof with other software not provided by Sagent
if such infringement would not have occurred but for such combination, or (ii)
the modification of the Products or portions thereof unless such modification
was made or authorized by Sagent, when such infringement would not have occurred
but for such modification.
12.3 Disclaimer. SAGENT'S LIABILITY ARISING OUT OF OR RELATING TO THIS
ARTICLE 12 SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY CONCESSIONAIRE TO
SAGENT FOR THE ALLEGEDLY INFRINGING PRODUCTS THAT ARE THE SUBJECT OF THE
INFRINGEMENT CLAIM. THE FOREGOING PROVISIONS OF THIS ARTICLE 12 STATE THE ENTIRE
LIABILITY AND OBLIGATION OF SAGENT AND THE EXCLUSIVE REMEDY OF CONCESSIONAIRE
WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY
THE PRODUCTS OR ANY PART THEREOF.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL SAGENT'S LIABILITY ARISING OUT OF OR RELATING TO THIS
AGREEMENT EXCEED THE AGGREGATE AMOUNTS PAID BY CONCESSIONAIRE TO SAGENT
HEREUNDER, INCLUDING BUT NOT LIMITED TO LIABILITY UNDER ARTICLE 12 ABOVE. IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS, COST OF PROCUREMENT OF
SUBSTITUTE GOODS, OR ANY OTHER SPECIAL, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY WHETHER BASED IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE. THE
FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
14. TERM AND TERMINATION
14.1 Term. Unless earlier terminated pursuant to Section 14.2 below or
by mutual written consent, this Agreement shall commence upon the Effective Date
and continue in full force and effect for an initial term expiring on December
31, 2000. The parties may renew this Agreement for additional one (1) year terms
upon mutual written consent.
14.2 Termination. This Agreement may be terminated prior to the
expiration of the initial term by prior written notice to the other party as
follows:
14.2.1 By either party upon written notice of termination if
the other party breaches any material term or condition of this Agreement and
fails to cure that breach within thirty (30) days
Page 11 of 23
12
after receiving written notice stating the nature of the breach and the
non-breaching party's intent to terminate; or
14.2.2 By either party, effective immediately, if the other
party should become the subject of any voluntary or involuntary bankruptcy,
receivership, or other insolvency proceedings or make an assignment or other
arrangement for the benefit of its creditors, or if such other party should be
nationalized or have any of its material assets expropriated; or
14.2.3 By Sagent, effective immediately, if there should occur
any material change in the management, ownership, control, sales personnel,
sales and marketing capability, or financial condition of Concessionaire; or
14.2.4 By Sagent, effective immediately, if any law or
regulation should become adopted or in effect in the Territory that would
restrict Sagent's termination rights or otherwise invalidate any provisions
hereof; or
14.2.5 By Sagent, effective immediately, if Concessionaire
should violate the terms of Section 2.7 above or Section 16.3 below; or
14.2.6 By Sagent, effective immediately, in accordance with
provisions of Sections 15.3 or 15.5; or
14.2.7 By Sagent, effective immediately, if Concessionaire
knowingly makes any false or untrue statements or representations to Sagent
herein or in the performance of its obligations hereunder.
14.3 Purchase Orders; No Waiver. Notwithstanding the foregoing,
Concessionaire shall be obligated to accept deliveries of Products for which
Purchase Orders were accepted by Sagent prior to the effective date of
termination. After any notice of termination has been delivered by either party
hereunder, deliveries of Product from Sagent to Concessionaire, unless otherwise
agreed by Sagent in its sole discretion, shall require prepayment by wire
transfer by Concessionaire to Sagent. The acceptance of any Purchase Order for
the sale of any Product to Concessionaire after the termination or expiration of
this Agreement shall not be construed as a renewal or extension of this
Agreement nor as a waiver of termination of this Agreement.
14.4 Rights of Parties Upon Termination or Expiration. The following
provisions shall apply on the termination or expiration of this Agreement.
14.4.1 Cessation of Sales Activities. Concessionaire shall
cease all sales and other activities on behalf of Sagent and shall return to
Sagent and immediately cease all use of Confidential Information previously
furnished by Sagent and then in Concessionaire's possession. Concessionaire
shall additionally turn over to Sagent Concessionaire's current customer mailing
list and take such action as is necessary to terminate Concessionaire's
registration as Sagent's sales representative with any governmental authority.
Page 12 of 23
13
14.4.2 Acceleration of Amounts Owed. All indebtedness of
Concessionaire to Sagent shall become immediately due and payable without
further notice or demand, which is hereby expressly waived, and Sagent shall be
entitled to reimbursement for any reasonable attorneys' fees that it may incur
in collecting or enforcing payment of such obligations;
14.4.3 Cessation of Use of Sagent Marks. Concessionaire shall
remove from its property and immediately discontinue all use, directly or
indirectly, of the Sagent Marks, or of any word, title, expression, trademark,
design, or marking that, in the opinion of Sagent, is confusingly similar
thereto. Concessionaire shall further certify in writing to Sagent that
Concessionaire has completely terminated its use of any and all such Sagent
Marks, trademarks, designs, or markings, or any other word, title, or expression
similar thereto that appeared in or on any devices or other materials used in
conjunction with Concessionaire's business.
14.4.4 No Obligation to Repurchase. Sagent shall have no
obligation to repurchase or to credit Concessionaire for its inventory of
Products at the time of termination of this Agreement. Sagent may, at its sole
option, repurchase from Concessionaire, at Sagent's then current list prices
less any applicable then current discounts or at the net prices paid by
Concessionaire, whichever are lower, any or all inventory of Products originally
purchased by Concessionaire from Sagent and remaining unsold by Concessionaire.
14.5 No Liability for Termination. Except as expressly required by law,
in the event of termination of this Agreement 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 damages
on account of the loss of prospective profits or anticipated sales or on account
of expenditures, inventory, investments, leases or commitments in connection
with the business or goodwill of Sagent or Concessionaire. Termination shall
not, however, relieve either party of obligations incurred prior to the
termination.
14.6 Survival. Except for termination by Sagent pursuant to Section
14.2.1 above, Concessionaire may sell Products existing in its inventory as of
the effective date of termination of this Agreement for a period of ninety (90)
days after the effective date of such termination ("Wind-Down Period"). During
the Wind-Down Period, the provisions of Article 15 and Sections 2.2, 4.8 and 4.9
shall survive. In addition to the foregoing provisions, the following provisions
shall survive any termination or expiration of this Agreement: Articles 1, 11,
13 and 16, and Sections 2.4, 2.6, 2.7, 3.2, 4.10, 6.2, 8.2, 14.4, 14.6, 15.1 and
15.4.
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14
15. COMPLIANCE WITH LAWS
15.1 Export Control. Any and all obligations of Sagent to provide the
Products, as well as any technical data, shall be subject in all respects to
such United States laws and regulations as will from time to time govern the
license and delivery of technology and products abroad by persons subject to the
jurisdiction of the United States, including the Export Administration Act of
1979, as amended, any successor legislation, and the Export Administration
Regulations issued by the U.S. Department of Commerce, Bureau of Export
Administration. Concessionaire represents and warrants that it will not export
or reexport the Products or technical data related thereto except in conformity
with such laws and regulations.
15.1.1 Required Authorization. Concessionaire agrees that,
unless prior written authorization is obtained from the Bureau of Export
Administration, or the Export Administration Regulations explicitly permit the
export, reexport, and/or transshipment of the Products or technical data
disclosed or provided to Concessionaire, as applicable, without such written
authorization, Concessionaire shall not export, reexport or transship, directly
or indirectly, the Products or technical data, to country groups S or Z (as
defined in the Export Administration Regulations), which currently consist Cuba
and North Korea, or to Iran, Iraq or Yugoslavia (Serbia and Montenegro), or to
any other country as to which the U.S. Government has placed an embargo against
the shipment of products, which embargo is in effect during the term of this
Agreement.
15.1.2 Prohibited Customers. Concessionaire further agrees not
to resell Products to any organization, public or private, which engages in the
research or production of military devices, armaments, or any instruments of
warfare, including biological, chemical and nuclear warfare.
15.2 Import Licenses; Exchange Controls; Other Governmental Approval.
Concessionaire represents and warrants that it shall, at its expense, obtain any
and all import licenses and governmental approvals that may be necessary to
permit the sale by Sagent and the purchase by Concessionaire of the Products,
comply with all registration requirements in the Territory, obtain such
approvals from the banking and other governmental authorities of the Territory
as may be necessary to guarantee payment of all amounts due hereunder to Sagent
in U.S. dollars, and comply with any and all governmental laws, regulations, and
orders that may be applicable to Concessionaire 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 (e.g.,
registration with the Registre du Commerce et des Societes), and including but
not limited to any and all laws, regulations, or orders that govern or affect
the ordering, export, shipment, import, sale (including government procurement),
delivery, or redelivery of the Products in the Territory. Concessionaire shall
furnish Sagent with such documentation as Sagent may request to confirm
Concessionaire's compliance with this Section 15.2 and agrees that it shall not
engage in any course of conduct that, in Sagent's reasonable belief, would cause
Sagent to be in violation of the laws of any jurisdiction.
15.3 Local Law. Concessionaire shall notify Sagent of the existence and
content of any mandatory provision of law in the Territory or any other
applicable law that conflicts with any provision of this Agreement at the time
of its execution or thereafter. Failure to do so shall constitute
Page 14 of 23
15
a breach of this Agreement for which Sagent may terminate this Agreement
effective immediately upon notice to Concessionaire pursuant to Section 14.2
above.
15.4 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 Products are sold hereunder.
15.5 Questionable Payments. Concessionaire certifies that neither it,
nor any of its directors, officers, employees, or agents is an official, agent,
or employee of any government or governmental agency or political party or a
candidate for any political office on the date of this Agreement. Concessionaire
shall promptly notify Sagent of the any event that would or may result in an
exception to the foregoing representation. Concessionaire shall not, directly or
indirectly, in the name of, on behalf of, or for the benefit of Sagent offer,
promise to pay, or pay any compensation, or give anything of value to, any
official, agent, or employee of any government or governmental agency, or to any
political party or officer, employee, or agent thereof. Concessionaire shall
require each of its directors, officers, employees, and agents to comply with
the provisions of this Section 15.5. Any breach of the provisions of this
Section 15.5 shall entitle Sagent to terminate this Agreement effective
immediately upon written notice to Concessionaire pursuant to Section 14.2
above.
16. MISCELLANEOUS PROVISIONS
16.1 Governing Law. This Agreement shall be governed by and construed
under the law of the France.
16.2 Jurisdiction; Venue. The parties consent to the personal
jurisdiction of, and venue in, the courts of France.
16.3 Assignment. Concessionaire may not transfer or assign any of its
rights or obligations under this Agreement without the prior written consent of
Sagent. Sagent may freely transfer or assign its rights or obligations under
this Agreement without the prior written consent of Concessionaire. Subject to
the foregoing, this Agreement will be binding upon and inure to the benefit of
the parties hereto, their successors and assigns.
16.4 No Implied Waivers. The failure of either party at any time to
require performance by the other of any provision hereof shall not affect the
right of such party to require performance at any time thereafter, nor shall the
waiver of either party of a breach of any provision hereof be taken or held to
be a waiver of a provision itself.
16.5 Severability. If any provision of this Agreement is held to be
invalid by a court of competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect. The parties agree to renegotiate
in good faith those provisions so held to be invalid to be valid, enforceable
provisions which provisions shall reflect as closely as possible the original
intent of the parties, and further agree to be bound by the mutually agreed
substitute provision.
Page 15 of 23
16
16.6 Force Majeure. Except for payment of monies, neither party shall
be liable for failure to fulfill its obligations under this Agreement or any
purchase order issued hereunder or for delays in delivery due to causes beyond
its reasonable control, including, but not limited to, acts of God, man-made or
natural disasters, earthquakes, fire, riots, flood, material shortages, strikes,
delays in transportation or inability to obtain labor or materials through its
regular sources. The time for performance of any such obligation shall be
extended for the time period lost by reason of the delay.
16.7 Conflicting Terms. The parties agree that the terms and conditions
of this Agreement shall prevail, notwithstanding contrary or additional terms,
in any purchase order, sales acknowledgment, confirmation or any other document
issued by either party effecting the purchase and/or sale of Products.
16.8 Heading. Headings of paragraphs herein are inserted for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
16.9 Notice. Any notice required or permitted to be given under this
Agreement shall be delivered (a) by hand, (b) by registered or certified mail,
postage prepaid, return receipt requested, to the address of the other party
first set forth above, or to such other address as a party may designate by
written notice in accordance with this Section 16.9, (c) by overnight courier,
or (d) by fax with confirming letter mailed under the conditions described in
(b) above. Notice so given shall be deemed effective when received, or if not
received by reason of fault of addressee, when delivered.
16.10 Language. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions of this
Agreement in any other language shall not be binding on the parties hereto. All
communications and notices to be made or given pursuant to this Agreement shall
be in the English language. Les parties aux presentes confirment leur volonte
que cette convention de meme que tous les documents y compris tout avis qui s'y
rattache, soient rediges en langue anglaise.
16.11 Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements relating thereto, written or oral, between the
parties. Amendments to this Agreement must be in writing, signed by the duly
authorized officers of the parties. The terms of any purchase order are
expressly excluded.
[Remainder of Page Intentionally Left Blank]
Page 16 of 23
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16.12 Injunctive Relief. CONCESSIONAIRE AGREES THAT ANY VIOLATION OR
THREATENED VIOLATION OF SECTIONS 2.7, 3.2, 3.4, 11.1, 11.2 OR 14.4.3 WILL CAUSE
IRREPARABLE INJURY TO SAGENT, ENTITLING SAGENT TO OBTAIN INJUNCTIVE RELIEF IN
ADDITION TO ALL LEGAL REMEDIES.
16.13 Buyout Agreement. This Agreement shall be conditioned upon the
execution of a separate buyout agreement substantially similar to the agreement
attached hereto as Exhibit F.
In Witness Whereof, the parties hereto have duly executed this
Agreement effective as of the Effective Date.
SAGENT: CONCESSIONAIRE:
SAGENT TECHNOLOGY, INC. SAGENT FRANCE S.A.
By: /s/ Xxxxxx X. Loumbos By: /s/ Xxxxxxxx Xxxxxx
--------------------------- -----------------------------
Name: Xxxxxx X. Loumbos Name: Xxxxxxxx Xxxxxx
--------------------------- -----------------------------
(Typed or Printed) (Typed or Printed)
Title: Vice President of Sales Title: President Directeur General
--------------------------- -----------------------------
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EXHIBIT A
PRODUCT LISTING
All of Sagent's general product line, in French-language versions only from the
point when the French versions are available or the US versions inside the
French border.
Page 18 of 23
19
EXHIBIT B
SAGENT TRADEMARKS, TRADENAMES AND SERVICEMARKS
Sagent
Sagent France
Page 19 of 23
20
EXHIBIT C
HOUSE ACCOUNTS
Any and all present and future OEM customers worldwide.
Page 20 of 23
21
EXHIBIT D
DISCOUNTS TO LIST PRICES
D.1 For so long as Concessionaire meets the minimum revenue
requirements set forth in Section 4.2, the discount for each and every Product
shall be [*]% of the List Price of such Product.
D.2 If Concessionaire fails to meet the minimum revenue requirements
set forth in Section 4.2, then there shall be no discount.
Page 21 of 23
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
22
EXHIBIT E
MINIMUM REVENUE REQUIREMENTS
E.1 Year 1. The aggregate amount of payments received by Sagent from
Concessionaire under this Agreement during Year 1 must equal or exceed [*]
dollars ($[*]).
E.2 Year 2. The aggregate amount of payments received by Sagent from
Concessionaire under this Agreement during Year 2 must equal or exceed [*]
dollars ($[*]).
E.3 Year 3. The aggregate amount of payments received by Sagent from
Concessionaire under this Agreement during Year 3 must equal or exceed [*]
dollars ($[*]).
Page 22 of 23
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
23
EXHIBIT F
BUYOUT AGREEMENT
Page 23 of 23
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SAGENT FRANCE BUYOUT AGREEMENT
This Sagent France Buyout Agreement ("AGREEMENT") is made and entered
into as of this 21st day of November, 1997 ("EFFECTIVE DATE") by and among
Sagent Technology, Inc., having offices at 0000 X. Xxxxxxxx Xx., Xxxxx 000, Xxxx
Xxxx, Xxxxxxxxxx 00000, X.X.X. ("SAGENT"); Sagent France S.A., having offices at
000 Xxx Xxxxxxx, Xxxx Pereire Bat A., 00000 Xx. Xxxxxxx Xx Xxxxx, Xxxxxx
("COMPANY"); and the shareholders of Company set forth in Schedule 1 attached
hereto (each a "SHAREHOLDER").
BACKGROUND
Sagent and Company have entered into a certain Exclusive Concession
Agreement dated as of November 21, 1997 (the "CONCESSION AGREEMENT"). Sagent
desires to obtain the right to purchase securities of Company under certain
circumstances, and, in fulfillment of the condition precedent set forth in
Section 16.13 of the Concession Agreement, Company and the Shareholders desire
to provide such right to Sagent, pursuant to the terms and conditions of this
Agreement.
AGREEMENT
In consideration of the mutual promises made below, and for other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. DEFINITIONS
1.1 "BUYOUT DATE" shall mean the date as of which Sagent chooses to
exercise the Purchase Right (as defined in Section 2.1 below).
1.2 "CLOSING DATE" shall mean the fifth business day following the
execution of the Final Certificate (as defined in Section 2.2 below).
1.3 "COMMENCEMENT DATE" shall mean the date falling twelve (12) months
immediately after the Effective Date (as defined above).
1.4 "SECURITIES" shall mean the securities of Company held by the
Shareholders as of the Buyout Date.
2. RIGHT OF PURCHASE
2.1 Right of Purchase. Sagent shall have the right to purchase all of
the Securities at any time following the Commencement Date pursuant to the terms
and conditions of this Agreement (the
Page 1 of 9
25
"PURCHASE RIGHT"). Upon exercise of the Purchase Right, the Shareholders agree
to sell, assign, transfer and deliver to Sagent, and Sagent agrees to purchase
and accept from the Shareholders, the Securities for consideration equal in
value to the Purchase Price (as defined in Section 2.2 below). Sagent shall
exercise the Purchase Right by written notice to Company and the Shareholders at
least thirty (30) days in advance of the proposed Buyout Date (the "BUYOUT
NOTICE").
2.2 Purchase Price. The Purchase Price shall be determined as follows:
(1) If SAGENT chooses to execute its option to purchase Sagent
France after the effective date but prior to November 30, 1998 then the purchase
value will be equivalent to 1.5 million US dollars
(2) The "PURCHASE PRICE" shall equal the Gross Product
Revenues multiplied by the applicable Revenue Multiple, less (i) accounts
receivable due greater than sixty (60) days after the Buyout Date and (ii) lease
commitments or contingent liabilities extending more than six (6) months past
the Buyout Date. "GROSS PRODUCT REVENUES" shall equal the aggregate licensing,
sale and service revenues from the distribution of Sagent products recognized by
Company during the twelve (12) month period immediately preceding the Buyout
Date in accordance with the revenue recognition policy of Sagent then in effect.
The "REVENUE MULTIPLE" shall equal [*] ([*]), if the Buyout Date is on or after
[*] and before [*]; or [*] ([*]), if the Buyout Date is on or after [*] and
before [*]; or [*] ([*]), if the Buyout Date is on or after [*] and before [*];
or [*] ([*]), if the Buyout Date is on or after [*].
(3) Within ten (10) days after receipt of the Buyout Notice,
Company shall deliver to Sagent a certificate setting forth Company's good-faith
estimation of the Purchase Price, together with a reasonably detailed statement
of the calculation thereof (the "FIRST CERTIFICATE").
(4) On or before thirty (30) days after the Buyout Date,
Company shall deliver to Sagent a certificate setting forth Company's proposed
final calculation of the Purchase Price, together with a reasonably detailed
statement of the calculation thereof (the "SECOND CERTIFICATE").
(5) Within sixty (60) days of receipt of the Second
Certificate and supporting documentation, Sagent shall notify Company of any
objections with respect to the calculation of the proposed Purchase Price, if
any. If Sagent and Company are unable to resolve all disagreements within
fifteen (15) days of Company's receipt of Sagent's objection(s), the matter(s)
in dispute shall be resolved as soon as practicable by an independent auditor
mutually acceptable to Sagent and Company.
(6) As soon as possible after resolution of all disagreements,
if any, the parties shall execute and deliver a final, conclusive and binding
certificate that sets forth the final Purchase Price agreed upon by the parties
(the "FINAL CERTIFICATE").
(7) Company shall cooperate with Sagent in Sagent's review of
the First Certificate and the Second Certificate, and shall provide Sagent and
its employees and agents
Page 2 of 9
26
(including accountants) full access to the books, records, work papers,
information, facilities and employees of Company used to prepare such
certificates.
2.3 Delivery by Company. . On or before the Closing Date, Company shall
deliver to Sagent (i) the Articles of Incorporation and Bylaws, each as amended
to date, minute books, stock transfer books and corporate seals of the Company,
and (ii) resignations effective as of the Closing Date of all the officers and
directors of the Company.
2.4 Delivery by Shareholders. On or before the Closing Date, each
Shareholder shall deliver to Sagent a certificate registered in such
Shareholder's name representing all the Securities held by such Shareholder as
of the Closing Date, duly endorsed in blank for transfer.
2.5 Delivery by Company. On or before the Closing Date, Sagent shall
deliver to the Shareholders consideration equal in value to at least
seventy-five percent (75%) of the Purchase Price, for distribution pro rata
among the Shareholders. Sagent shall deposit the balance of the consideration in
an interest-bearing escrow account, and Sagent shall instruct the escrow agent,
pursuant to a separate written escrow agreement acceptable to Sagent, to deliver
such consideration to the Shareholders six (6) months after the Buyout Date, for
distribution pro rata among the Shareholders, if Company and the Shareholders
have not violated any obligation, covenant or warranty hereunder. Sagent shall
pay at least one third (1/3) of the consideration in the form of cash, and
Sagent shall pay the remaining two thirds (2/3) of the consideration in the form
of Sagent common stock and/or cash. The value of Sagent common stock issued or
otherwise provided to Shareholders pursuant to this Section 2.5 shall be
determined (i) by reference to the appraised value of Sagent as of the date of
transfer of such Sagent common stock (the "TRANSFER DATE") as determined by an
independent third party acceptable to Sagent and Company, if Sagent common stock
is not listed on any established stock exchange or national market system as of
the Transfer Date, or (ii) by reference to the average closing sales price (or
closing bid, if no sales are reported) of Sagent common stock for the five
business (5) days prior to the Transfer Date, if Sagent common stock is listed
on any established stock exchange or national market system as of the Transfer
Date.
2.6 Multiple Buyout Dates. Notwithstanding anything to the contrary in
the foregoing, Sagent may elect to purchase the Securities across two (2) or
more buyout dates pursuant to this Section 2.6. In such event, Sagent shall
purchase at least fifty-one percent (51 %) of the Securities, on a pro rata
basis from all Shareholders, as of an initial buyout date at a pro rated
Purchase Price calculated pursuant to Section 2.2 above. Sagent shall then
purchase the balance of the Securities at one (1) or more subsequent buyout
dates no later than three (3) years after such initial buyout date at pro rated
Purchase Prices calculated pursuant to Section 2.2 above as of such subsequent
buyout dates.
3. REPRESENTATIONS AND WARRANTIES OF COMPANY
Company represents and warrants that:
3.1 Organization. Company is, and as of the Closing Date will be, a
corporation duly organized, validly existing and in good standing under the laws
of France. Company has all requisite
Page 3 of 9
27
corporate power and authority to own its properties and to carry on its business
as now and anticipated to be conducted. Company is, and as of the Closing Date
will be, duly qualified, authorized or licensed and in good standing as a
foreign corporation in each jurisdiction in which the failure to be so
qualified, authorized, licensed or in good standing would have a material
adverse effect on the ability of Company to consummate the transactions
contemplated hereby. Company has delivered to Sagent true, complete and correct
copies of its Articles of Incorporation and Bylaws as in effect as of the
Closing Date.
3.2 No Conflict. The execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated hereby will not, (a)
violate or conflict with any provision of the Articles of Incorporation or
Bylaws of Company; (b) violate, or be in conflict with, or constitute a default
(or an event which, with or without due notice or lapse of time, or both, would
constitute a default) under, or cause or permit the acceleration of the maturity
of or give rise to any right of termination, cancellation, increase in
obligations, imposition of fees or penalties under, any material debt, note,
bond, indenture, mortgage, lien, lease, license, instrument, contract, deed of
trust, commitment or other agreement to which Company is a party or by which
Company is bound or any of its properties or assets are subject; (c) result in
the creation or imposition of any Encumbrance upon any material properties or
assets of Company; or (d) violate or conflict with any law, rule, regulation or
governmental order to which Company, or the business, properties or assets of
Company, are bound or subject.
3.3 No Undisclosed Liabilities. Except for obligations incurred in the
ordinary course of business which are not required under GAAP to be set forth or
reflected on a balance sheet prepared in accordance with GAAP, Company does not
have any Liability as of the Closing Date which is not reflected in its
financial statements as of the Buyout Date as provided to Sagent. The terms
"LIABILITIES" and "LIABILITY" shall mean (i) any and all debts, liabilities and
obligations of any nature whatsoever, whether accrued or fixed, absolute or
contingent, mature or unmatured or determined or determinable, including those
arising under any contract, agreement, commitment or undertaking or under any
law, rule, regulation, Action (as defined below) or Governmental Order (as
defined below), or (ii) any other debt, liability or obligation relating to or
arising out of any act, omission, transaction, circumstance, sale of goods or
services, state of facts or other condition whether or not known, due or
payable. The term "ACTION" shall mean any claim, action, suit, counterclaim,
appeal, arbitration or inquiry, or any proceeding or investigation by or before
any Governmental Authority (as defined below). The term "GOVERNMENTAL ORDER"
shall mean any order, writ, rule, judgment, injunction, decree, stipulation,
determination or award entered by or with any Governmental Authority. The term
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, municipal or local
government, governmental authority, regulatory or administrative agency,
governmental commission, department, board, bureau, agency, or instrumentality,
court, tribunal, arbitrator or arbitral body.
3.4 Restrictions on Business Activities. As of the Closing Date, there
is no agreement, commitment, obligation or Governmental Order to which Company
is a party or by which Company is bound or any of its properties or assets are
subject which has or reasonably could be expected to have the effect of
prohibiting or materially impairing, as currently conducted, any business
activity or practice of Company, any acquisition of property (tangible or
intangible) by Company or the conduct, of business, as currently conducted, of
Company.
Page 4 of 9
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3.5 Intellectual Property. Company owns all right, title and interest
in and to, or is licensed, sublicensed, or otherwise possesses legally
enforceable rights to use, free and clear of any Encumbrance, all patents,
trademarks, trade names, service marks, copyrights, maskworks, technology,
know-how, computer software programs or applications (in both source code and
object code form), and tangible or intangible proprietary information or
material that are used in or necessary for the conduct of the business of the
Company as currently conducted.
3.6 Litigation. As of the Closing Date, there is no Action of any
nature pending or to Company's knowledge threatened against Company, its
material properties or any of its officers or directors, in their capacities as
agents of the Company. There is no investigation pending or, to Company's
knowledge threatened against Company, its material properties or any of its
officers or directors, in their capacities as agents of the Company, by or
before any Governmental Authority. As of the Closing Date, no Governmental
Authority has at any time challenged or questioned in writing the legal right of
the Company to conduct its business or operations as presently or previously
conducted or proposed to be conducted. Company does not know or has any reason
to know of any valid basis for any such type of Action or investigation.
3.7 Necessary Assets and Properties. As of the Closing Date, the assets
and properties owned or leased by Company constitute all of the assets and
properties used in the operation of its business and such assets and properties
constitute all of the assets and properties necessary to continue the operation
of such business after the Closing Date. No part of the business of the Company
is operated or conducted by or through any entity other than the Company.
3.8 Legal Compliance. As of the Closing Date, Company has complied with
all applicable laws, regulations and Governmental Orders now or hereafter
applicable to Company's business, assets or properties.
3.9 All Outstanding Shares. All outstanding shareholders of Company
have signed and are parties to this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Each Shareholder represents and warrants that:
4.1 No Encumbrances. All Securities held by such Shareholder shall be
free and clear of any and all Encumbrances as of the Closing Date. As used
herein, "ENCUMBRANCES" means any security interest, pledge, mortgage, lien,
charge, adverse claim or restriction of any kind, whether created by law or in
equity, including any restriction on the use, voting, transfer, receipt of
income or other exercise of any attributes of ownership.
4.2 Authority. Such Shareholder has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by such
Shareholder and the consummation by such Shareholder of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the
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part of such Shareholder, and no further corporate action is required on
the part of such Stockholder to authorize this Agreement and the transactions
contemplated hereby. This Agreement has been duly executed and delivered by such
Shareholder. This Agreement constitutes a valid and binding obligation of such
Shareholder, enforceable in accordance with its terms, except as such
enforceability may be limited by principles of public policy and subject to the
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and to rules of law governing specific performance, injunctive relief or
other equitable remedies.
4.3 No Conflict. The execution and delivery of this Agreement does not,
and the consummation of the transactions contemplated hereby will not, (a)
violate or conflict with any provision of any other agreement to which such
Shareholder is a party or (b) violate or conflict with any law, rule, regulation
or governmental order to which such Shareholder, or the business, properties or
assets of Company, are bound or subject.
4.4 All Outstanding Shares. Such Shareholder has not transferred any
Securities except in conformance with the requirements of this Agreement.
4.5 Guarantee of Company Warranties. Each Shareholder personally
guarantees that each representation and warranty of Company in Article 3 above
shall be true and correct as of the Closing Date.
5. RESTRICTIONS ON TRANSFERABILITY OF SECURITIES
5.1 Restrictions on Transferability. The Securities shall not be sold,
assigned, transferred or pledged except in conformity with the requirements of
this Article 5.
5.2 Restrictive Legend. Each certificate representing the Securities or
any other securities issued in respect of the Securities upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event shall
be stamped or otherwise imprinted with legends, in both English and French, in
the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RIGHTS OF
PURCHASE, RESTRICTIONS ON TRANSFERABILITY AND OTHER OBLIGATIONS AS SET FORTH IN
A BUYOUT AGREEMENT AVAILABLE BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF
THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION."
5.3 Notice of Proposed Transfers. Each shareholder shall give written
notice to Sagent of such Shareholder's intention to effect any transfer, sale,
assignment or pledge of Securities. Each such notice shall describe the manner
and circumstances of the proposed transfer, sale, assignment or pledge in
sufficient detail.
5.4 Execution by Transferees. Each Shareholder agrees to cause any
proposed purchaser, assignee, transferee or pledgee of the Securities to agree
to take and hold such Securities subject to the provisions and upon the
conditions specified in this Agreement.
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5.5 No Transfer After Buyout Notice. Each Shareholder agrees to not
sell, assign, transfer or pledge any Security for one hundred twenty (120) days
after receipt of a Buyout Notice from Sagent.
6. TERM AND TERMINATION
This Agreement shall commence on the Effective Date and shall continue
in full force and effect until January 1, 2005. This Agreement may be earlier
terminated upon the written consent of all parties.
7. MISCELLANEOUS
7.1 Governing Law. This Agreement shall be governed by and construed
under the law of the France. The parties consent to the personal jurisdiction
of, and venue in, the courts of France.
7.2 Assignment. Company and Shareholders may not transfer or assign any
of its rights or obligations under this Agreement without the prior written
consent of Sagent. Sagent may freely transfer or assign its rights or
obligations under this Agreement without the prior written consent of Company or
any Shareholder. Subject to the foregoing, this Agreement will be binding upon
and inure to the benefit of the parties hereto, their successors and assigns.
7.3 No Implied Waivers. The failure of either party at any time to
require performance by the other of any provision hereof shall not affect the
right of such party to require performance at any time thereafter, nor shall the
waiver of either party of a breach of any provision hereof be taken or held to
be a waiver of a provision itself
7.4 Severability. If any provision of this Agreement is held to be
invalid by a court of competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect. The parties agree to renegotiate
in good faith those provisions so held to be invalid to be valid, enforceable
provisions which provisions shall reflect as closely as possible the original
intent of the parties, and further agree to be bound by the mutually agreed
substitute provision.
7.5 Headings. Headings of paragraphs herein are inserted for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
7.6 Notice. Any notice required or permitted to be given under this
Agreement shall be delivered (a) by hand, (b) by registered or certified mail,
postage prepaid, return receipt requested, to the address of the applicable
party as set forth above or in Schedule 1, or to such other address as a party
may designate by written notice in accordance with this Section 7.6, (c) by
overnight courier, or (d) by fax with confirming letter mailed under the
conditions described in (b) above. Notice so given shall be deemed effective
when received, or if not received by reason of fault of addressee, when
delivered.
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7.7 Language. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions of this
Agreement in any other language shall not be binding on the parties hereto. All
communications and notices to be made or given pursuant to this Agreement shall
be in the English language. Les parties aux presentes confirment leur volonte
que cette convention de meme que tous les documents y compris tout avis qui s'y
rattache, soient rediges en langue anglaise.
7.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
7.9 Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof and supersedes all
prior agreements relating thereto, written or oral, between the parties.
Amendments to this Agreement must be in writing, signed by the duly authorized
officers of the parties. The terms of any purchase order are expressly excluded.
In Witness Whereof, the undersigned, being duly authorized agents of
the parties, have executed this Agreement as of the Effective Date.
Accepted by:
SAGENT TECHNOLOGY, INC. SAGENT FRANCE S.A.
/s/ XXXXXX X. XXXXXXXX /s/ XXXXXXXX XXXXXX
(Signature of Authorized Agent) (Signature of Authorized Agent)
Xxxxxx X. Xxxxxxxx XXXXXXXX Xxxxxx
(Printed Name) (Printed Name)
VP of Sales President Director Leueial
(Title) (Title)
SHAREHOLDERS:
(Name of Shareholder) (Name of Shareholder)
(Signature of Authorized Agent) (Signature of Authorized Agent)
(Printed Name) (Printed Name)
(Title) (Title)
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SCHEDULE 1
SHAREHOLDERS
XXXXXXXX, Xxxxxx /s/ XXXXXXXX, XXXXXX
00 Xxx Xxxxxxx Xxxxx
00000 XXXXXXXXX XXX
XXXXX, Xxxxxxxx /s/ XXXXX, XXXXXXXX
00 Xxx Xxxxxx Xxxxxx
00000 XXXXX
CAYEUX, Xxxxx Xxxxx /s/ CAYEUX, XXXXX ODILE
00 xxx Xxxxxxx Xxxxx
00000 XXXXXXXXX XXX SEINE
XXXXXXX, Xxxx /s/ XXXXXXX, XXXX
Domaine du Petit Xxxxxxxxxx
78170 LA CELLE SAINT CLOUD
VIGIER, Francois /s/ VIGIER, FRANCOIS
00 Xxxxx xxx Xxxxxxxxx
00000 XXX XXXXXX-XXXX-XXXX
GUEHENNEC, Philippe /s/ GUEHENNEC, PHILIPPE
24 Hameau Belle Saison
95150 TAVERNY
DESNOYELLES, Fabrice /s/ DESNOYELLES, FABRICE
00 xxx, xxx xx Xxxxxxx
78100 SAINTGERMAIN EN LAYE
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