Exhibit 10.30
AGREEMENT
This Agreement (the "Agreement") is made effective as of the 14th day of
November, 1997 by and among Bendata, Inc., a Colorado corporation, Bendata
Inc.'s parent company Astea International Inc., a Delaware corporation (Astea
International Inc. (or any successor in interest) and Bendata, Inc. are
collectively referred to as "BENDATA"), and Vance F. Brown ("BROWN")
(collectively referred to as the "Parties").
WHEREAS, BENDATA desires to continue to engage the services of BROWN,
subject to the terms and conditions set forth herein;
WHEREAS, BROWN wishes to continue to provide services to BENDATA, subject
to the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing premises and the mutual
promises, terms, provisions and conditions set forth in this Agreement, the
Parties hereby agree as follows:
1. Employment. BENDATA hereby offers, and BROWN hereby accepts, continued
employment subject to the terms and conditions set forth in this Agreement.
2. Term. This Agreement shall be for an initial term of two (2) years
commencing on the effective date stated above. Upon the expiration of the term
of this Agreement, unless terminated before such time as hereinafter provided,
BENDATA shall have no further obligations to BROWN and BROWN will be employed at
the will of BENDATA. This Agreement shall not automatically renew unless the
Parties so agree in writing. Certain provisions of this Agreement shall survive
the expiration of the term of this Agreement if so provided herein or if
necessary or desirable to accomplish the purposes of such provisions, including,
without limitation, BROWN's obligations pursuant to Paragraphs 7, 8, 9 and 10.
3. Duties and Responsibilities of BROWN. During the term of this
Agreement, BROWN shall:
a. serve Bendata, Inc. as its President and Chief Executive Officer;
b. be employed by Bendata, Inc. on a full-time basis and shall perform
such duties and responsibilities on behalf of Bendata, Inc. as are appropriate
to his position and as may reasonably be designated from time to time by the
Board of Directors of Bendata, Inc. or its designees (the "Board");
c. devote his full business time and his best efforts, business
judgment, skill and knowledge to the advancement of the business and interests
of Bendata, Inc. and to the discharge of his duties and responsibilities
hereunder.
4. Compensation. Subject to performance of BROWN's duties and obligations
pursuant to this Agreement, during the term of this Agreement:
a. BENDATA shall pay BROWN Base Salary at the rate of $200,000 per
annum for the first year of this Agreement and $225,000 per annum for the second
year of this agreement. Such base salary, as from time to time modified, is
hereinafter referred to as the "Base Salary." Base Salary shall be payable in
accordance with the customary payroll practices of BENDATA for its executive
employees, subject to modification of such practices from time to time by the
Board in its sole discretion, and subject to legally required and voluntarily
authorized deductions.
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b. During the initial term of this Agreement and any renewal term of
at-will employment as described in paragraph 2, BROWN shall be entitled to
participate in any incentive bonus program which is made available to executive
employees of BENDATA from time to time, in accordance with the generally
applicable terms thereof. BROWN's current incentive bonus plan is fully
described in Exhibit 1 attached hereto and incorporated herein, and is
applicable through the end of calendar year 1997. Another incentive bonus plan,
the specifics of which will be determined by the end of the first quarter of
1998, will be adopted for calendar year 1998, providing for a target of $75,000
in additional earnings for that calendar year upon satisfactory performance of
specified performance targets, including without limitation the achievement of
30% annual growth in Bendata, Inc.'s revenues over the prior year. Additionally,
if BROWN's employment continues beyond January 1, 1999, an incentive bonus plan
shall be adopted for calendar year 1999 or through termination of this
Agreement, whichever is earlier, which also shall provide for a target of
$75,000 for satisfactory performance of specified performance targets, including
without limitation the achievement of 30% annual growth in Bendata Inc.'s
revenues over the prior year. The incentive bonus plans for the years 1998 and
1999, including terms governing the timing of payments thereunder, shall be
modeled after the plan described in Exhibit 1, except that quarterly revenue and
profitability goals shall be modified to reflect the then existing goals of
Bendata, Inc.
c. Upon execution of this Agreement, BROWN shall receive a non-
qualified stock option to purchase 35,000 shares of the common stock of Astea
International Inc. at an exercise price determined as the market price of the
stock at the close of business on the date of grant, with vesting over two (2)
years; expiration on the earlier of ten (10) years from date of grant or five
(5) years after termination of BROWN's employment; and other terms to be
equivalent to BROWN's stock option agreement dated the 24th day of April, 1997.
Additionally, if BROWN meets the specified annual performance target for the
prior year as set forth in the applicable bonus plan and Astea International
Inc. holds more than 50% of the capital stock of Bendata, Inc. at the end of
such year, BROWN shall receive non-qualified options for 50,000 shares of the
common stock of Astea International Inc. at approximately each anniversary date
of this Agreement commencing one year after the effective date of this Agreement
and continuing each year thereafter during the term of his employment, with the
exercise price determined as the market price at the close of business on each
such date of grant, and with vesting over two (2) years; expiration on the
earlier of ten (10) years from date of grant or five (5) years after termination
of BROWN's employment; and other terms to be equivalent to the April 24, 1997
stock option agreement.
d. BROWN shall be eligible to participate in any and all employee
benefit plans from time to time in effect for executive employees of BENDATA.
Such participation shall be subject to the terms of the applicable plan
documents, generally applicable policies of BENDATA and the discretion of the
Board or any administrative or other committee provided for or contemplated in
such plan.
e. Provided that the exercise price of all outstanding stock options
held by BROWN are equal to or greater than the fair market value of the common
stock of Astea International Inc. on the date hereof, then each such outstanding
stock option shall be amended hereby to provide that (a) it shall terminate on
the earlier of ten (10) years from date of grant or five (5) years after
termination of BROWN's employment (b) it shall be a non-qualified stock option.
5. Termination. Notwithstanding the provisions of Paragraph 2, BROWN's
employment hereunder shall terminate under the following circumstances:
a. Automatic Termination.
1) Death. In the event of BROWN's death during the term of this
Agreement, BROWN's employment hereunder shall immediately and automatically
terminate. Any stock options that have been issued to BROWN by Astea
International Inc. prior to his death shall vest in accordance with their terms
as if
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BROWN's employment had actually continued for twelve (12) months following his
death. This provision shall supersede any contrary provision in any stock option
agreement.
2) Disability. In the event that BROWN becomes totally disabled during
BROWN's employment under this Agreement through any illness, injury, accident or
condition of either a physical or psychological nature, and, as a result, is
unable to perform substantially all of his duties and responsibilities hereunder
for ninety (90) days during any period of three hundred and sixty-five (365)
consecutive calendar days, and upon written notice to BROWN, BROWN's employment
hereunder shall immediately and automatically terminate. If any question arises
as to whether during any period BROWN is so disabled, BROWN shall, at the
request of BENDATA, submit to a medical examination by a health care provider
selected jointly by BENDATA and BROWN to determine whether BROWN is so disabled.
Such determination shall, for the purposes of this Agreement, be conclusive of
the issue. If this question arises and BROWN does not submit to the medical
examination, BENDATA's determination of the issue shall be binding on BROWN. Any
stock options that have been issued to BROWN by Astea International Inc. prior
to his termination pursuant to this Paragraph shall vest in accordance with
their terms as if BROWN's employment had actually continued for twelve (12)
months following such termination. This provision shall supersede any contrary
provision in any stock option agreement
b. Termination by BENDATA For Cause. BENDATA may terminate BROWN's
employment hereunder for cause at any time upon written notice to BROWN setting
forth in reasonable detail the nature of such cause. "Cause" hereunder shall be
limited to the following: (i) BROWN shall have committed a material act of fraud
or dishonesty with respect to BENDATA, or any of BENDATA's employees, customers,
or clients; (ii) BROWN shall have been finally convicted of a felony or any
crime involving moral turpitude; (iii) breach by BROWN of any material term of
this Agreement and a failure on BROWN's part to remedy such breach within thirty
days after written notice thereof; (iv) BROWN's irresponsible use of alcoholic
beverages, or BROWN's illegal purchase, sale, possession, use or transfer of
drugs, while performing duties for BENDATA; or (v) legally proscribed abuse,
threats or harassment, physical or otherwise, by BROWN of employees or others
associated with BENDATA in a manner that violates BENDATA's written policies or
any requirements of law. In the event of a termination for cause pursuant to
this Paragraph, BROWN shall be paid, as of the effective date of the
termination, accrued but unpaid Base Salary through the date of termination,
accrued bonus compensation and vacation benefits, subject to all legally
required and voluntary authorized deductions, and he shall retain all stock
option rights previously issued to him and that have vested as of the effective
date of the termination. No other compensation shall be owing to BROWN.
c. Termination by BENDATA Other Than For Cause. BENDATA may terminate
BROWN's employment hereunder at any time for any reason other than for cause
upon written notice to BROWN. In the event of such termination, BROWN's
employment will cease as of the date specified in BENDATA's written notice. In
the event of a termination under this Paragraph, provided that BROWN signs a
reasonable severance agreement including a general release of all claims in
favor of BENDATA and BROWN, BENDATA shall pay BROWN severance payments in the
form of continuation of his Base Salary and medical benefits through the then
effective expiration date of this Agreement or twelve (12) months Base Salary
and medical benefits, whichever is greater, subject to all legally required and
voluntarily authorized deductions. Such payments shall be made in accordance
with the customary payroll practices of BENDATA for its executive employees.
BENDATA shall also pay BROWN unpaid bonus payments attributable to the previous
fiscal year and accrued vacation benefits, subject to all legally required and
voluntarily authorized deductions. Any stock options that have been issued to
BROWN by Astea International Inc. prior to his termination pursuant to this
Paragraph shall vest in accordance with their terms as if BROWN's employment had
actually continued for twelve (12) months following such termination. This
provision shall supersede any contrary provision in any stock option agreement.
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d. Resignation by BROWN in Event of Significant Change in Employment
Status. In the event that BROWN's employment status is changed in an material
way, including without limitation a change in BROWN's title or responsibilities
to anything other than "President and Chief Executive Officer" or a change in
BROWN's employment location to anywhere other than Colorado Springs, CO, then
BROWN, at his election exercised in writing within 30 days of such change, may
resign his position, in which event BROWN shall be entitled to all payments and
stock option benefits described in Paragraph 5(c) above. A change in control of
Bendata, Inc. shall not, in itself, be deemed a material change in BROWN's
employment status.
e. Change in Control of Bendata, Inc. In the event that (a)
substantially all of the assets of Bendata, Inc. or (b) more than 50% of the
beneficial ownership (as defined under Section 13 of the Securities Exchange Act
of 1934, as amended) of the capital stock of Bendata, Inc. is transferred by
Astea International Inc. to an unrelated third party or parties during BROWN's
employment by BENDATA, then:
(i) all stock options held at such time by BROWN shall become
immediately vested and exercisable on the date of such sale or transfer.
(ii) Astea International Inc. shall pay BROWN a cash bonus equal to
$50,000 plus $1,000 for every $1,000,000 exceeding $50,000,000 in consideration
received by Astea Intentional Inc. from the acquiring entity.
6. Effect of Termination.
a. In the event of termination of this Agreement for any reason,
payment by BENDATA of the amounts described in paragraphs 5(b) or 5(c), if
applicable, and vesting of stock options as described herein shall constitute
the entire obligation of BENDATA to BROWN.
b. Upon termination of BROWN's employment, BROWN shall no longer have
the right to be identified as an employee of BENDATA.
c. BROWN agrees that, following termination of his employment, for a
period of two (2) years and regardless of the reason for such termination, BROWN
will cooperate fully with BENDATA, upon request, in relation to BENDATA's
defense, prosecution or other involvement in any continuing or future claims,
lawsuits, charges, and internal or external investigations which arise out of
events or business matters which occurred during BROWN's employment by BENDATA.
This continuing duty of cooperation shall include BROWN being available to
BENDATA, upon reasonable notice, for depositions, interviews, and appearances as
a witness, and furnishing information to BENDATA and its legal counsel upon
reasonable request. BENDATA will reimburse BROWN's documented reasonable out-
of-pocket expenses incurred as a result of such cooperation, including travel,
lodging, and meals. Additionally, BROWN shall be compensated $200 per hour for
any services described in this Paragraph.
7. Trade Secrets. By signing this Agreement, BROWN acknowledges that
BENDATA continually develops Trade Secrets (as defined below), that BROWN may
have developed Trade Secrets for BENDATA, and that BROWN may have learned of
Trade Secrets during the course of his employment by BENDATA. BROWN further
acknowledges that he occupies an executive, management and professional position
at BENDATA. BROWN also acknowledges the importance to BENDATA of protecting its
Trade Secrets and other legitimate interests. BROWN agrees that he will not,
directly or indirectly, knowingly use or disclose any Trade Secrets. BROWN
understands and agrees that this restriction will continue to apply even after
his employment with BENDATA terminates, regardless of the reason for such
termination. For purposes of this Agreement, "Trade Secrets" means any and all
information of BENDATA that gives it an opportunity to obtain an advantage over
actual or potential competitors who do not know or use it. Trade Secrets
include, without limitation, information
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relating to: (a) research, inventions, products, methods, manuals, codes or any
other materials prepared by an employee of or contractor for BENDATA, including
Intellectual Property, as defined below; (b) the marketing activities and
strategic plans of BENDATA; (c) BENDATA's current and prospective customers,
contractors, and clients; and (d) the people and organizations with whom BENDATA
has relationships and those relationships. Trade Secrets also include all
information that BENDATA may receive or has received from others with any
understanding, express or implied, that it will not be disclosed. In no event,
however, do "Trade Secrets" include information which is shown or described to
persons outside of BENDATA (e.g. prospective customers) without having them sign
a confidentiality agreement; which is known to the trade or otherwise publicly
known; or which could be discovered by diligent review of information available
to the public.
8. Intellectual Property. By signing this Agreement, BROWN agrees that
any and all research, inventions, products, methods, manuals, codes or any other
materials prepared by BROWN at any time during his employment, whether during or
outside of regular work hours, whether at a BENDATA location or not, and whether
prepared at the suggestion or request of BENDATA or not, that are related in any
material way to the business of BENDATA (hereinafter referred to as
"Intellectual Property") shall remain the sole and exclusive property of
BENDATA. BROWN represents that he has disclosed and will disclose promptly to
BENDATA all Intellectual Property. BROWN acknowledges that all Intellectual
Property shall be considered a work made for hire under United States copyright
laws, and hereby irrevocably assigns and transfers to BENDATA any and all right,
title and interest he may have in any Intellectual Property. BROWN acknowledges
that BENDATA is entitled to obtain and hold in its name all copyrights, patents,
trade secrets and trademarks relating to Intellectual Property. BROWN agrees,
during the remainder of his employment and at any time after its termination,
regardless of the reason for such termination, to take any reasonable steps
necessary or useful to BENDATA to assist it in acquiring and maintaining
copyright, patent, trade secret and trademark rights to such Intellectual
Property, and that for such services BROWN shall be compensated pursuant to the
terms of Paragraph 6(c) above.
9. Competition and Solicitation Restriction. In recognition of the fact
that the success of BENDATA is in large part dependent upon the confidential
relationship between BENDATA and its customers; BROWN has or may have had access
to BENDATA's Trade Secrets; and BROWN occupies an executive, management and
professional position at BENDATA, BROWN agrees that during the period of his
employment by BENDATA and for a period of two (2) years thereafter (regardless
of the reason for termination), BROWN will not, directly or indirectly, as an
individual, partner, stockholder, director, officer, clerk, principal, agent,
employee, trustee, or in any other relationship or capacity whatsoever: (a)
enter the employment of, or render services to, any person, partnership,
association, corporation, or other entity in the help desk software development
industry; (b) enter the employment of, or render services to, any of the
entities listed in Exhibit 2; or (c) cause, directly or indirectly, any
employee, contractor, consultant or agent of BENDATA to terminate, or diminish
his, her or its relationship with BENDATA (other than relationships resulting
from unsolicited contacts received by him).
10. Return of BENDATA Property Upon Termination. BROWN agrees that he
shall not create or retain copies of any records of Trade Secrets, including but
not limited to Intellectual Property, nor provide any person, association,
corporation, or other entity with such copies or records. Upon his termination
from employment, regardless of the reason for the termination, BROWN agrees that
he will promptly return to BENDATA any and all literature, forms, manuals,
supplies, equipment, lists, and any other written or printed information in any
way pertaining to the business of BENDATA, including without limitation, all
records (and copies) containing or relating to Trade Secrets, including but not
limited to Intellectual Property.
11. Remedies Relating To Paragraphs 7, 8, 9, and 10. BROWN agrees to
disclose the existence and terms of Paragraphs 7, 8, 9, and 10 of this Agreement
to any person, partnership, association, corporation, or other entity for whom
he may work or provide services after the termination of his employment at
BENDATA. BROWN agrees that the restrictions on his activities contained in
Paragraphs 7, 8, 9, and 10 of this Agreement are fully reasonable and necessary
to protect the Trade Secrets, including but not limited to Intellectual
Property, and
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other legitimate interests of BENDATA. BROWN also acknowledges and agrees that,
were he to breach the provisions of Paragraphs 7, 8, 9, or 10 of this Agreement,
BENDATA could suffer irreparable harm which is incapable of being quantified in
terms of money damages alone. BROWN therefore agrees that, in the event of such
a breach or threatened breach, BENDATA shall, in addition to any other remedies
available to it, have the right to obtain preliminary and permanent injunctive
relief against him to enforce the provisions of Paragraphs 7, 8, 9, and 10 of
this Agreement, without having to post bond.
12. Withholdings. All payments made by BENDATA under this Agreement shall
be reduced by any tax or other amounts required to be withheld by BENDATA under
applicable law.
13. Miscellaneous.
a. Entire Agreement. This Agreement sets forth the entire
understanding between the Parties and supersedes any and all prior
communications, agreements and understandings, written or oral, with respect to
the terms and conditions of BROWN's employment with BENDATA herein addressed.
b. Governing Law. This Agreement shall be construed and enforced
under, and be governed in all respects by, the laws of the State of Colorado,
without regard to the conflict of laws principles thereof.
c. Amendment. This Agreement may be amended or modified only by a
writing executed by BROWN and an authorized representative of BENDATA.
d. Waiver of Breach. The Parties understand that a breach of any
provision of this Agreement may only be waived in writing by an expressly
authorized representative of the other party. The waiver by either party of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any subsequent breach.
e. Captions. The headings in this Agreement are for reference only and
shall not alter or otherwise affect the meaning of this Agreement.
f. Severability. If any portion or provision of this Agreement shall,
to any extent, be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, and the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion or provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
g. Assignment. This Agreement shall inure to the benefit of and be
binding upon BENDATA and any successor of Bendata, Inc. by reorganization,
merger, consolidation, liquidation or otherwise, including any assignee of all
or substantially all of the business or assets of BENDATA. BENDATA requires the
personal services of BROWN hereunder and BROWN may not assign this Agreement or
delegate any duties hereunder. This Agreement shall inure to the benefit of and
be binding upon BROWN and his personal representatives, heirs and trustees under
any inter vivos or testamentary trust.
h. Notices. Any notices, requests, demands and other communications
provided for in this Agreement shall be in writing and shall be effective when
delivered in person or deposited in the United States mail, postage prepaid,
registered or certified, and addressed to BROWN at BROWN's last known address on
the books of BENDATA or, in the case of BENDATA, to 1125 Kelly Johnson
Boulevard, Suite 100, Colorado Springs, Colorado, 80920.
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i. Jurisdiction. In the event of any legal dispute between the
Parties, the Parties agree that the District Court for El Paso County, Colorado,
shall have exclusive jurisdiction over the Parties and the subject matter of the
dispute.
j. Legal Costs. In the event of any legal dispute between the Parties,
the prevailing party, as determined by the court having jurisdiction over the
matter, shall be entitled to recover against the non-prevailing party all costs
incurred by the prevailing party, including reasonable attorneys' fees.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
effective as of the day and year first written above.
BENDATA, INC. VANCE F. BROWN
/s/ Valerie Lindemuth /s/ Vance F. Brown
- --------------------- -------------------
Name: Valerie Lindemuth Vance F. Brown
Title: Controller
ASTEA INTERNATIONAL INC.
/s/ Zack B. Bergreen
- --------------------
Name: Zack B. Bergreen
Title: President and CEO
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