Settlement Agreement and Mutual Release - Sagent Technology Inc. and Kenneth C. Gardner
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made as
of December 31, 2001, by and between Sagent Technology, Inc. (the "Company"),
and Kenneth C. Gardner ("Employee").
1. Employee was employed by the Company.
2. The Company and Employee have mutually agreed to terminate the
employment relationship and to release each other from any claims arising from
or related to the employment relationship.
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Employee (collectively referred to as the "Parties") hereby agree as
1. Resignation. Employee resigned from his position as the
Company's Chairman of the Board of Directors effective December 31, 2001 and as
an employee and an officer effective January 31, 2002.
2. Consideration. The Company agrees to pay Employee the lump sum
payment of One Hundred Thousand Dollars ($100,000.00), less applicable
3. Vesting of Stock. The Parties agree that for purposes of
determining the number of shares of the Company's common stock which Employee is
entitled to purchase from the Company, Employee will be entitled to continue
vesting of stock until March 31, 2002. Employee shall be entitled to exercise
such vested stock options until March 31, 2003. Except as specifically set forth
herein, the exercise of any stock options shall continue to be subject to the
terms and conditions of the Company's Stock Option Plan and the applicable Stock
Option Agreement between Employee and the Company. If Employee breaches any
material provision of this Agreement (including but not limited to the
non-disparagement provision), Employee's right to exercise his stock options
shall immediately cease and such options shall immediately be terminated. The
parties agree that the foregoing remedy shall be in addition to any right or
remedy that the Company may have at law or in equity. The determination of
whether Employee has breached the non-disparagement provision shall be
determined by binding arbitration, as set forth in this Agreement.
4. Consulting. Employee agrees to provide consulting services to
the Company through March 31, 2002, as requested by the Company, at the rate of
Five Thousand Dollars ($5,000.00) per day, plus out-of-pocket expenses.
Thereafter, Employee agrees to provide consulting services to the Company only
as reasonably necessary to assist the Company in a strategic transaction, at the
rate of Five Thousand Dollars ($5,000.00) per day, plus out-of-pocket expenses.
5. Benefits. Employee shall have the right to convert his health
insurance benefits to individual coverage pursuant to COBRA.
6. OEM Agreement. The Parties agree to negotiate in good faith an
7. Confidential Information. Employee agrees to maintain the
confidentiality of all confidential and proprietary information of the Company.
Employee shall return all Company property and confidential and proprietary
information in his possession to the Company by January 31, 2002.
Notwithstanding the foregoing, Employee may keep certain sentimental materials
relating to the Company, such as the original business plan and the closing
volumes for the Company's private financings and the initial public offering.
8. Payment of Salary. Employee will be paid his regular salary
through January 31, 2002 and any accrued vacation through January 31, 2002.
Employee acknowledges and represents that the Company has paid all salary,
wages, bonuses, accrued vacation, commissions and any and all other benefits due
to Employee through the date of this Agreement.
9. Release of Claims. Employee and the Company each agree that
the foregoing consideration represents settlement in full of all outstanding
obligations owed to Employee by the Company. Employee and the Company, on behalf
of themselves, and their respective heirs, family members, executors, officers,
directors, employees, investors, shareholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations, and assigns,
hereby fully and forever release each other and their respective heirs, family
members, executors, officers, directors, employees, investors, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations, and assigns, from, and agree not to sue concerning, any claim,
duty, obligation or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that any of them may
possess arising from any omissions, acts or facts that have occurred up until
and including January 31, 2002 including, without limitation,
(a) any and all claims relating to or arising from
Employee's employment relationship with the Company and the termination of that
(b) any and all claims relating to, or arising from,
Employee's right to purchase, or actual purchase of shares of stock of the
Company, including, without limitation, any claims for fraud, misrepresentation,
breach of fiduciary duty, breach of duty under applicable state corporate law,
and securities fraud under any state or federal law;
(c) any and all claims for wrongful discharge of
employment; termination in violation of public policy; discrimination; breach of
contract, both express and implied; breach of a covenant of good faith and fair
dealing, both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false imprisonment; and
(d) any and all claims for violation of any federal, state
or municipal statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act of 1990, the Fair
Labor Standards Act, the Employee Retirement Income Security Act of 1974, The
Worker Adjustment and Retraining Notification Act, Older Workers Benefit
Protection Act; the California Fair Employment and Housing Act, and Labor Code
section 201, et seq. and section 970, et seq.;
(e) any and all claims for violation of the federal, or any
(f) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
The Company and Employee agree that the release set forth in this section shall
be and remain in effect in all respects as a complete general release as to the
matters released. This release does not extend to any obligations incurred under
10. Acknowledgment of Waiver of Claims under ADEA. Employee
acknowledges that he is waiving and releasing any rights he may have under the
Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Employee acknowledges that the
consideration given for this waiver and release Agreement is in addition to
anything of value to which Employee was already entitled. Employee further
acknowledges that he has been advised by this writing that (a) he should consult
with an attorney prior to executing this Agreement; (b) he has at least
twenty-one (21) days within which to consider this Agreement; (c) he has at
least seven (7) days following the execution of this Agreement by the parties to
revoke the Agreement; and (d) this Agreement shall not be effective until the
revocation period has expired.
11. Civil Code Section 1542. The Parties represent that they are
not aware of any claim by either of them other than the claims that are released
by this Agreement. Employee and the Company acknowledge that they have been
advised by legal counsel and are familiar with the provisions of California
Civil Code Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Employee and the Company, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any other
statute or common law principles of similar effect.
12. No Pending or Future Lawsuits. Employee represents that he has
no lawsuits, claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company or any other person or entity referred to
herein. Employee also represents that he does not intend to bring any claims on
his own behalf or on behalf of any other person or entity against the Company or
any other person or entity referred to herein. The Company represents that it
has no lawsuits, claims, or actions pending in its name, or on behalf of any
other person or entity, against Employee or any other person or entity referred
to herein. The Company also represents that it does not intend to bring any
claims on its own behalf or on behalf of any other person or entity against
Employee or any other person or entity referred to herein.
13. Non-Disparagement. Each Party agrees to refrain from any
defamation, libel or slander of the other, or tortious interference with the
contracts and relationships of the other. All inquiries by potential future
employers of Employee will be directed to the Company's Vice President of Human
Resources. The Parties agree to draft a mutually agreed upon external press
release and internal email to the Company's employees regarding Employee's
14. No Admission of Liability. The Parties understand and
acknowledge that this Agreement constitutes a compromise and settlement of
disputed claims. No action taken by the Parties hereto, or either of them,
either previously or in connection with this Agreement shall be deemed or
construed to be (a) an admission of the truth or falsity of any claims
heretofore made or (b) an acknowledgment or admission by either party of any
fault or liability whatsoever to the other party or to any third party.
15. Costs. The Parties shall each bear their own costs, expert
fees, attorneys' fees and other fees incurred in connection with this Agreement.
16. Arbitration. The Parties agree that any and all disputes
arising out of the terms of this Agreement, their interpretation, and any of the
matters herein released, shall be subject to binding arbitration in Santa Clara
County before the American Arbitration Association under its California
Employment Dispute Resolution Rules, or by a judge to be mutually agreed upon.
The Parties agree that the prevailing party in any arbitration shall be entitled
to injunctive relief in any court of competent jurisdiction to enforce the
arbitration award. The Parties agree that the prevailing party in any
arbitration shall be awarded its reasonable attorney's fees and costs.
17. Authority. The Company represents and warrants that the
undersigned has the authority to act on behalf of the Company and to bind the
Company and all who may claim through it to the terms and conditions of this
Agreement. Employee represents and warrants that he has the capacity to act on
his own behalf and on behalf of all who might claim through him to bind them to
the terms and conditions of this Agreement. Each Party warrants and represents
that there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
18. No Representations. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
19. Severability. In the event that any provision hereof becomes
or is declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Agreement shall continue in full force and effect without said
20. Entire Agreement. This Agreement represents the entire
agreement and understanding between the Company and Employee concerning
Employee's separation from the Company, and supersedes and replaces any and all
prior agreements and understandings concerning Employee's relationship with the
Company and his compensation by the Company.
21. No Oral Modification. This Agreement may only be amended in
writing signed by Employee and the President of the Company.
22. Governing Law. This Agreement shall be governed by the laws of
the State of California.
23. Counterparts. This Agreement may be executed in counterparts,
and each counterpart shall have the same force and effect as an original and
shall constitute an effective, binding agreement on the part of each of the
24. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
(a) They have read this Agreement;
(b) They have been represented in the preparation,
negotiation, and execution of this Agreement by legal counsel of their own
choice or that they have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this
Agreement and of the releases it contains;
(d) They are fully aware of the legal and binding effect
of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
SAGENT TECHNOLOGY, INC.
Executive Vice President and Chief Financial Officer
Kenneth C. Gardner, an individual
Kenneth C. Gardner