{"id":39741,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-and-non-competition-agreement-sagent-technology-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-and-non-competition-agreement-sagent-technology-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-and-non-competition-agreement-sagent-technology-inc.html","title":{"rendered":"Employment and Non-Competition Agreement &#8211; Sagent Technology Inc. and Michael Venerable"},"content":{"rendered":"<pre>                    EMPLOYMENT AND NON-COMPETITION AGREEMENT\n\n\n        THIS Employment and Non-Competition Agreement (the 'Agreement') is made\nas of February 27, 1998, by and between Sagent Technology, Inc., a California\ncorporation ('Sagent'), Michael Venerable, an employee (the 'Employee') of\nSagent Professional Services, Inc. (formerly known as Talus, Incorporated), a\nDelaware corporation ('Company') and the Company.\n\n        A. Employee has been employed as an employee of Company; and\n\n        B. Sagent, the Company, and the other parties thereto have entered into\nan Agreement and Plan of Reorganization dated as of February 27, 1998 (the\n'Acquisition Agreement'), pursuant to which the Company merged with and into\nTalus Acquisition Corp. ('MergerSub'), a wholly-owned subsidiary of Sagent (the\n'Merger'), and which required, among other things, that Employee enter into this\nAgreement.\n\n        NOW, THEREFORE, the parties hereby agree as follows:\n\n        1. Employment.\n\n               (a) Effectiveness of Agreement. This Employment and\nNon-Competition Agreement shall become effective as of the date hereof.\n\n               (b) Duties. Sagent and the Company agree to continue the\nemployment of Employee and Employee agrees to perform such reasonable\nresponsibilities and duties as may be required of him or her by Sagent or the\nCompany. It is currently contemplated that Employee's duties shall comprise\nthose listed on Exhibit A hereto.\n\n               (c) Employment At-Will. The Company and the Employee acknowledge\nand agree that the Employee's employment is at-will as defined under applicable\nlaw. Unless a longer period is required by applicable law, the Company and the\nEmployee may terminate Employee's employment hereunder by giving 30 days'\nadvance notice in writing.\n\n        2. Compensation.\n\n               (a) Employee's initial base annual salary as of the date hereof\nshall be $123,000 per annum. In addition, Employee will receive all benefits\nprovided to other Sagent consulting and training employees with similar duties,\nincluding but not limited to paid vacations, health, disability and life\ninsurance. Employee will participate in Sagent's quarterly objectives plan and\nshall be eligible to earn up to 30% of base salary in bonus under this plan.\n\n               (b) An option (the 'Option') to purchase 150,000 shares of Common\nStock of Sagent shall be granted to Employee pursuant to the Option Agreement\nattached as Exhibit B. The \n\n\n\nOption exercise price shall be the fair market value of Sagent's common stock,\nas determined by the Board of Directors of Sagent. Twenty percent (20%) of the\nCommon Stock underlying the Option shall vest on the first anniversary of the\ndate hereof. An additional twenty percent (20%) of the Common Stock underlying\nthe Option shall vest on the second anniversary of the date hereof. The\nremaining sixty percent (60%) of the Common Stock underlying the Option shall\nvest on the third anniversary of the date hereof. The Option shall be subject to\nthe Change of Control Policy attached hereto as Exhibit D. Sagent will prepare\nand file a Registration Statement on Form S-8 relating to any unexercised\nportion of the Option as soon as practicable after an initial public offering\nthe Sagent's securities. If Employee is terminated for Cause, as defined below,\nor Employee voluntarily terminates his employment arrangement other than for\nGood Reason, as defined below, the Option shall accelerate and be immediately\nexerciseable.\n\n\n        3. Covenant Not to Compete.\n\n               (a) Employee agrees that, for a period of three years from the\ndate hereof, if Employee is terminated for Cause, as defined below, or Employee\nvoluntarily terminates his employment arrangement other than for Good Reason, as\ndefined below, Employee will not directly or indirectly engage in (whether as an\nemployee, consultant, proprietor, partner, director or otherwise), or have a\nownership interest in, or participate in the financing, operation, management or\ncontrol of, any person, firm, corporation or business that engages in a\n'Restricted Business' in a 'Restricted Territory,' as such terms are defined\nbelow. It is agreed that ownership of (i) no more than one percent (1%) of the\noutstanding voting stock of a publicly traded corporation, or (ii) any stock\npresently owned by Employee as of the date hereof, shall not constitute a\nviolation of this provision. \n\n                      (i) As used in this Agreement:\n\n                           1) 'Cause' shall mean (i) willful failure by the\nEmployee to substantially perform his duties hereunder, other than a failure\nresulting from the Employee's complete or partial incapacity due to physical or\nmental illness or impairment; (ii) a willful act by the Employee which\nconstitutes misconduct and which is injurious to Sagent or the Company; (iii) a\nwillful breach by the Employee of a material provision of this Agreement; or\n(iv) a material and willful violation of a federal or state law or regulation\napplicable to the business of Sagent or the Company. No act, or failure to act,\nby the Employee shall be considered 'willful' unless committed without good\nfaith without a reasonable belief that the act or omission was in the Company's\nbest interest.\n\n                           2) 'Good Reason' shall mean the following (unless\nsuch event(s) applies generally to all senior management of the Company):\n\n                                (A) without the Employee's express written\nconsent, the assignment to the Employee of any duties or the reduction of the\nEmployee's duties, either of which results in a significant diminution in the\nEmployee's position or responsibilities with the Company in \n\n\n                                      -3-\n\n\n\neffect immediately prior to such assignment, or the removal of the Employee from\nsuch position and responsibilities;\n\n                                (B) without the Employee's express written\nconsent, a substantial reduction, without good business reasons, of the\nfacilities and perquisites (including office space and location) available to\nthe Employee immediately prior to such reduction;\n\n                                (C) a material reduction by the Company in the\nbase salary or bonus opportunity of the Employee as in effect immediately prior\nto such reduction;\n\n                                (D) a material reduction by the Company in the\nkind or level of employee benefits to which the Employee is entitled immediately\nprior to such reduction with the result that the Employee's overall benefits\npackage is significantly reduced;\n\n                                (E) the relocation of the Employee to a facility\nor a location more than 25 miles from the Employee's then present location,\nwithout the Employee's express written consent;\n\n                                (F) any purported termination of the Employee's\nemployment by the Company which is not effected for death, disability or for\nCause, or any purported termination for which the grounds relied upon are not\nvalid;\n\n                                (G) the failure of the Company to obtain the\nassumption of this Agreement by any successor; or\n\n                                (H) any material breach by the Company of any\nmaterial provision of this Agreement.\n\n                           3) 'Restricted Business' shall mean any business that\nis engaged in or (to Employee's knowledge after due inquiry) preparing to engage\nin the design, manufacture, marketing, sale, servicing or distribution of\nproducts of a type sold, reasonably anticipated to be sold, or competitive with\nany product of Sagent or the Company, or the providing of consulting services\nfor such products, during Employee's employment with either Sagent or the\nCompany.\n\n                           4) 'Restricted Territory' shall mean any location in\nwhich the Company or Sagent sells, markets, distributes or has distributed\nproducts, or any location in which the Company or Sagent plans to sell, market,\ndistribute or has distributed products.\n\n               (b) Employee agrees that, for a period of three years from the\ndate hereof, if Employee is terminated for Cause or Employee voluntarily\nterminates his employment arrangement other than for Good Reason, Employee shall\nnot:\n\n\n                                      -4-\n\n\n\n                      (i) solicit, encourage, or take any other action which is\nintended to induce any other employee of Company or Sagent to terminate his\nemployment with Company or Sagent, or\n\n                      (ii) interfere in any manner with the contractual or\nemployment relationship between Company or Sagent and any such employee of\nCompany or Sagent.\n\n               (c) The parties acknowledge that the market for computer software\nconsulting is world-wide, and that, in this market, products from any nation\ncompete with products from all other nations. Accordingly, in order to secure to\nSagent and the Company the benefits of the Acquisition Agreement, the parties\nagree that the provisions of this Section 3 shall apply to each of the states\nand counties of the United States, including each county in California, and to\neach nation worldwide.\n\n               (d) In the event that the provisions of this Section 3 should\never be deemed to exceed the time or geographic limitations, or the scope of\nthis covenant, permitted by applicable law, then such provisions shall be\nreformed to the maximum time or geographic limitations, as the case may be,\npermitted by applicable laws.\n\n        4. Reasonableness of Covenant. Employee represents that he (i) is\nfamiliar with the covenants not to compete and not to solicit set forth in\nSection 3, and (ii) is fully aware of his obligations hereunder, including,\nwithout limitation, the reasonableness of the length of time, scope and\ngeographic coverage of these covenants.\n\n        5. Confidential Information.\n\n               (a) Company Information. Employee agrees at all times during the\nterm of Employee's employment and thereafter, to hold in strictest confidence,\nand not to use, except for the benefit of the Company or Sagent, or to disclose\nto any person, firm or corporation without written authorization of the Board of\nDirectors (or an officer so authorized by the Board of Directors) of the Company\nor Sagent, any Confidential Information of the Company or Sagent. Employee\nunderstands that 'Confidential Information' means any Company proprietary\ninformation, technical data, trade secrets or know-how, including, but not\nlimited to, research, product plans, products, services, customer lists and\ncustomers (including, but not limited to, customers of the Company on whom\nEmployee called or with whom Employee became acquainted during the term of\nEmployee's employment), markets, software, developments, inventions, technology,\ndesigns, drawings, engineering, hardware configuration information, marketing,\nfinances or other business information disclosed to Employee by the Company\neither directly or indirectly in writing, orally or by drawings or observation\nof parts or equipment. Employee further understands that Confidential\nInformation does not include any of the foregoing items which has become\npublicly known and made generally available through no wrongful act of Employee\nor of others who were under confidentiality obligations as to the item or items\ninvolved.\n\n               (b) Third Party Information. Employee recognizes that the Company\nhas received and in the future will receive from third parties their\nconfidential or proprietary information subject to a duty on the Company's part\nto maintain the confidentiality of such \n\n\n                                      -5-\n\n\n\ninformation and to use it only for certain limited purposes. Employee agrees to\nhold all such confidential or proprietary information in the strictest\nconfidence and not to disclose it to any person, firm or corporation or to use\nit except as necessary in carrying out Employee's work for the Company\nconsistent with the Company's agreement with such third party.\n\n\n        6. Retaining and Assigning Inventions and Original Works\n\n               (a) Inventions and Original Works Retained by Me. Employee has\nattached hereto, as Exhibit C, a list describing all inventions, original works\nof authorship, developments, improvements, and trade secrets which were made by\nEmployee prior to Employee's employment with the Company, which belong to\nEmployee, which relate to the Company's proposed business and products, and\nwhich are not assigned to the Company; or, if no such list is attached, Employee\nrepre sents that there are no such inventions.\n\n               (b) Inventions and Original Works Assigned to the Company.\nEmployee agrees that Employee will promptly make full written disclosure to the\nCompany, will hold in trust for the sole right and benefit of the Company, and\nwill assign to the Company all my right, title, and interest in and to any and\nall inventions, original works of authorship, developments, improvements or\ntrade secrets which Employee may solely or jointly conceive or develop or reduce\nto practice, or cause to be conceived or developed or reduced to practice,\nduring the period of time Employee is in the employ of the Company. However,\nEmployee recognizes, that Employee may exclude from such an assignment under\nthis provision, any invention as to which Employee can prove the following:\n\n                        (i)     it was developed entirely on Employee's own\n                                time; and\n\n                        (ii)    no equipment, supplies, facility or trade secret\n                                of Sagent or the Company was used in its\n                                development; and\n\n                        (iii)   does not relate, at the time the invention was\n                                conceived or reduced to practice, to Sagent's or\n                                the Company's business or to Sagent's or the\n                                Company's actual or demonstrably anticipated\n                                research and development; and\n\n                        (iv)    does not result from any work performed by\n                                Employee for Sagent or the Company.\n\n                           Employee acknowledges that all original works of\nauthorship which are made by me (solely or jointly with others) within the scope\nof Employee's employment and which are protectable by copyright are 'works made\nfor hire,' as that term is defined in the United States Copyright Act (17 USCA,\nSection 101).\n\n               (c) Maintenance of Records. Employee agrees to keep and maintain\nadequate and current written records of all inventions and original works of\nauthorship made by Employee (solely \n\n\n                                      -6-\n\n\n\nor jointly with others) during the term of Employee's employment with the\nCompany. The records will be in the form of notes, sketches, drawings, and any\nother format that may be specified by the Company. The records will be available\nto and remain the sole property of the Company at all times.\n\n               (d) Inventions Assigned to the United States. Employee agrees to\nassign to the United States government all my right, title, and interest in and\nto any and all inventions, original works of authorship, developments,\nimprovements or trade secrets whenever such full title is required to be in the\nUnited States by a contract between the Company and the United States or any of\nits agencies.\n\n               (e) Obtaining Letters Patent and Copyright Registrations.\nEmployee agrees that his obligation to assist the Company to obtain United\nStates or foreign letters patent and copyright registrations covering inventions\nand original works of authorship assigned hereunder to the Company shall\ncontinue beyond the termination of Employee's employment, but the Company shall\ncompensate Employee at a reasonable rate for time actually spent by Employee at\nthe Company's re quest on such assistance. If the Company is unable because of\nEmployee's mental or physical incapacity or for any other reason to secure\nEmployee's signature to apply for or to pursue any application for any United\nStates or foreign letters patent or copyright registrations covering inven tions\nor original works of authorship assigned to the Company as above, then Employee\nhereby irrevocably designates and appoints the Company and its duly authorized\nofficers and agents as Employee's agent and attorney in fact, to act for and in\nEmployee's behalf and stead to execute and file any such applications and to do\nall other lawfully permitted acts to further the prosecution and issuance of\nletters patent or copyright registrations thereon with the same legal force and\neffect as if executed by Employee. Employee hereby waives and quitclaims to the\nCompany any and all claims, of any nature whatsoever, which Employee now or may\nhereafter have for infringement of any patents or copyrights resulting from any\nsuch application for letters patent or copyright registrations assigned\nhereunder to the Company.\n\n               (f) Exception to Assignments. Employee understands that the\nprovisions of this Agreement requiring assignment to the Company do not apply to\nany invention which qualifies fully under the provisions set forth in paragraph\n6(b). Employee will advise the Company promptly in writing of any inventions,\noriginal works of authorship, developments, improvements or trade secrets that\nEmployee believes meet the criteria in Subparagraphs 6(b)(i), (ii), and (iii)\nabove; and Employee will at that time provide to the Company in writing all\nevidence necessary to substantiate that belief. Employee understands that the\nCompany will keep in confidence and will not disclose to third parties without\nEmployee's consent any confidential information disclosed in writing to the\nCompany relating to such inventions.\n\n        7. Conflicting Employment. Employee agrees that, during the term of\nEmployee's employment with the Company, Employee will not engage in any other\nemployment, occupation, consulting or other business activity directly related\nto the business in which the Company is now involved or becomes involved during\nthe term of Employee's employment, nor will Employee engage in any other\nactivities that conflict with Employee's obligations to the Company.\n\n\n                                      -7-\n\n\n\n        8. Returning Company Documents. Employee agrees that, at the time of\nleaving the employ of the Company, Employee will deliver to the Company (and\nwill not keep in his possession or deliver to anyone else) any and all devices,\nrecords, data, notes, reports, proposals, lists, correspondence, specifications,\ndrawings, blueprints, sketches, materials, equipment, other documents or\nproperty, or reproductions of any aforementioned items belonging to Sagent, the\nCompany, or either of its successors or assigns.\n\n        9. Representations. Employee agrees to execute any proper oath or verify\nany proper document required to carry out the terms of this Agreement. Employee\nrepresents that his performance of all the terms of this Agreement will not\nbreach any agreement to keep in confidence proprietary information acquired by\nhim in confidence or in trust prior to his employment by the Company. Employee\nhas not entered into, and Employee agrees he will not enter into, any oral or\nwritten agreement in conflict herewith.\n\n        10. Governing Law. This Agreement shall be governed by and construed and\nenforced in accordance with the laws of the State of California as applied to\nagreements made and performed in California by residents of California.\n\n        11. Amendments. This Agreement shall not be changed or modified in whole\nor in part except by an instrument in writing signed by each party hereto.\n\n        12. Attorneys' Fees. In the event of any legal action or proceeding to\nenforce or interpret the provisions hereof, the provisions hereof, the\nprevailing party shall be entitled to reasonable attorneys' fees, whether or not\nthe proceeding results in a final judgment.\n\n        13. Counterparts. This Agreement may be executed in several\ncounterparts, each of which shall be an original, but all of which together\nshall constitute one and the same agreement.\n\n        14. Effect of Headings. The section heading herein are for convenience\nonly and shall not affect the construction or interpretation of this Agreement.\n\n\n                                      -8-\n\n\n\n        IN WITNESS WHEREOF, the parties hereto have executed this Employment and\nNon-Competition Agreement as of the date first written above.\n\n\n                                SAGENT TECHNOLOGY, INC.\n                                a California corporation\n\n\n                                By:      \/s\/ Kenneth C. Garnder\n                                         ---------------------------------------\n                                         Kenneth C. Gardner, President and Chief\n                                          Executive Officer\n\n\n                                SAGENT PROFESSIONAL SERVICES, INC.\n                                a Delaware Corporation\n\n\n                                By:      \/s\/ Kenneth C. Gardner\n                                         ---------------------------------------\n                                         Kenneth C. Gardner, President and Chief\n                                          Executive Officer\n\n\n                                EMPLOYEE\n\n\n                                \/s\/ Michael P. Venerable\n                                ------------------------------------------------\n                                Michael P. Venerable\n                                12448 Valleyside Way\n                                Germantown, MD  20874\n\n                                (703) 406-8791\n                                ------------------------------------------------\n                                (Print Telephone Number)\n\n\n                                      -9-\n\n\n\n                                    EXHIBIT A\n\n                        Description of Employee's Duties\n\nPosition:  Vice President of Professional Services\n\nOperational responsibility for all profiessional services including product\nsupport consulting, long term project consulting, OEM consulting, product\ntraining and other education services. Includes responsiblity for additional\nservice headcount added through future acquisitions. Sets strategic direction of\nservice organization consistent with corporate objectives, to include revenue\nobjectives, margin objectives, service product definition, and service product\npricing. Responsible for defining organizational structure, recruiting, staffing\nand personnel decisions within the service organization. Responsible for service\npartner programs and standards for consulting, product training and other\neducational services.\n\n\n                                      -1-\n\n\n\n                                    EXHIBIT B\n\n                            Form of Option Agreement\n\n\n                                      -2-\n\n\n\n                                    EXHIBIT C\n\n\n                            LIST OF PRIOR INVENTIONS\n                        AND ORIGINAL WORKS OF AUTHORSHIP\n\n\n\n\n\n\n                                                        Identifying Number \nTitle                              Date                or Brief Description\n-----                              ----                --------------------\n                                         \nBook and associated CD            2\/1\/98       A book to be published by John Wiley &amp; Rom entitled 'Data                             Associates, and an accompanying CD-ROM  \nWarehouse Design                               containing a series of designs for data  \nSolutions'                                     warehouse, as well as report designs.    \n\n\n\n                                      -3-\n\n\n\n                                    EXHIBIT D\n\n\n                            CHANGE OF CONTROL POLICY\n\n\n                                       -4-\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8746],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9544],"class_list":["post-39741","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-sagent-technology-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39741","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39741"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39741"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39741"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39741"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}