{"id":40489,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/settlement-agreement-and-mutual-release-sagent-technology-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"settlement-agreement-and-mutual-release-sagent-technology-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/settlement-agreement-and-mutual-release-sagent-technology-inc.html","title":{"rendered":"Settlement Agreement and Mutual Release &#8211; Sagent Technology Inc. and Kenneth C. Gardner"},"content":{"rendered":"<pre>                     SETTLEMENT AGREEMENT AND MUTUAL RELEASE\n\n         This Settlement Agreement and Mutual Release (\"Agreement\") is made as\n                                                        ---------\nof December 31, 2001, by and between Sagent Technology, Inc. (the \"Company\"),\n                                                                   -------\nand Kenneth C. Gardner (\"Employee\").\n                         --------\n\n                                    RECITALS\n\n         1.       Employee was employed by the Company.\n\n         2.       The Company and Employee have mutually agreed to terminate the\nemployment relationship and to release each other from any claims arising from\nor related to the employment relationship.\n\n                                    AGREEMENT\n\n         NOW THEREFORE, in consideration of the mutual promises made herein, the\nCompany and Employee (collectively referred to as the \"Parties\") hereby agree as\n                                                       -------\nfollows:\n\n         1.       Resignation. Employee resigned from his position as the\n                  -----------\nCompany's Chairman of the Board of Directors effective December 31, 2001 and as\nan employee and an officer effective January 31, 2002.\n\n         2.       Consideration. The Company agrees to pay Employee the lump sum\n                  -------------\npayment of One Hundred Thousand Dollars ($100,000.00), less applicable\nwithholding.\n\n         3.       Vesting of Stock. The Parties agree that for purposes of\n                  ----------------\ndetermining the number of shares of the Company's common stock which Employee is\nentitled to purchase from the Company, Employee will be entitled to continue\nvesting of stock until March 31, 2002. Employee shall be entitled to exercise\nsuch vested stock options until March 31, 2003. Except as specifically set forth\nherein, the exercise of any stock options shall continue to be subject to the\nterms and conditions of the Company's Stock Option Plan and the applicable Stock\nOption Agreement between Employee and the Company. If Employee breaches any\nmaterial provision of this Agreement (including but not limited to the\nnon-disparagement provision), Employee's right to exercise his stock options\nshall immediately cease and such options shall immediately be terminated. The\nparties agree that the foregoing remedy shall be in addition to any right or\nremedy that the Company may have at law or in equity. The determination of\nwhether Employee has breached the non-disparagement provision shall be\ndetermined by binding arbitration, as set forth in this Agreement.\n\n         4.       Consulting. Employee agrees to provide consulting services to\n                  ----------\nthe Company through March 31, 2002, as requested by the Company, at the rate of\nFive Thousand Dollars ($5,000.00) per day, plus out-of-pocket expenses.\nThereafter, Employee agrees to provide consulting services to the Company only\nas reasonably necessary to assist the Company in a strategic transaction, at the\nrate of Five Thousand Dollars ($5,000.00) per day, plus out-of-pocket expenses.\n\n\n\n         5.       Benefits. Employee shall have the right to convert his health\n                  --------\ninsurance benefits to individual coverage pursuant to COBRA.\n\n         6.       OEM Agreement. The Parties agree to negotiate in good faith an\n                  -------------\nOEM Agreement.\n\n         7.       Confidential Information. Employee agrees to maintain the\n                  ------------------------\nconfidentiality of all confidential and proprietary information of the Company.\nEmployee shall return all Company property and confidential and proprietary\ninformation in his possession to the Company by January 31, 2002.\nNotwithstanding the foregoing, Employee may keep certain sentimental materials\nrelating to the Company, such as the original business plan and the closing\nvolumes for the Company's private financings and the initial public offering.\n\n         8.       Payment of Salary. Employee will be paid his regular salary\n                  -----------------\nthrough January 31, 2002 and any accrued vacation through January 31, 2002.\nEmployee acknowledges and represents that the Company has paid all salary,\nwages, bonuses, accrued vacation, commissions and any and all other benefits due\nto Employee through the date of this Agreement.\n\n         9.       Release of Claims. Employee and the Company each agree that\n                  -----------------\nthe foregoing consideration represents settlement in full of all outstanding\nobligations owed to Employee by the Company. Employee and the Company, on behalf\nof themselves, and their respective heirs, family members, executors, officers,\ndirectors, employees, investors, shareholders, administrators, affiliates,\ndivisions, subsidiaries, predecessor and successor corporations, and assigns,\nhereby fully and forever release each other and their respective heirs, family\nmembers, executors, officers, directors, employees, investors, shareholders,\nadministrators, affiliates, divisions, subsidiaries, predecessor and successor\ncorporations, and assigns, from, and agree not to sue concerning, any claim,\nduty, obligation or cause of action relating to any matters of any kind, whether\npresently known or unknown, suspected or unsuspected, that any of them may\npossess arising from any omissions, acts or facts that have occurred up until\nand including January 31, 2002 including, without limitation,\n\n                (a)      any and all claims relating to or arising from\nEmployee's employment relationship with the Company and the termination of that\nrelationship;\n\n                (b)      any and all claims relating to, or arising from,\nEmployee's right to purchase, or actual purchase of shares of stock of the\nCompany, including, without limitation, any claims for fraud, misrepresentation,\nbreach of fiduciary duty, breach of duty under applicable state corporate law,\nand securities fraud under any state or federal law;\n\n                (c)      any and all claims for wrongful discharge of\nemployment; termination in violation of public policy; discrimination; breach of\ncontract, both express and implied; breach of a covenant of good faith and fair\ndealing, both express and implied; promissory estoppel; negligent or intentional\ninfliction of emotional distress; negligent or intentional misrepresentation;\nnegligent or intentional interference with contract or prospective economic\nadvantage; unfair business practices; defamation; libel; slander; negligence;\npersonal injury; assault; battery; invasion of privacy; false imprisonment; and\nconversion;\n\n                                                                           -2-\n\n\n\n                (d)      any and all claims for violation of any federal, state\nor municipal statute, including, but not limited to, Title VII of the Civil\nRights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in\nEmployment Act of 1967, the Americans with Disabilities Act of 1990, the Fair\nLabor Standards Act, the Employee Retirement Income Security Act of 1974, The\nWorker Adjustment and Retraining Notification Act, Older Workers Benefit\nProtection Act; the California Fair Employment and Housing Act, and Labor Code\nsection 201, et seq. and section 970, et seq.;\n\n                (e)      any and all claims for violation of the federal, or any\nstate, constitution;\n\n                (f)      any and all claims arising out of any other laws and\nregulations relating to employment or employment discrimination; and\n\n                (g)      any and all claims for attorneys' fees and costs.\n\nThe Company and Employee agree that the release set forth in this section shall\nbe and remain in effect in all respects as a complete general release as to the\nmatters released. This release does not extend to any obligations incurred under\nthis Agreement.\n\n         10.      Acknowledgment of Waiver of Claims under ADEA. Employee\n                  ---------------------------------------------\nacknowledges that he is waiving and releasing any rights he may have under the\nAge Discrimination in Employment Act of 1967 (\"ADEA\") and that this waiver and\n                                               ----\nrelease is knowing and voluntary. Employee and the Company agree that this\nwaiver and release does not apply to any rights or claims that may arise under\nADEA after the Effective Date of this Agreement. Employee acknowledges that the\nconsideration given for this waiver and release Agreement is in addition to\nanything of value to which Employee was already entitled. Employee further\nacknowledges that he has been advised by this writing that (a) he should consult\nwith an attorney prior to executing this Agreement; (b) he has at least\n                 -----\ntwenty-one (21) days within which to consider this Agreement; (c) he has at\nleast seven (7) days following the execution of this Agreement by the parties to\nrevoke the Agreement; and (d) this Agreement shall not be effective until the\nrevocation period has expired.\n\n         11.      Civil Code Section 1542. The Parties represent that they are\n                  -----------------------\nnot aware of any claim by either of them other than the claims that are released\nby this Agreement. Employee and the Company acknowledge that they have been\nadvised by legal counsel and are familiar with the provisions of California\nCivil Code Section 1542, which provides as follows:\n\n                  A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR\n                  DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF\n                  EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE\n                  MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.\n\n         Employee and the Company, being aware of said code section, agree to\nexpressly waive any rights they may have thereunder, as well as under any other\nstatute or common law principles of similar effect.\n\n                                                                           -3-\n\n\n\n         12.      No Pending or Future Lawsuits. Employee represents that he has\n                  -----------------------------\nno lawsuits, claims, or actions pending in his name, or on behalf of any other\nperson or entity, against the Company or any other person or entity referred to\nherein.  Employee also represents that he does not intend to bring any claims on\nhis own behalf or on behalf of any other person or entity against the Company or\nany other person or entity referred to herein. The Company represents that it\nhas no lawsuits, claims, or actions pending in its name, or on behalf of any\nother person or entity, against Employee or any other person or entity referred\nto herein. The Company also represents that it does not intend to bring any\nclaims on its own behalf or on behalf of any other person or entity against\nEmployee or any other person or entity referred to herein.\n\n         13.      Non-Disparagement. Each Party agrees to refrain from any\n                  -----------------\ndefamation, libel or slander of the other, or tortious interference with the\ncontracts and relationships of the other. All inquiries by potential future\nemployers of Employee will be directed to the Company's Vice President of Human\nResources.  The Parties agree to draft a mutually agreed upon external press\nrelease and internal email to the Company's employees regarding Employee's\ntermination.\n\n         14.      No Admission of Liability. The Parties understand and\n                  -------------------------\nacknowledge that this Agreement constitutes a compromise and settlement of\ndisputed claims. No action taken by the Parties hereto, or either of them,\neither previously or in connection with this Agreement shall be deemed or\nconstrued to be (a) an admission of the truth or falsity of any claims\nheretofore made or (b) an acknowledgment or admission by either party of any\nfault or liability whatsoever to the other party or to any third party.\n\n         15.      Costs. The Parties shall each bear their own costs, expert\n                  -----\nfees, attorneys' fees and other fees incurred in connection with this Agreement.\n\n         16.      Arbitration. The Parties agree that any and all disputes\n                  -----------\narising out of the terms of this Agreement, their interpretation, and any of the\nmatters herein released, shall be subject to binding arbitration in Santa Clara\nCounty before the American Arbitration Association under its California\nEmployment Dispute Resolution Rules, or by a judge to be mutually agreed upon.\nThe Parties agree that the prevailing party in any arbitration shall be entitled\nto injunctive relief in any court of competent jurisdiction to enforce the\narbitration award.  The Parties agree that the prevailing party in any\narbitration shall be awarded its reasonable attorney's fees and costs.\n\n         17.      Authority. The Company represents and warrants that the\n                  ---------\nundersigned has the authority to act on behalf of the Company and to bind the\nCompany and all who may claim through it to the terms and conditions of this\nAgreement. Employee represents and warrants that he has the capacity to act on\nhis own behalf and on behalf of all who might claim through him to bind them to\nthe terms and conditions of this Agreement. Each Party warrants and represents\nthat there are no liens or claims of lien or assignments in law or equity or\notherwise of or against any of the claims or causes of action released herein.\n\n         18.      No Representations. Each party represents that it has had the\n                  ------------------\nopportunity to consult with an attorney, and has carefully read and understands\nthe scope and effect of the provisions of this Agreement.  Neither party has\nrelied upon any representations or statements made by the other party hereto\nwhich are not specifically set forth in this Agreement.\n\n                                                                           -4-\n\n\n\n         19.      Severability. In the event that any provision hereof becomes\n                  ------------\nor is declared by a court of competent jurisdiction to be illegal, unenforceable\nor void, this Agreement shall continue in full force and effect without said\nprovision.\n\n         20.      Entire Agreement. This Agreement represents the entire\n                  ----------------\nagreement and understanding between the Company and Employee concerning\nEmployee's separation from the Company, and supersedes and replaces any and all\nprior agreements and understandings concerning Employee's relationship with the\nCompany and his compensation by the Company.\n\n         21.      No Oral Modification. This Agreement may only be amended in\n                  --------------------\nwriting signed by Employee and the President of the Company.\n\n         22.      Governing Law. This Agreement shall be governed by the laws of\n                  -------------\nthe State of California.\n\n         23.      Counterparts. This Agreement may be executed in counterparts,\n                  ------------\nand each counterpart shall have the same force and effect as an original and\nshall constitute an effective, binding agreement on the part of each of the\nundersigned.\n\n         24.      Voluntary Execution of Agreement. This Agreement is executed\n                  --------------------------------\nvoluntarily and without any duress or undue influence on the part or behalf of\nthe Parties hereto, with the full intent of releasing all claims.  The Parties\nacknowledge that:\n\n                  (a)      They have read this Agreement;\n\n                  (b)      They have been represented in the preparation,\nnegotiation, and execution of this Agreement by legal counsel of their own\nchoice or that they have voluntarily declined to seek such counsel;\n\n                  (c)      They understand the terms and consequences of this\nAgreement and of the releases it contains;\n\n                  (d)      They are fully aware of the legal and binding effect\nof this Agreement.\n\n                [remainder of the page intentionally left blank]\n\n                                                                           -5-\n\n\n\n         IN WITNESS WHEREOF, the Parties have executed this Agreement on the\nrespective dates set forth below.\n\n                       SAGENT TECHNOLOGY, INC.\n\n                       By______________________________________________________\n                           Steve Springsteel\n                           Executive Vice President and Chief Financial Officer\n\n                       Kenneth C. Gardner, an individual\n\n                       ________________________________________________________\n                            Kenneth C. Gardner\n\n                                                                           -6-\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":[9539,9551],"class_list":["post-40489","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__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40489","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=40489"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40489"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40489"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40489"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}