EXHIBIT 10.2
April 10, 0000
Xxxxxx X. Xxxxxx
0000 Xxxxx Xxx
Xxxxxxxx, Xxxxxxxxxx 00000
Dear Xxx:
The following letter sets forth the terms and conditions of your
resignation from the Board of Directors of Indus International, Inc. ("Indus")
and your agreement to provide consulting services to Indus.
In consideration of the agreements, mutual covenants and restrictions
contained herein and other good and valuable consideration, the receipt and
sufficiency which is hereby expressly acknowledged, the parties hereto agree as
follows:
1. TRANSFER OF PERSONAL PROPERTY. Indus hereby transfers to you
title to those items of personal property listed on Exhibit A to this letter and
agrees to execute such bills of sale, motor vehicle titles, and other good and
sufficient similar instruments and documents of conveyance and transfer
necessary to complete the transfer of the title or possession of such personal
property to, or vest them in, you.
2. LIMITED USE OF INDUS NAME. Indus hereby grants to you, a
non-exclusive, non-transferable, royalty-free license to continue to have the
"Indus" name on the license plate to your automobile. You understand and agree
that this right is personal to you and not transferable.
3. RESIGNATION AS DIRECTOR. You hereby voluntarily resign from
your position as a member of the Board of Directors of Indus effective
immediately.
4. CONSULTING AGREEMENT. Indus agrees to engage you as a
strategic consultant and you agree to make available your services for a period
of one year from the date hereof to the extent reasonably requested by Indus to
perform strategic consulting services in connection with Indus's business;
provided that you will not be required to spend more than eight (8) hours a
month in such role. You acknowledge and agree that you will act as an
independent contractor in the performance of your consulting services under this
letter agreement. Indus agrees to compensate you for your engagement to provide
Indus strategic consulting services for the next year in three equal payments of
$50,000 on the last day of April 2002, August 2002 and December 2002.
In connection with your engagement as a strategic consultant, Indus
agrees to continue to provide you and your wife health insurance benefits on the
same terms and conditions as are currently being provided under the Indus
Retiree Plan until March 17, 2004; however, you agree that you are not entitled
to any other benefits from Indus.
5. STOCK PURCHASE. Indus agrees that it or its designee will
purchase from you and/or certain of your designated affiliates, and you agree
that you will sell or cause your designated affiliates to sell, to Indus or its
designee an aggregate of 500,000 shares of the common stock of Indus (the
"Shares") for a price per Share of $5.00 (representing the price per Share
approved by resolution of the Board of Directors of Indus on April 1, 2002) in
immediately available cash to be wired to an account designated by you. Prior to
our payment to you of the purchase price for the Shares, you will deliver or
cause to be delivered to Indus certificate(s) representing the Shares, duly
endorsed in blank or accompanied by stock powers or other instruments of
transfer duly executed in blank. In the alternative, you will execute an
appropriate letter of instruction to your broker and the transfer agent
instructing each of them to transfer the Shares into accounts designated by
Indus. You and Indus agree that the closing of the sale and purchase of the
Shares will be made at the termination of the revocation period provided for in
Section 17 hereof, or, if the parties agree, the closing may be made in escrow
prior to such time. Upon the delivery of and payment for the Shares as provided
for in this paragraph, you represent and warrant that Indus will acquire good
and valid title to all of the Shares, free and clear of any lien or encumbrance.
You also represent and warrant that you have had an opportunity as a
director of Indus to participate in board meetings and conferences with
management of Indus regarding Indus' business, products, strategic plan, results
of operations and financial condition, to review all publicly available
information about Indus and to discuss with management any other issues that you
deemed relevant to you in determining whether to enter into this letter
agreement and sell the Shares.
6. LOCK-UP AGREEMENT. You represent and warrant to Indus that you
are the beneficial owner of 3,391,956 shares of Indus common stock (excluding
the Shares) and 160,000 shares subject to outstanding options and warrants
(collectively, the "Owned Shares") (which represent beneficial ownership of less
than 10% of the outstanding common stock of Indus), that you hold all Owned
Shares free and clear of any and all liens and encumbrances and that you have
the sole power of disposition with respect to all Owned Shares. You also
represent and warrant to Indus that neither you nor any of your affiliates (who
beneficially own any of the Owned Shares) is a party to any option, warrant,
purchase right, or other contract or commitment that could require you or it to
sell, transfer, or otherwise dispose of any capital stock of Indus, other than
this letter agreement and that neither you nor any of such affiliates is a party
to any voting trust, proxy, or other agreement or understanding with respect to
the voting of any capital stock of Indus.
You agree that, except as contemplated hereby or with the prior written
consent of Indus, you will not directly or indirectly (i) sell, pledge,
encumber, grant an option with respect to, transfer or dispose of any of the
Owned Shares or any economic, voting or other interest in any of the Owned
Shares, or (ii) enter into an agreement, commitment or other arrangement to
sell, pledge, encumber, grant an option with respect to, transfer or dispose of
any of such Owned Shares or any economic, voting or other interest therein, for
a period of one year from the date hereof.
-2-
Notwithstanding the foregoing, you are permitted to make bona fide
gifts of shares to your lineal descendants; provided that, prior to the
effectiveness of any proposed transfer, the transferee has agreed in writing to
hold such shares (or interest in such shares) subject to the terms of this
Section 6.
You also understand and agree to take all necessary action to the
effect that all of the Owned Shares will be certificated and that certificate(s)
representing the Owned Shares will bear the following legend:
THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A LETTER AGREEMENT BETWEEN
XXXXXX X. XXXXXX AND INDUS INTERNATIONAL, INC. ("INDUS") WHICH CONTAINS
PROVISIONS RESTRICTING THE TRANSFER OF SUCH SHARES BY XX. XXXXXX. THESE SHARES
AND INTERESTS IN THESE SHARES MAY NOT BE SOLD, PLEDGED, ENCUMBERED, TRANSFERRED
OR DISPOSED OF, EXCEPT TO THE LINEAL DESCENDANTS OF XX. XXXXXX OR PURSUANT TO
THE PRIOR WRITTEN CONSENT OF INDUS. IN ADDITION, THESE SHARES MAY ONLY BE
TRANSFERRED IN COMPLIANCE WITH FEDERAL AND APPLICABLE STATE SECURITIES LAWS.
Indus agrees that it will provide to the transfer agent all necessary
documentation such that the foregoing legend will be removed by the transfer
agent at the expiration of the restricted period.
7. OPINION OF COUNSEL. Indus agrees to engage counsel to Indus,
Xxxxxx & Bird LLP, to provide you with a legal opinion, satisfactory in form and
substance to you, that, after the effectiveness of the transactions contemplated
by this letter, including the sale by you and your affiliates of 500,000 shares
of Indus common stock to Indus and your resignation from the Board of Directors
of Indus, you will not be deemed an "affiliate" of Indus for purposes of Rule
144 of the Securities Act of 1933, as amended. Such opinion will be conditioned
upon your making appropriate written representations to Xxxxxx & Bird LLP.
8. TAXES. You agree to pay all local, state and federal income
taxes, penalties, interest, fines or other assessments incurred in connection
with the payment of monies to you under this letter agreement.
9. CONFIDENTIALITY. You agree that all information relating
directly or indirectly to Indus and its business furnished or disclosed to you
by Indus is and shall remain the property of Indus (unless otherwise agreed in
writing), that you have not received and will not receive any rights or claims
with respect to such information, that such information will be kept
confidential, and that you will not use, duplicate or disclose, or permit the
use, duplication or disclosure of, any of such information in any manner
whatsoever.
-3-
10. REMEDIES. You agree that the restrictions contained in this
letter agreement are fair and reasonable and necessary to protect the legitimate
interests of Indus. You agree that Indus would suffer irreparable injury if you
were to violate any provision of this letter and that in the event of a breach
or threatened breach of this letter by you, Indus, without prejudice to any
rights to judicial relief it may otherwise have, shall be entitled to equitable
relief, including injunction and specific performance, in the event of any
breach of the provisions of this letter agreement and that you shall not oppose
the granting of such relief.
11. RELEASE. In consideration of the payments and other promises
contained in this agreement, you (on behalf of yourself and your agents and
successors in interest) hereby UNCONDITIONALLY RELEASE AND DISCHARGE Indus, its
successors, predecessors, affiliates and all of those entities' agents,
attorneys, employees, officers, trustees and directors (the "Indus Parties") and
Indus (on behalf of itself and its agents and successors in interest) hereby
UNCONDITIONALLY RELEASES AND DISCHARGES you, from ALL claims, liabilities,
demands and causes of action, whether known or unknown, fixed or contingent,
that you may have or claim to have against Indus or any Indus Party or Indus may
have against you for any reason as of the date of execution of this agreement.
You and Indus further AGREE NOT TO FILE A LAWSUIT or other legal claim or charge
to assert any claim against the other party, and in the case of you, any of the
Indus Parties. This Release includes, but is not limited to, claims for personal
injury of any kind, claims for breach of contract, and claims of employment
discrimination. You specifically acknowledge and agree that you are releasing,
in addition to all other claims, any and all rights under federal and state
employment laws including without limitation the Age Discrimination in
Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. ss. 621, et seq.
12. TERMINATION OF AGREEMENTS. You and Indus hereby terminate all
rights that you had under any contracts, written or oral, with Indus, including
without limitation, the Nomination Agreement, among you, Indus and Warburg,
Xxxxxx Investors, L.P. ("Warburg") and the Registration Rights Agreement among
you, Indus, Xxxxxxx X. XxxXxxxx, Xxxx X. Blend, III and Xxxx X. Xxxxxx. You also
agree to execute other instruments and documents necessary to evidence the
termination of your rights under such agreements.
13. BROKERS; FINDERS. You represent to Indus that no broker,
finder or financial adviser has acted directly or indirectly as such for, or is
entitled to any compensation from, any of the parties hereto in connection with
this letter agreement or the transactions contemplated hereby.
14. ENTIRE AGREEMENT; ASSIGNS. This letter agreement is intended
by the parties hereto to be the final expression of their agreement with respect
to the subject matter hereof and this is the complete and exclusive statement of
the terms of their agreement, notwithstanding any representations, statements or
agreements to the contrary heretofore made. This letter agreement supersedes any
former agreements governing the same subject matter. This letter agreement may
be modified only by a written instrument
-4-
signed by each of the parties hereto. You acknowledge and agree that Indus may
assign its right to purchase some or all of the Shares to a third party and that
the provisions of Sections 5, 8 and 13 herein will inure to the benefit of any
such third party as if such third party were a party to this letter agreement.
15. GOVERNING LAW. This letter shall be governed by the laws of
the State of Georgia.
16. ACKNOWLEDGMENT. You are advised to consult with an attorney
prior to signing this agreement. You have at least twenty-one (21) days to
consider the agreement before signing, although you are free to sign it before
the expiration of that time if you choose to do so.
17. REVOCATION. The agreement shall become effective and
enforceable at twelve o'clock (12:00) noon on the eighth (8th) day immediately
following the date of execution of this Agreement. You may revoke the agreement
at will prior to that time by sending written notice of the revocation by
facsimile to the General Counsel of Indus at (000) 000-0000. The Agreement may
not be revoked after that time. You acknowledge that any revocation of the
agreement will render it null, void, and of no effect, and will relieve Indus of
any obligation to you under the agreement.
18. MISCELLANEOUS. This letter was negotiated between the parties
hereto, and the fact that one party or the other drafted this letter shall not
be used in its interpretation.
19. COUNTERPARTS. This letter agreement may be executed in two (2)
or more counterparts, each of which shall be deemed an original hereof, but all
of which, together, shall constitute a single agreement.
-5-
Please confirm your agreement with the foregoing by signing and
returning one copy of this letter to the undersigned, whereupon this letter
agreement shall become a binding agreement between you and the Company.
Very truly yours,
/s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
Chairman of the Board
Acknowledged and Agreed,
as of April 10, 2002:
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
-6-
EXHIBIT A
a. 1992 Mercedes 000 XXX, XXX Xx. XXXXX00X0XX000000.
b. Compaq personal computer, Toshiba laptop computer, computer printer and
fax machine currently used by Xx. Xxxxxx.
-7-
EXHIBIT 10.2
XXXX OF SALE
THIS XXXX OF SALE is entered into this 10th day of April, 2002 by XX.
XXXXXX X. XXXXXX, an individual resident of the State of California ("Felton"),
and INDUS INTERNATIONAL, INC., a Delaware corporation ("Indus").
WHEREAS, pursuant to a letter agreement between Felton and Indus dated
as of the date hereof (the "Letter Agreement"), Indus agreed to sell to Xxxxxx
and Xxxxxx agreed to purchase from Indus, for the consideration and upon the
terms and conditions set forth in the Letter Agreement, certain of the assets,
properties, and rights of Indus;
NOW, THEREFORE, pursuant to the Letter Agreement and in consideration
of the agreements, mutual covenants and restrictions contained herein and
therein and other good and valuable consideration, the receipt and sufficiency
of which is hereby expressly acknowledged, the parties hereto agree as follows:
1. Conveyance. Indus does hereby sell, transfer, assign, convey,
and deliver to Xxxxxx and Xxxxxx hereby purchases and accepts from Indus, all of
Indus' right, title and interest in and to each of the Assets as the same are
listed on Exhibit A hereto (the "Assets").
2. Indus' Undertaking. If subsequent to the date hereof, any
property that is part of the Assets described in Section 1 hereof comes into the
possession of Indus, Indus shall promptly deliver the same to Xxxxxx. Indus
will, at the request of Xxxxxx, without further consideration, promptly take
such further action, and execute and deliver such additional assignments, bills
of sale, motor vehicle titles and other good and sufficient similar instruments
as Xxxxxx may reasonably deem necessary to complete the transfer of the title or
possession of such Assets to, or vest them in, Xxxxxx.
3. Letter Agreement. Nothing contained in this Xxxx of Sale shall
be deemed to supersede, enlarge on or modify any of the obligations, agreements,
covenants, representations or warranties of Indus or Xxxxxx contained in the
Letter Agreement. If any conflict exists between the terms of this Xxxx of Sale
and the Letter Agreement, then the terms of the Letter Agreement shall govern
and control.
4. Governing Law. This Xxxx of Sale shall be governed by the laws
of the State of Georgia.
5. Counterparts. This Xxxx of Sale may be executed in two (2) or
more counterparts, each of which shall be deemed an original hereof, but all of
which, together, shall constitute a single agreement.
IN WITNESS WHEREOF, the undersigned has caused this Xxxx of Sale to be
executed and delivered as of the date first above written.
INDUS INTERNATIONAL, INC.
---------------------------------------
By: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
-2-
EXHIBIT A
a. 1992 Mercedes 000 XXX, XXX Xx. XXXXX00X0XX000000.
b. Compaq personal computer, Toshiba laptop computer, computer printer and
fax machine currently used by Xx. Xxxxxx.
LIMITED USE, NON TRANSFERABLE LICENSE
Indus International, Inc., a Delaware corporation, hereby grants to Xx.
Xxxxxx X. Xxxxxx, a non-exclusive, non-transferable, royalty-free license to
continue to have the "Indus" name on the license plate to his automobile. This
right is personal to Xx. Xxxxxx and not transferable.
Date: April 10, 2002 INDUS INTERNATIONAL, INC.
---------------------------------
By: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board
-4-