EXHIBIT 10.14
INDUS INTERNATIONAL
XXXXXX X. XXXXXXX, XX. EMPLOYMENT AGREEMENT
This Agreement is entered into as of April 29, 2003 (the "Effective
Date"), by and between Indus International, Inc. (the "Company"), and Xxxxxx X.
Xxxxxxx, Xx. (the "Executive").
1. Duties and Scope of Employment.
(a) Prior Agreement. Executive currently serves as Chairman of the
Board and Chief Executive Officer of the Company, pursuant to the terms of that
certain Employment Agreement, dated as of December 19, 2001, between Executive
and the Company (the "Prior Agreement"). From and after the Effective Date, the
Prior Agreement will be superseded in its entirety by this Agreement.
(b) Positions and Duties. As of the Effective Date, Executive will
serve as Chairman of the Board and Chief Executive Officer. Executive will
render such business and professional services in the performance of his duties,
consistent with Executive's position within the Company, as shall reasonably be
assigned to him by the Company's Board of Directors (the "Board").
(c) Obligations. During the Employment Term, Executive will perform
his duties faithfully and to the best of his ability and will devote his
business efforts and time to the Company at the Company's Atlanta, Georgia
offices. Executive understands and agrees that frequent travel may be necessary
in carrying out his duties hereunder including, without limitation, frequent
travel to the Company's global offices as well as client sites. During the
Employment Term, Executive agrees that he will not, without the prior approval
of the Board of Directors, (i) serve on the board of directors (or similar
governing body) of any other company, (ii) serve as a director or trustee of any
civic, educational or charitable organization, or (iii) actively engage in any
other employment, occupation or consulting activity with or without any direct
or indirect remuneration; provided, however, that Executive may serve in any
non-director or non-trustee capacity with any civic, educational or charitable
organization, and may continue to serve as a member of the board of directors of
Kiodex, Alogent, Evant and Horizons Foundation (charitable organization) ,
without the approval of the Board, so long as such activities do not materially
interfere with his duties and obligations under this Agreement.
2. Employment Term. Executive's employment with the Company pursuant to
this Agreement (the "Employment Term") shall commence on the Effective Date and
shall continue until terminated as provided in Section 7 hereof.
3. Compensation.
(a) Base Salary. During the Employment Term, the Company will pay
Executive as compensation for his services a base salary at the annualized rate
of $400,000 (the "Base Salary"). The Base Salary will be paid periodically in
accordance with the Company's normal payroll practices and be subject to
applicable tax withholding. The Board, or the Compensation Committee
of the Board, shall review the Base Salary each year and may increase, but not
decrease, the Base Salary at any time. Any increase in Base Salary shall not
limit or reduce any other obligations to the Executive under this Agreement. The
term "Base Salary" as used in this Agreement shall refer to the Base Salary as
it may be increased from time to time.
(b) Annual Bonus. In addition to the Base Salary, Executive may
receive a discretionary performance bonus during each year of employment with
the Company under this Agreement equal to an amount, to be determined by the
Board or the Compensation Committee of the Board, of up to one hundred percent
(100%) of Base Salary; provided, however, that, the payment of any such bonus
shall be subject to Executive's continued employment with the Company through
the end of the applicable Company fiscal year. Such performance bonus, if any,
shall be determined by the Board, or the Compensation Committee of the Board,
based upon its evaluation of performance relative to the business plan and other
pertinent considerations.
4. Employee Benefits; Indemnification. During the Employment Term,
Executive will be entitled to participate in the employee benefit plans
currently or hereafter maintained by the Company of general applicability to
other senior executives of the Company, including, without limitation, the
Company's group medical, dental, vision, disability, life insurance, and
flexible-spending account plans. The Company reserves the right to cancel or
change the benefit plans and programs it offers to its employees (including
Executive) at any time. During the Employment Term and for six (6) years
thereafter, Executive shall be entitled to director and officer liability
insurance coverage in the same amounts that any then current director or officer
shall be entitled to receive. In the event of a Change of Control, Executive
shall be entitled to director and officer liability insurance coverage in the
same amounts and for the same period of time that any then current director or
officer shall be entitled to receive following such Change of Control
transaction.
5. Vacation. Executive will be entitled to paid vacation of four (4) weeks
per year in accordance with the Company's vacation policy, with the timing and
duration of specific vacations mutually and reasonably agreed to by the parties
hereto.
6. Expenses. The Company will reimburse Executive for reasonable travel,
entertainment or other expenses incurred by Executive in the furtherance of or
in connection with the performance of Executive's duties hereunder. Such
expenses shall be reimbursed in accordance with the Company's expense
reimbursement policy as in effect from time to time.
7. Termination and Severance.
(a) Termination of Employment. Executive's employment may be
terminated (i) by the Company with or without Cause, (ii) by Executive for Good
Reason or no reason or (iii) by reason of Executive's death or Disability.
(b) Termination Without Cause; Termination for Good Reason. If
Executive's employment with the Company is terminated (i) by the Company without
"Cause" (as defined herein) or (ii) by the Executive for "Good Reason" (as
defined herein), and Executive signs and does not revoke a standard release of
claims with the Company in a form satisfactory to the Company, then Executive
shall be entitled to receive as severance (i) an amount equal to Executive's
then-current Base Salary (less applicable withholding taxes), payable over a
period of twelve (12) months
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from the date of such termination in accordance with the Company's normal
payroll policies, and (ii) a bonus payment equal to the maximum annual bonus
payment provided by this Agreement (equal to Executive's then-current Base
Salary), payable in a lump sum within thirty (30) days of such termination, and
(iii) the Company will pay for full COBRA benefits for Executive for the earlier
of eighteen (18) months or until Executive receives health, medical and/or
dental benefits, respectively, from a new employer, and (iv) any stock options
granted during the term of the Prior Agreement and any new stock options granted
during the term of this Agreement (collectively, the "Options"), to the extent
vested on the date of termination, may be exercised until fifteen (15) months
after the date of termination.
(c) Voluntary Termination; Termination for Cause. If Executive's
employment with the Company is terminated by Executive without Good Reason or by
the Company for Cause, then (i) all vesting of the Options will terminate
immediately and all payments of compensation by the Company to Executive
hereunder will terminate immediately (except as to amounts already earned), and
(ii) Executive will only be eligible for severance benefits in accordance with
the Company's established policies as then in effect, if applicable.
(d) Death or Disability. If Executive's employment with the Company
is terminated due to Executive's death or Disability (as defined herein), and
Executive or Executive's beneficiary or guardian signs and does not revoke a
release of claims with the Company in a form satisfactory to the Company, then
Executive or Executive's beneficiary shall be entitled to receive as severance
(i) an amount equal to Executive's then-current Base Salary (less applicable
withholding taxes), payable over a period of twelve (12) months from the date of
such termination in accordance with the Company's normal payroll policies, and
(ii) a bonus payment equal to the maximum bonus payment provided by this
Agreement (equal to Executive's then-current Base Salary), payable in a lump sum
within thirty (30) days of such termination, and (iii) with respect to a
termination for Disability, the Company will pay for full COBRA benefits for
Executive for the earlier of twelve (12) months or until Executive receives
health, medical and/or dental benefits, respectively, from a new employer, and
(iv) the Options, to the extent vested on the date of termination, may be
exercised until fifteen (15) months after the date of termination.
(e) Mitigation of Severance. Any severance payments payable to
Executive pursuant to this Section 7 shall be reduced on a dollar-for-dollar
basis by the amount of any salary, bonus and other compensation Executive
receives from a new employer during the twelve (12) months following the
termination of Executive's employment with the Company.
8. Change of Control Benefits. In the event of a "Change of Control" (as
defined in Section 10 of this Agreement) that occurs prior to the Executive's
termination of employment, then on the earlier of (A) the date six (6) months
after the date of the Change of Control or (B) upon the termination of
Executive's employment without Cause or for Good Reason, Executive's
then-outstanding Options shall immediately vest and become exercisable, and may
be exercised until fifteen (15) months after the date of termination. In all
other respects the Options shall continue to be bound by and subject to the
terms of their respective agreements.
In the event that, following a Change of Control, (i) Executive's
employment is terminated without Cause or for Good Reason or (ii) Executive
terminates his employment with the Company with or without Good Reason at any
time after six (6) months following a Change in Control, and
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Executive signs and does not revoke a standard release of claims with the
Company in a form satisfactory to the Company, then, Executive will receive the
severance benefits set forth in Section 7(b); provided, however, that the
severance payments described in Section 7(b)(i) shall be paid in a lump sum
within 15 days following Executive's termination.
9. Limitation on Payments. In the event that the severance and other
benefits provided for in this Agreement or otherwise payable to the Executive
(i) constitute "parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code") and (ii) but for this
Section 9, would be subject to the excise tax imposed by Section 4999 of the
Code, then the Executive's severance benefits under Section 4(a)(i) shall be
either:
(i) delivered in full, or
(ii) delivered as to such lesser extent which would result in no
portion of such severance benefits being subject to excise tax under Section
4999 of the Code,
whichever of the foregoing amounts, taking into account the applicable
federal, state and local income taxes and the excise tax imposed by Section
4999, results in the receipt by the Executive on an after-tax basis, of the
greatest amount of severance benefits, notwithstanding that all or some portion
of such severance benefits may be taxable under Section 4999 of the Code. Unless
the Company and the Executive otherwise agree in writing, any determination
required under this Section 9 shall be made in writing by the Company's
independent public accountants immediately prior to a Change of Control (the
"Accountants"), whose determination shall be conclusive and binding upon the
Executive and the Company for all purposes. For purposes of making the
calculations required by this Section 9, the Accountants may make reasonable
assumptions and approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations concerning the application of Sections
280G and 4999 of the Code. The Company and the Executive shall furnish to the
Accountants such information and documents as the Accountants may reasonably
request in order to make a determination under this Section. The Company shall
bear all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section 9.
10. Definitions.
(a) Cause. For purposes of this Agreement, "Cause" is defined as (i)
an act of dishonesty made by Executive in connection with Executive's
responsibilities as an employee, (ii) Executive's conviction of, or plea of nolo
contendere to, a felony, (iii) Executive's gross misconduct, or (iv) Executive's
continued substantial violations of his employment duties after Executive has
received a written demand for performance from the Company which specifically
sets forth the factual basis for the Company's belief that Executive has not
substantially performed his duties.
(b) Change of Control. For purposes of this Agreement, "Change of
Control" of the Company is defined as: (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended)
(and provided "person" for purposes of this definition shall not include any
funds managed by X.X. Xxxxxxx Xxxxxx & Co. or Warburg Pincus LLC or their
affiliates ) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under said Act),
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directly or indirectly, of securities of the Company representing 50% or more of
the total voting power represented by the Company's then outstanding voting
securities; or (ii) a change in the composition of the Board occurring within a
two-year period, as a result of which fewer than a majority of the directors are
Incumbent Directors. "Incumbent Directors" will mean directors who either (A)
are directors of the Company as of the date hereof, or (B) are elected, or
nominated for election, to the Board with the affirmative votes of at least a
majority of the Incumbent Directors at the time of such election or nomination
(but will not include an individual whose election or nomination is in
connection with an actual or threatened proxy contest relating to the election
of directors to the Company); or (iii) the date of the consummation of a merger
or consolidation of the Company with any other corporation that has been
approved by the stockholders of the Company, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or such entity's parent) more than fifty percent (50%) of the
total voting power represented by the voting securities of the Company or such
surviving entity or such entity's parent outstanding immediately after such
merger or consolidation, or the stockholders of the Company approve a plan of
complete liquidation of the Company; or (iv) the date of the consummation of the
sale or disposition by the Company of all or substantially all the Company's
assets.
(c) Disability. "Disability" shall mean that the Executive has been
unable to perform his Company duties as the result of his incapacity due to
physical or mental illness, and such inability, at least twenty-six (26) weeks
after its commencement, is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the Executive or the
Executive's legal representative (such Agreement as to acceptability not to be
unreasonably withheld). Termination resulting from Disability may only be
effected after at least 30 days' written notice by the Company of its intention
to terminate the Executive's employment. In the event that the Executive resumes
the performance of substantially all of his duties hereunder before the
termination of his employment becomes effective, the notice of intent to
terminate shall automatically be deemed to have been revoked.
(d) Good Reason. "Good Reason" means without the Executive's express
written consent (i) a significant reduction of the Executive's duties, position
or responsibilities, or the removal of such Executive from such position and
responsibilities, unless the Executive is provided with a comparable position
(i.e., a position of equal or greater organizational level, duties, authority,
compensation and status); (ii) a substantial reduction, without good business
reasons, of the facilities and perquisites (including office space and location)
available to the Executive immediately prior to such reduction; (iii) any
attempted reduction by the Company in the base compensation of the Executive as
in effect immediately prior to such attempted reduction; (iv) a material
reduction by the Company in the kind or level of benefits to which the Executive
was entitled immediately prior to such reduction with the result that such
Executive's overall benefits package is significantly reduced; or (v) the
relocation of the Executive to a facility or a location more than fifty (50)
miles from such Executive's then present location.
11. Nondisclosure of Trade Secrets and Confidential Information.
(a) Trade Secrets Defined. As used in this Agreement, the term
"Trade Secrets" shall mean all secret, proprietary or confidential information
regarding Company or Company
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activities that fits within the definition of "trade secrets" under the Georgia
Trade Secrets Act. Without limiting the foregoing or any definition of Trade
Secrets, Trade Secrets protected hereunder shall include all source codes and
object codes for Company software and all website design information to the
extent that such information fits within the Georgia Trade Secrets Act. Nothing
in this Agreement is intended, or shall be construed, to limit the protections
of the Georgia Trade Secrets Act or any other applicable law protecting trade
secrets or other confidential information. "Trade Secrets" shall not include
information that has become generally available to the public by the act of one
who has the right to disclose such information without violating any right or
privilege of Company. This definition shall not limit any definition of "trade
secrets" or any equivalent term under the Georgia Trade Secrets Act or any other
state, local or federal law.
(b) Confidential Information Defined. As used in this Agreement, the
term "Confidential Information" shall mean all information regarding Company,
Company's activities, Company's business or Company's clients that is not
generally known to persons not employed (as employees or independent agents) by
Company, that is not generally disclosed by Company practice or authority to
persons not employed by Company and is the subject of reasonable efforts to keep
it confidential. Confidential Information shall include, but not be limited to
product code, product concepts, production techniques, technical information
regarding Company products or services, production processes and product/service
development, operations techniques, product/service formulas, information
concerning Company techniques for use and integration of its website and other
products/services, current and future development and expansion or contraction
plans of Company, sale/acquisition plans and contacts, marketing plans and
contacts, information concerning the legal affairs of Company and certain
information concerning the strategy, tactics and financial affairs of Company.
"Confidential Information" shall not include information that has become
generally available to the public by the act of one who has the right to
disclose such information without violating any right or privilege of Company.
This definition shall not limit any definition of "confidential information" or
any equivalent term under the Georgia Trade Secrets Act or any other state,
local or federal law.
(c) Nondisclosure of Confidential Information. During Executive's
employment hereunder and for a period of one (1) year after Executive's
employment with Company terminates for any reason, Executive shall not directly
or indirectly transmit or disclose any Trade Secrets or Confidential Information
to any person, concern or entity, or make use of any such Confidential
Information, directly or indirectly, for himself or for others, without the
prior express written consent of the Chief Executive Officer of Company. During
the term of this Agreement and perpetually thereafter, for so long as the
information remains a Trade Secret, Executive shall not directly or indirectly,
for himself or for others, without the prior express written consent of the
Chief Executive Officer of Company, transmit or disclose any Trade Secrets to
any person, concern or entity, or make use of any such Trade Secrets. Executive
warrants that he has not disclosed or used for his own benefit or the benefit of
anyone other than Company any Confidential Information or Trade Secrets prior to
the execution of this Agreement.
(d) Enforceability of Covenants. Executive and Company agree that
Executive's obligations under these nondisclosure covenants are separate and
distinct from other provisions of this Agreement, and a failure or alleged
failure of Company to perform their obligations under any provision of this
Agreement or other agreements with Company shall not constitute a defense to the
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enforceability of these nondisclosure covenants. Nothing in this provision or
this Agreement shall limit any rights or remedies otherwise available to Company
under federal, state or local law.
12. Nonrecruitment, Nonsolicitation and Noncompetition Covenants.
(a) Nonrecruitment of Employees. In consideration of the
compensation and benefits being paid and to be paid by Company to Executive
hereunder, Executive hereby agrees that, during employment with Company and for
one (1) year after the termination of Executive's employment, Executive shall
not, directly or indirectly solicit or recruit for employment or encourage to
leave employment with Company, on his own behalf or on behalf of any other
person or entity other than Company or any affiliate of Company, any person with
whom Executive worked during Executive's employment and who performed services
for Company clients or worked on Company products or services while employed by
Company and who has not thereafter ceased to be employed by Company for a period
of at least one (1) year. Executive agrees to exercise his best efforts to
prevent any of the activities listed in this section from occurring.
(b) Nonsolicitation of Customers. In consideration of the
compensation and benefits being paid and to be paid by Company to Executive
hereunder, Executive hereby agrees that, during his employment with Company and
for one (1) year after the termination of Executive's employment, Executive
shall not, directly or indirectly, on behalf of himself or of anyone other than
Company, solicit, divert away, take away or attempt to solicit or take away any
Customer or Potential Customer of Company for purposes of providing or selling
products or services that are competitive with those provided by Company, if
Company is then still engaged in the provision or sale of that type of good or
service. For purposes of this covenant, "Customer" means any individual or
entity to whom Company has provided goods or services and with whom Executive
had, alone or in conjunction with others, Material Contact during the one (1)
year prior to the termination of Executive's employment and "Potential Customer"
means any individual or entity to whom the Company has actively sought to sell
products or services within the one (1) year immediately prior to the
termination of Executive's employment and with whom Executive had Material
Contact on the Company's behalf during that same time period. For purposes of
this covenant, Executive had "Material Contact" with a customer if (i) Executive
had business dealings with the customer on the Company's behalf; (ii) Executive
was responsible for supervising or coordinating the dealings between the
customer and the Company; or (iii) Executive obtained Trade Secrets or
Confidential Information (such terms having the same meanings as defined in
Section 11 above, but in each case relating to the Customer or Potential
Customer) about the customer as a result of Executive's association with the
Company.
(c) Noncompetition. During the term of Executive's employment with
the Company, and for a period of one (1) year thereafter, Executive shall not,
without the prior written consent of the Board, which consent may be withheld at
the sole discretion of the Board, engage or participate in, as a business
executive or equity owner of any business or enterprise that directly competes
in the Business of the Company within the Restricted Area. For purposes of this
Section 12(c), the "Business" means the design, product development, sale,
marketing, implementation or support of computer software products and services
in the areas of enterprise asset management and customer information systems.
For purposes of this Section 12(c), the "Restricted Area" shall be the area that
is within a fifty (50) mile radius of the cities of Atlanta, Georgia, Columbia,
South Carolina and San Francisco, California. Nothing in this Section 12(c)
shall prohibit Executive from acquiring
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or holding, for investment purposes only, less than five percent (5%) of the
outstanding publicly traded securities of any corporation which may compete
directly or indirectly with the Company.
(d) Enforceability of Covenants. Executive acknowledges that the
Company has a present and future expectation of business within the geographic
areas served by the Company and from the present and proposed customers of the
Company. Executive acknowledges the reasonableness of the term, geographic area
and scope of the covenants set forth in this Agreement, and agrees that he will
not, in any action, suit or other proceeding, deny the reasonableness of, or
assert the unreasonableness of, the premises, consideration or scope of the
covenants set forth herein. Executive further acknowledges that complying with
the provisions contained in this Agreement will not preclude him from engaging
in a lawful profession, trade or business, or from becoming gainfully employed.
Executive and Company agree that Executive's obligations under the above
covenant are separate and distinct under this Agreement, and the failure or
alleged failure of Company to perform its obligations under any other provisions
of this Agreement shall not constitute a defense to the enforceability of this
covenant. Executive agrees that any breach of this covenant will result in
irreparable damage and injury to Company and that Company will be entitled to
injunctive relief in any court of competent jurisdiction without the necessity
of posting any bond. Executive also agrees that he shall be responsible for all
damages incurred by Company due to any breach of the restrictive covenants
contained in this Agreement and that Company shall be entitled to have Executive
pay all costs and attorneys' fees incurred by Company in enforcing the
restrictive covenants in this Agreement.
13. Ownership of Protected Works.
(a) Protected Works. The term "Protected Works" as used in this
Agreement means any and all ideas, inventions, formulas, source codes, object
codes, techniques, processes, concepts, systems, programs, software, software
integration techniques, hardware systems, schematics, flow charts, computer data
bases, client lists, trademarks, service marks, brand names, trade names,
compilations, documents, data, notes, designs, drawings, technical data and/or
training materials, including improvements thereto or derivatives therefrom,
whether or not patentable, or subject to copyright or trademark or trade secret
protection, developed and produced by Executive pursuant to this Agreement or
other agreements between Executive and Company and used or intended for use by
or on behalf of Company, or Company's clients.
(b) Ownership and Assignment of Protected Works. Executive agrees
that any and all Protected Works developed by Executive during his employment or
other engagement with Company under this Agreement and during his employment
with, or other engagement by Company prior to the execution of this Agreement
(whether as employee or independent contractor) are the sole property of
Company, and that no compensation in addition to the amounts set forth in
Section 2 of this Agreement is due to Executive for development or transfer of
such Protected Works. Executive hereby assigns and agrees to assign all of his
respective rights, title and interest in Protected Works, including all patents
or patent applications, and all copyrights therein, to Company. Executive
further agrees at Company's request and without further consideration, but at
the expense of Company, that Executive will communicate to Company any facts
known to Executive and testify in any legal proceedings, sign all lawful papers,
make all rightful oaths, execute all divisional, continuing,
continuation-in-part, or reissue applications, all assignments, all registration
applications and all other instruments or papers to carry into full force and
effect, the
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assignment, transfer and conveyance hereby made or intended to be made and
generally do everything possible for title to the Protected Works and all
patents or copyrights or trademarks or service marks therein to be clearly and
exclusively held by Company. Executive agrees that he will not apply for any
state, federal, or other jurisdiction's registration of rights in any of the
Protected Works and that he will not oppose or object in any way to applications
for registration of same by Company or others designated by Company. Executive
agrees to exercise reasonable care to avoid making the Protected Works available
to any third party. Executive also agrees that he shall be liable to Company for
all damages, including reasonable attorneys' fees and other expenses of
litigation, if the Protected Works are made available to third parties in any
manner by Executive without the express written consent of Company.
(c) Executive agrees to disclose and describe to Company, as soon as
possible after their creation, (i) all copyrightable works, databases, data and
other "Protected Works," as defined in subsection (a) above, which are created
by Executive, either alone or with others, during the term of Executive's
employment, or in connection with the formation of Company, and (ii) all
Protected Works which are based in whole or in part upon Confidential
Information or Trade Secrets and are created by Executive, either alone or with
others, within one (1) year after Executive's leaving Company's employ.
(d) There is no other contract or duty on Executive's part now in
existence to assign Protected Works to anyone other than Company. Executive will
not disclose or induce Company to use any confidential information or material
that Executive is now or shall become aware of which belongs to anyone other
than Company. During Executive's employment by Company, Executive will not
engage in any employment, consulting or other activity in any business
competitive with Company's business as presently conducted or as conducted at
any future time during Executive's employment.
14. Rights to Materials and Return of Materials.
All records, files, software, software code, memoranda, reports,
price lists, customer lists, drawings, plans, sketches, documents, technical
information, information on the use, development and integration of software,
and the like (together with all copies of such documents and things) relating to
the business of Company, which Executive shall use or prepare or come in contact
with in the course of, or as a result of, Executive's employment or other
engagement by Company shall, as between the parties to this Agreement, remain
the sole property of Company. Laptop computers, other computers, software and
related data, information and things provided to Executive by Company or
obtained by Executive, directly or indirectly, from Company, also shall remain
the sole property of Company. Upon the termination of Executive's employment or
upon the prior demand of Company, Executive shall immediately return all such
materials and things to Company and shall not retain any copies or remove or
participate in removing any such materials or things from the premises of
Company after termination or Company's request for return.
15. Inventions, Discoveries and Improvements.
(a) Executive will promptly disclose and describe to Company (i) all
inventions, improvements, discoveries and technical developments, whether or not
patentable, made or conceived by Executive, either alone or with others
("Inventions"), during the term of Executive's
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employment with Company or other engagement with Company, provided that Company
shall receive such information in confidence and (ii) all Inventions which are
based in whole or in part upon Confidential Information or Trade Secrets and are
made or conceived by Executive, either alone or with others, within one (1) year
after Executive's leaving Company's employ. All such Inventions, whether
patentable or unpatentable, made, devised or discovered by Executive, whether by
himself or jointly with others, which relate or pertain in any way to the
business of Company, shall be used solely for the benefit of Company and become
and remain their sole and exclusive property. Executive agrees to execute an
assignment to Company or its nominee of Executive's entire right, title and
interest in and to such Inventions made or conceived by Executive, either alone
or with others, during the term of Executive's employment or within one (1) year
after Executive's leaving Company's employ, and to execute any other instruments
and documents that may be requested by Company for the purpose of applying for
and obtaining patents with respect to such Inventions in the United States and
in all foreign countries. Executive further agrees, whether or not in the employ
of Company, to cooperate to the extent and in the manner reasonably requested by
Company in the prosecution or defense of any patent claims or any litigation or
other proceedings involving any such Inventions, but all of Executive's
reasonable expenses in connection with such litigation or other proceedings
shall be paid by Company.
(b) If a patent application or copyright registration is filed by
Executive or on Executive's behalf during Executive's employment or other
engagement with Company, whether before or after execution of this Agreement, or
within one (1) year after Executive's leaving Company's employ, describing an
Invention within the scope of Executive's work for Company or which otherwise
relates to a portion of Company's business of which Executive had knowledge
during Executive's employment with Company, it is to be conclusively presumed
that the Invention was conceived by Executive during the period of such
employment.
(c) There is no other contract or duty on Executive's part now in
existence to assign Inventions other than to Company. Executive will not
disclose or induce Company to use any confidential information or material that
Executive is now or shall become aware of which belongs to anyone other than
Company. During Executive's employment by Company, Executive will not engage in
any employment, consulting or other activity in any business competitive with
Company's business as presently conducted or as conducted at any future time
during Executive's employment.
(d) Executive warrants and represents that attached to this
Agreement as Exhibit A and incorporated in this Agreement by reference is a
complete list of all inventions, whether owned by Executive or by others,
conceived by Executive prior to Executive's employment by Company, that these
are the only inventions which are not subject to this Agreement, and that
Executive has not conceived or reduced to practice any invention not described
on such Exhibit A.
16. Works Made for Hire. Company and Executive acknowledge that in the
course of Executive's employment (as employee or independent contractor) by
Company, Executive may from time to time create, and has previously created, for
Company copyrightable works. Such works may consist of manuals, pamphlets,
instructional materials, computer programs, software, software integration
techniques, software codes, and data, technical data, photographs, drawings,
logos, designs, artwork or other copyrightable material, or portions thereof,
and may be created within or without Company's facilities and before, during or
after normal business hours. All such works related to or useful in the business
of Company are specifically intended to be works made by hire
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by Executive, and Executive shall cooperate with Company in the protection of
Company's copyrights in such works and, to the extent deemed desirable by
Company, the registration of such copyrights.
17. Assignment. This Agreement will be binding upon and inure to the
benefit of (a) the heirs, executors and legal representatives of Executive upon
Executive's death and (b) any successor of the Company. Any such successor of
the Company will be deemed substituted for the Company under the terms of this
Agreement for all purposes. For this purpose, "successor" means any person,
firm, corporation or other business entity which at any time, whether by
purchase, merger or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company. None of the rights
of Executive to receive any form of compensation payable pursuant to this
Agreement may be assigned or transferred except by will or the laws of descent
and distribution. Any other attempted assignment, transfer, conveyance or other
disposition of Executive's right to compensation or other benefits will be null
and void.
18. Notices. All notices, requests, demands and other communications
called for hereunder shall be in writing and shall be deemed given (i) on the
date of delivery if delivered personally, (ii) one (1) day after being sent by a
well established commercial overnight service, or (iii) four (4) days after
being mailed by registered or certified mail, return receipt requested, prepaid
and addressed to the parties or their successors at the following addresses, or
at such other addresses as the parties may later designate in writing:
If to the Company:
Copies to each of the Chief Executive Officer and General Counsel
at the Company's principal executive office
If to Executive:
at the last residential address known by the Company.
19. Severability. The covenants set forth in this Agreement shall be
considered and construed as separate and independent covenants. Should any part
or provision of any covenant be held invalid, void or unenforceable in any court
of competent jurisdiction, such invalidity, voidness or unenforceability shall
not render invalid, void or unenforceable any other part or provision of this
Agreement. If any portion of the foregoing provisions is found to be invalid or
unenforceable by a court of competent jurisdiction because of its duration, the
territory, the definition of activities or the definition of information covered
is invalid or unreasonable in scope, the invalid or unreasonable term shall be
redefined, or a new enforceable term provided, such that the intent of Company
and Executive in agreeing to the provisions of this Agreement will not be
impaired and the provision in question shall be enforceable to the fullest
extent of the applicable laws.
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20. Arbitration.
(a) With the exception of any dispute arising under Sections
11,12,13,14,15 and 16 of this Agreement, the Company and Executive agree that
any dispute or controversy arising out of, relating to, or in connection with
this Agreement, or the interpretation, validity, construction, performance,
breach, or termination thereof, shall be settled by binding arbitration to be
held in Cherokee County, Georgia in accordance with the National Rules for the
Resolution of Employment Disputes then in effect of the American Arbitration
Association (the "Rules"). The arbitrator may grant injunctions or other relief
in such dispute or controversy. The decision of the arbitrator will be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction.
(b) The arbitrator(s) will apply Georgia law to the merits of any
dispute or claim, without reference to rules of conflicts of law. The
arbitration proceedings will be governed by federal arbitration law and by the
Rules, without reference to state arbitration law. The Executive hereby consents
to the personal jurisdiction of the state and federal courts located in Georgia
for any action or proceeding arising from or relating to this Agreement or
relating to any arbitration in which the parties are participants.
(c) EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES
ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE
AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH
THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION
CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A JURY TRIAL AND RELATES TO
THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE
RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, DISCRIMINATION CLAIMS.
All parties must initial here for Section 20 to be effective:
_________
_________
21. Entire Agreement. This 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 Agreement supersedes any former agreements
governing the same subject matter. This Agreement may be modified only by a
written instrument signed by each of the parties hereto expressly stating that
it is intended to amend this Agreement. Nothing in this Agreement or Executive's
employment shall be construed to give Executive any rights, of ownership or
otherwise, in any Protected Works, Inventions, Works Made for hire or other
software, hardware, data or systems that he creates or obtains, or has created.
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22. Tax Withholding. Company may withhold from any amounts payable under
this Agreement all federal, state, city or other taxes and withholdings as shall
be required pursuant to any applicable law, rule or regulation.
23. Governing Law. This Agreement shall be deemed to be made in and shall
in all respects be interpreted, construed and governed by and in accordance with
the laws of the State of Georgia (without giving effect to the conflict of law
principles thereof). No provision of this Agreement or any related documents
shall be construed against, or interpreted to the disadvantage of, any party
hereto by any court or any governmental or judicial authority by reason of such
party having, or being deemed to have, structured or drafted such provision.
24. Waiver. The waiver by any party to this Agreement of a breach of any
of the provisions of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
25. Acknowledgment. Executive acknowledges that he has had the opportunity
to discuss this matter with and obtain advice from his private attorney, has had
sufficient time to, and has carefully read and fully understands all the
provisions of this Agreement, and is knowingly and voluntarily entering into
this Agreement. Company agrees to reimburse Executive for attorney fees related
to review of this Agreement.
[signatures on following page]
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by their duly authorized officers, as of the day and
year first above written.
INDUS INTERNATIONAL
By: /s/ Xxxx X. Xxxxxxx Date: 6/27/03
--------------------------------- --------------------
Title: Vice President and General Counsel
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxx, Xx. Date: 6/27/03
------------------------------------- --------------------
Xxxxxx X. Xxxxxxx, Xx.
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