EXHIBIT 10.15
INDUS INTERNATIONAL, INC.
XXXXXX X. XXXXXXXX EMPLOYMENT AGREEMENT
This Agreement is entered into as of May 6, 2004 (the "Effective Date"),
by and between Indus International, Inc. (the "Company"), and Xxxxxx X. Xxxxxxxx
(the "Executive").
1. Duties and Scope of Employment.
(a) Positions and Duties. Executive will be an employee of the
Company as of the Effective Date. Commencing on June 1, 2004, Executive will
serve as Executive Vice President and Chief Financial Officer of the Company
reporting to the 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 Chief Executive Officer or the Board of Directors (the
"Board").
(b) 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 (as defined herein), 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 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. Commencing on June 1, 2004 and continuing during
the Employment Term, the Company will pay Executive as compensation for his
services a base salary at the annualized rate of $248,000.00 (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; provided further, that any such
performance bonus for the fiscal year ended March 31, 2005 shall be prorated to
reflect ten (10) months of service during that 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. In any given fiscal year such
performance bonus may be subject to an executive performance plan approved by
the Board or the Compensation Committee.
(c) Stock Option. Promptly following the complete execution of this
Agreement, Executive shall be granted a stock option, which will be, to the
extent possible under the $100,000 rule of Section 422(d) of the Internal
Revenue Code of 1986, as amended (the "Code"), intended to be an "incentive
stock option" (as defined in Section 422 of the Code), to purchase Two Hundred
Fifty Thousand (250,000) shares of the Company's common stock at an exercise
price equal to the per share market value of the Company's common stock on the
date of the grant (the "Option"). To the extent that any portion of the Option
exceeds the $100,000 rule of Section 422(d) of the Code, the excess shall be
treated as options which are not incentive stock options. Subject to the
accelerated vesting provisions set forth herein, the Option will vest as to 25%
of the shares subject to the Option on each anniversary of the date of grant, so
that the Option will be fully vested and exercisable four (4) years from the
date of grant, subject to Executive's continued service to the Company on the
relevant vesting dates. The Option will be subject to the terms, definitions and
provisions of the Company's 1997 Stock Plan, as amended, and the stock option
agreement to be entered into by and between Executive and the Company.
(d) Sign-On Bonus. Upon execution of this Agreement, in
consideration of his agreement to become an employee of the Company, Executive
shall be entitled to receive a one-time sign-on bonus in the amount of $40,000
("Sign-On Bonus"); provided, however, that (i) the Sign-On Bonus shall be paid
in one lump sum on or about December 1, 2004, and (ii) the payment of the
Sign-On Bonus shall be subject to Executive's continued employment with the
Company on December 1, 2004.
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. Executive will be indemnified by the Company to the
extent provided to all other officers and directors of the Company, as currently
provided under the Company's Amended and Restated Bylaws and as may be modified
from time to time.
5. Paid Time Off. Executive will be entitled to twenty (20) days of paid
time off for vacation time, sick leave and personal time in accordance with the
Company's paid time off policy,
-2-
with the timing and duration of specific time off 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 from the date of such termination in accordance
with the Company's normal payroll policies, and (ii) 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 (iii) if it has not already been paid, the Sign-On
Bonus, which shall be paid in a lump sum within 15 days following Executive's
termination, and (iv) the Option 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) 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 (iii) if it has not already been paid, the Sign-On Bonus,
which shall be paid in a lump sum within 15 days following Executive's
termination.
-3-
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 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:
(a) delivered in full, or
(b) 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.
-4-
(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), 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 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,
-5-
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) a
reduction by the Company in the base compensation of the Executive as in effect
immediately prior to such reduction other than in connection with a general
reduction in executive officer compensation; (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 other than in connection with
a general reduction in the kind or level of benefits offered by the Company; 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 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
-6-
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
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
-7-
Secrets or Confidential Information (such terms having the same meanings as
defined in Section 10 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 not be
unreasonably withheld, 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, customer information systems, and field
service management. 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 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
-8-
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 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,
-9-
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 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
-10-
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 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.
-11-
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.
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 Xxxx 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.
(b) 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:
_________
_________
-12-
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.
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]
-13-
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, INC.
By: /s/ Xxxxxxx X. Xxxxx Date: 5/10/04
---------------------------------------- ------------
Xxxxxxx X. Xxxxx
Title: Chief Executive Officer and President
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxxx Date: 5/6/04
---------------------------------------- ------------
Xxxxxx X. Xxxxxxxx
-14-
