EXHIBIT 10.35
INDUS INTERNATIONAL
EMPLOYMENT AGREEMENT
This Agreement is entered into as of January 1, 2006 (the "Effective
Date"), by and between Indus International, Inc. (the "Company"), and Xxxxxx X.
Xxxxxxx (the "Executive"). Executive currently serves as the Vice President,
Hosting and Chief Technology Officer of the Company, pursuant to the terms of
that certain Employment Agreement, dated as of January 5, 1999, 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Date, the Prior Agreement will be superseded in its entirety by this Agreement.
1. Duties and Scope of Employment.
(a) Employment, Positions and Duties. Executive is hereby employed as
of the Effective Date as EXECUTIVE VICE PRESIDENT AND CHIEF TECHNOLOGY OFFICER
of the Company reporting to the Chief Executive Officer or President. 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,
President, or Board of Directors (the "Board").
(b) Obligations. Executive will perform his duties faithfully and to
the best of his ability and will devote all of his business efforts and time to
the Company at the Company's SAN FRANCISCO, CALIFORNIA 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. 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, (iii)
make plans or prepare, whether alone or with others, to compete against the
Company at some point in the future, or (iv) 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. Compensation.
(a) Base Salary. The Company will pay Executive as compensation for
his services a base salary at the annualized rate of $227,900 (the "Base
Salary"). Effective April 1, 2006, Executive's Base Salary shall increase to the
annualized rate of $234,350. 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 adjusted 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 in an amount to be determined by the Board or
the Compensation Committee of the Board (the "Annual Bonus"). 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.
3. Employee Benefits; Indemnification. Executive will be entitled to
participate in the equity incentive, and 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.
4. Paid Time Off. Executive will be entitled to paid time off each year for
vacation time, sick leave and personal time in accordance with the Company's
policies, as such policies are in effect from time to time, with the timing and
duration of specific time off mutually and reasonably agreed to by the parties
hereto. The Company reserves the right to cancel or change its policies at any
time.
5. 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.
6. 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 (i)
Executive's employment with the Company is terminated by the Company without
"Cause" (as defined herein) or by the Executive for "Good Reason" (as defined
herein), and (ii) Executive signs and does not revoke the Company's separation
agreement and standard release of claims , then Executive shall be entitled to
receive as severance, payable over a period of nine (9) months from the date of
such termination in accordance with the Company's normal payroll policies, (1)
an amount equal to nine (9) months of Executive's then-current Base Salary (less
applicable withholding taxes); (2) a payment equal to a pro-rata portion of
Executive's Annual Bonus for the performance year in which Executive's
termination occurs, determined by multiplying a fraction, the numerator of which
is the number of days during the performance year of termination that Executive
is employed by the Company and the denominator of which is 365, by (i) the
greater of (a) the Executive's target annual bonus for the performance year or
(b) the amount Executive would be able to receive if the date of termination
were the end of the performance year, or (ii) if the amounts under (1)(a) or (b)
are not determinable, Executive's Annual Bonus paid or payable, including any
bonus or portion thereof which has been earned but deferred, for the most
recently completed fiscal year; and (3) the Company will pay for full COBRA
benefits for Executive and any of Executive's dependents that Executive had
elected to cover by Company's benefit plans during Executive's employment at
Company for the earlier of eighteen (18) months or until Executive becomes
eligible to receive health, medical and/or dental benefits, respectively, from a
new employer.
(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,
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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), this
Agreement shall terminate without further obligations to Executive, or
Executive's legal representatives, under this Agreement, other than for payment
of (1) Executive's Base Salary through the date of termination to the extent not
theretofore paid and (2) any accrued vacation pay to the extent not theretofore
paid (the sum of the amounts described in clauses (1) and (2) shall be
hereinafter referred to as the "Accrued Obligations"). The Company shall timely
pay or provide to Executive, or, if applicable, Executive's estate and/or
beneficiaries, any other amounts or benefits required to be paid or provided
under any plan, program, policy or practice or contract or agreement of the
Company. Accrued Obligations shall be paid to Executive, or, if applicable,
Executive's estate and/or beneficiaries, in a lump sum in cash within thirty
(30) days of the date of termination.
(e) No Duty to Mitigate. The Executive shall not be required to
mitigate the amount of any payment contemplated by this Agreement, nor shall any
such payment be reduced by any earnings that the Executive may receive from any
other source.
(f) Nonduplication of Severance. Notwithstanding anything in this
Agreement to the contrary, in the event that (i) the Executive and Company are
party to a Change in Control Agreement and (ii) the Executive becomes entitled
to severance payments and/or benefits in connection with the termination of his
or her employment pursuant to such Change in Control agreement, the Executive
shall not be entitled to severance payments and/or benefits pursuant to this
Section 6.
7. 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 7, would be subject to the excise tax imposed by Section 4999 of the
Code, then the Executive's severance and benefits 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 7 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 7, the Accountants may make reasonable
assumptions and approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations
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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 7.
8. 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 indictment for, conviction of,
or plea of guilty or nolo contendere to, a felony which the Board reasonably
believes had or will have a material detrimental effect on the Company's
reputation or business, (iii) Executive's gross misconduct, (iv) Executive's
continued substantial failure to perform such Executive's 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, (v) the willful and
continued material violation of written Company policies or procedures by
Executive, after a written demand for substantial compliance with such policies
or procedures is delivered to Executive by the Compensation Committee of the
Board of Directors of the Company which specifically identifies the manner in
which such Committee or the Board believes that Executive has not substantially
complied with the same, or (vi) Executive's breach of any of the provisions of
Sections 9 through 14 of this Agreement.
(b) Disability. If the Company determines in good faith that the
Disability of Executive has occurred, it may give to Executive written notice of
its intention to terminate Executive's employment. In such event, Executive's
employment with the Company shall terminate effective on the 30th day after
receipt of such written notice by Executive, provided that, within the 30 days
after such receipt, Executive shall not have returned to full-time performance
of Executive's duties. For purposes of this Agreement, "Disability" shall mean
the inability of Executive, as determined by the Board, to perform the essential
functions of his regular duties and responsibilities, with or without reasonable
accommodation, due to a medically determinable physical or mental illness which
has lasted (or can reasonably be expected to last) an aggregate of 180 days in a
12-month period. At the request of Executive or his personal representative, the
Board's determination that the Disability of Executive has occurred shall be
certified by a physician mutually agreed upon by Executive, or his personal
representative, and the Company. Failing such independent certification (if so
requested by Executive), Executive's termination shall be deemed a termination
by the Company without Cause and not a termination by reason of his Disability.
(c) 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,
compensation and status), excluding for this purpose an isolated, insubstantial
and inadvertent action not taken in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by Executive; (ii) 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 generally
applicable reduction in executive officer compensation; or (iii) the involuntary
relocation of the Executive to a facility or a location more than fifty (50)
miles from such Executive's then present location; or (iv) the material breach
by the Company of any provision of this Agreement.
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Good Reason shall not include Executive's death or Disability. Executive's
continued employment shall not constitute consent to, or a waiver of rights with
respect to, any circumstance constituting Good Reason hereunder. Any good faith
determination of Good Reason made by Executive shall be conclusive, but the
Company shall have an opportunity to cure any claimed event of Good Reason
within 30 days of notice from Executive and the Board's good faith determination
of cure shall be binding. The Company shall notify Executive of the timely cure
of any claimed event of Good Reason and the manner in which such cure was
effected, and any notice of termination delivered by Executive based on such
claimed Good Reason shall be deemed withdrawn and shall not be effective to
terminate the Agreement.
9. 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 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;
provided, however, that while employed by the
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Company 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.
10. 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, or about whom Executive gained Confidential Information,
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 9 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.
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(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 chief technical
officer or other senior executive or officer in the area of information
technology, software development or product strategy, of any business or
enterprise that directly competes in the Business of the Company within the
Restricted Area. For purposes of this Section 10(c), the "Business" means the
design, product development, sale, marketing, implementation or support of
computer software products and services in the areas of service delivery
management, asset management, field service management, customer relationship
management and customer information systems. For purposes of this Section 10(c),
the "Restricted Area" shall be the area that is within a twenty-five (25) mile
radius of the cities of Atlanta, Georgia, Columbia, South Carolina, and San
Francisco, California. Nothing in this Section 10(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.
11. 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. Protected Works does not include
an invention that Executive developed entirely on his or her own time without
using Company's equipment, supplies, facilities, or trade secret information
except for those inventions that either: (i) relate at the time of conception or
reduction to practice of the invention to Company's
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business, or actual or demonstrably anticipated research or development of
Company; or (ii) result from any work performed by Executive for Company.
(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 inventions, ideas, 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.
12. 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
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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.
13. 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 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
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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.
14. 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.
15. 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 entity
affiliated with Company to whom assigns its rights and interest in and to this
Agreement, and/or 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.
16. 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.
17. 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
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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.
18. Arbitration.
(a) With the exception of any dispute arising under Sections
9,10,11,12,13 and 14 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 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 18 to be effective:
AWB
GJD
19. 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, including without limitation, the Prior
Agreement. 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,
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in any Protected Works, Inventions, Works Made for hire or other software,
hardware, data or systems that he creates or obtains, or has created.
20. 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.
21. Construction. 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.
22. 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.
23. 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.
24. Code Section 409A. This Agreement is to be construed and the
compensation and benefits provided hereunder are to be paid in such manner and
at such times as shall comply with Code Section 409A and the regulations and
guidance promulgated thereunder by the U.S. Department of the Treasury.
Notwithstanding anything to the contrary herein, such payments shall be delayed
to the extent necessary, but only to such extent, (i) to comply with Code
Section 409A and such regulations and provisions and (ii) to avoid the payment
of any penalties thereunder.
(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/ Xxxxxxx X. Xxxxx Date: 3/6/2006
---------------------------------
Title: President and Chief Executive
Officer
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxx Date: 3/6/2006
-------------------------------------
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