EXHIBIT 10.37
AMENDMENT TO
CHANGE OF CONTROL SEVERANCE AGREEMENT
This Amendment to Change of Control Severance Agreement (the "Amendment")
is made and entered into by and between Xxxxxx X. Xxxxxxx (the "Executive") and
Indus International, Inc., a Delaware Corporation (the "Company"), effective as
of February 1, 2006 (the "Effective Date").
RECITALS
1. The Company and Executive have entered into a Change of Control
Severance Agreement (the "Agreement") with an effective date of May 5, 2005;
2. The Board, acting through its Compensation Committee, has determined
that it is in the best interests of the Company and its stockholders to offer
the Executive this Amendment;
AMENDMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and the continued employment of Executive by the Company, the parties agree as
follows:
1. Amended and Restated Section 3 (a). Section 3(a) is hereby amended and
restated to read as follows:
"(a) Involuntary Termination Following a Change of Control. If within
twenty-four (24) months following a Change of Control (A) the Executive
terminates his or her employment with the Company (or any parent or subsidiary
of the Company) for "Good Reason" (as defined herein) or the Company (or any
parent or subsidiary of the Company) terminates the Executive's employment for
other than "Cause" (as defined herein), and (B) the Executive signs the
Company's standard separation agreement and release of claims with the Company,
then the Executive shall be entitled to receive the following severance benefits
from the Company: (i) a lump sum amount equal to one (1) times the sum of (x)
Executive's then-current base salary plus (y) a payment equal to Executive's
annual bonus target for the performance year in which the Change in Control
occurs, or if such amount is 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 (ii) reimbursement
for full COBRA (for the Executive and any of Executive's dependents that
Executive had elected to cover by Company's benefit plans during Executive's
employment at the Company) expenses for the earlier of eighteen (18) months or
until Executive receives health, medical and/or dental benefits, respectively,
from a new employer. In addition, Executive's outstanding options to purchase
shares of the Company's Common Stock (the "Options") and unvested restricted
shares of the Company's Common Stock (the "Restricted Stock") shall immediately
vest and, in the case of Options, become exercisable. In all other respects the
Options and Restricted Stock shall continue to be bound by and subject to the
terms of their respective agreements."
2. New Section 3 (g). The following Section 3(g) is hereby added to the
Agreement:
"(g) Termination in Anticipation of a Change of Control. If a Change
of Control occurs, and if Executive's employment with the Company is terminated
by the Executive for Good Reason or by the Company (or any parent or subsidiary
of the Company) for other than Cause within six (6) months prior to the date on
which the Change of Control occurs, and if it is reasonably demonstrated by
Executive that such termination of employment (i) was at the request of a third
party who has taken steps reasonably calculated to effect a Change of Control or
(ii) otherwise arose in connection with or in anticipation of a Change of
Control, then for purposes of this Section 3, such termination of employment
shall be deemed to have occurred immediately following the Change of Control and
Executive shall be entitled to the benefits described in Section 3(a)."
3. Miscellaneous Provisions.
(a) Definitions; Integration. A capitalized terms not otherwise
defined herein shall have the meaning given such term in the Agreement. This
Amendment, together with the Agreement, constitutes the entire understanding of
the parties as regards to the subject matter hereof and cannot be modified
except by further written agreement of the parties.
(b) Counterparts. This Amendment may be executed in counterparts, each
of which shall be deemed an original, but all of which together will constitute
one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Amendment, in the
case of the Company by its duly authorized officer, as of the day and year set
forth below.
COMPANY
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Title: President and Chief Executive
Officer
Date: 3/6/2006
EXECUTIVE
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Title: Executive Vice President and
Chief Technology Officer
Date: 3/6/2006
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