EXHIBIT 10.33
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") by and between
Manhattan Associates, Inc. ("Company"), and Xxxxxx Xxxxxxxxxx ("Executive") is
hereby entered into and effective as of the 1st day of January, 2004 (the
"Effective Date").
WHEREAS, Company is engaged in the development, marketing, selling,
implementation and installation of computer software solutions specifically
designed for the management of warehouse and distribution centers and providing
transportation management for consumer product manufacturers, retailers and
retail and grocery suppliers and distributors (the "Company Business");
WHEREAS, Company desires to employ executive as Executive Vice
President, WMS and Executive desires to accept said employment by Company; and
WHEREAS, Company and Executive have agreed upon the terms and
conditions of Executive's employment with Company and the parties desire to
express the terms and conditions in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, it is hereby agreed as follows:
A G R E E M E N T S :
1. Employment and Duties.
A. Company shall employ Executive as Executive Vice
President, WMS in accordance with the terms and conditions set forth in this
Agreement. Executive hereby accepts employment on the terms set forth herein.
Executive shall report to either the President or Chief Executive Officer or
other such Officer as may be designated by the President, Chief Executive
Officer or the Board of Directors.
B. Executive agrees that he shall at all times
faithfully and to the best of his ability and experience perform all of the
duties that may be required of him pursuant to the terms of this Agreement.
Executive shall devote his full business time to the performance of his
obligations hereunder.
2. Compensation.
A. Base Salary. Effective January 1, 2004, Company shall
pay to Executive a base salary ("Base Salary") of $20,833.33 per month
($250,000.00 annualized), subject to all standard employment deductions, which
amount may be increased annually at the discretion of the Chief Executive
Officer or Board of Directors.
B. Performance-Related Bonus. For Fiscal Years 2004 and
2005, Executive shall be eligible to receive a performance-related bonus of up
to $350,000.00 per year and subject to all standard employment deductions. $
200,000.00 of such bonus shall be based upon Executive's areas of responsibility
such criteria to be provided after Consultation with Executive, but determined
in the sole discretion of Company as determined from time to time by the
Compensation Committee of the Board of Directors. Bonuses shall be paid at the
same time as other Executives receive their bonus, In addition to the above,
Executive shall receive a one-time bonus of $112,000.00 in 2004, which shall be
paid in 2 equal installments of $56,000.00 on March 31, 2004 and June 30, 2004.
Executive must be an employee in good standing by Company on the date of any
bonus payment to receive such bonus, except the bonus earned for the year 2004
and 2005, for which the Executive must be employed in good standing on December
31, 2004 and December 31, 2005, respectively. These bonuses are in lieu of any
other bonuses Executive may have been entitled to receive, including any bonus
for 2003. Thereafter, the bonus shall be paid as determined by the Company.
C. Stock Option. The Executive has received the option
(the "Option") to purchase 70,000 shares of Company, at a price of $27.39
vesting in 8 equal quarterly installments beginning on March 31, 2004 (on which
date the first of the 8 quarterly installments will vest). In addition,
Executive has received the Option to purchase an additional 30,000 shares of
Company, at a price of $27.39 vesting on December 24, 2008, or such shares will
vest earlier on or before December 31, 2005 on the date that the 10 day moving
average share price at the daily close of trading of Company meets or exceeds
$40.00 per share by December 31, 2005. All Options are granted pursuant to the
Manhattan Associates, Inc. Option Plan (the "Option Plan"). The options will
vest in accordance with the stock option certificate given for each grant.
D. Employee Benefits. Executive shall be entitled to
participate in all employee benefit plans, which Company provides for its
employees at the executive level.
E. Expenses. Executive shall be reimbursed for expenses
reasonably incurred in the performance of his duties hereunder in accordance
with the policies of Company then in effect.
F. Vacation. Executive shall accrue vacation days in
accordance with the current Company plan applicable to the employees at the
executive level.
3. Term. This Agreement is effective when signed by both
parties. The parties agree that Executive's employment may be terminated at any
time, for any reason or for no reason, for cause or not for cause, with or
without notice, by Company or Executive. Upon any such termination, Executive
shall return immediately to Company all documents and other property of Company,
together with all copies thereof, including all Work Product and Proprietary
Information, within Executive's possession or control.
For purposes of this Agreement, Work Product shall mean the
data, materials, documentation, computer programs, inventions (whether or not
patentable), and all works of authorship, including all worldwide rights therein
under patent, copyright, trade secret, confidential information, or other
property right, created or developed in whole or in part by Executive while
performing services in furtherance of or related to the Company Business.
For purposes of this Agreement, Proprietary Information means
all Trade Secrets and Confidential Information of Company.
For purposes of this Agreement, Confidential Information shall
mean Company information in whatever form, other than Trade Secrets, that is of
value to its owner and is treated as confidential.
For purposes of this Agreement, all Dollars shall be in U.S.
Dollars.
4. Ownership.
(a) All Work Product will be considered work made for
hire by Executive and owned by Company. To the extent that any Work Product may
not by operation of law be considered work made for hire or if ownership of all
rights therein will not vest exclusively in Company, Executive assigns to
Company, now or upon its creation without further consideration, the ownership
of all such Work Product. Company has the right to obtain and hold in its own
name copyrights, patents, registrations, and any other protection available in
the Work Product. Executive agrees to perform any acts as may be reasonably
requested by Company to transfer, perfect, and defend Company's ownership of the
Work Product.
(b) To the extent any materials other than Work Product
are contained in the materials Executive delivers to Company or its Customers,
Executive grants to Company an irrevocable, nonexclusive, worldwide,
royalty-free license to use and distribute (internally or externally) or
authorize others to use and distribute copies of, and prepare derivative works
based upon, such materials and derivative works thereof. Executive agrees that
during his or her employment, any money or other remuneration received by
Executive for services rendered to a Customer belong to Company.
For purposes of this Agreement, Customers shall mean any
current customer or prospective customer of Company.
5. Trade Secrets and Confidential Information.
(a) Company may disclose to Executive certain Proprietary
Information. Executive agrees that the Proprietary Information is the exclusive
property of Company (or a third party providing such information to Company) and
Company (or such third party) owns all worldwide copyrights, trade secret
rights, confidential information rights, and all other property rights therein.
(b) Company's disclosure of the Proprietary Information
to Executive does not confer upon Executive any license, interest or rights in
or to the Proprietary Information. Except in the performance of services for
Company, Executive will hold in confidence and will not, without Company's prior
written consent, use, reproduce, distribute, transmit, reverse engineer,
decompile, disassemble, or transfer, directly or indirectly, in any form, or for
any purpose, any Proprietary Information communicated or made available by
Company to or received by Executive. Executive agrees to notify Company
immediately if he discovers any unauthorized use or disclosure of the
Proprietary Information.
6. Non-Solicitation.
A. Customers. The relationships made or enhanced during
Executive's employment with Company belong to Company. During Executive's
employment and the one year period beginning immediately upon the termination of
Executive's employment with Company for any reason (the "One Year Limitation
Period"), Executive will not, without Company's prior written consent, contact,
solicit or attempt to solicit, on his own or another's behalf, any Customer with
whom Executive had contact in the one year prior to the end of Executive's
employment with Company for any reason (the "One Year Restrictive Period") with
a view of offering, selling or licensing any program, product or service that is
competitive with the Company Business.
B. Employees/Independent Contractors. During Executive's
employment and the One Year Limitation Period, Executive will not, without
Company's prior written consent, call upon, solicit, recruit, or assist others
in calling upon, soliciting or recruiting any person who is or was an employee
of Company during the One Year Restrictive Period.
7. Acknowledgments. The parties hereto agree that: (i) the
restrictions contained in this Agreement are fair and reasonable in that they
are reasonably required for the protection of Company; (ii) by having access to
information concerning employees and customers of Company, Executive shall
obtain a competitive advantage as to such parties; (iii) the covenants and
agreements of Executive contained in this Agreement are reasonably necessary to
protect the interests of Company in whose favor said covenants and agreements
are imposed in light of the nature of Company's business and the involvement of
Executive in such business; (iv) the restrictions imposed by this Agreement are
not greater than are necessary for the protection of Company in light of the
substantial harm that Company will suffer should Executive breach any of the
provisions of said covenants or agreements and (v) the covenants and agreements
of Executive contained in this Agreement form material consideration for this
Agreement.
8. Remedy for Breach. Executive agrees that the remedies at law
of Company for any actual or threatened breach by Executive of the covenants
contained in Sections 4 through 7 of this Agreement would be inadequate and that
Company shall be entitled to specific performance of the covenants in such
paragraphs or injunctive relief against activities in violation of such
paragraphs, or both, by temporary or permanent injunction or other appropriate
judicial remedy, writ or order, in addition to any damages and legal expenses
(including attorney's fees) which Company may be legally entitled to recover.
Executive acknowledges and agrees that the covenants contained in Sections 4
through 7 of this Agreement shall be construed as agreements independent of any
other provision of this or any other agreement between the parties hereto, and
that the existence of any claim or cause of action by Executive against Company,
whether predicated upon this or any other agreement, shall not constitute a
defense to the enforcement by Company of said covenants.
9. No Prior Agreements. Executive hereby represents and warrants
to Company that the execution of this Agreement by Executive and Executive's
employment by Company and the performance of Executive's duties hereunder shall
not violate or be a breach of any agreement with a former employer, client or
any other person or entity.
10. Assignment; Binding Effect. Executive understands that
Executive has been selected for employment by Company on the basis of
Executive's personal qualifications, experience and skills. Executive agrees,
therefore, that Executive cannot assign all or any portion of Executive's
performance under this Agreement. Subject to the preceding two (2) sentences and
the express provisions of Section 14 below, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto and their
respective heirs, legal representatives, successors and assigns. The rights and
obligations of Company hereunder shall be available to any affiliate of Company
or to a successor in interest of Company, including a successor established for
the purpose of converting Company to a corporation.
11. Complete Agreement. This Agreement is not a promise of future
employment. Executive has no oral representations, understandings or agreements
with Company or any of its officers, directors or representatives covering the
same subject matter as this Agreement. This Agreement hereby supersedes any
other prior employment agreements or understandings, written or oral, between
Company and Executive. This written Agreement may not be later modified, except
by a further writing signed by a duly authorized officer of Company and
Executive, and no term of this Agreement may be waived except by writing signed
by the party waiving the benefit of such term.
12. This Agreement shall be governed under the laws of the United
States.
13. Notice. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To Company: Manhattan Associates, Inc
0000 Xxxxx Xxxxx Xxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: President
To Executive: 0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Notice shall be deemed given and effective three (3) days after the
deposit in the U.S. mail of a writing addressed as above and sent first class
mail, certified, return receipt requested, or when actually received. Either
party may change the address for notice by notifying the other party of such
change in accordance with this Section 13.
14. Severability; Headings. If any portion of this Agreement is
held invalid or inoperative, the other portions of this Agreement shall be
deemed valid and operative and, so far as is reasonable and possible, effect
shall be given to the intent manifested by the portion held invalid or
inoperative. The Section headings herein are for reference purposes only and are
not intended in any way to describe, interpret, define or limit the extent or
intent of the Agreement or of any part hereof.
15. Counterparts. This Agreement may be executed simultaneously in
two (2) or more counterparts, each of which shall be deemed an original and all
of which together shall constitute, but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
COMPANY:
Manhattan Associates, Inc
By:/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxxx Xxxxxxxx
President & CEO
Date: 3/3/04
EXECUTIVE:
/s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxxxx
Date: March 5, 2004
