EXHIBIT 10.31
SEVERANCE AND NON-COMPETITION AGREEMENT
This Separation and Non-Competition Agreement is made this 25th day of April,
2003 by and between Manhattan Associates ("Company") and Xxxxxx X. Xxxxxxx
("Executive").
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, and in consideration of the mutual promises and covenants
set forth in this Agreement, the parties agree as follows:
1. Employment. Company has agreed to employ Executive as Senior
Vice President and Chief Financial Officer in accordance with
the terms and conditions set forth in this Agreement and
Executive has accepted such employment. This agreement governs
the terms by which Executive shall receive certain payments in
return for a promise not to compete with the business of the
Company in the event of a termination.
2. Severence. In the event of a termination or Constructive
Termination (as defined below) of employment by the Company or
its successors, other than a termination for cause, Executive
shall receive a severance payment equal to six (6) months of
Executive's then current base salary, subject to all standard
deductions, payable in six (6) equal monthly payments from
date of termination, including COBRA payments for Executive's
family for medical and dental coverage. Company's obligation
to make the severance payment shall be conditioned upon
Executive's (i) execution of a release agreement in a form
reasonably acceptable to the Company, and consistent with the
terms of this Agreement and any other Agreements, whereby
Executive releases the Company from any and all liability and
claims of any kind, and (ii) compliance with the restrictive
covenants and all post-termination obligations contained in
this Agreement. Further, in the event of a termination, other
than a termination for cause, Executive shall have thirty (30)
in which to exercise his vested options.
3. Cause. For purposes of this Agreement, Cause shall include but
not be limited to an act or acts or an omission to act by the
Executive involving (i) willful and continual failure to
substantially perform his duties with the Company (other than
a failure resulting from the Executive's Disability) and such
failure continues after written notice to the Executive
providing a reasonable description of the basis for the
determination that the Executive has failed to perform his
duties, (ii) indictment for a criminal offense other than
misdemeanors not disclosable under the federal securities
laws, (iii) breach of this Agreement in any material respect
and such breach is not susceptible to remedy or cure or has
not already materially damaged the Company, or is susceptible
to remedy or cure and no such damage has occurred, is not
cured or remedied reasonably promptly after written notice to
the Executive providing a reasonable description of the
breach, or (iv) conduct that the Board of Directors of the
Company has determined, in good faith, to be dishonest,
fraudulent, unlawful or grossly negligent or which is not in
compliance with the Company's Code of Conduct or similar
applicable set of standards or conduct and business practices
set forth in writing and provided to the Executive prior to
such conduct.
4. Constructive Termination. For purposes of this Agreement,
Constructive Termination shall mean a situation where (A) (i)
the Executive is no longer serving as Senior Vice President
and Chief Financial Officer of the Company, the Executive is
directed to report to other than the Chief Executive Officer
or President, the Executive is not timely paid his
compensation under this Agreement or the assignment to the
Executive of any duties or responsibilities which are
inconsistent with the status, title, position or
responsibilities of such positions (which assignment is not
rescinded after the Company receives written notice from the
Executive providing a reasonable description of such
inconsistency); (ii) after a Change of Control, the Company's
headquarters being outside of the greater Atlanta area or the
Company requiring the Executive to be based at any place
outside a 30-mile radius from the principal location from
which the Executive served as an employee of the Company
immediately prior to the Change of Control; (iii) after a
Change of Control, the failure by the Company to provide the
Executive with compensation and benefits substantially
comparable, in the aggregate, to those provided for under the
employee benefit plans, programs and practices in effect
immediately prior to the Change of Control (other than stock
option and other equity based compensation plans); (iv) after
a Change of Control, the insolvency or the filing (by any
party including the Company) of a petition for bankruptcy of
the Company; or (v) after a Change of Control, the failure of
the Company to obtain an agreement from any successor or
assignee of the Company to assume and agree to perform this
Agreement unless such successor or assignee is bound to the
performance of this Agreement as a matter of law; provided
however, that the aforementioned situations will not be deemed
to be a Constructive Termination hereunder until such time as
the Executive has given written notice to the Chief Executive
Officer or President of the situation constituting a
"Constructive Termination" hereunder, and the Chief Executive
Officer or President has failed to cure such situation within
thirty (30) days following receipt of such written notice, and
(B) the Executive terminates his employment with the Company.
5. Change of Control. In the event of a Change of Control of the
Company, as defined below, all options, whether vested or
non-vested shall vest as of the date of the Change of Control
and Executive shall be paid an additional Three (3) months
severance in the event he is Terminated. "Change of Control"
shall mean the happening of an event that shall be deemed to
have occurred upon the earliest to occur of the following
events:
(i) the date the stockholders of the Company (or the Board, if
stockholder action is not required) approve a plan or other
arrangement pursuant to which the Company will be dissolved or
liquidated; (ii) the date the stockholders of the Company (or
the Board, if stockholder action is not required) approve a
definitive agreement to sell or otherwise dispose of all or
substantially all of the assets of the Company; or (iii) the
date the stockholders of the Company (or the Board, if
stockholder action is not required) and the stockholders of
the other constituent corporations (or their respective boards
of directors, if and to the extent that stockholder action is
not required) have approved a definitive agreement to merge or
consolidate the Company with or into another corporation,
other than, in either case, a merger or consolidation of the
Company in which holders of shares of the Company's voting
capital stock immediately prior to the merger or consolidation
will have at least fifty percent (50%) of the ownership of
voting capital stock of the surviving corporation immediately
after the merger or consolidation (on a fully diluted basis),
which voting capital stock is to be held by each such holder
in the same or substantially similar proportion (on a fully
diluted basis) as such holder's ownership of voting capital
stock of the Company immediately before the merger or
consolidation.
6. Non-Competition. As a condition to any payment based on a
termination, Executive agrees that he will not work for any of
the direct competitors to Company listed in Schedule A for a
period of Eighteen (18) months from the date of termination
without written consent of Employer. Further, Executive agrees
that he will not recruit or hire, another Executive of
Employer for a period of Eighteen (18) months from the date of
termination or cause another Executive of Employer to be hired
by any competitor of Employer for a period of Eighteen (18)
months from the date of termination.
7. Effect of violations by Executive. Executive agrees and
understands that any action by him in violation of this
Agreement shall void Employer's payment to the Executive of
all severance monies and benefits provided for herein and
shall require immediate repayment by the Executive of the
value of all consideration paid to Executive by Employer
pursuant to this Agreement, and shall further require
Executive to pay all reasonable costs and attorneys' fees in
defending any action Executive brings, plus any other damages
to which the Employer may be entitled.
8. Severability. If any provision, or portion thereof, of this
Agreement is held invalid or unenforceable under applicable
statute or rule of law, only that provision shall be deemed
omitted from this Agreement, and only to the extent to which
it is held invalid and the remainder of the Agreement shall
remain in full force and effect.
9. Opportunity for review. Executive understands that he shall
have the right to have twenty-one (21) days from the date of
receipt of this Agreement to review this document, and within
seven (7) days of signing this NON-COMPETITION AGREEMENT, to
revoke this Agreement. Employer agrees and Executive
understands that he does not waive any rights or claims that
may arise after the date this Agreement is executed. THE
PARTIES ACKNOWLEDGE THAT THEY HAVE HAD ACCESS TO INDEPENDENT
LEGAL COUNSEL OF THEIR OWN CHOOSING IN CONNECTION WITH
ENTERING INTO THIS AGREEMENT, AND THE PARTIES HEREBY
ACKNOWLEDGE THAT THEY FULLY UNDERSTAND THE TERMS AND
CONDITIONS OF THIS AGREEMENT AND AGREE TO BE FULLY BOUND BY
AND SUBJECT THERETO.
I have read this Agreement, I understand its contents, and I willingly,
voluntarily, and knowingly accept and agree to the terms and conditions of this
Agreement. I acknowledge and represent that I received a copy of this Agreement
on April 25, 2003.
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxx April 25, 2003
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Xxxxxx X. Xxxxxxx Date
EMPLOYER:
/s/ Xxxxxxx X. Xxxxxxxx April 28, 2003
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Xxxxxxx X. Xxxxxxxx Date
President and Chief Executive Officer
