EMPLOYMENT AGREEMENT AGILYSYS, INC.
Exhibit 10(mm)
AGILYSYS, INC.
Employee Name: Xxxxxxxx Xxxxxxx
Position: General Counsel & SVP HR
Address: 0000 Xxxxxxx Xxxxx
Xxxx, Xxxx 00000
Position: General Counsel & SVP HR
Address: 0000 Xxxxxxx Xxxxx
Xxxx, Xxxx 00000
Effective date: March 4, 2009
You are a valuable Agilysys employee, and we expect you to make a significant contribution to
Agilysys’ success. As a result, Agilysys, Inc. (“Agilysys”) wishes to employ you during the
following years under the terms of this agreement.
1. Employment Period. You will be employed by Agilysys for the period beginning with the Effective
Date set forth above and ending with the Termination Date as defined in Paragraph 5, below (the
“Employment Period”).
2. Position. You shall initially be employed in the position set forth above, with the duties and
responsibilities customarily associated with that position. From time to time, Agilysys may
determine that it is in Agilysys’ best interest to add to, subtract from, or otherwise change your
duties and responsibilities, or change or eliminate your title.
3. Best Efforts. You shall devote all of your business time and attention to your duties as an
employee of Agilysys. You shall use your best efforts, energies, and skills to advance the
business of Agilysys, to further and improve its relations with suppliers, customers and others,
and to keep available to Agilysys the services of its employees. You shall perform your duties in
compliance with all laws and Agilysys’ published policies, including ethical standards set forth in
the Code of Business Conduct.
4. Compensation. Your compensation will be pursuant to Agilysys’ standard programs in effect from
time to time. Agilysys reserves the right, however, in its sole discretion, to impose salary
reduction, and/or other cost reduction programs, which may reduce your targeted cash compensation
(provided that any such program is not discriminatory and treats you the same as other Agilysys
employees holding similar positions). You shall be eligible to participate in any and all employee
benefit plans made available from time to time to Agilysys employees generally.
5. Termination. Your employment may be terminated for Cause by Agilysys, voluntarily by you, or
without Cause by Agilysys. The last date of your employment as a result of termination for any of
these reasons is the “Termination Date”.
A. Termination for Cause and Voluntary Termination. If your employment terminates for any of the
following reasons: (a) your death, disability, or legal incompetence; (b) the issuance by Agilysys
of a notice terminating your employment “for Cause” (which, for these purposes, means: (i) breach
of any term of this agreement or any other duty to Agilysys; (ii) dishonesty, fraud, or failure to
abide by the published ethical standards, conflict of interest, or other policies of Agilysys;
(iii) your conviction for any felony crime, or for any other crime involving misappropriation of
money or other property of Agilysys; (iv) misconduct, malfeasance or insubordination; or (v) gross
failure to perform under this agreement (not including simply a failure to attain quantitative
targets); or (c) you voluntarily resign your employment, then your salary will end on the
Termination Date.
B. Termination Without Cause. If your employment is terminated by Agilysys for any reason other
than those identified in Paragraph 5.A., above, then you will be paid a severance (“Severance
Payments”)
equal to one (1) year regular base and target incentive salary (if applicable), which will be at
the rate applicable to you at the time your employment terminates and will be paid during regular
pay intervals during the one (1) year period (“Severance Period”). In case of termination without
Cause, you will be eligible to continue to participate in applicable medical and dental coverage
program(s) available to Agilysys employees for the duration of the Severance Period. You will not
otherwise be eligible for severance under any Agilysys severance plan.
C. Change of Position. If Agilysys changes your position such that your responsibilities or
compensation are substantially lessened, or if you are required to relocate to a facility more than
50 miles away from your current location (referred to collectively as a “Change of Position”), then
you may, within 30 days of such Change of Position, give Agilysys written notice that you are
terminating your employment for this reason. Such termination for Change of Position will be
deemed a termination by Agilysys without Cause for purposes of this Agreement and you shall be
entitled to the Severance Payments described in Paragraph 5.B., above.
D. Termination Following Change in Control. In the event of a Change of Control (as defined by
Section 409A of the Internal Revenue Code of 1986, as amended) of the Agilysys, you will be paid a
retention incentive in the amount of $200,000 at the successful completion of the retention period,
which shall run from the legal date of a Change of Control until the earlier of (a) a period that
is twelve (12) months from the date of the Change of Control or (b) your employment is terminated
by the Company. The retention incentive will be paid to you within 30 days of the end of the
retention period.
6. Confidential Information. During the course of your employment, you have learned, and will
learn, various proprietary or confidential information of Agilysys and/or its related and
affiliated companies (including the identity of customers and employees; vendor information;
marketing information and strategies; sales training techniques and programs; product development
and design; acquisition and divestiture opportunities and discussions; and data processing and
management information systems, programs, and practices). You shall use such information only in
connection with the performance of your duties to Agilysys and agree not to copy, disclose, or
otherwise use such information or contest its confidential or proprietary nature. You agree to
return any and all written documents containing such information to Agilysys upon termination of
your employment.
7. Restrictive Covenants.
A. No Hiring. During the Employment Period and for 12 months thereafter, you agree not to employ
or retain, have any other person or firm employ or retain, or otherwise participate in the
employment or retention of any person who was an employee or consultant of Agilysys at any time
during the 12 months preceding the end of the Employment Period.
B. Non-Competition. In the event that (i) Agilysys terminates your employment for Cause or (ii)
you voluntarily terminate your employment with Agilysys for any reason other than Change of
Position, you agree that for a period of 12 months after such termination you will not be employed
by, own, manage, operate, or control, or participate, directly or indirectly, in the ownership,
management, operation, or control of, or be connected with (whether as a director, officer,
employee, partner, consultant, or otherwise), any business which competes with the business of
Agilysys, including but not limited to the sale of information technology products and services,
enterprise computer systems, and related consulting, integration, maintenance and professional
services (the “Non-compete Obligation.”)
C. If Agilysys terminates your employment for any reason other than for Cause (or if you terminate
your employment for reasons of Change of Position), then the above Non-Compete Obligation will not
apply to you, unless Agilysys, at its option, elects to extend the Non-Compete Obligation to you
for up to a twelve-month period (“Extended Non-Competition Period”), in which case Agilysys will
pay your regular base and target incentive salary (if applicable), in accordance with regular
payroll practices (the “Non-Competition Payments”), during the Extended Non-Compete Period.
Any Non-Competition Payments made to you will be in lieu of Severance Payments. To the extent the
Non-Competition Period is shorter than the Severance Period applicable to you, if any, Severance
Payments, if applicable to you, will be made to you for the duration of the remainder of the
Severance Period after the end of the Non-Competition Period. All decisions as to (i) whether to
extend to you the Non-Compete Obligation (and therefore, whether to make Non-Competition Payments
to you); and (ii) the duration of any such Extended Non-Compete Period, shall be within the sole
discretion of Agilysys, and will be communicated to you at the time of termination. The
Non-Competition Payments described in this subparagraph apply only to termination of your
employment by Agilysys for reasons other than for Cause, or if you terminate your employment for
reasons of Change of Position.
It is understood and acknowledged that any Non-compete Obligation arising under Paragraph 7 shall
be in addition to any other obligations on your part under this Agreement, including but not
limited to the confidentiality and no-hiring provisions of Paragraphs 7.A. and 7.B., above.
8. Assignment of Inventions. You agree to promptly and fully disclose to Agilysys all ideas,
inventions, discoveries, creations, designs, and other technology and rights (and any related
improvements or modifications thereof), whether or not protectable under any form of legal
protection afforded to intellectual property (collectively, “Innovations”), relating to any
activities or proposed activities of the Agilysys and its affiliates, conceived or developed by you
during your employment, whether or not conceived during regular business hours. Such Innovations
shall be the sole property of Agilysys. To the extent possible, such Innovations shall be
considered a Work Made for Hire under the U.S. Copyright Act. To the extent the Innovations may
not be considered such a Work Made for Hire, you agree to automatically assign to Agilysys, at the
time of creation of such Innovations, any right, title, or interest that you may have in such
Innovations. You further agree that you will execute such written instruments, and perform any
other tasks as may be necessary in the opinion of Agilysys to obtain a patent, register a
copyright, or otherwise protect or enforce Agilysys’ rights in such Innovations.
9. Specific Performance and Injunctive Relief. You acknowledge that Agilysys will be irreparably
damaged if the provisions of this agreement are not specifically enforced, that monetary damages
will not provide an adequate remedy to Agilysys, and that Agilysys is entitled to an injunction
(preliminary, temporary, or final) restraining any violation of this agreement (without any bond or
other security being required), or any other appropriate decree of specific performance. Such
remedies are not exclusive and shall be in addition to any other remedy which Agilysys may have.
10. Severability and Reformation. The provisions of Paragraphs 6 through 10 of this agreement
constitute independent and separable covenants which shall survive termination or expiration of the
Employment Period. Any paragraph, phrase, or other provision of this agreement that is determined
by a court of competent jurisdiction to be overly broad in scope, duration, or area of
applicability or in conflict with any applicable statute or rule shall be deemed, if possible, to
be omitted from this agreement. The invalidity of any portion hereof shall not affect the validity
of the remaining portions.
11. Assignment.
(a) This agreement is personal to you, and cannot be assigned by you to any other party.
(b) This agreement shall inure to the benefit of, and be binding upon and enforceable by Agilysys,
and by its successors and assigns. This agreement may be assigned by Agilysys, without your
consent, to a third party (“Assignee”) in connection with the sale or transfer of all or
substantially all of Agilysys’ business, or any division or unit thereof, whether by way of sale of
stock, sale of assets, merger or other transaction. Such assignment by Agilysys will not constitute
nor be deemed a termination of your employment by Agilysys, and will not give rise to any rights
under Paragraph 5 of this Agreement. After such assignment, any further rights which you have
under this Agreement will be the responsibility of the Assignee.
12. General. This agreement constitutes our full understanding relating to your employment with
Agilysys, and replaces and supersedes any and all agreements, contracts, representations or
understandings with respect to your employment (collectively, “Prior Agreements”). This agreement
is governed by and is
to be construed and enforced in accordance with the internal laws of the State of Ohio, without
giving effect to principles of conflicts of law. In the event of a conflict between the terms
hereof and the provisions of Agilysys’ Employee Handbook, the terms hereof shall control;
otherwise, the provisions of the Employee Handbook shall remain applicable to your employment
relationship. This agreement may not be superseded, amended, or modified except in a writing
signed by both parties.
In witness whereof the parties have executed this agreement this 4th day of
March, 2009.
| AGILYSYS, INC. | ||||||||
/s/ Xxxxxxxx X. Xxxxxxx
|
By: | /s/ Xxxxxx X. Xxxxx | ||||||
| Xxxxxxxx X. Xxxxxxx | Xxxxxx X. Xxxxx, | |||||||
| President & CEO | ||||||||
