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EXHIBIT 10.26
YOU ARE STRONGLY ENCOURAGED TO READ THIS DOCUMENT CAREFULLY AND TO CONSULT
WITH AN ATTORNEY BEFORE EXECUTING THIS DOCUMENT.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") by and between
Manhattan Associates, Inc, a Georgia corporation (the "Company"), and Xxxxxxx
Xxxxxxxx (the "Executive") is hereby entered into as of the 11th day of
October, 1999.
WHEREAS, Company desires to employ executive as President and Chief
Executive Officer 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:
1. Definitions. For purposes of this Agreement, the following
terms and phrases shall have the following definitions:
A. Board shall mean the Board of Directors of the
Company.
B. 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.
C. Change of Control 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;
(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%) (unless in the
event that forty-five percent (45%) of the ownership of the voting
capital stock of the surviving corporation immediately after the
merger or consolidation (on a fully diluted basis) is held by a single
individual other than Xxxx Xxxxxxxx)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; or (iv) the individuals who, as of the date of this
Agreement were members of the Board (the "Incumbent Board"), cease for
any reason to constitute at least a majority of the Board; provided,
however, that if either the election of any new director or the
nomination for election of any new director by the
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YOU ARE STRONGLY ENCOURAGED TO READ THIS DOCUMENT CAREFULLY AND TO CONSULT
WITH AN ATTORNEY BEFORE EXECUTING THIS DOCUMENT.
constitute "parachute payments" (as defined in Code ss.280G) (hereinafter
referred to as "Parachute Payments") would be subject to the Code ss.4999
excise tax. If the ITC determines that the Parachute Payments to the Executive
would be subject to the Code ss.4999 excise tax, then the Executive shall
receive an additional lump sum cash payment (the "Gross-Up Payment") in an
amount such that after payment by the Executive of all taxes (including any
Code ss.4999 excise tax) imposed upon the Gross-Up Payment and any interest or
penalties imposed with respect to such taxes, the Executive shall retain from
the Gross-Up Payment an amount equal to the Code ss.4999 excise tax imposed
upon the Parachute Payments, but in no event shall such Gross-Up Payment exceed
one million two hundred thousand dollars ($1,200,000.00). If the ITC shall
determine that no Code ss.4999 excise tax is payable by the Executive, the ITC
shall furnish the Executive with a written opinion that the Executive has
substantial authority not to report any Code ss.4999 excise tax due on the
Executive's income tax returns.
(d) The Executive shall notify the Company in writing
within 15 days of any claim by the Internal Revenue Service ("IRS") that, if
successful, would require the payment by the Company of Code ss.4999 excise tax
on behalf of the Executive. If the Executive is subsequently required to make a
payment of any Code ss.4999 excise tax by the IRS, then the Company shall make
a payment to the Executive equal to the difference between the proper Gross-Up
Payment which should have been made to the Executive originally assuming that
the IRS assessment is correct and the actual initial Gross-Up Payment (the
"Gross-Up Underpayment"), as determined by the ITC; provided, however, the
Company may, in lieu of making such Gross-Up Underpayment to the Executive,
notify the Executive in writing that it desires that the Executive contest the
IRS' claim, in which case the Executive and the Company shall cooperate, and
the Company shall bear all costs and expenses (including payment of any
resulting Gross-Up Underpayment ultimately determined to be due, additional
interest and penalties) incurred in connection with contesting such claim.
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/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: Chairman
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Date:
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EXECUTIVE:
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
Date: 10/11/99
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SEPARATION AGREEMENT AND GENERAL RELEASE
