EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") by and between
Manhattan Associates, Inc, a Georgia corporation ("Company"), and Xxxxx Xxxxxx
("Executive") is hereby entered into and effective as of the 24th day of
January, 2005 (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 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. Employment and Duties.
A. Company shall employ Executive as Senior Vice President and Chief
Financial Officer or such other title and position as Company shall determine 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 Xxxxx X. Xxxxxxxxxx, any successor Chief Executive Officer or the Board of
Directors as may be designated by the Chief Executive Officer or the Board of
Directors (or a committee thereof).
B. Executive shall have responsibility for financial management of
the company ("Duties") and such other duties as may otherwise be assigned to him
from time to time as are consistent with his position as Chief Financial Officer
but nothing in this Agreement shall preclude the Executive from devoting
reasonable periods required for serving as a director or member of any advisory
committee of not more than one (at any time) "for profit" organizations
involving no conflict of interest with the interests of the Company (subject to
approval by the Chief Executive Officer, which approval shall not be
unreasonably withheld), or from engaging in charitable and community activities,
or from managing his personal investments, provided such activities do not
materially interfere with the performance of his duties and responsibilities
under this Agreement.
C. 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 and effort to the performance of his obligations
hereunder, subject to Section 1.B. above.
2. Compensation.
A. Base Salary. During his employment hereunder, Company shall pay
to Executive a base salary ("Base Salary") at a rate of $10,625.00 per bi-weekly
pay period (which is a rate of $255,000.00 per year), subject to all applicable
tax withholdings and required payroll deductions, which amount shall be reviewed
annually and may be increased at the discretion of the Chief Executive Officer
or Board of Directors (or a committee thereof).
B. Performance-Related Bonus. Executive shall be eligible to receive
a performance-related bonus in an amount up to $178,500.00 of the Base Salary
and subject to terms and criteria to be mutually agreed upon. Executive's annual
bonus target will be no less than 70% of Executive's then current base salary.
The bonus earned for a fiscal year (or partial fiscal year) will be earned and
accrued and payable to Executive if Executive is employed by the Company on the
last day of the fiscal year, regardless of whether his employment is thereafter
terminated by the Company or Executive.
C. Stock Option. Company will grant to Executive on his start date
an option (the "Option") to purchase 175,000 shares of Company's common stock
pursuant to the Manhattan Associates, Inc. Option Plan (the "Option Plan"). The
Option will have an exercise price equal to the fair market value of Company
common stock at the closing price per share on the trading day immediately
preceding the grant date of the option, as provided in the Option Plan. The
options will vest in accordance with the terms set forth in the Option Plan as
follows: 1/4 of the options will vest on Executive's first-year anniversary date
(one year from the Effective Date of this Agreement); 1/4 of the options will
vest on Executive's second-year anniversary date; 1/4 of the options will vest
on Executive's third-year anniversary date; and 1/4 of the options will vest on
Executive's fourth-year anniversary date.
D. Employee Benefits. Executive shall be entitled to participate in
all employee benefit plans, which Company generally provides for its employees
at the executive level (without any waiting periods and without any pre-existing
conditions limitation), including indemnification from liability in the manner
extended to other executive officers of the Company.
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 be entitled to 20 vacation days per
calendar year.
G. Change of Control. In the event of a Change of Control of the
Company, all options, whether vested or non-vested shall vest as of the date of
the Change of Control. "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.
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. Upon any such termination, Executive shall return immediately to
Company all documents and other property of Company, together with all copies,
summaries, excerpts, abstracts and other representations 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 and Trade Secrets shall be defined
as it is under applicable state law, or, in the absence of a state law
definition, under the Uniform Trade Secrets Act.
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 (at the Company's expense) 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 any prospective customer of Company to whom Company is actively
marketing its products and/or services.
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 as required for the benefit of Company 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.
C. Executive's obligations under this Agreement with regard to (i)
Trade Secrets shall remain in effect for as long as such information remains a
trade secret under applicable law, and (ii) Confidential Information shall
remain in effect during Executive's employment with Company and for three years
thereafter. These obligations will not apply to the extent that Executive
establishes that the information communicated (1) was already known to
Executive, prior to his employment with Company, without an obligation to
Company to keep it confidential at the time of its receipt; or (2) was received
by Executive in good faith from a third party lawfully in possession thereof and
having no obligation to keep such information confidential; and (3) was publicly
known at the time of its receipt by Executive or has become publicly known other
than by a breach of this Agreement by Executive or by Executive's breach of his
fiduciary duties to Company. In addition, this Agreement shall not prohibit the
use or disclosure of information as required by applicable law or order of a
court or governmental agency or authority or necessary for Executive to enforce
his rights or defend his performance of his obligations under this Agreement.
6. Non-Solicitation.
A. Customers. The Customer 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 for a period of twelve (12) months following the termination or resignation
of his employment for any reason, Executive will not, without Company's prior
written consent, on his own or on behalf of anyone else, directly or indirectly,
recruit, solicit for employment, or seek to have such person terminate his or
her employment with Company any employee of Company or cause another employee of
Company to be hired by any direct competitor of Company.
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 13 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.
11. Complete Agreement. This Agreement is not a promise of future
employment, otherwise than as set forth in this Agreement. 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 employment agreements or
understandings, written or oral, between Company and Executive. This written
Agreement is the final, complete and exclusive statement and expression of the
agreement between Company and Executive and of all the terms of this Agreement,
and it cannot be varied, contradicted or supplemented by evidence of any prior
or contemporaneous oral or written agreements. 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. 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: Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxxx, 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 12.
13. 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.
14. 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.
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/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: President and CEO
Date: 1-6-05
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
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Xxxxx Xxxxxx
Date: 1-6-05
