EXHIBIT 10.34
SEVERANCE AND NON-COMPETITION AGREEMENT
This Separation and Non-Competition Agreement is made this 1st day of January
2004 by and between Manhattan Associates ("Company") and Xxxxxx Xxxxxxxxxx
("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 Executive Vice
President, WMS 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. Severance. 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 and 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
Constructive Termination, or a termination by Company other than a
termination for cause.
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) after a Change of
Control the Executive is no longer serving as Executive Vice President
reporting to 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. Notwithstanding the
foregoing, for fiscal years 2004 and 2005 only, Constructive
Termination shall also mean a situation where (i) the Company's
headquarters are relocated outside a 50-mile radius from the current
principal location; or (ii) the Executive is no longer serving as an
Executive Vice President in any capacity.
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. "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. In the
event that any executive other than the President, Chief Executive
Officer and/or Senior Vice President and Chief Financial Officer are
extended what Executive considers a more favorable Change of Control
provision, the Company agrees to modify this Agreement with such
provision.
6. Non-Competition. As a condition to any payment based on a termination,
Executive agrees that he will not work for any of the Ten (10) direct
competitors to Company listed in Schedule A for a period of Twelve (12)
months from the date of termination without written consent of
Employer. Company may add, at their discretion, up to Four (4)
additional competitors to Schedule A prior to June 30, 2005. Executive
further agrees that he will not recruit or hire, another Executive or
employee of Employer for a period of Twelve (12) months from the date
of termination or cause or assist another Executive or employee of
Employer to be hired by any competitor of Employer for a period of
Twelve (12) 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. This Agreement shall be governed under the laws of the United States.
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 _________________, 2004.
EXECUTIVE:
/s/ Xxxxxx Xxxxxxxxxx March 5, 2004
----------------------------------------- -------------
Xxxxxx Xxxxxxxxxx Date
EMPLOYER:
/s/ Xxxxxxx X. Xxxxxxxx March 5, 2004
----------------------------------------- -------------
Xxxxxxx X. Xxxxxxxx Date
President and Chief Executive Officer
