INDUS INTERNATIONAL EMPLOYMENT AGREEMENT
EXHIBIT 10.1
INDUS INTERNATIONAL
This Employment Agreement (the “Agreement”) is entered into as of October 13, 2005 (the
“Effective Date”), by and between Indus International, Inc. (the “Company”), and Xxxxxxx X. Xxxx
(the “Executive”).
1. Duties and Scope of Employment.
(a) Employment, Positions and Duties. Executive is hereby employed as of the
Effective Date as Executive Vice President and Chief Financial Officer of the Company reporting to
the Chief Executive Officer or President. Executive will render such business and professional
services in the performance of his duties, consistent with Executive’s position within the Company,
as shall reasonably be assigned to him by the Company’s Chief Executive Officer, President or Board
of Directors (the “Board”).
(b) Obligations. Executive will perform his duties faithfully and to the best of his
ability and will devote all of his business efforts and time to the Company at the Company’s
Atlanta, Georgia offices. Executive understands and agrees that frequent travel may be necessary
in carrying out his duties hereunder including, without limitation, frequent travel to the
Company’s global offices as well as client sites and investor meetings. Executive agrees that he
will not, without the prior approval of the Board of Directors, (i) serve on the board of directors
(or similar governing body) of any other company, (ii) serve as a director or trustee of any civic,
educational or charitable organization, (iii) make plans or prepare, whether alone or with others,
to compete against the Company at some point in the future, or (iv) actively engage in any other
employment, occupation or consulting activity, with or without any direct or indirect remuneration;
provided, however, that Executive may serve in any non-director or non-trustee capacity with any
civic, educational or charitable organization without the approval of the Board, so long as such
activities do not materially interfere with his duties and obligations under this Agreement.
2. Compensation.
(a) Base Salary. The Company will pay Executive as compensation for his services a
base salary at the annualized rate of $210,000 (the “Base Salary”). The Base Salary will be paid
periodically in accordance with the Company’s normal payroll practices and be subject to applicable
tax withholding. The Board, or the Compensation Committee of the Board, shall review the Base
Salary each year and may increase, but not decrease, the Base Salary at any time. Any increase in
Base Salary shall not limit or reduce any other obligations to the Executive under this Agreement.
The term “Base Salary” as used in this Agreement shall refer to the Base Salary as it may be
adjusted from time to time.
(b) Annual Bonus. In addition to the Base Salary, Executive may receive a
discretionary performance bonus during each year of employment with the Company under this
Agreement in an amount to be determined by the Board or the Compensation Committee of the Board
(the “Annual Bonus”). Such performance bonus, if any, shall be determined by the Board, or
the Compensation Committee of the Board, based upon its evaluation of performance relative to
the business plan and other pertinent considerations.
3. Employee Benefits; Indemnification. Executive will be entitled to participate in
the equity incentive, and employee benefit plans currently or hereafter maintained by the Company
of general applicability to other senior executives of the Company, including, without limitation,
the Company’s group medical, dental, vision, disability, life insurance, and flexible-spending
account plans. The Company reserves the right to cancel or change the benefit plans and programs
it offers to its employees (including Executive) at any time.
4. Paid Time Off. Executive will be entitled to a minimum of twenty (20) days of paid
time off each year for vacation time, sick leave and personal time in accordance with the Company’s
paid time off policy, with the timing and duration of specific time off mutually and reasonably
agreed to by the parties hereto.
5. Expenses. The Company will reimburse Executive for reasonable travel,
entertainment or other expenses incurred by Executive in the furtherance of or in connection with
the performance of Executive’s duties hereunder. Such expenses shall be reimbursed in accordance
with the Company’s expense reimbursement policy as in effect from time to time.
6. Termination and Severance.
(a) Termination of Employment. Executive’s employment may be terminated (i) by the
Company with or without Cause, (ii) by Executive for Good Reason or no reason or (iii) by reason of
Executive’s death or Disability.
(b) Termination Without Cause; Termination for Good Reason. If (i) Executive’s
employment with the Company is terminated by the Company without “Cause” (as defined herein) or by
the Executive for “Good Reason” (as defined herein), and (ii) Executive signs and does not revoke
the Company’s separation agreement and standard release of claims , then Executive shall be
entitled to receive as severance, payable over a period of nine (9) months from the date of such
termination in accordance with the Company’s normal payroll policies, (1) an amount equal to nine
(9) months of Executive’s then-current Base Salary (less applicable withholding taxes); (2) a
payment equal to a pro-rata portion of Executive’s Annual Bonus for the performance year in which
Executive’s termination occurs, determined by multiplying a fraction, the numerator of which is the
number of days during the performance year of termination that Executive is employed by the Company
and the denominator of which is 365, by (i) the greater of (a) the Executive’s target annual bonus
for the performance year or (b) the amount Executive would be able to receive if the date of
termination were the end of the performance year, or (ii) if the amounts under (1)(a) or (b) are
not determinable, Executive’s Annual Bonus paid or payable, including any bonus or portion thereof
which has been earned but deferred, for the most recently completed fiscal year; and (3) the
Company will pay for full COBRA benefits for Executive and any of Executive’s dependents that
Executive had elected to cover by Company’s benefit plans during Executive’s employment at Company
for the earlier of eighteen (18) months or until Executive becomes eligible to receive health,
medical and/or dental benefits, respectively, from a new employer.
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(c) Voluntary Termination; Termination for Cause. If Executive’s employment with the
Company is terminated by Executive without Good Reason or by the Company for Cause, then (i) all
vesting of the Options will terminate immediately and all payments of compensation by the Company
to Executive hereunder will terminate immediately (except as to amounts already earned), and (ii)
Executive will only be eligible for severance benefits in accordance with the Company’s established
policies as then in effect, if applicable.
(d) Death or Disability. If Executive’s employment with the Company is terminated due
to Executive’s death or Disability (as defined herein), this Agreement shall terminate without
further obligations to Executive, or Executive’s legal representatives, under this Agreement, other
than for payment of (1) Executive’s Base Salary through the date of termination to the extent not
theretofore paid and (2) any accrued vacation pay to the extent not theretofore paid (the sum of
the amounts described in clauses (1) and (2) shall be hereinafter referred to as the “Accrued
Obligations”). The Company shall timely pay or provide to Executive, or, if applicable,
Executive’s estate and/or beneficiaries, any other amounts or benefits required to be paid or
provided under any plan, program, policy or practice or contract or agreement of the Company.
Accrued Obligations shall be paid to Executive, or, if applicable, Executive’s estate and/or
beneficiaries, in a lump sum in cash within thirty (30) days of the date of termination.
(e) No Duty to Mitigate. The Executive shall not be required to mitigate the amount
of any payment contemplated by this Agreement, nor shall any such payment be reduced by any
earnings that the Executive may receive from any other source.
(f) Nonduplication of Severance. Notwithstanding anything in this Agreement to the
contrary, in the event that (i) the Executive and Company are party to a Change in Control
Agreement and (ii) the Executive becomes entitled to severance payments and/or benefits in
connection with the termination of his or her employment pursuant to such Change in Control
agreement, the Executive shall not be entitled to severance payments and/or benefits pursuant to
this Section 6.
7. Limitation on Payments. In the event that the severance and other benefits
provided for in this Agreement or otherwise payable to the Executive (i) constitute “parachute
payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
“Code”) and (ii) but for this Section 7, would be subject to the excise tax imposed by Section 4999
of the Code, then the Executive’s severance and benefits shall be either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such severance
benefits being subject to excise tax under Section 4999 of the Code,
whichever of the foregoing amounts, taking into account the applicable federal, state and
local income taxes and the excise tax imposed by Section 4999, results in the receipt by the
Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that
all or some portion of such severance benefits may be taxable under Section 4999 of the Code.
Unless the Company and the Executive otherwise agree in writing, any determination required under
this Section 7 shall be made in writing by the Company’s independent public accountants immediately
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prior to a Change of Control (the “Accountants”), whose determination shall be conclusive and
binding upon the Executive and the Company for all purposes. For purposes of making the
calculations required by this Section 7, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive
shall furnish to the Accountants such information and documents as the Accountants may reasonably
request in order to make a determination under this Section. The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations contemplated by this Section
7.
8. Definitions.
(a) Cause. For purposes of this Agreement, “Cause” is defined as (i) an act of
dishonesty made by Executive in connection with Executive’s responsibilities as an employee, (ii)
Executive’s indictment for, conviction of, or plea of guilty or nolo contendere to, a felony which
the Board reasonably believes had or will have a material detrimental effect on the Company’s
reputation or business, (iii) Executive’s gross misconduct, (iv) Executive’s continued substantial
failure to perform such Executive’s duties after Executive has received a written demand for
performance from the Company which specifically sets forth the factual basis for the Company’s
belief that Executive has not substantially performed his duties, (v) the willful and continued
material violation of written Company policies or procedures by Executive, after a written demand
for substantial compliance with such policies or procedures is delivered to Executive by the
Compensation Committee of the Board of Directors of the Company which specifically identifies the
manner in which such Committee or the Board believes that Executive has not substantially complied
with the same, or (vi) Executive’s breach of any of the provisions of Sections 9 through 14 of this
Agreement.
(b) Disability. If the Company determines in good faith that the Disability of
Executive has occurred, it may give to Executive written notice of its intention to terminate
Executive’s employment. In such event, Executive’s employment with the Company shall terminate
effective on the 30th day after receipt of such written notice by Executive, provided that, within
the 30 days after such receipt, Executive shall not have
returned to full-time performance of Executive’s duties. For purposes of this Agreement, “Disability” shall mean the inability of
Executive, as determined by the Board, to perform the essential functions of his regular duties and
responsibilities, with or without reasonable accommodation, due to a medically determinable
physical or mental illness which has lasted (or can reasonably be expected to last) an aggregate of
180 days in a 12-month period. At the request of Executive or his personal representative, the
Board’s determination that the Disability of Executive has occurred shall be certified by a
physician mutually agreed upon by Executive, or his personal representative, and the Company.
Failing such independent certification (if so requested by Executive), Executive’s termination
shall be deemed a termination by the Company without Cause and not a termination by reason of his
Disability.
(c) Good Reason. “Good Reason” means without the Executive’s consent (i) a
significant reduction of the Executive’s duties, position or responsibilities, or the removal of
such Executive from such position and responsibilities, unless the Executive is provided with a
comparable position (i.e., a position of equal or greater organizational level, duties, authority,
compensation and status), excluding for this purpose an isolated, insubstantial and inadvertent
action
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not taken in bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by Executive; (ii) a reduction by the Company in the base compensation of the
Executive as in effect immediately prior to such reduction other than in connection with a
generally applicable reduction in executive officer compensation; or (iii) the involuntary
relocation of the Executive to a facility or a location more than fifty (50) miles from such
Executive’s then present location; or (iv) the material breach by the Company of any provision of
this Agreement.
Good Reason shall not include Executive’s death or Disability. Executive’s continued
employment shall not constitute consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason hereunder. Any good faith determination of Good Reason made by Executive
shall be conclusive, but the Company shall have an opportunity to cure any claimed event of Good
Reason within 30 days of notice from Executive and the Board’s good faith determination of cure
shall be binding. The Company shall notify Executive of the timely cure of any claimed event of
Good Reason and the manner in which such cure was effected, and any notice of termination delivered
by Executive based on such claimed Good Reason shall be deemed withdrawn and shall not be effective
to terminate the Agreement.
9. Nondisclosure of Trade Secrets and Confidential Information.
(a) Trade Secrets Defined. As used in this Agreement, the term “Trade Secrets” shall
mean all secret, proprietary or confidential information regarding Company or Company activities
that fits within the definition of “trade secrets” under the Georgia Trade Secrets Act. Without
limiting the foregoing or any definition of Trade Secrets, Trade Secrets protected hereunder shall
include all source codes and object codes for Company software and all website design information
to the extent that such information fits within the Georgia Trade Secrets Act. Nothing in this
Agreement is intended, or shall be construed, to limit the protections of the Georgia Trade Secrets
Act or any other applicable law protecting trade secrets or other confidential information. “Trade
Secrets” shall not include information that has become generally available to the public by the act
of one who has the right to disclose such information without violating any right or privilege of
Company. This definition shall not limit any definition of “trade secrets” or any equivalent term
under the Georgia Trade Secrets Act or any other state, local or federal law.
(b) Confidential Information Defined. As used in this Agreement, the term
“Confidential Information” shall mean all information regarding Company, Company’s activities,
Company’s business or Company’s clients that is not generally known to persons not employed (as
employees or independent agents) by Company, that is not generally disclosed by Company practice or
authority to persons not employed by Company and is the subject of reasonable efforts to keep it
confidential. Confidential Information shall include, but not be limited to product code, product
concepts, production techniques, technical information regarding Company products or services,
production processes and product/service development, operations techniques, product/service
formulas, information concerning Company techniques for use and integration of its website and
other products/services, current and future development and expansion or contraction plans of
Company, sale/acquisition plans and contacts, marketing plans and contacts, information concerning
the legal affairs of Company and certain information concerning the strategy, tactics and financial
affairs of Company. “Confidential Information” shall not include information that has become
generally available to the public by the act of one who has the right to disclose such information
without violating any right or privilege of Company. This definition shall not limit any
definition of
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“confidential information” or any equivalent term under the Georgia Trade Secrets Act or any
other state, local or federal law.
(c) Nondisclosure of Confidential Information. During Executive’s employment
hereunder and for a period of one (1) year after Executive’s employment with Company terminates for
any reason, Executive shall not directly or indirectly transmit or disclose any Trade Secrets or
Confidential Information to any person, concern or entity, or make use of any such Confidential
Information, directly or indirectly, for himself or for others, without the prior express written
consent of the Chief Executive Officer of Company; provided, however, that while employed by the
Company and perpetually thereafter, for so long as the information remains a Trade Secret,
Executive shall not directly or indirectly, for himself or for others, without the prior express
written consent of the Chief Executive Officer of Company, transmit or disclose any Trade Secrets
to any person, concern or entity, or make use of any such Trade Secrets.
(d) Enforceability of Covenants. Executive and Company agree that Executive’s
obligations under these nondisclosure covenants are separate and distinct from other provisions of
this Agreement, and a failure or alleged failure of Company to perform their obligations under any
provision of this Agreement or other agreements with Company shall not constitute a defense to the
enforceability of these nondisclosure covenants. Nothing in this provision or this Agreement shall
limit any rights or remedies otherwise available to Company under federal, state or local law.
10. Nonrecruitment, Nonsolicitation and Noncompetition Covenants.
(a) Nonrecruitment of Employees. In consideration of the compensation and benefits
being paid and to be paid by Company to Executive hereunder, Executive hereby agrees that, during
employment with Company and for one (1) year after the termination of Executive’s employment,
Executive shall not, directly or indirectly solicit or recruit for employment or encourage to leave
employment with Company, on his own behalf or on behalf of any other person or entity other than
Company or any affiliate of Company, any person with whom Executive worked, or about whom Executive
gained Confidential Information, during Executive’s employment and who performed services for
Company clients or worked on Company products or services while employed by Company and who has not
thereafter ceased to be employed by Company for a period of at least one (1) year. Executive
agrees to exercise his best efforts to prevent any of the activities listed in this section from
occurring.
(b) Nonsolicitation of Customers. In consideration of the compensation and benefits
being paid and to be paid by Company to Executive hereunder, Executive hereby agrees that, during
his employment with Company and for one (1) year after the termination of Executive’s employment,
Executive shall not, directly or indirectly, on behalf of himself or of anyone other than Company,
solicit, divert away, take away or attempt to solicit or take away any Customer or Potential
Customer of Company for purposes of providing or selling products or services that are competitive
with those provided by Company, if Company is then still engaged in the provision or sale of that
type of good or service. For purposes of this covenant, “Customer” means any individual or entity
to whom Company has provided goods or services and with whom Executive had, alone or in conjunction
with others, Material Contact during the one (1) year prior to the termination of Executive’s
employment and “Potential Customer” means any individual or entity to whom the Company has actively
sought to sell products or services within the one (1) year
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immediately prior to the termination of Executive’s employment and with whom Executive had
Material Contact on the Company’s behalf during that same time period. For purposes of this
covenant, Executive had “Material Contact” with a customer if (i) Executive had business dealings
with the customer on the Company’s behalf; (ii) Executive was responsible for supervising or
coordinating the dealings between the customer and the Company; or (iii) Executive obtained Trade
Secrets or Confidential Information (such terms having the same meanings as defined in Section 9
above, but in each case relating to the Customer or Potential Customer) about the customer as a
result of Executive’s association with the Company.
(c) Noncompetition. During the term of Executive’s employment with the Company, and
for a period of one (1) year thereafter, Executive shall not, without the prior written consent of
the Board, which consent may be withheld at the sole discretion of the Board, engage or participate
in, as chief financial officer or other senior financial executive or officer, or the equivalent
thereof, of any business or enterprise that directly competes in the Business of the Company within
the Restricted Area. For purposes of this Section 10(c), the “Business” means the design, product
development, sale, marketing, implementation or support of computer software products and services
in the areas of service delivery management, asset management, field service management, customer
relationship management and customer information systems. For purposes of this Section 10(c), the
“Restricted Area” shall be the area that is within a twenty-five (25) mile radius of the cities of
Atlanta, Georgia, Columbia, South Carolina, and San Francisco, California. Nothing in this
Section 10(c) shall prohibit Executive from acquiring or holding, for investment purposes only,
less than five percent (5%) of the outstanding publicly traded securities of any corporation which
may compete directly or indirectly with the Company.
(d) Enforceability of Covenants. Executive acknowledges that the Company has a
present and future expectation of business within the geographic areas served by the Company and
from the present and proposed customers of the Company. Executive acknowledges the reasonableness
of the term, geographic area and scope of the covenants set forth in this Agreement, and agrees
that he will not, in any action, suit or other proceeding, deny the reasonableness of, or assert
the unreasonableness of, the premises, consideration or scope of the covenants set forth herein.
Executive further acknowledges that complying with the provisions contained in this Agreement will
not preclude him from engaging in a lawful profession, trade or business, or from becoming
gainfully employed. Executive and Company agree that Executive’s obligations under the above
covenant are separate and distinct under this Agreement, and the failure or alleged failure of
Company to perform its obligations under any other provisions of this Agreement shall not
constitute a defense to the enforceability of this covenant. Executive agrees that any breach of
this covenant will result in irreparable damage and injury to Company and that Company will be
entitled to injunctive relief in any court of competent jurisdiction without the necessity of
posting any bond. Executive also agrees that he shall be responsible for all damages incurred by
Company due to any breach of the restrictive covenants contained in this Agreement and that Company
shall be entitled to have Executive pay all costs and attorneys’ fees incurred by Company in
enforcing the restrictive covenants in this Agreement.
11. Ownership of Protected Works.
(a) Protected Works. The term “Protected Works” as used in this Agreement means any
and all ideas, inventions, formulas, source codes, object codes, techniques, processes,
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concepts, systems, programs, software, software integration techniques, hardware systems,
schematics, flow charts, computer data bases, client lists, trademarks, service marks, brand names,
trade names, compilations, documents, data, notes, designs, drawings, technical data and/or
training materials, including improvements thereto or derivatives therefrom, whether or not
patentable, or subject to copyright or trademark or trade secret protection, developed and produced
by Executive pursuant to this Agreement or other agreements between Executive and Company and used
or intended for use by or on behalf of Company, or Company’s clients.
(b) Ownership and Assignment of Protected Works. Executive agrees that any and all
Protected Works developed by Executive during his employment or other engagement with Company under
this Agreement and during his employment with, or other engagement by Company prior to the
execution of this Agreement (whether as employee or independent contractor) are the sole property
of Company, and that no compensation in addition to the amounts set forth in Section 2 of this
Agreement is due to Executive for development or transfer of such Protected Works. Executive
hereby assigns and agrees to assign all of his respective rights, title and interest in Protected
Works, including all patents or patent applications, and all copyrights therein, to Company.
Executive further agrees at Company’s request and without further consideration, but at the expense
of Company, that Executive will communicate to Company any facts known to Executive and testify in
any legal proceedings, sign all lawful papers, make all rightful oaths, execute all divisional,
continuing, continuation-in-part, or reissue applications, all assignments, all registration
applications and all other instruments or papers to carry into full force and effect, the
assignment, transfer and conveyance hereby made or intended to be made and generally do everything
possible for title to the Protected Works and all patents or copyrights or trademarks or service
marks therein to be clearly and exclusively held by Company. Executive agrees that he will not
apply for any state, federal, or other jurisdiction’s registration of rights in any of the
Protected Works and that he will not oppose or object in any way to applications for registration
of same by Company or others designated by Company. Executive agrees to exercise reasonable care
to avoid making the Protected Works available to any third party. Executive also agrees that he
shall be liable to Company for all damages, including reasonable attorneys’ fees and other expenses
of litigation, if the Protected Works are made available to third parties in any manner by
Executive without the express written consent of Company.
(c) Executive agrees to disclose and describe to Company, as soon as possible after their
creation, (i) all copyrightable works, databases, data and other “Protected Works,” as defined in
subsection (a) above, which are created by Executive, either alone or with others, during the term
of Executive’s employment, or in connection with the formation of Company, and (ii) all Protected
Works which are based in whole or in part upon Confidential Information or Trade Secrets and are
created by Executive, either alone or with others, within one (1) year after Executive’s leaving
Company’s employ.
(d) There is no other contract or duty on Executive’s part now in existence to assign
Protected Works to anyone other than Company. Executive will not disclose or induce Company to use
any confidential information or material that Executive is now or shall become aware of which
belongs to anyone other than Company. During Executive’s employment by Company, Executive will not
engage in any employment, consulting or other activity in any business competitive with Company’s
business as presently conducted or as conducted at any future time during Executive’s employment.
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12. Rights to Materials and Return of Materials. All records, files, software,
software code, memoranda, reports, price lists, customer lists, drawings, plans, sketches,
documents, technical information, information on the use, development and integration of software,
and the like (together with all copies of such documents and things) relating to the business of
Company, which Executive shall use or prepare or come in contact with in the course of, or as a
result of, Executive’s employment or other engagement by Company shall, as between the parties to
this Agreement, remain the sole property of Company. Laptop computers, other computers, software
and related data, information and things provided to Executive by Company or obtained by Executive,
directly or indirectly, from Company, also shall remain the sole property of Company. Upon the
termination of Executive’s employment or upon the prior demand of Company, Executive shall
immediately return all such materials and things to Company and shall not retain any copies or
remove or participate in removing any such materials or things from the premises of Company after
termination or Company’s request for return.
13. Inventions, Discoveries and Improvements.
(a) Executive will promptly disclose and describe to Company (i) all inventions, improvements,
discoveries and technical developments, whether or not patentable, made or conceived by Executive,
either alone or with others (“Inventions”), during the term of Executive’s employment with Company
or other engagement with Company, provided that Company shall receive such information in
confidence and (ii) all Inventions which are based in whole or in part upon Confidential
Information or Trade Secrets and are made or conceived by Executive, either alone or with others,
within one (1) year after Executive’s leaving Company’s employ. All such Inventions, whether
patentable or unpatentable, made, devised or discovered by Executive, whether by himself or jointly
with others, which relate or pertain in any way to the business of Company, shall be used solely
for the benefit of Company and become and remain their sole and exclusive property. Executive
agrees to execute an assignment to Company or its nominee of Executive’s entire right, title and
interest in and to such Inventions made or conceived by Executive, either alone or with others,
during the term of Executive’s employment or within one (1) year after Executive’s leaving
Company’s employ, and to execute any other instruments and documents that may be requested by
Company for the purpose of applying for and obtaining patents with respect to such Inventions in
the United States and in all foreign countries. Executive further agrees, whether or not in the
employ of Company, to cooperate to the extent and in the manner reasonably requested by Company in
the prosecution or defense of any patent claims or any litigation or other proceedings involving
any such Inventions, but all of Executive’s reasonable expenses in connection with such litigation
or other proceedings shall be paid by Company.
(b) If a patent application or copyright registration is filed by Executive or on Executive’s
behalf during Executive’s employment or other engagement with Company, whether before or after
execution of this Agreement, or within one (1) year after Executive’s leaving Company’s employ,
describing an Invention within the scope of Executive’s work for Company or which otherwise relates
to a portion of Company’s business of which Executive had knowledge during Executive’s employment
with Company, it is to be conclusively presumed that the Invention was conceived by Executive
during the period of such employment.
(c) There is no other contract or duty on Executive’s part now in existence to assign
Inventions other than to Company. Executive will not disclose or induce Company to use any
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confidential information or material that Executive is now or shall become aware of which
belongs to anyone other than Company. During Executive’s employment by Company, Executive will not
engage in any employment, consulting or other activity in any business competitive with Company’s
business as presently conducted or as conducted at any future time during Executive’s employment.
(d) Executive warrants and represents that attached to this Agreement as Exhibit A and
incorporated in this Agreement by reference is a complete list of all inventions, whether owned by
Executive or by others, conceived by Executive prior to Executive’s employment by Company, that
these are the only inventions which are not subject to this Agreement, and that Executive has not
conceived or reduced to practice any invention not described on such Exhibit A.
14. Works Made for Hire. Company and Executive acknowledge that in the course of
Executive’s employment (as employee or independent contractor) by Company, Executive may from time
to time create, and has previously created, for Company copyrightable works. Such works may
consist of manuals, pamphlets, instructional materials, computer programs, software, software
integration techniques, software codes, and data, technical data, photographs, drawings, logos,
designs, artwork or other copyrightable material, or portions thereof, and may be created within or
without Company’s facilities and before, during or after normal business hours. All such works
related to or useful in the business of Company are specifically intended to be works made by hire
by Executive, and Executive shall cooperate with Company in the protection of Company’s copyrights
in such works and, to the extent deemed desirable by Company, the registration of such copyrights.
15. Assignment. This Agreement will be binding upon and inure to the benefit of (a)
the heirs, executors and legal representatives of Executive upon Executive’s death and (b) any
successor of the Company. Any such successor of the Company will be deemed substituted for the
Company under the terms of this Agreement for all purposes. For this purpose, “successor” means
any entity affiliated with Company to whom assigns its rights and interest in and to this
Agreement, and/or any person, firm, corporation or other business entity which at any time, whether
by purchase, merger or otherwise, directly or indirectly acquires all or substantially all of the
assets or business of the Company. None of the rights of Executive to receive any form of
compensation payable pursuant to this Agreement may be assigned or transferred except by will or
the laws of descent and distribution. Any other attempted assignment, transfer, conveyance or
other disposition of Executive’s right to compensation or other benefits will be null and void.
16. Notices. All notices, requests, demands and other communications called for
hereunder shall be in writing and shall be deemed given (i) on the date of delivery if delivered
personally, (ii) one (1) day after being sent by a well established commercial overnight service,
or (iii) four (4) days after being mailed by registered or certified mail, return receipt
requested, prepaid and addressed to the parties or their successors at the following addresses, or
at such other addresses as the parties may later designate in writing:
If to the Company:
Copies to each of the Chief Executive Officer and General Counsel
at the Company’s principal executive office
Copies to each of the Chief Executive Officer and General Counsel
at the Company’s principal executive office
If to Executive:
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at the last residential address known by the Company.
17. Severability. The covenants set forth in this Agreement shall be considered and
construed as separate and independent covenants. Should any part or provision of any covenant be
held invalid, void or unenforceable in any court of competent jurisdiction, such invalidity,
voidness or unenforceability shall not render invalid, void or unenforceable any other part or
provision of this Agreement. If any portion of the foregoing provisions is found to be invalid or
unenforceable by a court of competent jurisdiction because of its duration, the territory, the
definition of activities or the definition of information covered is invalid or unreasonable in
scope, the invalid or unreasonable term shall be redefined, or a new enforceable term provided,
such that the intent of Company and Executive in agreeing to the provisions of this Agreement will
not be impaired and the provision in question shall be enforceable to the fullest extent of the
applicable laws.
18. Arbitration.
(a) With the exception of any dispute arising under Sections 9,10,11,12,13 and 14 of this
Agreement, the Company and Executive agree that any dispute or controversy arising out of, relating
to, or in connection with this Agreement, or the interpretation, validity, construction,
performance, breach, or termination thereof, shall be settled by binding arbitration to be held in
Xxxx County, Georgia in accordance with the National Rules for the Resolution of Employment
Disputes then in effect of the American Arbitration Association (the “Rules”). The arbitrator may
grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator
will be final, conclusive and binding on the parties to the arbitration. Judgment may be entered
on the arbitrator’s decision in any court having jurisdiction.
(b) The arbitration proceedings will be governed by federal arbitration law and by the Rules,
without reference to state arbitration law. The Executive hereby consents to the personal
jurisdiction of the state and federal courts located in Georgia for any action or proceeding
arising from or relating to this Agreement or relating to any arbitration in which the parties are
participants.
(c) EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES ARBITRATION. EXECUTIVE
UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF,
RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION,
PERFORMANCE, BREACH OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE
CONSTITUTES A WAIVER OF EXECUTIVE’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL
DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED
TO, DISCRIMINATION CLAIMS.
All parties must initial here for Section 18 to be effective:
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19. Entire Agreement. This Agreement is intended by the parties hereto to be the final
expression of their agreement with respect to the subject matter hereof and this is the complete
and exclusive statement of the terms of their agreement, notwithstanding any representations,
statements or agreements to the contrary heretofore made. This Agreement may be modified only by a
written instrument signed by each of the parties hereto expressly stating that it is intended to
amend this Agreement. Nothing in this Agreement or Executive’s employment shall be construed to
give Executive any rights, of ownership or otherwise, in any Protected Works, Inventions, Works
Made for hire or other software, hardware, data or systems that he creates or obtains, or has
created.
20. Tax Withholding. Company may withhold from any amounts payable under this
Agreement all federal, state, city or other taxes and withholdings as shall be required pursuant to
any applicable law, rule or regulation.
21. Construction. No provision of this Agreement or any related documents shall be
construed against, or interpreted to the disadvantage of, any party hereto by any court or any
governmental or judicial authority by reason of such party having, or being deemed to have,
structured or drafted such provision.
22. Waiver. The waiver by any party to this Agreement of a breach of any of the
provisions of this Agreement shall not operate or be construed as a waiver of any other or
subsequent breach.
23. Acknowledgment. Executive acknowledges that he has had the opportunity to discuss
this matter with and obtain advice from his private attorney, has had sufficient time to, and has
carefully read and fully understands all the provisions of this Agreement, and is knowingly and
voluntarily entering into this Agreement. Company agrees to reimburse Executive for attorney fees
related to review of this Agreement.
24. Code Section 409A. This Agreement is to be construed and the compensation and
benefits provided hereunder are to be paid in such manner and at such times as shall comply with
Code Section 409A and the regulations and guidance promulgated thereunder by the U.S. Department of
the Treasury. Notwithstanding anything to the contrary herein, such payments shall be delayed to
the extent necessary, but only to such extent, (i) to comply with Code Section 409A and such
regulations and provisions and (ii) to avoid the payment of any penalties thereunder.
(signatures on following page)
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by their duly authorized officers, as of the day and year first above written.
INDUS
|
INTERNATIONAL | |||||
By:
|
/s/ Xxxxxxx X. Xxxxx | Date: September 27, 2005 | ||||
Title:
|
President and Chief Executive Officer | |||||
| EXECUTIVE | ||||||
| /s/ Xxxxxxx X. Xxxx | Date: September 27, 2005 | |||||
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