EXECUTIVE EMPLOYMENT AGREEMENT
|
|
Exhibit 10.2 |
|
|
|
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this “Agreement”) is entered into as of the “Effective Date” set forth below, by and between Manhattan Associates, Inc., a Georgia corporation (“Company”), and the undersigned “Executive.”
In consideration of Company’s employment and continued employment of Executive, Company and Executive agree as follows:
THIS AGREEMENT WILL BECOME EFFECTIVE WHEN SIGNED BY BOTH PARTIES BELOW AND AS OF THE DATE SIGNED BY EXECUTIVE BELOW.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
|
EXECUTIVE |
COMPANY |
|
|
|
|
Xxxxx X. Xxxxx 00 Xxxxxxxx Xxxx Xxxx XX Xxxxxxx, XX 00000 |
Manhattan Associates, Inc. 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx Xxxxx Xxxxxxx, XX 00000
|
|
/s/ Xxxxx X. Xxxxx EXECUTIVE SIGNATURE |
/s/ Xxxxx Xxxxx AUTHORIZED SIGNATURE |
|
Xxxxx X. Xxxxx NAME PRINTED |
Xxxxx Xxxxx, President and CEO NAME & TITLE PRINTED |
|
January 28, 2016 EFFECTIVE DATE |
January 28, 2016 DATE |
Executive Employment Agreement – Existing ExecutiveRevised March 20, 2013
SCHEDULE A GENERAL TERMS AND CONDITIONS
1.Definitions. Except as otherwise specified in this Agreement, the definitions of the capitalized terms set forth in this Section 1 will apply with respect to the entire Agreement.
1.1Agreement. This Executive Employment Agreement.
1.3Board. Company’s Board of Directors as constituted from time to time.
1.6Change of Control. The occurrence of any of the following events:
(i)Any transaction or series of transactions pursuant to which Company sells, transfers, leases, exchanges, or disposes of all or
substantially all (i.e., at least eighty-five percent (85%)) of its assets for cash or property, or for a combination of cash and property, or for other consideration;
(ii)Any transaction pursuant to which one or more Persons acquire by merger, consolidation, reorganization, division, or other business combination or transaction, or by a purchase of an interest in Company, an interest in Company so that after that transaction, the shareholders of Company immediately prior to that transaction no longer have a controlling (i.e., fifty percent (50%) or more) voting interest in Company;
(iii)Any change in the composition of the Board within a twelve (12) month period resulting in fewer than a majority of the directors being Incumbent Directors; or
(iv)Any transaction or series of transactions pursuant to which any Person or Persons acting in concert acquire outstanding voting securities of Company, if, after that transaction or those transactions, the acquiring Persons own, control, or hold, with power to vote, at least forty percent (40%) of any class of voting securities of Company.
1.7Code. The Internal Revenue Code of 1986, as amended.
1.8Committee. The Compensation Committee of the Board.
1.9Company. As defined in the Preamble to this Agreement; provided, however, where the context reasonably requires, “Company” also will include Manhattan Associates, Inc.’s affiliates.
1.11Competing Business. Activities, products, or services that are the same as or similar to the Company Business.
1.12Confidential Information. (A) Any and all data and information in whatever form: (i) relating to or arising from the business of Company, or of third Persons, regardless of whether the data or information constitutes a trade secret as defined by applicable law; (ii) disclosed to Executive or of which Executive becomes or became aware as a
A-1
consequence of Executive’s relationship with Company; (iii) having value to Company; (iv) not generally known to competitors of Company; and (v) which includes, without limitation: trade secrets; methods of operation; customer and prospective customer information; price lists; financial information and projections; Company organizational structure information; business plans and strategies; Company product information including design, development, and marketing information, installation and configuration guides, user manuals, functional and technical specifications, data models and data dictionaries, and software source code; Company policies, processes, methods, and procedures; Company inventions and discoveries; and similar information; and (B) third party confidential information in Company’s possession.
1.13Constructive Termination. The occurrence during Executive’s employment of any one of the events set forth in (i) through (vi) below and satisfaction of the following conditions: (a) Executive provides notice to Company of the Constructive Termination condition within ninety (90) days of their learning of its initial existence; (b) Company fails to remedy the Constructive Termination condition within thirty (30) days following the notice; and (c) Executive terminates their employment within six (6) months of their learning of the existence of the Constructive Termination condition. The Constructive Termination events are as follows: (i) a material adverse change in Executive’s authority, duties, or responsibilities; (ii) a material failure to pay Executive the compensation required by this Agreement; (iii) after a Change of Control, (a) relocation of Company’s headquarters more than thirty (30) miles outside of the Atlanta, Georgia, greater metropolitan area or (b) Company requiring Executive to be based more than thirty (30) miles from the Work Location at which Executive was based immediately prior to the Change of Control; (iv) after a Change of Control, the material reduction in the compensation and benefits provided to Executive under the employee benefit plans, programs, and practices in effect immediately prior to the Change of Control; (v) after a Change of Control, the insolvency or the filing by Company of a petition for bankruptcy of Company; or (vi) after a Change of Control, Company’s failure promptly to obtain an agreement from any successor or assignee of Company to assume and agree to perform Company’s obligations under this Agreement unless that successor or assignee is bound to the performance of this Agreement as a matter of law.
1.14Disability. Executive’s inability as a result of physical or mental incapacity to substantially perform Executive’s duties for Company on a full-time basis, which inability lasts for a period of six (6) consecutive months. The Board (or the Committee, if requested to do so by the Board) will be responsible for determining in good faith an Executive’s Disability based on the information received by the Board (or the Committee).
1.15Duties. Duties of the type performed by Executive for Company during the twenty-four (24)
month period immediately prior to the Termination Date.
1.18Executive. As defined in the Preamble to this Agreement.
1.21Parties. Executive and Company.
1.24Recoupment Policy. A policy of recoupment of compensation adopted or amended from time to time by the Board or the Committee as it deems necessary or desirable to comply with the requirements of Section 954 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (providing for recovery of erroneously awarded compensation), Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (providing for forfeiture of certain bonuses and profits), and any implementing rules and regulations of the U.S. Securities and Exchange Commission and applicable listing standards of a
A-2
national securities exchange adopted in accordance with either of those Acts, which policy is incorporated into this Agreement by this reference.
1.27Section 409A. Section 409A of the Code.
2.1Position and Responsibilities. As of the Effective Date, Company will continue to employ Executive, and Executive accepts continuing employment by Company, at the position set forth on Schedule B, and Executive will continue to report to the direct supervisor set forth on Schedule B, all in accordance with and subject to the terms set forth in this Agreement. Executive will perform those responsibilities consistent with their position and those other duties as may be and previously have been determined from time to time by Company’s CEO, Executive’s direct supervisor (if different from
the CEO), or the Board from time to time, and perform those responsibilities to the best of their ability while devoting their full business time to those responsibilities. Executive will act in good faith to promote the interests of Company. Executive may participate in those civic and charitable activities as Executive elects that do not meaningfully interfere with their duties for Company. Executive will conduct themself in a business-like and professional manner as appropriate for their position and represent Company in a manner that complies with good business and ethical practices. Executive will be subject to and abide by the written policies and procedures of Company applicable to executive personnel of Company, as adopted from time to time by Company and communicated to Executive.
3.4Employee Benefits. Executive will be eligible to participate in all employee benefit plans that Company provides for its employees at the executive level, including 401(k), deferred compensation, health care, life insurance, disability, and similar benefit plans. Concurrently with the execution by the Parties of this Agreement, the Parties will enter into an Indemnification Agreement, prepared by or at the
A-3
direction of Company, under which Company will indemnify Executive to the full extent permitted by law and under Company’s Articles of Incorporation and Bylaws for and with respect to any claim, loss, or cause of action resulting from, arising out of, or in connection with Executive’s service as an officer, director, or employee of Company or any of its subsidiaries. Company will ensure that Executive is covered under a directors and officers liability insurance policy in the same manner as other executive officers and directors of Company.
4.1Termination. Executive’s employment under the terms of this Agreement will continue until it is terminated in writing by the Parties, or until Executive’s employment is terminated in accordance with the terms of this Agreement. Either Company or Executive may terminate Executive’s employment at any time by written notice to the other, which, if given by Executive, will be given at least thirty (30) days prior to the Termination Date designated by Executive. If Executive’s employment is terminated (i) by Company for Cause, (ii) as a result of Executive’s Disability, or (iii) upon and as a result of Executive’s death, or if Executive terminates his employment other than for Constructive Termination, then Company’s obligations under this Agreement will cease as of the Termination Date; provided, however, that Executive (or their estate) will be entitled to (a) salary earned through the Termination Date, (b) any bonuses or other incentive compensation earned and payable under the terms of the applicable bonus or other incentive plan as of the Termination Date, and (c) benefits earned by or payable to Executive pursuant to the terms of any health, life insurance, disability, welfare, retirement, or other plan or program maintained by Company in which Executive participates or the terms of any Equity Award. If Company terminates Executive’s employment other than pursuant to clauses (i) through (iii) of this Section 4.1, or if Executive terminates their employment as a Constructive Termination, Executive will be entitled to receive the severance payments provided in Section 4.2 (subject to the conditions set forth in Section 4.2). Except as otherwise provided in this Agreement, if Executive’s employment is terminated and they are entitled to severance payments under this Section
4.1, then they will not be required to mitigate damages by seeking other employment, and any compensation or benefits they receive will not reduce the amount payable by Company under this Agreement. The severance payments provided pursuant to Section 4.2 will be the only severance benefits payable to Executive by Company as a result of the termination of Executive’s employment, and Executive waives their rights (if any) to any severance benefits under any other plan or program of Company.
4.2Severance Payments. Subject to the conditions set forth in the following sentence and the limitations set forth in the last sentence of this paragraph and in Section 4.5, if Executive’s employment is terminated under Section 4.1 entitling Executive to receive severance payments, then the severance payments will comprise the following payments, subject to withholding of all applicable payroll and income taxes and other authorized deductions: (i) twelve (12) full months of Executive’s Base Salary, payable in twenty-four (24) equal semimonthly installments on Company’s regular payroll dates beginning on the first payroll date after the Release is executed and delivered to Company by Executive and becomes effective, (ii) twelve (12) monthly payments each of which is equal to the monthly costs of COBRA coverage for medical and dental coverage for Executive and their dependents (plus a tax gross-up on such COBRA payments) and the right to elect to participate in Company’s medical and dental coverages for that twelve (12) month period, and (iii) if that termination of Executive’s employment occurs on or within twenty-four (24) months following the date of a Change of Control, (a) a pro rata bonus for the year of termination (based on the number of days that have elapsed to the Termination Date), calculated at target performance level, less any bonus amount already paid or payable for that year, and (b) an additional annual bonus amount equal to the greater of Executive’s target bonus for the year of termination or Executive’s target bonus for the prior year, which bonus payments ((a) and (b) above) will be paid as a lump sum on the sixtieth (60th) day after the Termination Date. Company’s obligation to make the severance payments under this Section 4.2 is subject to the conditions that (a) Executive executes and delivers to Company the Release within the time period specified in the Release, and the Release becomes effective, and (b) Executive complies with the restrictive covenants and post-termination obligations in Sections 8 through 11, inclusive. If Executive dies after becoming entitled to severance payments under this Section 4.2, the severance payments under this Section 4.2 will continue for the lesser of six (6) months or the remainder of the twelve (12) month period referred to above.
4.3Treatment of Unvested Equity Awards. Except as otherwise agreed in writing between Company (or its successor) and Executive, if a Change of Control occurs, any outstanding Equity Awards granted to Executive not yet vested as of that Change of Control will remain in effect in accordance with their terms (or Company may, without
A-4
Executive’s consent, substitute for those unvested Equity Awards an equity award with substantially equivalent value, terms, and conditions of the survivor, continuing, successor, or purchasing entity, or their parent). If on or within twenty-four (24) months following the date of a Change of Control Executive’s employment is terminated under Section 4.1 entitling Executive to receive severance payments, then any outstanding unvested Equity Awards granted to Executive prior to that Change of Control (or any equity awards substituted for those Equity Awards) will fully vest (to the extent they have not otherwise vested) as of the date that the Release becomes effective. If any performance period for an outstanding unvested Equity Award has not been completed as of the date of a Change of Control, then the target performance level for that Equity Award will be deemed to have been achieved as of the date of that Change of Control.
The provisions of this Section 4.3 are, by this Agreement, deemed to be a part of, and where necessary, amend, each Equity Award agreement of Executive and to supersede any contrary provisions in each of those agreements.
4.4Section 409A Compliance. This Agreement will at all times be interpreted and performed in accordance with the requirements of Section 409A. The severance payments under Section 4.2 will be deemed separate payments for purposes of Section 409A, and those payments are in whole or in part intended to satisfy the “short-term deferral exception” and the “two-times pay” exception to Section 409A. Notwithstanding any provision of this Agreement to the contrary, the timing of Executive’s execution of the Release will not, directly or indirectly, result in Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, that payment will be made in the later taxable year. Any action that may be taken (and, to the extent possible, any action actually taken) by Company will not be taken (or will be void and without effect) if that action violates the requirements of Section 409A. Any provision in this Agreement that is determined to violate the requirements of Section 409A will be void and without effect. In addition, any provision that is required to appear in this Agreement in accordance with Section 409A that is not expressly set forth in this Agreement will be deemed to be set forth in this Agreement, and this Agreement will be administered in all respects as if that provision were expressly set forth. Company will have the authority to delay the commencement of all or a part of the payments to Executive under Section 4 if Executive is a “key employee” of Company (as determined by Company in accordance with procedures established by Company that are consistent with Section 409A) to a date that is six (6) months and one (1) day after the Termination Date (and on that date the payments that otherwise would have been made during that six (6) month period will be made), but only to the extent that delay is required under the provisions of Section 409A to avoid imposition of additional income and other taxes, provided that Company and Executive agree to take
into account any transitional rules and exemption rules available under Section 409A.
4.5Limitations on Severance Payments. Except as otherwise provided below, if it is determined that any right, payment, or other benefit under this Agreement to or for the benefit of Executive would result in Company’s payment of a “parachute payment” under Code Section 280G, in whole or part when aggregated with any other right, payment, or benefit to or for the Executive under all other agreements or benefit plans of Company, then, to the extent necessary to make those payments or benefits not “parachute payments” (but only to such extent and after taking into account any reduction relating to Section 280G under any other plan, arrangement or agreement), any right, payment, or benefit under this Agreement will not become payable. The determination under this Section 4.5 will be made by a nationally recognized accounting firm selected by Company. All determinations required to be made under this Section 4.5, including whether and which of the rights, payments, or benefits are required to be reduced, the amount of that reduction, and the assumptions to be utilized in arriving at that determination, will be made by that accounting firm.
7.1Ownership by Company. Any Works created by Executive in the course of Executive’s duties as an employee of Company are subject to the “Work for Hire” provisions contained in Sections 101 and 201 of the United States Copyright Law, Title 17 of the United States Code. All right, title, and interest in and to copyrights in all Works that have been or will be prepared by Executive within the scope of Executive’s employment with Company will be the property of Company. To the extent the provisions of Title 17 of the United States Code do not vest the copyrights to any Works in Company, Executive, by this Agreement, assigns to Company all right, title,
A-5
and interest to copyrights Executive may have in the Works.
10.Non-Competition. During Executive’s employment by Company, Executive will not work for any other Person (other than volunteering free time to a charitable organization), or engage in any other business activity that would interfere with the performance of Executive’s job responsibilities or that is in violation of policies established from time to time by Company, without Company’s prior written consent. During Executive’s employment by Company, any money or other remuneration received by Executive for services rendered to a Company customer belong to Company. Executive acknowledges that: (i) Company is engaged in the Company Business throughout the United States of America and internationally, with its principal place of business in Atlanta, Georgia, international offices in Europe and Asia, and customers throughout the United States of America and in multiple foreign countries; (ii) Executive possesses selective and specialized skills, knowledge, learning, and abilities relating to the Company Business, and Executive’s
employment with Company involves further acquisition and development of such selective and specialized skills, knowledge, learning, and abilities; and (iii) Executive has and will have, during Executive’s employment with Company, access to Confidential Information. In light of the above, during the Restriction Period, Executive will not, without Company’s prior written consent, perform in the United States of America, Europe, Asia, or any other geographic location in which Company is engaged in the Company Business, any Duties for, or that benefit, directly or indirectly, any Competing Business engaged in by a company listed or described on Schedule C to this Agreement.
13.Obligations to Others. Except as may have been disclosed previously by Executive to Company,
A-6
Executive represents and warrants that Executive is not or was not a party to any agreement with any other Person that purports to require Executive to assign any Work or any Invention created, conceived, or first practiced by Executive during any period of time during which Executive has been or will continue to be an employee of Company, nor is Executive subject to any law, court order, or regulation that purports to require that assignment. Further, Executive represents and warrants that Executive is not presently under any agreement that will prevent Executive from performing Executive’s duties for Company, and is not in breach of any agreement with respect to any confidential information, including trade secrets, owned by any other Person. Executive will not disclose to Company any protected confidential information, including trade secrets, of any other Person.
16.1Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia without reference to its conflict of laws rules.
16.2Dispute Resolution. Exclusive venue for any dispute arising under or in connection with this Agreement will be in the Federal District Court for the Northern District of Georgia or the Superior Court of
Xxxxxx County, Georgia. By this Agreement, each Party expressly agrees that those courts will have personal jurisdiction and venue with respect to that Party, and each Party submits to the personal jurisdiction and venue of those courts and waives any objection based on inconvenient forum.
16.3Entire Agreement. This Agreement constitutes the final, full, and exclusive expression of the Parties’ agreement with respect to: (i) Executive’s position, responsibilities, and at-will status, compensation, prospective termination of employment, and severance, (ii) Inventions, (iii) Works, (iv) customer non-solicitation, (v) employee non-solicitation, (vi) non-competition, (vii) Confidential Information, (viii) and agreements between Executive and Persons other than Company, and this Agreement supersedes all prior agreements, understandings, writings, proposals, representations, and communications, oral or written, with respect to that subject matter, including any prior Executive Employment Agreement, Severance and Non-Competition Agreement, or similar agreement between the Parties; provided, however, that any such prior Executive Employment Agreement or Non-Competition Agreement, or similar prior agreement, letter, or other document, will remain in effect to the limited extent necessary to enable either Party to pursue remedies against the other Party for a breach by the other Party prior to the Effective Date of the terms of that prior agreement, letter, or other document. This Agreement does not supersede Company rules, regulations, and policies, including those contained in Company’s employee handbook and other Company documents provided by Company to Executive from time to time, except to the extent inconsistent with this Agreement.
16.5Amendments; Waiver. This Agreement may be amended or modified, in whole or in part, only by a written amendment signed by Executive and, on behalf of Company, by an officer of Company acting with specific authorization and approval of the Board or the Committee, and no term of this Agreement may be waived except in a written wavier signed by the Party waiving the benefit of that term (and in the case of Company, with the specific authorization of the Board or the Committee). No failure on the part of either Party to exercise any right will operate as a continuing waiver of that right or a waiver of that Party’s right to exercise the same, a similar, or any other right in the future.
A-7
16.6Assignment; Binding Effect. Neither Party has the right to assign its rights or delegate its duties under this Agreement; provided, however, that Company has the right to assign its rights and delegate its duties under this Agreement to a Person or Persons that purchase all or substantially all of the assets or stock of Company. Any attempt to assign or delegate in violation of the foregoing restrictions will be null and void. This Agreement will binding upon, inure to the benefit of, and be enforceable by the Parties and their respective heirs, legal representatives, successors, and permitted assignees.
16.7Headings; Personal Pronouns. The section headings in this Agreement are for reference purposes only and are not intended in any way to describe, interpret, define, or limit the extent or intent of all or any portion of this Agreement. Plural personal pronouns such as “they” and “their” sometimes are used in this Agreement as substitutes for singular personal pronouns in order to avoid having to use gender specific personal pronouns such as “he” or “his” or “she” or her.”
16.8Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and both of which together will constitute one and the same instrument.
16.9Representation of Authority. The official executing this Agreement on behalf of Company represents and warrants that they have the requisite authority to do so and fully bind Company.
16.11Legal Fees and Expenses. Each Party will be responsible for its or their own costs, fees, and expenses, including attorney’s fees and expenses, in connection with any dispute arising out of the subject matter of this Agreement; provided, however, that if Executive’s employment is terminated after a Change of Control (i) by Company without Cause or (ii) by Executive as a result of a Constructive Termination, Executive will be entitled to recover from Company their reasonable attorneys’ fees and expenses incurred in connection with any dispute relating to Executive’s enforcement of their rights related to that termination to the extent that Executive prevails in a material manner with respect to that dispute.
A-8
SCHEDULE B POSITION AND CERTAIN COMPENSATION INFORMATION
Name of Executive: Xxxxx Xxxxx
Executive’s Direct Supervisor: Xxxxxx X. Story
Executive’s Job Title: Senior Vice President, Global Corporate Controller and Chief Accounting Officer
Executive’s Work Location: 0000 Xxxxx Xxxxx Xxxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx
Base Salary (Semimonthly): $10,000; Base Salary (annualized): $240,000
Bonus Target Amount: $80,000
Vacation Days (Number to Be Accrued per Calendar Year): 20
B-1
SCHEDULE C NON-COMPETE COMPANY LIST
|
Accellos Aldata American Software ANT USA Ariba Capgemini ChainLogic Cloud Logistics DemandTec Dematic Descartes enVista Epicor Genco GT Nexus Highjump HK Systems IBM I LOG Idhasoft Infor Intelligrated Innocept Solutions |
|
ICCG Irista JDA JustEnough Kewill Lean Logistics LogFire Logility MercuryGate Nistevo ONE Network Enterprises Oracle Red Prairie Retalix SAP AG SAS Xxxxx Xxxxxxx Group Swisslog Tomax/Demandware Transplace TXT e-Solutions TZA |
Any company, or division of any company, operating under or doing business as any trade name listed above or as any trade name or legal name substantially similar to any name listed above.
Any company owned or formed by or on behalf of Employee.
Any affiliate, including any direct or indirect parent, subsidiary, or sister company, of any company listed or described above.
Any successor company to any company listed or described above.
Any company acting as authorized reseller, partner, or agent of any company listed or described above.
C-1
AGREEMENT AND GENERAL RELEASE
This Agreement and General Release (this “Release”) is entered into as of the “Signature Date” as set forth below by and between Manhattan Associates, Inc., a Georgia corporation (“Company”), and the undersigned “Executive,” with reference to the following facts:
A.Pursuant to the terms of that certain Executive Employment Agreement (the “Employment Agreement”) between the Parties, dated as of [date], Executive is entitled to severance payments upon the termination of Executive’s employment with Company under certain circumstances, subject to the conditions that Executive executes and delivers to Company this Release within the time period specified in this Release and this Release becomes effective, that Executive complies with the restrictive covenants set forth in the Employment Agreement.
B.Executive and Company desire to enter into this Release in order to resolve any disputes regarding, or relating to, Executive’s employment with, and termination of employment with, Company, and other matters as set forth in this Release, and so that Executive may satisfy the condition regarding execution and delivery of this Release referred to above.
In consideration of Company’s obligations to make the severance payments under the Employment Agreement, Company and Executive agree as follows:
1.Contents of Release. This Release consists of this Signature Page and attached Schedule A (“General Terms and Conditions”), which is incorporated into this Release by reference.
2.Definitions. Except as otherwise defined in this Release, capitalized terms will have the meanings set forth in Section 1 of Schedule A entitled “Definitions.”
THIS RELEASE WILL BECOME EFFECTIVE WHEN AND IN ACCORDANCE WITH THE PROVISIONS OF THIS RELEASE AND ONLY AFTER IT HAS BEEN SIGNED BY BOTH PARTIES BELOW.
IN WITNESS WHEREOF, the Parties have executed this Release on the date(s) set forth below.
|
EXECUTIVE |
COMPANY |
|
|
|
|
Xxxxx X. Xxxxx 00 Xxxxxxxx Xxxx Xxxx XX Xxxxxxx, XX 00000
|
Manhattan Associates, Inc. 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx Xxxxx Xxxxxxx, XX 00000
|
|
/s/ Xxxxx X. Xxxxx EXECUTIVE SIGNATURE |
/s/ Xxxxx Xxxxx AUTHORIZED SIGNATURE |
|
Xxxxx X. Xxxxx NAME PRINTED |
Xxxxx Xxxxx, President and CEO NAME & TITLE PRINTED |
|
January 28, 2016 SIGNATURE DATE |
January 28, 2016 DATE |
|
|
|
Agreement and General ReleaseD-1Revised December 17, 2012
SCHEDULE A GENERAL TERMS AND CONDITIONS
1.Definitions. Except as otherwise specified in this Release, the definitions of the capitalized terms set forth in this Section 1 will apply with respect to the entire Release.
1.1Company. As defined in the Preamble to this Release; provided, however, where the context reasonably requires (e.g., in the release provisions of Section 4.1), “Company” also will include Manhattan Associates, Inc.’s affiliates and assigns.
1.2Effective Date. The date on which this Release becomes effective, which will be the date that is exactly eight (8) days following the Signature Date, unless this Release has been revoked by Executive prior to that date in accordance with the provisions of Section 3 of this Release.
1.3Employment Agreement. As defined in Recital A to this Release.
1.4Executive. As defined in the Preamble to this Release.
1.5Executive’s Related Persons. Executive’s heirs, executors, administrators, beneficiaries, assigns, agents, representatives, attorneys, and successors, and any other persons acting or purporting to act on behalf of, or in the name of, or asserting claims by, on behalf of, or through Executive, and the successors and assigns of those Persons.
1.6Parties. Executive and Company.
1.7Person. A natural person, or a corporation, partnership, limited partnership, joint venture, limited liability company, trust, other business, non-business, charitable, or governmental entity, or governmental agency.
1.8Plan. A Company employee benefit plan, within the meaning ERISA Section 3(3), and any other employee benefit program, agreement, policy or commitment sponsored by, contributed to, or maintained by Company.
1.9Plan Related Parties. All Persons now or previously affiliated with, or that may in the future affiliate with, a Plan in any manner whatsoever, and all of those Persons’ Representatives (if applicable), attorneys, actuaries, accountants, fiduciaries, administrators, administrative committees or other committees, trustees, and representatives.
1.10Release. This Release.
1.11Representatives. With respect to a company, its shareholders, owners, members, directors, managers, officers, employees, agents, representatives, contractors, and trustees.
1.12Separation Date. The date on which the termination of Executive’s employment occurs within the meaning of the Employment Agreement.
1.13Signature Date. The date on which Executive signs this Release.
2.Payments to Executive. In addition to the compensation and benefits to which Executive is entitled based on his employment with Company, whether provided for in the Employment Agreement or otherwise, and subject to the terms and provisions of this Release and the Employment Agreement, Executive will, as additional consideration that the Parties agree is significant and substantial, receive severance payments in accordance with the terms of Section 4 of the Employment Agreement. Those additional consideration payments will be subject to all payroll and income tax withholdings and other authorized deductions.
Manhattan Associates, Inc.
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Human Resources Officer*
*If Executive is the Chief Human Resources Officer, then Executive must deliver the Release or notice to the attention of the Chief Legal Officer.
4.General Release by Executive; Covenant Not To Xxx.
4.1Release. Except as specifically provided in Section 5 below, for and in consideration of the additional consideration to be provided to Executive by Company pursuant to Section 4 of the Employment Agreement, the sufficiency of which Executive acknowledges, Executive does by this Release, for and on behalf of Executive and the Executive Related Persons, fully and finally release, acquit, and forever discharge Company and its Representatives, all Company Plans, and all Plan Related Parties, of and from any and all claims, counterclaims, actions, causes of action, demands, rights, damages, costs, expenses, or compensation that Executive or Executive’s Related Persons now have, or may have, or may in the future claim to have had as of the
A-1
Signature Date, whether developed or undeveloped, anticipated or unanticipated, or known or unknown, based on any acts, omissions, transactions, or occurrences whatsoever occurring prior to or up until the Signature Date, and specifically, but not by way of limitation, from those claims that are, arise by reason of, are in any way connected with, or are or may be based in whole or in part on the employment relationship between Executive and Company, including, without limitation, (i) those claims arising under any foreign, federal, state, county, or municipal fair employment practices act or any law, ordinance, or regulation promulgated by any foreign, federal, state, county, municipal, or other state subdivision; (ii) those claims for breach of duty or implied covenant of good faith and fair dealing; (iii) those claims for interference with or breach of contract (express or implied, in fact or in law, oral or written); (iv) those claims for retaliatory or wrongful discharge of any kind; (v) those claims for intentional or negligent infliction of emotional distress or mental anguish; (vi) those claims for outrageous conduct; (vii) those claims for interference with business relationships, contractual relationships, or employment relationships of any kind; (viii) those claims for breach of duty, fraud, fraudulent inducement to contract, breach of right of privacy, libel, slander, or tortious conduct of any kind; (ix) those claims arising under Title VII of the Civil Rights Act of 1964 or the Civil Rights Act of 1991 or 42 U.S.C. §1981; (x) those claims arising under the Age Discrimination in Employment Act of 1967, the Age Discrimination Claims Assistance Act of 1988, or the Older Workers’ Benefit Protection Act; (xi) those claims arising under any state or federal handicap or disability discrimination law or act, including but not limited to the Rehabilitation Act of 1973 and the Americans with Disabilities Act; (xii) those claims arising from any damages suffered at any time by reason of the effects or continued effects of any alleged or actual discriminatory or wrongful acts; (xiii) those claims arising under or in reliance on any statute, regulation, rule, or ordinance (local, state, or federal); (xiv) those claims arising under ERISA or the Family and Medical Leave Act; and (xv) any and all other claims arising under law or in equity in the United States of America or in any foreign jurisdiction.
4.2Covenant Not to Xxx. Except to the extent that right may not be waived by law, Executive will not commence any legal action or lawsuit or otherwise assert any legal claim seeking relief for any claim released or waived under Section 4.1 above. This “covenant not to xxx” does not, however, prevent or prohibit Executive from later filing a lawsuit challenging the validity of the release of claims under the Age Discrimination in Employment Act. While Executive’s right to seek such a judicial determination by a court is not waived by this Release, the severance payments provided to Executive under Section 4 of the Employment Agreement may serve as restitution, recoupment, or setoff if Executive prevails on the merits of their claim. In addition, even though Executive has released all claims Executive may have for employment discrimination arising before the Signature Date, this “covenant not to xxx” does not prevent or prohibit Executive from filing any administrative complaint or charge against any of the
released Persons with any federal, state, or local agency, including, for instance, the U.S. Equal Employment Opportunity Commission or the U.S. Department of Labor. Executive can file such an administrative complaint or charge, but, as a result of signing this Release, Executive will have no right to recover monetary damages or obtain individual relief of any kind in a proceeding involving such a complaint or charge for claims released in the general release provision in Section 4.1.
6.Non-Solicitation, Non-Competition, and Confidential Information; Return of Property.
6.1Compliance with Restrictions. For and in consideration of the additional consideration to be provided to Executive by Company pursuant to Section 4 of the Employment Agreement, Executive will continue to comply with the provisions set forth in Sections 8 through 11, inclusive, of the Employment Agreement for any respective periods set forth in the Employment Agreement, which Sections are incorporated into this Release by reference. As provided in the Employment Agreement, if a court of competent jurisdiction determines that any of the restrictions set forth in those Sections of the Employment Agreement or the application of those restrictions is unenforceable in whole or in part
A-2
because of the duration or scope of those restrictions, the court in making that determination will have the power to reduce the duration or scope of that provision to the extent necessary to make it enforceable, and the restriction in its reduced form will be valid and enforceable to the full extent permitted by law.
6.2Return of Property. Executive represents that Executive has not destroyed and has returned or will return to Company on or before the Effective Date any and all Company property in their possession or control, including, but not limited to, all keys, credit cards, security cards, computers, cellular telephones, computer hardware and software (including computer discs and storage devices of any kind), and other personal items or equipment provided to Executive by Company for use during Executive’s employment, together with all Company documents and all copies of those documents (both hard copy and electronically stored information), written or recorded materials, plans, records, notes, files, drawings, or papers relating to the affairs of Company, including in particular all notes or records relating to employees of Company. Executive will not take, and Executive certifies that Executive has not taken with them or retained in any manner, copies of any Company documents, whether in electronic or hard copy form, without the express written authorization of Company on or after the Separation Date.
9.Nondisparagement. Each of the Parties will refrain from publicly or privately making any disparaging or defamatory remarks about or directing any disparaging or defamatory conduct towards the other, and Executive will refrain from publicly or privately making any disparaging or defamatory remarks or directing any disparaging or defamatory conduct towards any Person released under this Release. The foregoing restriction prohibits making or engaging in disparaging or defamatory remarks or conduct to any: (i) member of the general public; (ii) employees, customers, vendors, suppliers, or potential customers of Company; or (c) members of the press or other media. The foregoing non-disparagement provision do not apply on occasions where either Party is subpoenaed or ordered by a court or other governmental authority to testify or give evidence or to conduct litigation or give testimony in the context of enforcing the terms of this Release. The foregoing non-disparagement provision does not apply on occasions where either Party provides truthful information in good faith to any federal, state, or local governmental body, agency, or official investigating an alleged violation of any antidiscrimination or other employment-related law or otherwise gathering information or evidence pursuant to any official investigation, hearing, trial, or proceeding. Nothing in this Section is intended in any way to intimidate, coerce, deter, persuade, or compensate Executive with respect to providing, withholding, or restricting any communication whatsoever to the extent prohibited under 18 U.S.C. §§ 201, 1503, or 1512 or under any similar or related provision of state or federal law or providing truthful compelled testimony under oath.
11.Final Resolution; No Indication of Fault. This Release is intended to fully, completely, and forever resolve all disputes or potential disputes based on
A-3
events, omissions, or acts occurring on or prior to the Signature Date as well as all other issues or claims in any way arising out of or connected with the employment of Executive with the Company through and including the Signature Date. The signing of this document is not to be construed as an admission of any liability or fault by Company or by Executive.
12.1Applicable Law. This Release will be governed by and construed in accordance with the laws of the State of Georgia, without reference to its conflict of laws rules.
12.2Dispute Resolution. Exclusive venue for any dispute arising under or in connection with this Release will be in the Federal District Court for the Northern District of Georgia or the Superior Court of Xxxxxx County, Georgia. By this Release, each Party expressly agrees that those courts will have personal jurisdiction and venue with respect to that Party, and each Party submits to the personal jurisdiction and venue of those courts and waives any objection based on inconvenient forum.
12.5Amendments; Waiver. This Release may be amended or modified, in whole or in part, only by a written amendment signed by Executive and, on behalf of Company, by an officer of Company acting with specific authorization and approval of Company’s Board of Directors of the Board’s Compensation
Committee, and no term of this Release may be waived except in a written wavier signed by the Party waiving the benefit of that term (and in the case of Company, with the specific authorization of the Board or the Committee). No failure on the part of either Party to exercise any right will operate as a continuing waiver of that right or a waiver of that Party’s right to exercise the same, a similar, or any other right in the future.
A-4