Exhibit 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), is made effective as of
January 28, 2005 (the "Effective Date") by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
("Employee") and Indus International, Inc. ("Company"). Because Company desires
to employ Employee and because Employee desires to be employed by Company, both
parties, in consideration of the mutual and exchanged promises and agreements
contained herein and of wages paid and services rendered hereunder, hereby agree
as follows:
SECTION 1. EMPLOYMENT.
(a) Subject to the terms contained in this Agreement, Company hereby
employs Employee and Employee hereby accepts such employment. Initially,
Employee shall have the title of EXECUTIVE VICE PRESIDENT, though this position
and title subsequently may be changed by Company as Company or its needs grow or
change. Employee shall perform all duties assigned by the Company. Employee
shall devote his full business time and best efforts exclusively to rendering
services on behalf of Company. Employee agrees to perform faithfully,
industriously, and to the best efforts of Employee's experience and talent all
of the duties that may be required by the express and implicit terms of this
Agreement, to the reasonable satisfaction of Company. Such duties shall be
provided at such place(s) and time(s) as Company may require.
(b) Employee recognizes that he owes a duty of loyalty to Company and he
agrees that, while he is employed by Company pursuant to this Agreement, he
shall not be engaged in any other business. Employee shall provide Company with
all information, suggestions and recommendations Employee conceives or learns
regarding Company's business that could be of benefit to Company. Employee shall
refrain from any activity or action that creates a conflict of interest with
Company, creates the appearance of a conflict of interest with Company or
reasonably could be expected to have a detrimental effect upon any aspect of
Company's performance or upon Employee's ability to perform his duties. Employee
shall not accept any position as a director, trustee or other affiliate of any
business organization, or as a director or trustee of any civic or charitable
organization without the prior written approval of the Chief Executive Officer
of the Company.
SECTION 2. COMPENSATION AND BENEFITS.
(a) Base Salary. While employed hereunder, Employee shall be paid a salary
at the annual rate of Two Hundred Fifty Thousand Dollars ($250,000.00) less
withholding for taxes and deductions for other appropriate items. Any salary
adjustments shall be at the discretion of the Compensation Committee of the
Board of Directors. All compensation payments will cease upon termination of
this Agreement; provided, however, that Employee shall be paid for all time
worked prior to the termination.
(b) Employee Benefit Plans. Except as otherwise provided in this
Agreement, Employee shall be entitled to participate in all employee welfare and
benefit programs, if any, maintained by the Company to the same extent and under
the same conditions as other employees of the Company. Notwithstanding the
foregoing sentence, Employee will initially be eligible to accrue twenty (20)
days of paid time off ("PTO") per year. Employee understands and agrees that the
Company may change, amend or discontinue entirely any employee benefit at any
time, with or without advance notice, at its sole discretion, including without
limitation, Employees annual PTO accrual.
(c) Stock Options. Employee will receive a stock option grant for One
Hundred Fifty Thousand (150,000) shares of the Company's common stock as of the
Effective Date under the terms of the Company's 1997 Stock Plan, as amended.
SECTION 3. TERMINATION.
This Agreement may be terminated by the Company or the Employee at any
time and for any reason.
SECTION 4. 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
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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 "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 Employee's
employment hereunder and for a period of one (1) year after Employee's
employment with Company terminates for any reason, Employee 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 Employee Officer of Company. During
the term of this Agreement and perpetually thereafter, for so long as the
information remains a Trade Secret, Employee shall not directly or indirectly,
for himself or for others, without the prior express written consent of the
Chief Employee Officer of Company, transmit or disclose any Trade Secrets to any
person, concern or entity, or make use of any such Trade Secrets. Employee
warrants that he has not disclosed or used for his own benefit or the benefit of
anyone other than Company any Confidential Information or Trade Secrets prior to
the execution of this Agreement.
(d) Enforceability of Covenants. Employee and Company agree that
Employee'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.
SECTION 5. NONRECRUITMENT AND NONSOLICITATION COVENANTS.
(a) Nonrecruitment of Employees. In consideration of the compensation and
benefits being paid and to be paid by Company to Employee hereunder, Employee
hereby agrees that, during employment with Company and for one (1) year after
the termination of Employee's employment, Employee 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 Employee worked
during Employee'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. Employee agrees to exercise his best efforts to prevent any of the
activities listed in this section from occurring.
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(b) Nonsolicitation of Customers. In consideration of the compensation and
benefits being paid and to be paid by Company to Employee hereunder, Employee
hereby agrees that, during his employment with Company and for one (1) year
after the termination of Employee's employment, Employee 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 Employee had, alone or in
conjunction with others, Material Contact during the one (1) year prior to the
termination of Employee'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 immediately prior to the termination of
Employee's employment and with whom Employee had Material Contact on the
Company's behalf during that same time period. For purposes of this covenant,
Employee had "Material Contact" with a customer if (i) Employee had business
dealings with the customer on the Company's behalf; (ii) Employee was
responsible for supervising or coordinating the dealings between the customer
and the Company; or (iii) Employee obtained Trade Secrets or Confidential
Information (such terms having the same meanings as defined in Section 4 above,
but in each case relating to the Customer or Potential Customer) about the
customer as a result of Employee's association with the Company.
(c) Enforceability of Covenants. Employee 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. Employee 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. Employee 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.
Employee and Company agree that Employee'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.
Employee 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. Employee 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 Employee pay all costs
and attorneys' fees incurred by Company in enforcing the restrictive covenants
in this Agreement.
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SECTION 6. 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, 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 Employee pursuant to this Agreement or
other agreements between Employee 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. Employee agrees that any
and all Protected Works developed by Employee 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 Employee for development or transfer of such Protected
Works. Employee 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. Employee further agrees at
Company's request and without further consideration, but at the expense of
Company, that Employee will communicate to Company any facts known to Employee
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. Employee 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. Employee agrees to exercise
reasonable care to avoid making the Protected Works available to any third
party. Employee 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 Employee
without the express written consent of Company.
(c) Employee 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 Employee, either alone or with others, during the term of Employee's
employment, or in connection with the formation of Company, and (ii) all
Protected Works which are based in whole or in part
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upon Confidential Information or Trade Secrets and are created by Employee,
either alone or with others, within one (1) year after Employee's leaving
Company's employ.
(d) There is no other contract or duty on Employee's part now in existence
to assign Protected Works to anyone other than Company. Employee will not
disclose or induce Company to use any confidential information or material that
Employee is now or shall become aware of which belongs to anyone other than
Company. During Employee's employment by Company, Employee 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 Employee's employment.
SECTION 7. 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 Employee shall use or prepare or come in contact
with in the course of, or as a result of, Employee'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 Employee by Company or obtained
by Employee, directly or indirectly, from Company, also shall remain the sole
property of Company. Upon the termination of Employee's employment or upon the
prior demand of Company, Employee 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.
SECTION 8. INVENTIONS, DISCOVERIES AND IMPROVEMENTS.
(a) Employee will promptly disclose and describe to Company (i) all
inventions, improvements, discoveries and technical developments, whether or not
patentable, made or conceived by Employee, either alone or with others
("Inventions"), during the term of Employee'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 Employee,
either alone or with others, within one (1) year after Employee's leaving
Company's employ. All such Inventions, whether patentable or unpatentable, made,
devised or discovered by Employee, 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. Employee agrees to execute an assignment to Company or its nominee of
Employee's entire right, title and interest in and to such Inventions made or
conceived by Employee, either alone or with others, during the term of
Employee's employment or within one (1) year after Employee's leaving Company's
employ, and to execute any other instruments and documents that may be requested
by Company for the
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purpose of applying for and obtaining patents with respect to such Inventions in
the United States and in all foreign countries. Employee 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 Employee'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 Employee
or on Employee's behalf during Employee's employment or other engagement with
Company, whether before or after execution of this Agreement, or within one (1)
year after Employee's leaving Company's employ, describing an Invention within
the scope of Employee's work for Company or which otherwise relates to a portion
of Company's business of which Employee had knowledge during Employee's
employment with Company, it is to be conclusively presumed that the Invention
was conceived by Employee during the period of such employment.
(c) There is no other contract or duty on Employee's part now in existence
to assign Inventions other than to Company. Employee will not disclose or induce
Company to use any confidential information or material that Employee is now or
shall become aware of which belongs to anyone other than Company. During
Employee's employment by Company, Employee 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 Employee's
employment.
(d) Employee 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 Employee or by others, conceived by Employee
prior to Employee's employment by Company, that these are the only inventions
which are not subject to this Agreement, and that Employee has not conceived or
reduced to practice any invention not described on such Exhibit A.
SECTION 9. WORKS MADE FOR HIRE.
Company and Employee acknowledge that in the course of Employee's
employment (as employee or independent contractor) by Company, Employee 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 Employee, and Employee 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.
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SECTION 10. COMPLIANCE WITH POLICIES AND LAWS.
(a) Policies. Employee agrees to comply with any and all Company policies,
work rules or standards of conduct and pledges to observe order and discipline
of work.
(b) Laws. Employee agrees to abide by the laws of the United States and
all other applicable jurisdictions and to exercise good judgment in the best
interest of Company.
SECTION 11. ARBITRATION AGREEMENT.
With the exception of any dispute arising under Sections 4, 5, 6, 7, 8 and
9 of this Agreement, Company and Employee agree that any dispute arising in
connection with, or relating to, this Agreement or the termination of this
Agreement, to the maximum extent allowed by applicable law, shall be subject to
resolution through informal methods and, failing such efforts, through
arbitration. Either party may notify the other party of the existence of a
dispute by written notice as described below in Section 12(d). The parties shall
thereafter attempt in good faith to resolve their differences within thirty (30)
days after the receipt of such notice. If the dispute cannot be resolved within
the 30-day period, either party may file a written demand for arbitration with
the other party. The arbitration shall proceed in accordance with the terms of
the Federal Arbitration Act and the rules and procedures of the American
Arbitration Association. A single arbitrator shall be appointed through the
American Arbitration Association's procedures to resolve the dispute.
The parties agree that in the event arbitration is necessary, the laws of
the State of Georgia and any applicable federal law shall apply. The place of
the arbitration shall be Atlanta, Georgia.
The award of the arbitrator shall be binding and conclusive upon the
parties. Either party shall have the right to have the award made the judgment
of a court of competent jurisdiction in the State of Georgia.
SECTION 12. MISCELLANEOUS.
(a) 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 Employee in agreeing to the provisions of this Agreement will not
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be impaired and the provision in question shall be enforceable to the fullest
extent of the applicable laws.
(b) 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.
(c) Withholding of Taxes. 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.
(d) Notice. For purposes of this Agreement, all communications including,
without limitation, notices, consents, requests or approvals, provided for
herein shall be in writing and shall be deemed to have been duly given when
personally delivered or five (5) business days after having been mailed by
United States registered mail or certified mail, return receipt requested,
postage prepaid, addressed to Company (to the attention of the Secretary of the
Company) at its principal Employee office or to Employee at his principal
residence, or to such other address as any party may have furnished to the other
in writing and in accordance herewith, except the notices of change of address
shall be effective only upon receipt.
(e) Governing Law. This Agreement shall be deemed to be made in and shall
in all respects be interpreted, construed and governed by and in accordance with
the laws of the State of Georgia (without giving effect to the conflict of law
principles thereof). 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.
(f) 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 supersedes any former agreements
governing the same subject matter. 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 Employee's
employment shall be construed to give Employee 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY EMPLOYEE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President and CEO ▇▇▇▇▇▇ ▇▇▇▇▇
2/7/05 2/7/05
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DATE DATE
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Exhibit 10.5
EXHIBIT A
EMPLOYEE'S PRIOR INVENTIONS
NONE.
