EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), is made effective as of
September 16, 2002 (the "Effective Date") by and between Xxxxxxx X. Xxxxx
("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 of Worldwide
Operations reporting to the Chief Executive Officer, though this position and
title subsequently may be changed by Company as Company or its needs grow or
change. Employee shall perform all duties reasonably assigned by the Company.
Employee shall devote his full business time and efforts exclusively to
rendering services on behalf 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 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 and Fifty Thousand Dollars
($250,000.00), less withholding for taxes and deductions for other appropriate
items ("Base Salary"). Employee's Base Salary shall be paid in accordance with
the Company's payroll practices. Any salary adjustments shall be in the
discretion of the Chief Executive Officer. In addition to the base salary
described above. 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) Bonus. In addition to the Base Salary, Employee may receive a
performance bonus during each year of employment with the Company under this
Agreement equal to an amount, to be determined by the Company's Board of
Directors or the Compensation Committee, of up to one hundred percent (100%) of
Base Salary; provided, however, that, the payment of any such bonus shall be
subject to Employee's continued employment with the Company through the end of
the applicable Company fiscal year and shall be prorated for the months of
service during the applicable fiscal year. Such performance bonus, if any,
shall be determined by the board or the Compensation Committee based upon its
evaluation of performance relative to the business plan and other pertinent
considerations.
(c) 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. 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.
(d) Stock Option. The Company will recommend to the Board of
Directors or the Compensation Committee that, at the earliest practicable date
following the Effective Date, Employee be granted a stock option, which will
be, to the extent possible under the $100,000 rule of Section 422(d) of the
Internal Revenue Code of 1986, as amended (the "Code"), intended to be an
"incentive stock option" (as defined in Section 422 of the Code), to purchase
Three Hundred and Fifty Thousand (350,000) shares of the Company's Common Stock
at an exercise price equal to the per share market value of the Company's
Common Stock on the date of the grant (the "Option").
In addition, subject to Employee's continued service to the Company on
the first anniversary of the Effective Date, the Company will recommend to the
Board of Directors or the Compensation Committee that, at the earliest
practicable date following the first anniversary of the Effective Date,
Employee be granted a stock option, which will be, to the extent possible under
the $100,000 rule of Section 422(d) of the Internal Revenue Code of 1986, as
amended (the "Code"), intended to be an "incentive stock option" (as defined in
Section 422 of the Code), to purchase One Hundred Thousand (100,000) shares of
the Company's Common Stock at an exercise price equal to the per share market
value of the Company's Common Stock on the date of the grant (the "Subsequent
Option").
To the extent that any portion of the Option or the Subsequent Option
exceeds the $100,000 rule of Section 422(d) of the Code, the excess shall be
treated as options which are not incentive stock options. The Option and the
Subsequent Option will each vest as to 25% of the shares subject to such option
on the first anniversary of the date of grant, and as to 25% of the shares
subject to such option each year thereafter, so that each of the Option and the
Subsequent Option will be fully vested and exercisable four (4) years from the
date of grant, subject to Employee's continued service to the Company on the
relevant vesting dates. The Option and the Subsequent Option will be subject to
the terms, definitions and provisions of the Company's Stock Plan and the stock
option
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agreement by and between Employee and the Company, both of which documents are
incorporated herein by reference.
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 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.
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(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.
(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
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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.
SECTION 6. INVENTION ASSIGNMENT AGREEMENT.
Employee agrees to enter into the Company's standard Invention
Assignment Agreement upon commencing employment hereunder.
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
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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. [RESERVED]
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.
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, 7, 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
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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 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.
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(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 or
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY EMPLOYEE
By: /s/ Xxxxxx X. Xxxxxxx /s/Xxxxxxx X. Xxxxx
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Title: Chief Executive Officer
9-13-02 9/6/02
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DATE DATE
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