EXHIBIT 10.36
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") by and between
Manhattan Associates, Inc, a Georgia limited liability company ("Company"), and
Xxxxxx Xxxx ("Executive") is hereby entered into and effective as of the 30th
day of October, 2000 (the "Effective Date").
WHEREAS, Company is engaged in the development, marketing, selling,
implementation and installation of computer software solutions specifically
designed for the management of warehouse and distribution centers for consumer
product manufacturers, retailers and retail and grocery suppliers and
distributors (the "Company Business");
WHEREAS, Company desires to employ executive as Senior Vice President,
International Operations and Managing Director - Europe and Executive desires to
accept said employment by Company; and
WHEREAS, Company and Executive have agreed upon the terms and
conditions of Executive's employment with Company and the parties desire to
express the terms and conditions in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, it is hereby agreed as follows:
A G R E E M E N T S :
1. Employment and Duties.
A. Company shall employ Executive as Senior Vice
President, International Operations and Managing Director - Europe in accordance
with the terms and conditions set forth in this Agreement. Executive hereby
accepts employment on the terms set forth herein. Executive shall report to the
President and Chief Executive Officer or such other executive as may be designed
by the Chief Executive Officer or the Board of Directors.
B. Executive shall have responsibility for International
Sales, planning, strategy, marketing and business development ("Duties") and as
may otherwise be assigned to him from time to time.
C. Executive agrees that he shall at all times
faithfully and to the best of his ability and experience perform all of the
duties that may be required of him pursuant to the terms of this Agreement.
Executive shall devote his full business time to the performance of his
obligations hereunder.
D. Executive may consider his employment terminated if
his Duties or responsibilities are altered without his consent so as to diminish
his Duties or responsibilities as set forth above.
2. Compensation.
A. Base Salary. During his employment hereunder, Company
shall pay to Executive a base salary ("Base Salary") of $12,500.00 per month
($150,000.00 annualized), subject to all standard employment deductions, which
amount may be increased annually at the discretion of the Chief Executive
Officer or Board of Directors.
B. Performance-Related Bonus. Executive shall be
eligible to receive a performance-related bonus of up to $200,000.00 per year,
based on the criteria attached, EXHIBIT A, and subject to all standard
employment deductions. Further, Executive shall be eligible to receive a
performance-related bonus in accordance with the Amendment to Fiscal Year 2000
Bonus Plan; a copy of which is attached.
C. Stock Option. The Executive has received the option
(the "Option") to purchase 240,000 shares of Company pursuant to the Manhattan
Associates, Inc. Option Plan (the "Option Plan").
D. Employee Benefits. Executive shall be entitled to
participate in all employee benefit plans which Company provides for its
employees at the executive level.
E. Expenses. Executive shall be reimbursed for expenses
reasonably incurred in the performance of his duties hereunder in accordance
with the policies of Company then in effect.
F. Vacation. Executive shall accrue one vacation day for
each complete calendar month worked and five additional vacation days shall be
provided immediately.
3. Term. This Agreement is effective when signed by both parties.
The parties agree that Executive's employment may be terminated at any time, for
any reason or for no reason, for cause or not for cause, with or without notice,
by Company or Executive. Upon any such termination, Executive shall return
immediately to Company all documents and other property of Company, together
with all copies thereof, including all Work Product and Proprietary Information,
within Executive's possession or control.
For purposes of this Agreement, Work Product shall mean the
data, materials, documentation, computer programs, inventions (whether or not
patentable), and all works of authorship, including all worldwide rights therein
under patent, copyright, trade secret, confidential information, or other
property right, created or developed in whole or in part by Executive while
performing services in furtherance of or related to the Company Business.
For purposes of this Agreement, Proprietary Information means
all Trade Secrets and Confidential Information of Company.
For purposes of this Agreement, Confidential Information shall
mean Company information in whatever form, other than Trade Secrets, that is of
value to its owner and is treated as confidential.
4. Severance. In the event of a termination of employment other
than a Termination based on gross negligence or willful misconduct, Executive
shall receive a severance payment equal to twelve (12) months of Executive's
then current base annual salary (determined as of the date of his termination)
subject to all standard deductions, payable in
twelve (12) equal monthly installments, and you will receive COBRA payments for
you and your family for medical and dental coverage. Company's obligation to
make the severance payment shall be conditioned upon Executive's (i) execution
of a release agreement in a form reasonably acceptable to the Company, and
consistent with the terms of this Agreement, whereby Executive releases the
Company from any and all liability and claims of any kind, and (ii) compliance
with the restrictive covenants and all post-termination obligations contained in
this Agreement. Further, in the event of a termination, other than a termination
based on gross negligence or willful misconduct, Executive shall have thirty
(30) in which to exercise his vested options.
5. Ownership.
(a) All Work Product will be considered work made for
hire by Executive and owned by Company. To the extent that any Work Product may
not by operation of law be considered work made for hire or if ownership of all
rights therein will not vest exclusively in Company, Executive assigns to
Company, now or upon its creation without further consideration, the ownership
of all such Work Product. Company has the right to obtain and hold in its own
name copyrights, patents, registrations, and any other protection available in
the Work Product. Executive agrees to perform any acts as may be reasonably
requested by Company to transfer, perfect, and defend Company's ownership of the
Work Product.
(b) To the extent any materials other than Work Product
are contained in the materials Executive delivers to Company or its Customers,
Executive grants to Company an irrevocable, nonexclusive, worldwide,
royalty-free license to use and distribute (internally or externally) or
authorize others to use and distribute copies of, and prepare derivative works
based upon, such materials and derivative works thereof. Executive agrees that
during his or her employment, any money or other remuneration received by
Executive for services rendered to a Customer belong to Company.
For purposes of this Agreement, Customers shall mean
any current customer or prospective customer of Company.
6. Trade Secrets and Confidential Information.
(a) Company may disclose to Executive certain Proprietary
Information. Executive agrees that the Proprietary Information is the exclusive
property of Company (or a third party providing such information to Company) and
Company (or such third party) owns all worldwide copyrights, trade secret
rights, confidential information rights, and all other property rights therein.
(b) Company's disclosure of the Proprietary Information
to Executive does not confer upon Executive any license, interest or rights in
or to the Proprietary Information. Except in the performance of services for
Company, Executive will hold in confidence and will not, without Company's prior
written consent, use, reproduce, distribute, transmit, reverse engineer,
decompile, disassemble, or transfer, directly or indirectly, in any form, or for
any purpose, any Proprietary Information communicated or made available by
Company to or received by Executive. Executive agrees to notify Company
immediately if he discovers any unauthorized use or disclosure of the
Proprietary Information.
(c) To further protect Proprietary Information, Executive
agrees that if his or her employment with Company ends for any reason during the
first three (3) years after the initial date of employment, then for a period of
six (6) months after the end of Executive's employment he will not, without
Company's prior written consent, perform any of the Duties that he performed on
behalf of Company for the Executive's immediately prior employer if such prior
employer competes with the Company Business.
(d) Executive's obligations under this Agreement with
regard to (i) Trade Secrets shall remain in effect for as long as such
information remains a trade secret under applicable law, and (ii) Confidential
Information shall remain in effect during Executive's employment with Company
and for three years thereafter. These obligations will not apply to the extent
that Executive establishes that the information communicated (1) was already
known to Executive, without an obligation to keep it confidential at the time of
its receipt from Company; (2) was received by Executive in good faith from a
third party lawfully in possession thereof and having no obligation to keep such
information confidential; or (3) was publicly known at the time of its receipt
by Executive or has become publicly known other than by a breach of this
Agreement or other action by Executive.
7. Non-Solicitation.
A. Customers. The relationships made or enhanced during
Executive's employment with Company belong to Company. During Executive's
employment and the one year period beginning immediately upon the termination of
Executive's employment with Company for any reason (the "One Year Limitation
Period"), Executive will not, without Company's prior written consent, contact,
solicit or attempt to solicit, on his own or another's behalf, any Customer with
whom Executive had contact in the one year prior to the end of Executive's
employment with Company for any reason (the "One Year Restrictive Period") with
a view of offering, selling or licensing any program, product or service that is
competitive with the Company Business.
B. Employees/Independent Contractors. During Executive's
employment and the One Year Limitation Period, Executive will not, without
Company's prior written consent, call upon, solicit, recruit, or assist others
in calling upon, soliciting or recruiting any person who is or was an employee
of Company during the One Year Restrictive Period.
8. Non-Competition. During the One Year Limitation Period,
Executive agrees that he will not, without Company's prior written consent,
perform his or her Duties for any person or entity that competes directly with
the Company Business if Company is still engaged in the Company Business during
such One Year Limitation Period. The parties agree and acknowledge that (i) the
definitions of Duties and period of restriction reasonably and fairly limit this
noncompete restriction and are reasonably required for Company's protection
because Executive must perform his or her Duties on behalf of Customers; and
(ii) by having access to information concerning employees and Company's
Customers, Executive shall obtain a competitive advantage as to such parties.
9. Acknowledgments. The parties hereto agree that: (i) the
restrictions contained in this Agreement are fair and reasonable in that they
are reasonably required for the protection of Company; (ii) by having access to
information concerning employees and customers of Company, Executive shall
obtain a competitive advantage as to such parties; (iii) the covenants and
agreements of Executive contained in this Agreement are reasonably necessary to
protect the interests of Company in whose favor said covenants and agreements
are imposed in light of
the nature of Company's business and the involvement of Executive in such
business; (iv) the restrictions imposed by this Agreement are not greater than
are necessary for the protection of Company in light of the substantial harm
that Company will suffer should Executive breach any of the provisions of said
covenants or agreements and (v) the covenants and agreements of Executive
contained in this Agreement form material consideration for this Agreement.
10. Remedy for Breach. Executive agrees that the remedies at law
of Company for any actual or threatened breach by Executive of the covenants
contained in Sections 5. through 8. of this Agreement would be inadequate and
that Company shall be entitled to specific performance of the covenants in such
paragraphs or injunctive relief against activities in violation of such
paragraphs, or both, by temporary or permanent injunction or other appropriate
judicial remedy, writ or order, in addition to any damages and legal expenses
(including attorney's fees) which Company may be legally entitled to recover.
Executive acknowledges and agrees that the covenants contained in Sections 5.
through 8. of this Agreement shall be construed as agreements independent of any
other provision of this or any other agreement between the parties hereto, and
that the existence of any claim or cause of action by Executive against Company,
whether predicated upon this or any other agreement, shall not constitute a
defense to the enforcement by Company of said covenants.
11. No Prior Agreements. Executive hereby represents and warrants
to Company that the execution of this Agreement by Executive and Executive's
employment by Company and the performance of Executive's duties hereunder shall
not violate or be a breach of any agreement with a former employer, client or
any other person or entity.
12. Assignment; Binding Effect. Executive understands that
Executive has been selected for employment by Company on the basis of
Executive's personal qualifications, experience and skills. Executive agrees,
therefore, that Executive cannot assign all or any portion of Executive's
performance under this Agreement. Subject to the preceding two (2) sentences and
the express provisions of Section 13. below, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto and their
respective heirs, legal representatives, successors and assigns. The rights and
obligations of Company hereunder shall be available to a successor in interest
of Company, including a successor established for the purpose of converting
Company to a corporation.
13. Complete Agreement. This Agreement is not a promise of future
employment. Executive has no oral representations, understandings or agreements
with Company or any of its officers, directors or representatives covering the
same subject matter as this Agreement. This Agreement hereby supersedes any
other employment agreements or understandings, written or oral, between Company
and Executive. This written Agreement is the final, complete and exclusive
statement and expression of the agreement between Company and Executive and of
all the terms of this Agreement, and it cannot be varied, contradicted or
supplemented by evidence of any prior or contemporaneous oral or written
agreements. This written Agreement may not be later modified except by a further
writing signed by a duly authorized officer of Company and Executive, and no
term of this Agreement may be waived except by writing signed by the party
waiving the benefit of such term.
14. Notice. Whenever any notice is required hereunder, it shall be
given in writing addressed as follows:
To Company: Manhattan Associates, Inc
0000 Xxxxx Xxxxx Xxxx
0(xx) Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: President
To Executive: Xxxxxx Xxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Notice shall be deemed given and effective three (3) days
after the deposit in the U.S. mail of a writing addressed as above and
sent first class mail, certified, return receipt requested, or when
actually received. Either party may change the address for notice by
notifying the other party of such change in accordance with this
Section 14.
15. Severability; Headings. If any portion of this Agreement is
held invalid or inoperative, the other portions of this Agreement shall be
deemed valid and operative and, so far as is reasonable and possible, effect
shall be given to the intent manifested by the portion held invalid or
inoperative. The Section headings herein are for reference purposes only and are
not intended in any way to describe, interpret, define or limit the extent or
intent of the Agreement or of any part hereof.
16. Counterparts. This Agreement may be executed simultaneously in
two (2) or more counterparts, each of which shall be deemed an original and all
of which together shall constitute, but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMPANY:
Manhattan Associates, Inc.
By:/s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: CEO
Date: 10/30/00
EXECUTIVE:
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
Date: October 30, 2000
