EXHIBIT 10.35
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is effective as of date set forth below
("Effective Date"), by and between Manhattan Associates, Inc., a Georgia company
("Company"), and the undersigned employee ("Employee"), an individual. For and
in consideration of Employee's employment and continued employment and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS. Defined terms used herein are defined in the recitals and at
the end of this Agreement.
2. OWNERSHIP. (a) All Work Product will be considered work made for hire by
Employee 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, Employee 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. Employee 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 Employee delivers to Company or its Customers, Employee 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. Employee agrees that during his or her employment,
any money or other remuneration received by Employee for services rendered to a
Customer belong to Company.
3. TRADE SECRETS AND CONFIDENTIAL INFORMATION. (a) Company may disclose to
Employee certain Proprietary Information. Employee 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 Employee
does not confer upon Employee any license, interest or rights in or to the
Proprietary Information. Except in the performance of services for Company,
Employee 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 Employee. Employee agrees to notify Company immediately if he
or she discovers any unauthorized use or disclosure of the Proprietary
Information.
(c) To further protect Proprietary Information, Employee agrees that if
his or her employment with Company ends for any reason during the first three
years after the initial date of employment, then for a period six (6) months
after the end of Employee's employment he or she will not, without Company's
prior written consent, perform any of the Duties that he or she performed on
behalf of Company for the Employee's immediately prior employer if such prior
employer competes with the Company Business.
(d) Employee'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 Employee's employment with Company and for three years
thereafter. These obligations will not apply to the extent that Employee
establishes that the information communicated (1) was already known to Employee,
without an obligation to keep it confidential at the time of its receipt from
Company; (2) was received by Employee 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 Employee
or has become publicly known other than by a breach of this Agreement or other
action by Employee.
4. CUSTOMER NON-SOLICITATION. The relationships made or enhanced during
Employee's employment with Company belong to Company. During Employee's
employment and the One Year Limitation Period, Employee will not, without
Company's prior written consent, contact, solicit or attempt to solicit, on his
or her own or another's behalf, any Customer with whom Employee had contact in
the Two Year Restrictive Period with a view of offering, selling or licensing
any program, product or service that is competitive with the Company Business.
5. EMPLOYEE NON-SOLICITATION. During Employee's employment and the One Year
Limitation Period, Employee 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 Two Year
Restrictive Period.
6. NONCOMPETE. During the One Year Limitation Period, Employee agrees that he or
she will not, without Company's prior written consent, perform his or her Duties
for any person or entity in the Territory which competes 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 Territory and period of restriction reasonably and
fairly limit this noncompete restriction and are reasonably required for
Company's protection because Employee must perform his or her Duties on behalf
of Customers who are located throughout the Territory; and (ii) by having access
to information concerning employees and Company's Customers, Employee shall
obtain a competitive advantage as to such parties.
7. WARRANTIES OF EMPLOYEE. Employee warrants that he or she is not presently
under any agreement that will prevent him or her from the performance of duties
for Company, and is not in breach of any agreement with respect to any trade
secrets or confidential information owned by any other party.
8. INJUNCTIONS. Employee agrees that certain breaches by Employee of this
Agreement will result in irreparable harm to Company and that the remedies at
law for such breaches may not adequately compensate Company for its damages.
Employee agrees that in the event of any such breaches, Company shall be
entitled to an injunction in addition to any other remedies at law.
9. UNENFORCEABILITY. Any holding that a provision of this Agreement is invalid
or unenforceable by a court of competent jurisdiction shall not affect the
enforceability of any other provisions. If for any reason the restrictions in
Sections 3 through 6 are held to be invalid or unenforceable, then such
restrictions shall be interpreted or modified to include as much of the duration
and scope as will render such restrictions valid and enforceable.
10. TERM. This Agreement is effective when signed by both parties and will
remain in effect for an indefinite period of time. The parties agree that
Employee'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
Employee. Upon any such termination, Employee 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
Employee's possession or control.
11. MISCELLANEOUS. This Agreement may not be modified except by a writing signed
by both parties, except that it may be supplemented by rules and regulations
described in Company employee handbook and other documents provided to Employee
from time to time, and Employee agrees to follow such rules and regulations. Due
to the personal nature of this Agreement, Employee may not assign his or her
rights or obligations under this Agreement without the prior written consent of
Company. This Agreement will be governed by the laws of the State of New York
without regard to its rules governing conflicts of law. This Agreement
represents the entire understanding of the parties concerning its subject matter
and supersedes and terminates all prior communications, agreements and
understandings relating to the same. All communications concerning or required
by this Agreement shall be in writing and shall be deemed given when delivered
to the address listed below (as may be amended by notice), by hand, courier or
express mail, or by registered or certified United States mail, return receipt
requested, postage prepaid.
The parties have executed this Agreement effective as of the ____ day of
________, 20__ ("Effective Date").
COMPANY:
EMPLOYEE:
MANHATTAN ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------- ▇▇▇▇ ▇▇▇▇▇▇
Title: EE Relations Manager (Print Name)
/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------
Date: 4/23/02 Signature
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Date:________________
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ SSN:_________________
Attention:______________
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
DEFINITIONS
"Company Business" shall be 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.
"Confidential Information" means Company information in whatever form, other
than Trade Secrets, that is of value to its owner and is treated as
confidential.
"Customer" means any current customer or prospective customer of Company.
"Duties" shall mean those duties of the Employee while he/she was employed with
the Company. This includes [selling and marketing] [the development of]
[performing consulting services for customers with respect to] [the marketing
of] computer software solutions developed by the Company which are specifically
designed for management of warehouse and distribution centers.
"One Year Limitation Period" shall mean the twelve month period beginning
immediately upon the termination of Employee's employment with Company for any
reason.
"Proprietary Information" means all Trade Secrets and Confidential Information
of Company.
"Territory" shall mean the United State of America.
"Trade Secrets" means information of Company constituting a trade secret within
the meaning of Section 10-1-761(4) of the Georgia Trade Secrets Act of 1990,
including all amendments hereafter adopted.
"Two Year Restrictive Period" shall mean the two years prior to the end of
Employee's employment with Company for any reason.
"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 Employee while performing services in furtherance of or related to the
Company Business.
EXHIBIT A
The "Duties" of the Employee shall be [to sell and market] [the development of]
[performing consulting services for customers with respect to] [the marketing
of] computer software solutions developed by the Company which are specifically
designed for management of warehouse and distribution centers.
The "Territory" is the United States of America.
[Manhattan Associates, Inc. Letterhead]
March 11, 2002
Mr. ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇:
Manhattan Associates is pleased to present this offer of employment to you to
join us in the position of Senior Vice President, Marketing, reporting to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President and CEO, beginning in mid April or as soon as
professionally possible. This offer of employment is contingent upon the receipt
of a satisfactory investigative report. If our offer is accepted, this letter
will serve to confirm our understanding of the terms and conditions of your
employment.
COMPENSATION
You will be compensated with a semi-monthly salary of $6,250.00, which is
equivalent to an annual salary of $150,000.00, subject to all standard
employment deductions.
PERFORMANCE BONUS
You will be eligible to earn an annual performance bonus of $100,000.00 of which
$30,000.00 is guaranteed for the year 2000. The potential bonus will be based on
milestones set up by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
RELOCATION
Manhattan Associates will pay for relocation expenses for you and your family,
which includes moving of your household goods, 2 house hunting trips to Atlanta
for you and your spouse, and 1 1/2% of the realtor commission fee up to
$15,000.00. All expenses must be documented with receipts.
STOCK OPTIONS
This offer of employment includes a stock option grant of 100,000 shares of
Manhattan Associates common stock, pursuant to the Manhattan Associates, Inc.
stock option plan. This option grant and strike price is subject to the approval
of the Company's Board of Directors. If approved the strike price will be set
based on the date of your signed acceptance. The previous day's closing price
will be the strike price. The options will vest in accordance to the terms set
forth in the option agreement as follows:
- 1/5 of the options will vest on your first-year anniversary
date
- 1/5 of the options will vest on your second-year anniversary
date
- 1/5 of the options will vest on your third-year anniversary
date
- 1/5 of the options will vest on your fourth-year anniversary
date
- 1/5 of the options will vest on your fifth-year anniversary
date
▇▇▇▇ ▇▇▇▇▇▇
MARCH 11, 2002
PAGE 2 OF 3
OFFICE LOCATION
Your office location will be in Atlanta, Georgia.
POLICIES AND BENEFITS
As an employee of Manhattan Associates, you will be provided with a copy of the
Manhattan Associates Employee Manual, and insurance booklets which outline our
personnel policies and benefits program.
Currently, these benefits include the following:
- Health insurance will be available as either Option
1 (PPO with only in network access), or Option 2
(PPO with in and out of network access), coverage
becomes effective on your employment start date
- Company paid life and AD&D insurance (1 x salary); effective
on your employment start date
- Comprehensive dental insurance; effective on your employment
start date
- Company paid short- and long-term disability coverage;
effective on the first of the month following 30 days of
employment
- 401K Program with employer match; eligibility for employee
contributions begin on the first day of employment; employer
match begins with 2nd year of employment
- One vacation day per complete month worked during your first
year of employment, as per our vacation policy, and one
vacation day per complete month worked (up to 12) for the year
thereafter; upon completion of your third year of employment
1.42 vacation days per complete month worked (up to 17)
- 9 paid holidays per year
- Educational assistance program; eligible after 6 months of
employment
- Discounted health club membership
- Credit Union and Group Banking privileges through SunTrust
Bank
▇▇▇▇ ▇▇▇▇▇▇
MARCH 11, 2002
PAGE 3 OF 3
AT-WILL EMPLOYMENT
If you choose to accept this offer, please understand your employment is
"at-will," voluntarily entered into and is for no specific period. As a result,
you are free to resign at any time, for any reason, or for no reason. Similarly,
Manhattan Associates is free to continue its at-will employment relationship
with you at any time, with or without cause.
CONFIDENTIALITY AND AUTHORIZATION TO WORK
As a condition of employment, you will be requested to sign an Employment
Agreement. You should also note that you would be required to show proof of
citizenship, permanent residency in the U.S., or authorization to work in the
U.S. within three business days of your date of hire.
SEVERANCE
You will receive a severance payment equal to six (6) months of your then
current base salary should you be terminated for a reason other than termination
for cause and paid in either twelve (12) equal monthly installments or one lump
sum at our discretion and subject to the execution of a severance agreement. No
such payment will be due should you voluntarily resign.
NON-COMPETE
Upon termination with Manhattan Associates and for twelve (12) months you agree
not to use or share any confidential, proprietary of trade secret information
about any aspect of Manhattan Associates' business with any other party at any
time in the future. You also agree that you will not work for any of the direct
competitors of Manhattan Associates listed in Schedule A (attached) for a period
of twelve (12) months from the date of your termination. Further, you agree that
you will not recruit, hire, or cause to be hired, any of Manhattan Associates'
employees for a period of twelve (12) months from the date of your termination.
ACCEPTANCE
To indicate your acceptance of this offer, please sign below, and return to me.
This letter, along with the Manhattan Associates Employee ▇▇▇▇▇▇ which you will
receive at the start of employment, set forth the terms of your employment with
Manhattan Associates and supersede any prior representations and agreements,
whether written or oral. This letter may only be modified by a written agreement
signed by you and the Chief Financial Officer or me.
▇▇▇▇ ▇▇▇▇▇▇
MARCH 11, 2002
PAGE 4 OF 3
We hope you agree that you have a great contribution to make to the software
industry by way of Manhattan Associates, and that you will find working here a
rewarding experience. We look forward to the opportunity of working with you to
create a successful company, and we are confident that your employment with
Manhattan Associates will prove mutually beneficial.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
Vice President, Human Resources
AGREED AND ACCEPTED BY:
/s/ ▇▇▇▇ ▇▇▇▇▇▇ Date: 3/11/02
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇