Employment Agreement - Logility Inc. and James Modak
EMPLOYMENT AGREEMENT
THIS AGREEMENT is a legally binding contract between Logility, Inc.,
its affiliates, and its subsidiaries (collectively "Company"), as employer, and
James Modak as a key employee of Company. This Agreement is intended to
-----------
protect important interests of Company, particularly valuable technology and
business interests that Company has acquired over the years. In addition, this
Agreement is intended to provide a way for the Company to prevent unfair
competition in its industry. It is hoped that in the long run the terms of this
Agreement will be a benefit, rather than a burden, to all personnel by promoting
the welfare and success of Company as a leader in its industry and in its
community.
The Company believes that the terms of this Agreement are fair and
reasonable. Many of these terms merely restate or clarify policies and legal
obligations that are already in effect. Certain other terms are new,
particularly the restrictive covenants contained in Sections 5 and 6 hereof.
The continuance of your employment and the willingness of Company to grant you
access to its trade secrets, and business information are contingent upon your
entering into this Agreement.
This Agreement does not replace or alter any written policies of
agreements already in effect. Nothing in this Agreement should be construed as a
guarantee that your employment will continue for any specific period of time.
Unless otherwise agreed in writing, either party may terminate employment at any
time without cause, and Company reserves the right to change the terms of
compensation or to reassign employees to any area at any time.
Section 1
SCOPE OF DUTIES
1.1 While I am employed by Company, I will devote my full business
time, attention, skill, and effort exclusively to the performance of the duties
that Company may assign to me from time to time. During my employment, I will
not engage in any activities or render any services of a business or commercial
nature for anyone other than Company, unless I have obtained advance approval in
writing from the President of the Company or his designee pursuant to a written
appointment.
Section 2
OWNERSHIP OF INVENTIONS AND OTHER DEVELOPMENTS
2.1 Company shall be entitled to own and control all proprietary
technology and all financial, operating, and training idea, processes, and
materials, including works of expression and all copyrights in such works, that
are developed, written, or conceived of by me during employment to the extent
that they relate to Company's current or potential business. Accordingly, I
will disclose, deliver, and assign to Company all such patentable inventions,
discoveries, and improvements; trade secrets; and all work subject to copyright,
and I agree to execute all documents, patent applications, and arrangements
necessary to further document such ownership and/or assignment and to take
whatever other steps may be needed to give Company the full benefit of them.
1
<PAGE>
I specifically agree that all copyrightable materials generated or developed
and covered by this Agreement, including but not limited to computer programs
and documentation, shall be considered works made for hire under the copyright
laws of the United States and that they shall, upon creation, be owned
exclusively by Company.. To the extent that any such materials, under
applicable law, may not be considered works made for hire, I hereby assign to
Company the ownership of all copyrights in such materials, without the necessity
of any further consideration, and Company shall be entitled to register and hold
in its own name all copyrights in respect of such materials
Section 3
CONFIDENTIALITY OF TRADE SECRETS AND BUSINESS INFORMATION
3.1 I acknowledge that during the course of my employment I may
obtain access to trade secrets and confidential information, knowledge or data
concerning the business of the Company. Under the law, a trade secret is a type
of intangible property, and its theft is a crime in most states. A trade secret
generally consists of valuable, secret information or ideas that Company
collects or uses in order to keep its competitive edge. Examples of trade
secrets are system designs, program materials (including source and object code
and system and user documentation), operating processes, equipment design,
product specifications, and any other proprietary technology. Confidential
information, which Company also treats as proprietary, consists of all other
competitively sensitive information kept in confidence by Company. Examples of
confidential information are selling and pricing information and procedures,
customer lists, business and marketing plans, and internal financial statements.
3.2 I agree not to use or disclose any trade secrets of Company at
any time except as necessary to perform my duties for Company. I also agree not
to use or disclose any confidential business information until 10 years after
the termination of my employment, except as necessary to perform my duties for
Company. I further agree that my obligation not to use or disclose trade
secrets or confidential information also extends to such types of information
of customers, prospective customers, vendors, suppliers or agents of the
Company, or other third parties, who may have disclosed such information to the
Company or me in he course of the business of the Company. These restrictions
do not apply to any information generally available to the public or any
information properly obtained from a completely independent source.
Section 4
TERMINATION OF EMPLOYMENT
4.1 At the time my employment is terminated, I will participate in an
exit interview conducted by a designated Company official for the purpose of
finalizing any remaining issues and assuring a proper transition.
2
<PAGE>
4.2 On or before the termination of my employment, I will return all
records, materials, and other physical objects relating to my employment,
including documents, papers, computer software, and passwords and other
identification materials. This obligation applies to all materials relating to
the affairs of Company or any of its customers, prospective customers, vendors,
suppliers, or agents that may be in my possession or control.
Section 5
PROHIBITION AGAINST COMPETITIVE ACTIVITIES AFTER EMPLOYMENT
5.1 FOR A PERIOD OF ONE YEAR FOLLOWING THE TERMINATION OF MY
EMPLOYMENT WITH COMPANY, I WILL NOT ENGAGE, EITHER ON MY OWN BEHALF OR ON BEHALF
OF ANY OTHER PERSON OR ENTITY, IN ANY OF THE PROHIBITED ACTIVITIES SPECIFIED IN
EXHIBIT A ANYWHERE IN THE GEOGRAPHIC TERRITORY SPECIFIED IN EXHIBIT A.
5.2 Company has made every effort to limit the terms of this
obligation to what is absolutely necessary to protect its interest, even though
it is facing intense, worldwide competition in a large and diverse industry.
5.3 This obligation shall apply regardless of whether employment is
terminated with or without cause.
5.4 FOR A PERIOD OF ONE YEAR FOLLOWING THE TERMINATION OF MY
EMPLOYMENT WITH COMPANY I AGREE TO NOTIFY COMPANY IN WRITING EACH TIME I ACCEPT
ANY NEW JOB FOLLOWING THE TERMINATION OF MY EMPLOYMENT. DISCLOSING THE NAME OF
MY NEW EMPLOYER AND THE NATURE OF MY NEW JOB. I AGREE THAT COMPANY MAY CONTACT
MY NEW EMPLOYER WHENEVER I ACCEPT A NEW JOB, TO MAKE SURE THAT I AN IN
COMPLIANCE WITH THE TERMS OF THIS AGREEMENT.
Section 6
PROHIBITION AGAINST UNFAIR RECRUITING PRACTICES
6.1 I agree to notify my supervisor if I am contacted by a customer
or competitor of Company for the purpose of having me accept a job involving
Prohibited Activities as specified in Exhibit A anywhere in the Geographic
Territory specified in Exhibit A at any time during my employment with Company
and for a period of one year thereafter.
6.2 During my employment with the Company and for two years
afterwards, I will not directly or indirectly solicit, recruit or hire nor aid
others in soliciting or hiring any other people who are then employees of
Company, for the purpose of encouraging them to join in any other business
activity of enterprise whatsoever.
3
<PAGE>
Section 7
OTHER TERMS
7.1 The terms of this Agreement shall survive termination of
employment.
7.2 If any provision or part thereof of this Agreement is found by a
court to be unenforceable, all other provisions or parts thereof shall
nevertheless remain enforceable to the fullest extent possible.
7.3 Irreparable harm should be presumed if this Agreement is breached
in any way. Damages would be difficult if not impossible to ascertain, and the
faithful observance of all terms of this Agreement an essential condition to
employment with Company. Furthermore, this Agreement is intended to protect the
proprietary rights of Company and certain third parties in important ways, and
even the threat of any misuse of the technology of Company or such third parties
would be extremely harmful because of the importance of that technology. In
light of these considerations, I agree that a court of competent jurisdiction
should immediately enjoin any breach of this Agreement, upon Company's request,
and Company is released from the requirements of posting any bond in connection
with temporary or interlocutory injunctive relief, to the extent permitted by
law.
This Agreement shall be governed by and enforced under the laws of the
State of Georgia.
4
<PAGE>
I ACKNOWLEDGE THAT, BEFORE SIGNING THIS AGREEMENT, I WAS GIVEN AN OPPORTUNITY TO
READ IT, EVALUATE IT, AND DISCUSS IT WITH MY PERSONAL ADVISORS AND WITH
REPRESENTATIVES OF EMPLOYER.
EMPLOYEE:
/s/ JAMES M. MODAK
---------------------------------------------------
SIGNATURE
JAMES M. MODAK
---------------------------------------------------
NAME (TYPE OR PRINT)
SOCIAL SECURITY NO.
--------------------------------
ADDRESS:
-------------------------------------------
-------------------------------------------
DATE: JULY 24, 1997
-------------------------------------------
ACCEPTED:
LOGILITY, INC.
/s/ J. MICHAEL EDENFIELD
-------------------------------------------
-------------------------------------------
ITS REPRESENTATIVE
J. MICHAEL EDENFIELD
PRESIDENT & CHIEF EXECUTIVE OFFICER
5
<PAGE>
EXHIBIT A
I will not provide computer software installation, consulting,
training, testing, implementation, programming, maintenance or modification
services directly on or affecting any computer software product supplied to any
third party by Logility, Inc., anywhere in the United States of America.
/s/ James M. Modak
------------------------------------------
Signature
James M. Modak
------------------------------------------
Name (Type or Print)
6
<PAGE>
J. Michael Edenfield
President and
Chief Executive Officer
July 21, 1997
Mr. James M. Modak
6953 Wethersfield Road
Columbus, GA 31904-3317
Dear Jim:
This letter will confirm our recent discussions concerning employment
opportunities with Logility, Inc. I trust you will find all the points
discussed below to be consistent with our prior discussions. This job offer is
contingent upon satisfactory background and reference checks and the execution
of the employment agreement. This offer will remain open for seven days after
receipt of this letter.
POSITION
Your title will be that of Chief Financial Officer, Senior Vice-President,
Logility, Inc. We would like you to assume your responsibilities on or about
August 4, 1997. You will report to Mike Edenfield, President and Chief
Executive Officer, Logility, Inc.
COMPENSATION
Your compensation plan will consist of two segments: a monthly salary and an
Incentive Bonus Opportunity.
A. Your monthly salary will be $12,500.00.
B. The Incentive Bonus Opportunity portion of your compensation plan will be
$48,000.00 This assumes all objectives for the various components of the
incentive opportunity are met. Please refer to the following regarding your
bonus opportunity:
I. You will receive a $12,000.00 bonus upon Logility, Inc. going public.
II. You are eligible for an additional $36,000.00 at plan if the
following is met:
a) The average daily closing price of Logility, Inc. stock for the
30 day period commencing 15 days prior to August 4, 1998 is:
1. (Equal to or greater than) 120% of the IPO Price = $6,000.00
2. (Greater than) 120% of the IPO Price then in addition to 1
above, you will receive a variable pro-rated amount of
$12,000.00 at 160% of the IPO Price. For example, at 140% the
pro-rated amount will equal $6,000.00 At 180%, the pro-rated
amount will equal $18,000.00
7
<PAGE>
James Modak
Page 2
July 21, 1997
b) Revenue Growth:
1. If for the 4 quarter period ending July 31, 1998 revenue
growth (equal to or greater than) 30% = $6,000.00
2. Revenue growth (greater than) 30% then in addition to 1
above, you will receive a variable pro-rated amount of
$12,000.00 at 60% growth. For example, at 40% growth the
pro-rated amount will equal $4,000.00; at 80% the pro-rated
amount will equal $20,000.00
TRAVEL EXPENSES
The Company will reimburse you for reasonable travel and living expenses
incurred in the performance of your duties. The Company will pay US$.28 per
mile for all Company related travel via your personal automobile. In addition,
the Company will pay normal business operating costs for a cellular
telephone. The Company will pay all reasonable office expenses which are
authorized and approved in advance
FRINGE BENEFITS
Upon your first day of employment you will be granted 35,000 shares of American
Software stock options at the best market price during the month of your hire.
These options will be exercisable per American Software's existing stock option
plan. In addition, upon the creation of Logility's stock option plan, you will
receive 10,000 shares of Logility stock options. You shall be eligible for
Logility, Inc.'s various standard insurance plans and the 401(k) Profit Sharing
Plan in accordance with the policies therein. An insurance benefits summary is
enclosed for your review. In addition, Logility, Inc. will provide you with a
relocation package that will enable you to move from Columbus, GA to Atlanta,
GA. The relocation plan is detailed in Attachment #1. If you have any questions
regarding the employment offer in general, please call me or Kevvon Burdette at
404/264-5205. If you have any questions regarding the various insurance, 401(k),
vacation/sick leave policies, or other corporate benefits, please call Carla
Maldonado at 404/238-8997.
MISCELLANEOUS
In the event there is a change of control in the ownership of Logility, Inc.,
then if you or the Company terminates your employment within (6) months of such
change of control, you will receive two years of the then current salary.
You have stated to us that "I have not entered into any agreement with my
current and/or previous employer(s) which would preclude my entering into
employment with Logility, Inc. and effectively carrying out my assigned job
responsibilities." A copy of our standard Employment Agreement is enclosed for
your review and signature.
8
<PAGE>
James Modak
Page 3
July 21, 1997
Please indicate your agreement by signing below and returning a signed copy to
Kevvon Burdette, Director of Corporate Recruiting, along with the Employment
Agreement form, the Immigration Reform and Control Act form, the Confidential
Information of Others form and the Employment Application. Please be advised
that this job offer is not valid unless the employment agreement is signed.
Again, we at Logility, Inc. look forward to a long and successful relationship.
Very truly yours,
J. Michael Edenfield
President and
Chief Executive Officer
Accepted:
/s/ James M. Modak
________________________________________
James M. Modak
Enclosures:
Employment Agreement with Exhibit A
Immigration and Naturalization Service Employment Eligibility Verification
Form
Confidential Information of Others Form
Summary of insurance benefits
Employment Application
Attachment #1
9