Executive Employment Agreement - Manhattan Associates Inc. and Jeffrey Mitchell
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") by and between
Manhattan Associates, Inc, a Georgia corporation ("Company"), and Jeffrey
Mitchell ("Executive") is hereby entered into and effective as of the 3rd day of
September, 1999 (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 Vice President, North
American Sales 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 Vice President,
North American Sales 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 the Company's
sales in North America ("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.
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),
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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 based on $150,000.00 per year,
payable quarterly and subject to all standard employment deductions, based on
objective and subjective criteria as described below.
Seventy-five Percent (75%) of the bonus, which equals Twenty
Eight Thousand One Hundred and Twenty Five Dollars ($28,125) on a quarterly
basis, shall be based on the attainment of the following recognizable net
license fee revenue and profit margin objectives:
TABLE 1
Q3 Q4
Recognizable Percentage of Bonus Recognizable Revenue Percentage of Bonus
Revenue
----------- -------------------- -------------------- --------------------
$3,500,000 40% $3,750,000 40%
$4,000,000 60% $4,000,000 60%
$4,250,000 80% $4,250,000 70%
$5,000,000 100% $4,750,000 80%
$5,250,000 120% $5,000,000 90%
$5,550,000 140% $5,500,000 100%
$5,750,000 160% $5,750,000 120%
$6,000,000 140%
$6,250,000 160%
For example, if the Company achieves $5,250,000 in recognizable license
revenue in the third quarter of 1999, then Executive shall receive $33,750 (120%
of $28,125).
The result of this calculation shall be further applied against the
following table to determine the objective portion of Executive's bonus.
TABLE 2
Profit Margin Percentage
-------------- -----------
30% 60%
35% 80%
40% 100%
45% 110%
50% 120%
55% 130%
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In the above example, if Executive achieves a profit margin of 45%,
then Executive shall receive $37,125 (110% of $33,750 as determined by Table 1).
Twenty-five Percent (25%), of the bonus, which equals Nine Thousand
Three Hundred and Seventy-Five Dollars ($9,375) on a quarterly basis, shall be
payable based on the attainment of subjective criteria agreed upon between
Executive and the Chief Executive Officer or such other executive as may be
designated by the Chief Executive Officer or the Board of Directors. These
criteria will include increasing the following Company measures:
- Number of customers
- Average sale size - Proportion of Tier 1, Tier 2 and Tier 3
customers
- Company Revenue
- Margins
- Sales Personnel
- Management of Sales expenses
- Management and adherence to budget process
D. Stock Option. Upon execution of this agreement,
Executive shall receive an option (the "Option") to purchase 160,000 shares of
Company at an exercise price of $7.75 per share pursuant to the Manhattan
Associates, Inc. Option Plan (the "Option Plan"). The Options shall vest
pursuant to the schedule on EXHIBIT A.
E. Employee Benefits. Executive shall be entitled to
participate in all employee benefit plans which Company provides for its
employees at the executive level.
F. 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.
G. Vacation. Executive shall accrue one vacation day for
each complete calendar month worked and five additional vacation days after
three years of employment.
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,
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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, Trade Secrets shall mean
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.
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 within
the first two (2) years of employment, other than a termination based on gross
negligence or willful misconduct, Executive shall receive a severance payment
equal to one-half the amount of Executive's base annual salary (determined as of
the date of his termination) which he would normally receive during the six (6)
months of employment, subject to all standard deductions, payable in full within
thirty (30) days of termination of employment, and Executive will receive COBRA
payments for Executive and Executive's 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 days) 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
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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 two year period beginning immediately upon the termination of
Executive's employment with
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Company for any reason (the "Two 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 two year prior to the end of Executive's employment with Company for any
reason (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.
B. Employees/Independent Contractors. During Executive's
employment and the Two 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 Two Year Restrictive Period for the purpose of having such
person work in any other corporation, entity, or business that is competitive
with the Company business.
8. Non-Competition. During the Two 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 Two 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
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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
2300 Windy Ridge Pkwy
7th Floor
Atlanta, Georgia 30339
Attention: President
To Executive: Jeffrey Mitchell
1557 Valley Reserve Court
Kennesaw, Georgia 30152
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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/ Alan Dabbiere
------------------------
Name: Alan Dabbiere
Title: President
Date: 9/3/99
EXECUTIVE:
/s/ Jeffrey S. Mitchell
---------------------------
Jeffrey Mitchell
Date: 9/3/99
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EXHIBIT B
STOCK OPTION SCHEDULE
Stock Option. Executive shall receive an option (the "Option") to purchase
160,000 shares of Company at an exercise price of $7.75 per share pursuant to
the Manhattan Associates, Inc. Option Plan (the "Option Plan"). The Options
shall vest as follows:
Number of Options Vesting Date
40,000 December 31, 1999
40,000 December 31, 2000
40,000 December 31, 2001
40,000 December 31, 2002
In the event of a Change of Control of the Company and where Executive is
terminated other than for gross negligence or willful misconduct, or where the
Executive's duties and responsibilities are materially diminished and where a
cure has not been effected by Company within sixty (60) days notice of such
diminished responsibilities by Executive then all options whether vested or
non-vested shall vest as of the date of the Change of Control or after the sixty
(60) day notice period, whichever is later.
"Change of Control" shall mean the happening of an that shall be deemed to have
occurred upon the earliest to occur of the following events: (i) the date the
stockholders of the Company (or the Board, if stockholder action is not
required) approve a plan or other arrangement pursuant to which the Company will
be dissolved or liquidated; (ii) the date the stockholders of the Company (or
the Board, if stockholder action is not required) approve a definitive agreement
to sell or otherwise dispose of all or substantially all of the assets of the
Company; or (iii) the date the stockholders or the Company (or the Board, if
stockholder action is not required) and the stockholders of the other
constituent corporations (or their respective boards of directors, if and to the
extent that stockholder action is not required) have approved a definitive
agreement to merge or consolidate the Company with or in to another corporation,
other than, in either case, a merger or consolidation of the Company in which
holders of shares of the Company's voting capital stock immediately prior to the
merger or consolidation will have at least fifty percent (50%) of the ownership
of voting capital stock of the surviving corporation immediately after merger or
consolidation (on a fully diluted basis), which voting capital stock is to be
held by each such holder in the same or substantially similar proportion (on a
fully diluted basis) as such holder's ownership of voting capital stock of the
Company immediately before the merger or consolidation.