Separation and Non-Competition Agreement - Manhattan Associates Inc. and Peter F. Sinisgalli
Execution Copy
SEPARATION AND NON-COMPETITION AGREEMENT
This Separation and Non-Competition Agreement (the "Agreement") is made as of
February 25, 2004 by and between Manhattan Associates, Inc. ("Company") and
Peter F. Sinisgalli ("Executive").
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, and in consideration of the mutual promises and covenants
set forth in this Agreement, the parties agree as follows:
1. Employment. Company has agreed to employ Executive as President and
Chief Operating Officer effective as of April 12, 2004, and as
President and Chief Executive Officer effective as of July 1, 2004, in
accordance with the terms and conditions set forth in this Agreement
and in the Executive Employment Agreement dated as of even date
herewith between the Company and the Executive (the "Employment
Agreement"), and Executive has accepted such employment. This Agreement
governs the terms by which Executive shall receive certain payments in
return for a promise not to compete with the business of the Company in
the event of a termination of his employment.
2. Severance. In the event of a termination or Constructive Termination
(as defined below) of employment by the Company or its successors,
other than a termination for Cause or the expiration of the Employment
Agreement, Executive shall receive a severance payment equal to
eighteen (18) months of Executive's then current base salary, subject
to all payroll and income tax and other authorized deductions, payable
in eighteen (18) equal monthly payments from the date of termination,
including COBRA payments for 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
the form attached hereto as Exhibit A, and (ii) compliance with the
restrictive covenants and all post-termination obligations contained in
this Agreement.
3. Cause. For purposes of this Agreement, Cause shall include but not be
limited to an act or acts or an omission to act by the Executive
involving (i) willful and continual failure to substantially perform
his duties with the Company (other than a failure resulting from the
Executive's disability) and such failure continues after written notice
to the Executive providing a reasonable description of the basis for
the determination that the Executive has failed to perform his duties,
(ii) indictment for a criminal offense other than a misdemeanor not
disclosable under the federal securities laws, (iii) breach of this
Agreement in any material respect where such breach is not susceptible
to remedy or cure or has not already materially damaged the Company, or
is susceptible to remedy or cure and no such damage has occurred, is
not cured or remedied reasonably promptly after written notice to the
Executive providing a reasonable description of the breach, or (iv)
conduct that the Board of Directors of the Company has determined, in
good faith, to be dishonest, fraudulent, unlawful or grossly negligent
or which is not in compliance with the Company's Code of Conduct or
similar applicable set of standards or conduct and business practices
set forth in writing and provided to the Executive prior to such
conduct.
4. Constructive Termination. For purposes of this Agreement, Constructive
Termination shall mean a situation where (A) (i) the Executive is not
serving as President and Chief Operating Officer of the Company through
June 30, 2004 or as President and Chief Executive Officer of the
Company thereafter through April 12, 2008, the Executive is not timely
paid his compensation under this Agreement or the assignment to the
Executive of any duties or responsibilities that are inconsistent with
the status, title, position or responsibilities of such positions
(which assignment is not rescinded after the Company receives written
notice from the Executive providing a reasonable description of such
inconsistency); (ii) after a Change of Control, the Company's
headquarters being outside of the Atlanta, Georgia greater metropolitan
area or the Company requiring the Executive to be based at any place
outside of the Atlanta, Georgia greater metropolitan area; (iii) after
a Change of Control, the failure by the Company to provide the
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Executive with compensation and benefits substantially comparable, in
the aggregate, to those provided for under the employee benefit plans,
programs and practices in effect immediately prior to the Change of
Control (other than stock option and other equity based compensation
plans); (iv) after a Change of Control, the insolvency or the filing
(by any party including the Company) of a petition for bankruptcy of
the Company; or (v) after a Change of Control, the failure of the
Company to obtain an agreement from any successor or assignee of the
Company to assume and agree to perform this Agreement unless such
successor or assignee is bound to the performance of this Agreement as
a matter of law; provided however, that the aforementioned situations
will not be deemed to be a Constructive Termination hereunder until
such time as the Executive has given written notice to the Chairman of
the Board of the situation constituting a "Constructive Termination"
hereunder, and the Chairman of the Board has failed to cure such
situation within thirty (30) days following receipt of such written
notice, and (B) the Executive terminates his employment with the
Company.
5. Change of Control. In the event of a Change of Control of the Company,
as defined below, all options, whether vested or non-vested shall vest
as of the date of the Change of Control. "Change of Control" shall mean
the happening of an event that shall be deemed to have occurred upon
the earliest to occur of the following events: (i) the date the
shareholders of the Company (or the Board, if shareholder action is not
required) approve a plan or other arrangement pursuant to which the
Company will be dissolved or liquidated; (ii) the date the shareholders
of the Company (or the Board, if shareholder 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
shareholders of the Company (or the Board, if shareholder action is not
required) and the shareholders of the other constituent corporations
(or their respective boards of directors, if and to the extent that
shareholder action is not required) have approved a definitive
agreement to merge or consolidate the Company with or into 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 the 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.
6. Non-Competition. As a condition to any payment based on a termination,
Executive agrees that he will not work for any of the direct
competitors to Company listed in Schedule A for a period of eighteen
(18) months from the date of termination without written consent of
Employer. Further, Executive agrees that he will not recruit or hire,
another executive of Employer for a period of eighteen (18) months from
the date of termination or cause another executive of Employer to be
hired by any competitor of Employer for a period of eighteen (18)
months from the date of termination.
7. Effect of Violations. Executive agrees and understands that any action
by him in violation of this Agreement shall void Employer's payment to
the Executive of all severance provided for herein and shall require
immediate repayment by the Executive of the value of all consideration
paid to Executive by Employer pursuant to this Agreement, and shall
further require Executive to pay all reasonable costs and attorneys'
fees incurred by Company in defending any action Executive brings, plus
any other damages to which the Employer may be entitled. Company agrees
and understands that any failure by it to pay Executive any amounts due
hereunder in violation of this Agreement shall require Company to pay
all reasonable costs and attorneys' fees incurred by Executive in
defending any action Company brings, plus any other damages to which
Executive may be entitled.
8. Severability. If any provision, or portion thereof, of this Agreement
is held invalid or unenforceable under applicable statute or rule of
law, only that provision shall be deemed omitted from this Agreement,
and only to the extent to which it is held invalid and the remainder of
the Agreement shall remain in full force and effect.
9. This Agreement shall be governed under the laws of the United States.
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I have read this Agreement, I understand its contents, and I willingly,
voluntarily, and knowingly accept and agree to the terms and conditions of this
Agreement. I acknowledge and represent that I received a copy of this Agreement
on February 25, 2004.
EXECUTIVE:
/s/ Peter F. Sinisgalli February 25, 2004
--------------------------------------------
Peter F. Sinisgalli
EMPLOYER:
MANHATTAN ASSOCIATES, INC.
/s/ Richard M. Haddrill February 25, 2004
--------------------------------------------
Name: /s/ Richard M. Haddrill
Title: President and CEO
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EXHIBIT A
AGREEMENT AND GENERAL RELEASE
THIS AGREEMENT AND GENERAL RELEASE (the "Agreement") is made and
entered into as of the date noted on the last pages hereof, by and between
Manhattan Associates, Inc. (the "Employer") and Peter F. Sinisgalli (the
"Executive").
W I TN E S S E TH:
WHEREAS, pursuant to the terms and provisions of that certain
Separation and Non-Competition Agreement (the "Separation Agreement") between
the parties dated February 25, 2004, the Executive is entitled in certain
circumstances to severance benefits upon the termination of Executive's
employment if the Executive will execute this Agreement; and
WHEREAS, the Executive and the Employer desire to enter into this
Agreement to resolve any disputes regarding, or relating to, the Executive's
relationship with the Employer on or prior to the date of termination of
Executive's employment , and other matters as set forth herein;
NOW, THEREFORE, in consideration of the payment of such severance
benefits under the Separation Agreement, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For all purposes of this Agreement, the following definitions shall be
applicable:
1.1 The term "Agreement" shall mean this Agreement and General
Release between the parties hereto.
1.2 The phrase "Separation Date" shall mean the date on which the
termination of Executive's employment occurs within the
meaning of the Separation Agreement.
1.3 The phrase "Effective Date" shall mean the date on which this
Agreement shall become effective, which shall be the date
which is exactly eight (8) days following the Execution Date,
unless this Agreement has been revoked by Executive prior to
such date in accordance with the provisions of this Agreement.
1.4 The phrase "Executive's related entities and persons" shall
mean the heirs, executors, administrators, beneficiaries,
assigns, agents, representatives, and successors of Executive,
and any other persons acting or purporting to act on behalf
of, or in the name of, or asserting claims by, on behalf of,
or through, Executive, and the successors and assigns of such
persons, and the successors and assigns of Executive.
1.5 The term "Employer" shall mean Manhattan Associates, Inc.
1.6 The phrase "Employer's related employers" shall mean and
include any parent, subsidiaries and related corporations or
entities, predecessors, successors and assigns of the
Employer.
1.7 The phrase "the Employer's related entities and persons" shall
mean and include the agents, employees, servants, independent
contractors, attorneys, representatives, actuaries,
accountants, directors, officers, and trustees of (1) the
Employer and/or any one or more of the Employer's related
employers and (2) every person (whether natural or
artificial), firm, or entity now or previously affiliated with
the Employer
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and/or any one or more of the Employer's related employers in
any manner whatsoever, and every such person, firm or entity
with which the Employer and/or any one or more of the
Employer's related employers may affiliate in any manner
whatsoever in the future.
1.8 The phrase "Execution Date" shall mean the date on which this
Agreement is executed (as noted in writing on the last page
hereof).
1.9 The term "Plan(s)" shall mean, when referenced as Plan(s) of a
particular entity, individual or other person, all employee
benefit plans (within the meaning ERISA Section 3(3))
sponsored by, contributed to, or maintained by such entity,
individual or other person.
1.10 The phrase "Plan's (Plans') related entities and persons,"
when referencing one or more Plans, shall mean and include (1)
the agents, employees, servants, independent contractors,
attorneys, representatives, actuaries, accountants,
fiduciaries, administrators, administrative committee(s) or
other committee(s), and trustees of, (2) every other person
(whether natural or artificial), firm or entity now or
previously affiliated in any manner whatsoever with, and (3)
every such other person, firm or entity which in the future
may affiliate in any manner whatsoever with, the one or more
Plan(s) so referenced.
ARTICLE II
PAYMENTS TO EXECUTIVE
In addition to the compensation and benefits to which Executive is
entitled based upon his employment with the Employer, whether provided for in
the Employment Agreement between the parties dated February 25, 2004 (the
"Employment Agreement") or otherwise, Executive shall, as additional
consideration which is significant and substantial, receive severance benefits
in accordance with the terms and provisions of Section 2 of the Separation
Agreement. The parties agree that these additional consideration payments shall
be subject to all payroll and income tax and other authorized deductions.
ARTICLE III
RIGHT OF REVOCATION BY EXECUTIVE
From the Execution Date until the Effective Date, Executive may revoke
this Agreement by sending written notice of revocation within that period to:
Manhattan Associates, Inc.
2300 Windy Ridge Parkway
7th Floor
Atlanta, Georgia 30339
Attention: Chairman of the Board
and, if he does so, this Agreement shall be null and void in its entirety, and
shall be of no force or effect. If not revoked within said period, this
Agreement will become effective, binding and irrevocable as of the Effective
Date.
ARTICLE IV
GENERAL RELEASE BY EXECUTIVE
Except as specifically provided in Article V below, for and in
consideration of the additional consideration to be provided to Executive by the
Employer pursuant to Article II of this Agreement, the sufficiency of which is
hereby acknowledged, Executive does hereby, for and on behalf of himself and
Executive's related entities and persons, fully and finally release, acquit and
forever
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discharge the Employer, the Employer's related employers, the Employer's related
entities and persons, all Plans of the Employer and all Plans of any of the
Employer's related employers, and such Plans' related entities and persons, of
and from any and all claims, counterclaims, actions, causes of action, demands,
rights, damages, costs, expenses or compensation which Executive and/or
Executive's related entities and persons now have, or may have, or may hereafter
claim to have had as of the Execution Date, whether developed or undeveloped,
anticipated or unanticipated, based on any acts, omissions, transactions or
occurrences whatsoever occurring prior to and/or up until the Execution Date,
and specifically, but not by way of limitation, from those claims which are, or
arise by reason of, or are in any way connected with, or which are or may be
based in whole or in part on the employment relationship between Executive and
the Employer (including, without limitation, (i) those claims arising under any
foreign, federal, state, county or municipal fair employment practices act
and/or any law, ordinance or regulation promulgated by any foreign, federal,
state, county, municipality or other state subdivision; (ii) those claims for
breach of duty and/or implied covenant of good faith and fair dealing; (iii)
those claims for interference with and/or breach of contract (express or
implied, in fact or in law, oral or written); (iv) those claims for retaliatory
or wrongful discharge of any kind; (v) those claims for intentional or negligent
infliction of emotional distress or mental anguish; (vi) those claims for
outrageous conduct; (vii) those claims for interference with business
relationships, contractual relationships or employment relationships of any
kind; (viii) those claims for breach of duty, fraud, fraudulent inducement to
contract, breach of right of privacy, libel, slander, or tortious conduct of any
kind; (ix) those claims arising under Title VII of the Civil Rights Act of 1964
and/or the Civil Rights Act of 1991 and/or 42 U.S.C. Section 1981; (x) those
claims arising under the Age Discrimination in Employment Act of 1967, the Age
Discrimination Claims Assistance Act of 1988 and/or the Older Workers' Benefit
Protection Act; (xi) those claims arising under any state or federal handicap or
disability discrimination law or act, including but not limited to the
Rehabilitation Act of 1973 and the Americans with Disabilities Act; (xii) those
claims arising from any damages suffered at any time by reason of the effects or
continued effects of any alleged or actual discriminatory or wrongful acts;
(xiii) those claims arising under or in reliance upon any statute, regulation,
rule or ordinance (local, state or federal); (xiv) those claims arising under
ERISA or the Family and Medical Leave Act; (xv) those claims arising under the
workers' compensation laws of any state or other jurisdiction; and (xvi) any and
all other claims arising under law or in equity in the United States of America
or in any foreign jurisdiction).
ARTICLE V
LIMITATION OF RELEASE BY EXECUTIVE
Notwithstanding the previous Article, it is understood and agreed that
the waiver of benefits and claims contained in the previous Article does not
include a waiver of the right to payment of (a) any vested, nonforfeitable
benefits to which Executive or a beneficiary of Executive may be entitled under
the terms and provisions of any (i) Plan of the Employer which have accrued as
of the Separation Date (including without limitation any rights to elect
continuing group health plan coverage pursuant to ERISA) (ii) other plan,
program, agreement, or arrangement under which Executive is covered as of his
Separation Date and is entitled to payments or benefits, and (iii) stock
options, restricted stock, stock appreciation, or other equity compensation
rights previously granted to the Executive and vested as of the Execution Date,
(b) any unpaid base salary for employment through the Separation Date pursuant
to Section 2.A. of the Employment Agreement, (c) any earned and accrued but
unpaid bonus (if any) pursuant to Section 2.B. of the Employment Agreement, (d)
any unpaid expenses incurred on or before his Separation Date that are
reimbursable in accordance with Section 2.F of the Employment Agreement, (e)
payment for accrued and unused vacation pursuant to Section 2.G. of the
Employment Agreement, (f) payments (if any) owed pursuant to Section 2(I) of the
Employment Agreement, and (g) the consideration to be paid to Executive under
Article II of this Agreement. Executive acknowledges that all other claims for
any other benefits or compensation are hereby waived, except those expressly
stated in the preceding sentence. It is also expressly understood and agreed
that the waiver of benefits and claims contained in the previous Article does
not include a waiver of any rights accruing after the Execution Date of this
Agreement. Nothing in this Agreement shall be construed to limit the Executive's
entitled rights to director and/or officer indemnification and related director
and/or officer liability insurance.
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ARTICLE VI
NON-SOLICITATION, NON-COMPETITION, TRADE SECRETS & CONFIDENTIAL INFORMATION
For and in consideration of the additional consideration to be provided
to Executive by the Employer pursuant to Article II of this Agreement, Executive
agrees that he will continue to comply with the provisions set forth in Section
6 of the Separation Agreement and Sections 6 and 7 of the Employment Agreement
between Employer and Executive referred to in the Separation Agreement for the
respective terms set forth therein.
ARTICLE VII
KNOWING AND VOLUNTARY WAIVER OF RIGHTS BY EXECUTIVE
Executive agrees and acknowledges that he has carefully reviewed,
studied and thought over the terms of this Agreement, and that all questions
concerning this Agreement have been answered to his satisfaction. Executive does
further acknowledge and agree that he has had the opportunity to keep this
Agreement in his possession for at least thirty (30) days, and that he has had
the opportunity to consider and reflect upon the terms of this Agreement before
signing it, that he knowingly and voluntarily entered into and signed this
Agreement after deliberate consideration and review of all of its terms and
provisions, that he was not coerced, pressured or forced in any way by the
Employer or anyone else to accept the terms of this Agreement, that the decision
to accept the terms of this Agreement was entirely his own, that HE WAS ADVISED
IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT AND
PRIOR TO THE EXECUTION DATE OF THIS AGREEMENT, AND THAT HE HAS HAD THE
OPPORTUNITY TO CONSULT WITH AN ATTORNEY THROUGHOUT THE NEGOTIATIONS CONCERNING
THIS AGREEMENT, during which time proposals and counter proposals were or could
have been presented, discussed and made a part of the final version of this
Agreement. Executive also acknowledges that no promises or inducements to enter
into and execute this Agreement have been offered or made except those which are
specifically set out in this Agreement, and that he was not coerced or forced to
enter into and execute this Agreement.
ARTICLE VIII
ENTIRE AGREEMENT BETWEEN PARTIES AND NO INDICATION OF FAULT
This Agreement constitutes the entire agreement between Executive and
the Employer pertaining to the subjects contained in it and supersedes any and
all prior and/or contemporaneous agreements, representations, or understandings,
written or oral. It is expressly understood and agreed that this Agreement may
not be altered, amended, modified or otherwise changed in any respect or
particular whatsoever except in writing duly executed by Executive and an
authorized representative of the Employer acting on behalf of the Employer. This
Agreement is intended to fully, completely, and forever resolve all disputes or
potential disputes based upon events, omissions or acts occurring on or prior to
the Separation Date as well as all other issues or claims in any way arising out
of or connected with the employment of Executive with the Employer through and
including the Separation Date. It is expressly understood and agreed that the
provisions contained in this document are intended to resolve any doubtful
and/or disputed issues, prevent future disputes, controversies and/or
litigation, and provide both the Employer and Executive with significant
benefits and that the signing of this document is not to be construed as an
admission of any liability and/or fault by the Employer or by Executive.
ARTICLE IX
BINDING NATURE OF AGREEMENT
This Agreement shall be binding upon both Executive and Executive's
related entities and individuals, and upon the Employer and the Employer's
related employers.
ARTICLE X
NO PRIOR ASSIGNMENTS OF INTERESTS OR EXERCISE OF RIGHTS
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All signatories to this Agreement hereby warrant, covenant, and
represent that prior to the Execution Date, they have not conveyed, transferred,
pledged, hypothecated, or in any manner whatsoever assigned or encumbered any of
the rights, demands, claims, suits, actions, or causes of action released
herein, and all signatories to this Agreement also hereby warrant, covenant and
represent that, prior to the Execution Date, they have not filed a lawsuit or
asked the assistance of any governmental agency or collective bargaining agent
to enforce rights or to seek remedies for any claim which is waived pursuant to
the terms and provisions of this Agreement.
ARTICLE XI
WARRANTY OF EXPRESS AUTHORITY AND CAPACITY TO CONTRACT
The undersigned parties, acting through their duly authorized officers
or individually, as the case may be, do hereby warrant that the signatories
hereto have express authority and have the legal capacity to enter into this
Agreement.
ARTICLE XII
NEGOTIATED AGREEMENT
The parties agree that this Agreement was negotiated between them. As a
result, the parties agree that, in the event of a dispute about the meaning,
construction or interpretation of this Agreement, no presumption shall apply to
construe the language of this Agreement either for or against any party.
ARTICLE XIII
PRESS RELEASES REGARDING AGREEMENT
The parties agree that no press releases will be issued concerning this
Agreement, or the termination of Executive's employment with the Employer,
without the mutual approval of Executive and Employer, subject to any disclosure
requirements imposed by applicable law based on the reasonable opinion of
counsel for the Company.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
____ day of ____________________, _____.
EXECUTIVE: EMPLOYER:
MANHATTAN ASSOCIATES, INC.
___________________________
Peter F. Sinisgalli
By:___________________________
Title:________________________
Sworn to and subscribed before me Sworn to and subscribed before me
this __ day of___________, ______. this __ day of_____________, _____.
__________________________________ ____________________________________
Notary Public Notary Public
My Commission Expires: My Commission Expires:
__________________________________ _ ____________________________________
(NOTARIAL SEAL) (NOTARIAL SEAL)
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