Executive Employment Agreement - Manhattan Associates LLC and Neil Thall
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") by and between
Manhattan Associates, LLC, a Georgia limited liability company ("Company"), and
Neil Thall ("Executive") is hereby entered into and effective as of the 25th day
of November, 1997 (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, Supply
Chain Strategy, 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 :
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1. Employment and Duties.
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A. Company shall employ Executive as Vice President, Supply Chain
Strategy, 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 of Company
or such other executive as may be designed by the Chief Executive Officer or the
Board of Managers.
B. Executive shall have such duties as are set forth on EXHIBIT A
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("Duties") and as may otherwise be assigned to him by the Chief Executive
Officer of Company or such other executive as may be designated by the Chief
Executive Officer or the Board of Managers of Company, 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, except
for such other obligations or activities as may be approved by the Chief
Executive Officer.
D. Neither the foregoing nor any other provision of this Agreement is
intended or shall be construed as preventing Executive from devoting his time
and effort to charitable and community activities substantially to the same
extent as he has devoted time and
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effort prior to the effective date of this Agreement, provided that such
involvement with charitable and community activities does not materially
interfere with the performance of his duties under this Agreement.
2. Compensation.
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A. Base Salary. During his employment hereunder, Company shall pay
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to Executive a base salary ("Base Salary") of $16,666.67 per month ($200,000
annualized), subject to all standard employment deductions.
B. Performance-Related Bonus. Executive shall be eligible to receive
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a performance-related bonus of up to $40,000 per year, subject to all standard
employment deductions, based on the criteria set forth on Exhibit A hereto.
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C. Stock Option. Executive shall receive an option (the "Option") to
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purchase 75,000 shares of Company at an exercise price of $8.50 per share,
pursuant to the Manhattan Associates, LLC Option Plan (the "Option Plan"). The
Option shall vest according to the following schedule:
. As to 20,000 shares, the Option shall vest on Executive's first day of
employment.
. The Option shall vest as to an additional 20,000 shares on each of the
first and second anniversaries of Executive's first day of employment.
. As to the remaining 15,000 shares, the Option shall vest on the third
anniversary of Executive's first day of employment.
D. Employee Benefits. Executive shall be entitled to participate in
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all employee benefit plans which Company provides for its employees at the
executive level. As of the effective date of this Agreement, such benefits
include those described on EXHIBIT A.
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E. Expenses. Executive shall be reimbursed for expenses reasonably
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incurred in the performance of his duties hereunder in accordance with the
policies of Company then in effect.
F. Vacation. Executive shall accrue one (1) day of paid vacation for
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each calendar month worked and five (5) additional days after three (3) years of
employment.
3. Term. This Agreement is effective when signed by both parties. The
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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.
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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 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. Ownership.
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(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.
5. Trade Secrets and Confidential Information.
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(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
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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.
6. Non-Solicitation.
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A. Customers. The relationships made or enhanced during Executive's
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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 two years 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
materially competitive with the Company Business.
B. Employees/Independent Contractors. During Executive's employment
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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 Two Year Restrictive Period for the purpose of
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having such person work in any other corporation, entity, or business that is
competitive with the Company Business.
7. Non-Competition. During the One Year Limitation Period, Executive
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agrees that he will not, without Company's prior written consent, perform his
or her Duties for any person or entity in the territory described on EXHIBIT A
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hereto (the "Territory") which 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 Territory 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 who are
located throughout the Territory; and (ii) by having access to information
concerning employees and Company's Customers, Executive shall obtain a
competitive advantage as to such parties.
8. Acknowledgments. The parties hereto agree that: (i) the periods of
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restriction and Territory of restriction 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 the substantial harm the Company will suffer
should Executive materially 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.
9. Remedy for Breach. Executive agrees that the remedies at law of
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Company for any actual or threatened breach by Executive of the covenants
contained in Sections 4. through 7. 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 4.
through 7. 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.
10. No Prior Agreements. Executive hereby represents and warrants to
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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.
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11. Assignment; Binding Effect. Executive understands that Executive has
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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 12. 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.
12. Complete Agreement. This Agreement is not a promise of future
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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, including without limitation that certain Offer Letter from the
Company executed by Executive on December 22, 1997. 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.
13. Notice. Whenever any notice is required hereunder, it shall be given
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in writing addressed as follows:
To Company: Manhattan Associates, LLC
3101 Towercreek Parkway
Suite 300
Atlanta, Georgia 30339
Attention: President
With a copy to: Morris, Manning & Martin, L.L.P.
1600 Atlanta Financial Center
3343 Peachtree Road, N.E.
Atlanta, Georgia 30326
Attention: John C. Yates, Esq.
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To Executive: Neil Thall
Post Office Box 4872
Santa Rosa Beach, Florida 32459
With a copy to: Neil Thall
Suite 4830
75 Fourteenth Street
Atlanta, Georgia 30309
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 13.
14. Severability; Headings. If any portion of this Agreement is held
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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.
15. Governing Law. This Agreement shall in all respects be construed
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according to the laws of the State of Georgia.
16. Counterparts. This Agreement may be executed simultaneously in two
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(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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
Manhattan Associates, LLC
By: /s/ Alan J. Dabbiere
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Name: Alan J. Dabbiere
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Title: President
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Date:
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EXECUTIVE:
/s/ Neil Thall
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Neil Thall
Date:
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EXHIBIT A
The "Duties" of the Executive shall be those of the Vice President, Supply
Chain Strategy of the Company, who is responsible for coordinating sales and
marketing matters relating to the Company, to include the following:
. Promotion of Company's visibility to retailers as a resource based on our
relationship with retail suppliers. Conception and promotion of ideas where
Company can create barriers of entry to the market through our unique products,
services, and relationships with retailers' supplier community. This includes
new electronic commerce (EC) standards and integration with central
merchandising systems.
. Development of a compelling marketing campaign to market to retail
channels. Increase of Company's visibility as a WMS provider servicing
retailers, as the only company with our economy of scale and understanding of
supplier, channel, transportation, ECR and QR integrated industry initiative.
Creation of a revenue generating market in providing WMS services to the retail
community.
. Development of add-on products and services that add value to retail
channels.
. Positioning the retail markets strategy to evolve into a strategic business
unit with specific independent business functions and independent P&L reporting.
. Assistance in overall growth, acquisition, marketing, sales and recruiting
for Company as a member of the executive committee.
. Such other Duties as may be agreed upon by Executive and Company's Chief
Executive Officer.
Executive's performance-related bonus shall be structured as follows:
One half is objective based on revenue and earnings growth (non-acquisition
related). In the event of an acquisition, the most recent sales revenue and
earnings of the acquired company will be added to the base-line revenue.
0 - 25% revenue growth Bonus is 0
25 - 75% revenue growth Bonus is 2% of $10,000 for each 1% of growth
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0 - 25% earnings growth Bonus is 0
25 - 75% earnings growth Bonus is 2% of $10,000 for each 1% of growth
The other half ($20,000) is subjective based on Executive's performance of
the Duties set forth above.
Current benefits offered to executive employees include the following:
. comprehensive medical insurance via either a Health
Maintenance Organization (HMO) or Point of Service
(POS) Plan through Blue Cross/Blue Shield with coverage
effective on first day of employment and no
premium costs for Executive or Executive's dependents;
. comprehensive dental insurance effective on first day of
employment with a small employee contribution required;
. Company-paid life and accidental death and
disability insurance effective on first day of employment;
. Company-paid short and long term disability coverages
effective on the first of the month following thirty (30)
days of employment;
. 401(k) Plan with employer match. Eligibility for employee
contributions begin on the first of the month following
thirty (30) days of employment. Employer match beginning
with 2nd year of participation in the plan;
. Profit Sharing and Money Purchase Plan; eligibility begins
with the first of the month following one (1)
year of employment;
. vacation days (see Section 2F of the Agreement);
. nine (9) paid holidays per year after a fourteen-day waiting
period;
. credit union and group banking with SunTrust Bank; and
. discounted health club membership.
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The "Territory" is the Atlanta, Georgia metropolitan area, consisting of
the following counties: Barrow, Bartow, Carroll, Cherokee, Clayton, Cobb,
Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Newton,
Paulding, Pickens, Rockdale, Spalding and Walton.
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