EXHIBIT 10.2
SEVERANCE AND NON-COMPETITION AGREEMENT
This Separation and Non-Competition Agreement is made this 24th day of January
by and between Manhattan Associates ("Company") and Steve Norton ("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 Senior Vice
President and Chief Financial Officer in accordance with the terms
and conditions set forth in this 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.
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 (as defined below), Executive
shall receive a severance payment equal to twelve (12) months of
Executive's then current base salary, subject to all standard
deductions, payable in twelve (12) equal monthly payments from 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 a form reasonably acceptable to
the Company, and consistent with the terms of this Agreement and any
other Agreements, 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 for Cause (as defined below), Executive
shall have ninety (90) days in which to exercise his vested options.
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
misdemeanors not disclosable under the federal securities laws,
(iii) breach of this Agreement in any material respect and 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
after written notice to the Executive providing a reasonable
description of such conduct.
4. 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 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 of
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 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.
5. Constructive Termination. For purposes of this Agreement,
Constructive Termination shall mean a situation where (A) (i) the
Executive is no longer serving as Senior Vice President and Chief
Financial Officer, or other executive position, reporting to the
Chief Executive Officer or President, the Executive is not timely
paid his compensation under this Agreement or the assignment to the
Executive of any duties or responsibilities which 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) the Company's headquarters
being outside of the greater Atlanta area or the Company requiring
the Executive to be based at any place outside a 30-mile radius from
the principal location from which the Executive served as an
employee of the Company immediately prior to the Change of Control;
(iii) after a
Change of Control the failure by the Company to provide the
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 Chief Executive Officer or President
of the situation constituting a "Constructive Termination"
hereunder, and the Chief Executive Officer or President 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.
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
twelve (12) 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
twelve (12) months from the date of termination or cause another
Executive of Employer to be hired by any competitor of Employer for
a period of twelve (12) months from the date of termination.
7. Effect of violations by Executive. 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 monies and
benefits 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 in
defending any action Executive brings, plus any other damages to
which the Employer 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. Opportunity for review. Executive understands that he shall have the
right to have twenty-one (21) days from the date of receipt of this
Agreement to review this document, and within seven (7) days of
signing this NON-COMPETITION AGREEMENT, to revoke this Agreement.
Employer agrees and Executive understands that he does not waive any
rights or claims that may arise after the date this Agreement is
executed. THE PARTIES ACKNOWLEDGE THAT THEY HAVE HAD ACCESS TO
INDEPENDENT LEGAL COUNSEL OF THEIR OWN CHOOSING IN CONNECTION WITH
ENTERING INTO THIS AGREEMENT, AND THE PARTIES HEREBY ACKNOWLEDGE
THAT THEY FULLY UNDERSTAND THE TERMS AND CONDITIONS OF THIS
AGREEMENT AND AGREE TO BE FULLY BOUND BY AND SUBJECT THERETO.
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 January 5, 2005.
EXECUTIVE:
/s/ Steven R. Norton 1-6-05
- ---------------------------------------- ----------------------------------
Steve Norton Date
EMPLOYER:
/s/ Peter F. Sinisgalli 1-6-05
- ---------------------------------------- ----------------------------------
Peter F. Sinisgalli Date
President and Chief Executive Officer
Attachment A
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