EXHIBIT 10.2
SEVERANCE AND NON-COMPETITION AGREEMENT
This Separation and Non-Competition Agreement is made this 18th day of February
by and between Manhattan Associates ("Company") and Dennis B. Story
("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 February 18, 2006.
EXECUTIVE:
/s/ Dennis B. Story February 18, 2006
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Dennis B. Story Date
EMPLOYER:
/s/ Peter F. Sinisgalli February 18, 2006
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Peter F. Sinisgalli Date
President and Chief Executive Officer