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EXHIBIT 10.35
INDUS INTERNATIONAL
EMPLOYMENT AGREEMENT
This
Agreement is entered into as of January 1, 2006 (the "Effective
Date"), by and between Indus International, Inc. (the "Company"),
and Arthur W.
Beckman (the "Executive"). Executive currently serves as the Vice
President,
Hosting and Chief Technology Officer of the Company, pursuant to
the terms of
that certain Employment Agreement, dated as of January 5, 1999,
between
Executive and the Company (the "Prior Agreement"). From and after
the Effective
Date, the Prior Agreement will be superseded in its entirety by
this Agreement.
1.
Duties and Scope of Employment.
(a) Employment, Positions and Duties. Executive is hereby employed
as
of the Effective Date as EXECUTIVE VICE PRESIDENT AND CHIEF
TECHNOLOGY OFFICER
of the Company reporting to the Chief Executive Officer or
President. Executive
will render such business and professional services in the
performance of his
duties, consistent with Executive's position within the Company, as
shall
reasonably be assigned to him by the Company's Chief Executive
Officer,
President, or Board of Directors (the "Board").
(b) Obligations. Executive will perform his duties faithfully and
to
the best of his ability and will devote all of his business efforts
and time to
the Company at the Company's SAN FRANCISCO, CALIFORNIA offices.
Executive
understands and agrees that frequent travel may be necessary in
carrying out his
duties hereunder including, without limitation, frequent travel to
the Company's
global offices as well as client sites. Executive agrees that he
will not,
without the prior approval of the Board of Directors, (i) serve on
the board of
directors (or similar governing body) of any other company, (ii)
serve as a
director or trustee of any civic, educational or charitable
organization, (iii)
make plans or prepare, whether alone or with others, to compete
against the
Company at some point in the future, or (iv) actively engage in any
other
employment, occupation or consulting activity, with or without any
direct or
indirect remuneration; provided, however, that Executive may serve
in any
non-director or non-trustee capacity with any civic, educational or
charitable
organization without the approval of the Board, so long as such
activities do
not materially interfere with his duties and obligations under this
Agreement.
2.
Compensation.
(a)
Base Salary. The Company will pay Executive as compensation for
his services a base salary at the annualized rate of $227,900 (the
"Base
Salary"). Effective April 1, 2006, Executive's Base Salary shall
increase to the
annualized rate of $234,350. The Base Salary will be paid
periodically in
accordance with the Company's normal payroll practices and be
subject to
applicable tax withholding. The Board, or the Compensation
Committee of the
Board, shall review the Base Salary each year and may increase, but
not
decrease, the Base Salary at any time. Any increase in Base Salary
shall not
limit or reduce any other obligations to the Executive under this
Agreement. The
term "Base Salary" as used in this Agreement shall refer to the
Base Salary as
it may be adjusted from time to time.
(b) Annual Bonus. In addition to the Base Salary, Executive may
receive a discretionary performance bonus during each year of
employment with
the Company under this Agreement in an amount to be determined by
the Board or
the Compensation Committee of the Board (the "Annual Bonus"). Such
performance
bonus, if any, shall be determined by the Board, or
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the Compensation Committee of the Board, based upon its evaluation
of
performance relative to the business plan and other pertinent
considerations.
3.
Employee Benefits; Indemnification. Executive will be entitled
to
participate in the equity incentive, and employee benefit plans
currently or
hereafter maintained by the Company of general applicability to
other senior
executives of the Company, including, without limitation, the
Company's group
medical, dental, vision, disability, life insurance, and
flexible-spending
account plans. The Company reserves the right to cancel or change
the benefit
plans and programs it offers to its employees (including Executive)
at any time.
4.
Paid Time Off. Executive will be entitled to paid time off each
year for
vacation time, sick leave and personal time in accordance with the
Company's
policies, as such policies are in effect from time to time, with
the timing and
duration of specific time off mutually and reasonably agreed to by
the parties
hereto. The Company reserves the right to cancel or change its
policies at any
time.
5.
Expenses. The Company will reimburse Executive for reasonable
travel,
entertainment or other expenses incurred by Executive in the
furtherance of or
in connection with the performance of Executive's duties hereunder.
Such
expenses shall be reimbursed in accordance with the Company's
expense
reimbursement policy as in effect from time to time.
6.
Termination and Severance.
(a) Termination of Employment. Executive's employment may be
terminated (i) by the Company with or without Cause, (ii) by
Executive for Good
Reason or no reason or (iii) by reason of Executive's death or
Disability.
(b) Termination Without Cause; Termination for Good Reason. If
(i)
Executive's employment with the Company is terminated by the
Company without
"Cause" (as defined herein) or by the Executive for "Good Reason"
(as defined
herein), and (ii) Executive signs and does not revoke the Company's
separation
agreement and standard release of claims , then Executive shall be
entitled to
receive as severance, payable over a period of nine (9) months from
the date of
such termination in accordance with the Company's normal payroll
policies, (1)
an amount equal to nine (9) months of Executive's then-current Base
Salary (less
applicable withholding taxes); (2) a payment equal to a pro-rata
portion of
Executive's Annual Bonus for the performance year in which
Executive's
termination occurs, determined by multiplying a fraction, the
numerator of which
is the number of days during the performance year of termination
that Executive
is employed by the Company and the denominator of which is 365, by
(i) the
greater of (a) the Executive's target annual bonus for the
performance year or
(b) the amount Executive would be able to receive if the date of
termination
were the end of the performance year, or (ii) if the amounts under
(1)(a) or (b)
are not determinable, Executive's Annual Bonus paid or payable,
including any
bonus or portion thereof which has been earned but deferred, for
the most
recently completed fiscal year; and (3) the Company will pay for
full COBRA
benefits for Executive and any of Executive's dependents that
Executive had
elected to cover by Company's benefit plans during Executive's
employment at
Company for the earlier of eighteen (18) months or until Executive
becomes
eligible to receive health, medical and/or dental benefits,
respectively, from a
new employer.
(c) Voluntary Termination; Termination for Cause. If
Executive's
employment with the Company is terminated by Executive without Good
Reason or by
the Company for Cause,
Executive Employment Agreement
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then (i) all vesting of the Options will terminate immediately and
all payments
of compensation by the Company to Executive hereunder will
terminate immediately
(except as to amounts already earned), and (ii) Executive will only
be eligible
for severance benefits in accordance with the Company's established
policies as
then in effect, if applicable.
(d) Death or Disability. If Executive's employment with the Company
is
terminated due to Executive's death or Disability (as defined
herein), this
Agreement shall terminate without further obligations to Executive,
or
Executive's legal representatives, under this Agreement, other than
for payment
of (1) Executive's Base Salary through the date of termination to
the extent not
theretofore paid and (2) any accrued vacation pay to the extent not
theretofore
paid (the sum of the amounts described in clauses (1) and (2) shall
be
hereinafter referred to as the "Accrued Obligations"). The Company
shall timely
pay or provide to Executive, or, if applicable, Executive's estate
and/or
beneficiaries, any other amounts or benefits required to be paid or
provided
under any plan, program, policy or practice or contract or
agreement of the
Company. Accrued Obligations shall be paid to Executive, or, if
applicable,
Executive's estate and/or beneficiaries, in a lump sum in cash
within thirty
(30) days of the date of termination.
(e) No Duty to Mitigate. The Executive shall not be required to
mitigate the amount of any payment contemplated by this Agreement,
nor shall any
such payment be reduced by any earnings that the Executive may
receive from any
other source.
(f) Nonduplication of Severance. Notwithstanding anything in
this
Agreement to the contrary, in the event that (i) the Executive and
Company are
party to a Change in Control Agreement and (ii) the Executive
becomes entitled
to severance payments and/or benefits in connection with the
termination of his
or her employment pursuant to such Change in Control agreement, the
Executive
shall not be entitled to severance payments and/or benefits
pursuant to this
Section 6.
7.
Limitation on Payments. In the event that the severance and
other
benefits provided for in this Agreement or otherwise payable to the
Executive
(i) constitute "parachute payments" within the meaning of Section
280G of the
Internal Revenue Code of 1986, as amended (the "Code") and (ii) but
for this
Section 7, would be subject to the excise tax imposed by Section
4999 of the
Code, then the Executive's severance and benefits shall be
either:
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no
portion of such severance benefits being subject to excise tax
under Section
4999 of the Code,
whichever of the foregoing amounts, taking into account the
applicable
federal, state and local income taxes and the excise tax imposed by
Section
4999, results in the receipt by the Executive on an after-tax
basis, of the
greatest amount of severance benefits, notwithstanding that all or
some portion
of such severance benefits may be taxable under Section 4999 of the
Code. Unless
the Company and the Executive otherwise agree in writing, any
determination
required under this Section 7 shall be made in writing by the
Company's
independent public accountants immediately prior to a Change of
Control (the
"Accountants"), whose determination shall be conclusive and binding
upon the
Executive and the Company for all purposes. For purposes of making
the
calculations required by this Section 7, the Accountants may make
reasonable
assumptions and approximations concerning applicable taxes and may
rely on
reasonable, good faith interpretations
Executive Employment Agreement
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concerning the application of Sections 280G and 4999 of the Code.
The Company
and the Executive shall furnish to the Accountants such information
and
documents as the Accountants may reasonably request in order to
make a
determination under this Section. The Company shall bear all costs
the
Accountants may reasonably incur in connection with any
calculations
contemplated by this Section 7.
8.
Definitions.
(a) Cause. For purposes of this Agreement, "Cause" is defined as
(i)
an act of dishonesty made by Executive in connection with
Executive's
responsibilities as an employee, (ii) Executive's indictment for,
conviction of,
or plea of guilty or nolo contendere to, a felony which the Board
reasonably
believes had or will have a material detrimental effect on the
Company's
reputation or business, (iii) Executive's gross misconduct, (iv)
Executive's
continued substantial failure to perform such Executive's duties
after Executive
has received a written demand for performance from the Company
which
specifically sets forth the factual basis for the Company's belief
that
Executive has not substantially performed his duties, (v) the
willful and
continued material violation of written Company policies or
procedures by
Executive, after a written demand for substantial compliance with
such policies
or procedures is delivered to Executive by the Compensation
Committee of the
Board of Directors of the Company which specifically identifies the
manner in
which such Committee or the Board believes that Executive has not
substantially
complied with the same, or (vi) Executive's breach of any of the
provisions of
Sections 9 through 14 of this Agreement.
(b) Disability. If the Company determines in good faith that
the
Disability of Executive has occurred, it may give to Executive
written notice of
its intention to terminate Executive's employment. In such event,
Executive's
employment with the Company shall terminate effective on the 30th
day after
receipt of such written notice by Executive, provided that, within
the 30 days
after such receipt, Executive shall not have returned to full-time
performance
of Executive's duties. For purposes of this Agreement, "Disability"
shall mean
the inability of Executive, as determined by the Board, to perform
the essential
functions of his regular duties and responsibilities, with or
without reasonable
accommodation, due to a medically determinable physical or mental
illness which
has lasted (or can reasonably be expected to last) an aggregate of
180 days in a
12-month period. At the request of Executive or his personal
representative, the
Board's determination that the Disability of Executive has occurred
shall be
certified by a physician mutually agreed upon by Executive, or his
personal
representative, and the Company. Failing such independent
certification (if so
requested by Executive), Executive's termination shall be deemed a
termination
by the Company without Cause and not a termination by reason of his
Disability.
(c) Good Reason. "Good Reason" means without the Executive's
consent
(i) a significant reduction of the Executive's duties, position
or
responsibilities, or the removal of such Executive from such
position and
responsibilities, unless the Executive is provided with a
comparable position
(i.e., a position of equal or greater organizational level, duties,
authority,
compensation and status), excluding for this purpose an isolated,
insubstantial
and inadvertent action not taken in bad faith and which is remedied
by the
Company promptly after receipt of notice thereof given by
Executive; (ii) a
reduction by the Company in the base compensation of the Executive
as in effect
immediately prior to such reduction other than in connection with a
generally
applicable reduction in executive officer compensation; or (iii)
the involuntary
relocation of the Executive to a facility or a location more than
fifty (50)
miles from such Executive's then present location; or (iv) the
material breach
by the Company of any provision of this Agreement.
Executive Employment Agreement
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Good
Reason shall not include Executive's death or Disability.
Executive's
continued employment shall not constitute consent to, or a waiver
of rights with
respect to, any circumstance constituting Good Reason hereunder.
Any good faith
determination of Good Reason made by Executive shall be conclusive,
but the
Company shall have an opportunity to cure any claimed event of Good
Reason
within 30 days of notice from Executive and the Board's good faith
determination
of cure shall be binding. The Company shall notify Executive of the
timely cure
of any claimed event of Good Reason and the manner in which such
cure was
effected, and any notice of termination delivered by Executive
based on such
claimed Good Reason shall be deemed withdrawn and shall not be
effective to
terminate the Agreement.
9.
Nondisclosure of Trade Secrets and Confidential Information.
(a) Trade Secrets Defined. As used in this Agreement, the term
"Trade
Secrets" shall mean all secret, proprietary or confidential
information
regarding Company or Company activities that fits within the
definition of
"trade secrets" under the Georgia Trade Secrets Act. Without
limiting the
foregoing or any definition of Trade Secrets, Trade Secrets
protected hereunder
shall include all source codes and object codes for Company
software and all
website design information to the extent that such information fits
within the
Georgia Trade Secrets Act. Nothing in this Agreement is intended,
or shall be
construed, to limit the protections of the Georgia Trade Secrets
Act or any
other applicable law protecting trade secrets or other confidential
information.
"Trade Secrets" shall not include information that has become
generally
available to the public by the act of one who has the right to
disclose such
information without violating any right or privilege of Company.
This definition
shall not limit any definition of "trade secrets" or any equivalent
term under
the Georgia Trade Secrets Act or any other state, local or federal
law.
(b) Confidential Information Defined. As used in this Agreement,
the
term "Confidential Information" shall mean all information
regarding Company,
Company's activities, Company's business or Company's clients that
is not
generally known to persons not employed (as employees or
independent agents) by
Company, that is not generally disclosed by Company practice or
authority to
persons not employed by Company and is the subject of reasonable
efforts to keep
it confidential. Confidential Information shall include, but not be
limited to
product code, product concepts, production techniques, technical
information
regarding Company products or services, production processes and
product/service
development, operations techniques, product/service formulas,
information
concerning Company techniques for use
