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EXHIBIT 10.29
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
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Peter F. Sinisgalli
EMPLOYER:
MANHATTAN ASSOCIATES, INC.
/s/ Richard M. Haddrill
February 25, 2004
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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 s
