**EXHIBIT 10.16**** 

EMPLOYMENT AND CONFIDENTIALITY AGREEMENT

 

This Employment and Confidentiality Agreement is made on July 15, 1999, between IndusInternational, Inc., a Delaware Corporation (Indus), and Mark Hoey, ("EMPLOYEE"). **WITNESSETH:**
WHEREAS, Indus desires to employ EMPLOYEE; and
WHEREAS, EMPLOYEE desires to accept employment as the Vice President of Business Management with Indus forthe purpose of developing the business of said corporation on the terms and conditions set forthherein.
NOW,THEREFORE, in consideration of the mutual agreements, undertakings, representations and warrantiescontained herein, the parties hereto agree as follows:*1.  Purpose of Agreement*
(a)  This Agreement shall supersede any and all prior employment and/or services agreements,contracts or discussions between the parties and shall be the sole agreement governing theirrelationship.  This agreement sets forth the terms and conditions governing the employmentrelationship between Indus and EMPLOYEE from and after the date hereof.
(b)  Should any approval by, or registration or filing with, any public or regulatory agency berequired as a condition of any provision hereof being lawful or enforceable, said provision shall beof no force or effect until and when all required registrations, filing and approvals have beencompleted and obtained.
*2.  Employment Services*
Indus hereby employs EMPLOYEE and EMPLOYEE accepts employment as a full-timeEMPLOYEEto Indus at EMPLOYEE's annual salary of $200,000.00, payable in equal sums on a semi-monthly basis.  In addition to the above salary, the following compensation will be paid toEMPLOYEE:A one-time signing bonus of $25,000 less applicable taxes, tobe paid within thirty (30) days of employment date.
- For meeting goals and performance objectives established for the  EMPLOYEE,  an incentivebonus for 1999 will be paid pro-rated for Q3, based on employment date and mutually agreeable goalsand objectives.
(a)  EMPLOYEE shall, for the compensation specified above, perform all duties
assigned by Indus including without limitation those goals and obligations of Indus' BusinessPlan which are appropriate to the EMPLOYEE.
(b)  EMPLOYEE while employed shall devote EMPLOYEE's full time to the business of Indus, andshall not undertake any activity in conflict with or detrimental to Indus.*3.  Benefits*
(a)  EMPLOYEE shall, while employed, receive such medical and dental, life and disability insurancecoverage as provided for in Indus' qualified medical plan.
(b)  EMPLOYEE shall, while employed, be provided twenty (20) working days of paid time off (PTO) each year.PTO shallaccumulate at the rate of 1.66 days per month of employment.  The maximum number of days which maybe accumulated is forty (40).  No days shall be earned while accumulated balance is forty (40).
(c)   Indus will observe eight (8) paid holidays each year.  A schedule of paid holidays will bepublished at the beginning of each year.

(d)  EMPLOYEE shall, while employed, be enrolled in Indus' qualified retirement plan upon completion ofthe plan's eligibility period.
(e)   EMPLOYEE shall, while employed, be covered by Indus' Directors and Officers liability insuranceplan.
(f)    EMPLOYEE shall receive 125,000 stock options valued at the strike price on the date of employment,and vesting at twenty-five (25%) on employment date and twenty-five (25%) per year, thereafter,until fully vested.  Should there be a change of control of Indus International, all remainingoutstanding options shall immediately vest.
 
*4.  Relocation*
(a)  In the event that Indus requires EMPLOYEE to relocate the EMPLOYEE'S residenceas part of the terms of employment, Indus shall reimburse EMPLOYEE for actual moving expenses incurred as aresult of the required relocation.
(b)  EMPLOYEE shall provide to Indus written estimates from moving companies, as specified in the Indusrelocation policy.  Indus will then select the company with which EMPLOYEE may contract.
(c)  In the event that EMPLOYEE voluntarily terminates employment with Indus within twenty four (24)months of the effective date of relocation, EMPLOYEE shall repay Indus, on a pro-rata basis,for any relocation reimbursements previously collected by EMPLOYEE.*5.   Change of Control

In the case of a change of control of Indus International within twelve (12) months ofEMPLOYEE'S employment date which results in a change of employment circumstances for EMPLOYEE, thatmaterially and adversely impacts EMPLOYEE, and whereby EMPLOYEE is demotedwith a reduction in responsibility and compensation, or EMPLOYEE is required to relocate to an undesirablelocation, then Indus, if EMPLOYEE terminates employment, will pay EMPLOYEE six (6) months of base pay, overa period of twelve (12) months in twenty-four (24) semi-monthly installments, beginning thirty (30)days from date of termination.*6.  Confidential Information

EMPLOYEE understands that Indus possesses valuable confidential information, as defined below, towhich EMPLOYEE may have access in the performance of job duties.  EMPLOYEE is responsible for maintainingthe confidentiality of the such information.
(a)  Definition

Confidential information consists of all information and any idea in whatever form, tangible orintangible, pertaining in any manner to the business of Indus or its clients, suppliers, jointventurers, licensors, licensees, distributors and other persons and entities with whom Indus doesbusiness, including without limitation any formula, pattern, compilation, program, device, method,technique or process that derives independent economic value, actual or potential, from not beinggenerally known to the public or to other persons who can obtain economic value from its disclosureor use.  Examples of Indus' confidential information include, but are not limited to, the names ofother persons, firms, partnerships, associations, corporations or business organizations, entitiesor enterprises having business dealings with Indus, the business of Indus, any trade secret, know-how, or knowledge relating to the manufacturing, sales or marketing techniques, or financial data ofIndus.

(b)  General Restrictions on Use

All confidential information should be accessed by EMPLOYEE on a need-to-know basis only.EMPLOYEEwill not disclose or use at any time, either during or after employment, any confidentialinformation except for the exclusive benefit of Indus as necessary for the performance ofEMPLOYEE's duties for Indus.  Any breach of this policy will not be tolerated and may result indisciplinary action, up to and including termination.  Legal action also may be taken againstemployees or former employees who breach this confidentiality policy.
Upon termination of employment for any reason, EMPLOYEE will immediately provide to Indus allmaterials in whatever form in his or her possession or control, including all copies, that includeor disclose Indus' confidential information.
At all times after employment terminates for any reason, EMPLOYEE shall not use or reveal anyconfidential information, as defined above, or trade secret of Indus for any purpose without theexpress prior written consent of Indus.  As used herein, trade secret shall be deemed to includeevery thing or concept possible of protection under California Civil Code 3426.1(d) as it now existsor may hereafter including without limitation the names of (i) any person or entity with whom Indushad any contractual relationship or for whom it rendered services or sold any product within the 12months before cessation of employment, or (ii) any person or entity whose business was solicited byIndus within the 12 months before cessation of employment.
(c)  Interference with Business

EMPLOYEE acknowledges that the performance of activities prohibited by this subsection wouldnecessarily involve the use or disclosure of Indus' confidential information or trade secrets inbreach of the above provisions, but that proof of such breach would be extremely difficult.  Inconsideration of employment under this Agreement and in order to prevent breach of this section,EMPLOYEEagrees not to act in contravention of the following subsections.
 

(1)  Customers and Suppliers

EMPLOYEE shall not at any time during the term of this Employment Agreement or for a twelve (12)month period immediately following the termination of employment with Indus, disclose to any person,firm, partnership, association, corporation or business organization, entity or enterprise the namesof suppliers to or customers of or the names of other persons, firms, partnerships, associations,corporations or business organizations, entities or enterprises having business dealings with Indus,the business of Indus, any trade secret, know-how, or knowledge relating to the manufacturing, salesor marketing techniques, or financial data of Indus.
EMPLOYEE further shall not, for the benefit of EMPLOYEE or any third party, at any time during theterm of this Agreement or for a twelve (12) month period thereafter, divert or attempt to divert anybusiness of any kind from Indus, including without limitation the solicitation of or interferencewith any of Indus' customers or suppliers.
(2)  Indus' Employees and Contractors

EMPLOYEE shall not at any time during the term of this Employment Agreement or for a twelve (12)month period immediately following the termination of employment with Indus, employ or solicit foremployment any person employed by Indus or with whom Indus has a contract for the provision ofservices.*7.  Bonus Pool*
The Board of Directors of Indus intends, but shall have no contractual or enforceable obligationto, from time to time as determined solely by the Board of Directors, designate a "bonus pool" anddistribute, in cash, to the employees and shareholder(s) of Indus, that portion of the bonus pool asdetermined by the Board of Directors of Indus, taking into account the recommendation of theoperating officers thereof (as designated by the Board of Directors).
*8.  Severability*
If any provision of this Agreement is for any reason unenforceable or void as set forth herein,such provision shall be deemed modified if possible or severed from the balance of this Agreement tothe extent required to eliminate only such portions or applications as are either unenforceable orvoid, but otherwise shall remain in full force and effect.
* 

 

9.  Notice*
Any notice required or permitted to be given under this Agreement shall be sufficient if inwriting, and if sent by registered or certified mail, postage prepaid, to the addresses set forthbelow:

	To Indus:	Indus International, Inc.	60 Spear Street	San Francisco, CA  94105

To EMPLOYEE:	Mark Hoey	18 White Rock Trail	Lucas, TX  75002
Either party may change the address for giving of notices by notice given pursuant to thisparagraph.
*10.  Waiver*
The waiver by one party of a breach of any provision of this Agreement by the other shall notoperate or be construed as a waiver of any prior, subsequent, or other breach of any such provisionhereof.
*11.  Entire Agreement, Captions*
This Agreement contains the entire agreement of the parties relating to the matters set forthherein and may be amended only by a writing signed by Indus

and EMPLOYEE.  Paragraph captions are for the convenience of the parties and are not a part of thisAgreement.*12.  Effective Date and Term*
EMPLOYEE acknowledges that there is no agreement, express or implied, between EMPLOYEE and Indus forany specific period of employment, any specific position of employment, or for continuing or long-term employment.  EMPLOYEE and Indus each have a right to terminate employment, with or withoutcause, at any time.  EMPLOYEE acknowledges that this "at-will" employment relationshipconstitutes the entire agreement between the parties with respect to the nature of the employmentrelationship, the employee's position, the duration of employment and the termination of employment,and that it supersedes any and all previous oral or written communications, representations oragreements, express or implied.  This at-will agreement may be altered only in writing in anagreement written expressly for that purpose after the date of this Agreement and signed byEMPLOYEEand Indus' President.*13.  Attorneys' Fees*
In the event of a dispute hereunder, the prevailing party shall be entitled to recover attorneys'fees and costs as awarded by a court.

INWITNESSWHEREOF,the parties have executed this Agreement as of the day and year first above written.
Indus International, Inc.

By:  Robert A. Pocsik

Senior Vice President

Human Resources & Administration
   
Date  
MARK HOEY
Date****