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EXHIBIT 10.30
*Personal and Confidential*
EMPLOYMENT AGREEMENT
between THE viaLINK COMPANY, an Oklahoma corporation
("viaLink")
and
XXXXXXX XXXXXXXXXX, an individual
("Employee").
A. Employee hereby accepts employment with viaLink for the position described on
the attached Compensation Plan. The commencement date of the employment shall
be January 17, 2000. This Employment Agreement shall also be subject to the
Terms and Conditions of Employment attached hereto. Employee agrees that
disputes arising from the employment will be subject to binding arbitration
according to Section 7 of the Terms and Conditions. Employee acknowledges
that Employee understands and agrees to said Terms and Conditions.
B. Employee's annualized salary as set forth on the Compensation Plan shall be
earned and payable bi-weekly, and subject to withholdings or other deductions
required by law or otherwise authorized.
C. Employee agrees and acknowledges that, notwithstanding anything in this
Employment Agreement, the Compensation Plan, the Terms and Conditions, or in
any other document, policy or practice of viaLink, Employee's employment is
and shall remain AT WILL, and the employment may be terminated with or
without cause at any time, for any reason or for no reason. No change in such
AT WILL status shall be effective unless such change is in writing and
executed by an authorized officer of viaLink.
D. This Employment Agreement, the Compensation Plan, the Terms and Conditions of
Employment and any other documents, if any, attached hereto constitute the
entire agreement of the parties and supersedes all oral or written agreements
or understandings between them regarding the subject matter hereof. No
change, alteration or modification hereof may be made except in a writing
signed by both parties to this Employment Agreement.
E. viaLink's offer of employment as contained in this Employment Agreement
expires and shall be deemed cancelled and revoked if not accepted by
Employee, through Employee's signature hereon, by January 10, 2000. This
Employment Agreement shall only be effective if signed by both parties
hereto.
The viaLink Company Employee
By: /s/ XXXXX XXXXXXXX /s/ XXX XXXXXXXXXX
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Its: Director of HR & Training Date: 1/3/00
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Date: 1/4/00
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*Personal and Confidential*
THE viaLINK COMPANY
TERMS AND CONDITIONS OF EMPLOYMENT
1. BENEFITS.
1.1. VACATION. Employee shall accrue vacation at the rate set forth in the
then current policy of viaLink relating thereto.
1.2. PROGRAMS. Employee shall be eligible for viaLink's group benefits
programs currently in place which are offered to all employees of
viaLink ("Programs"); provided, however, that such Programs may be
amended by viaLink from time to time in its sole and absolute
discretion. Eligibility for each of such Programs shall be subject to
and administered according to any applicable documents relating to
such Programs.
2. EMPLOYEE DUTIES. Employee shall (i) perform all duties which are assigned to
Employee by viaLink from time to time, (ii) devote his full time, attention,
knowledge and skills during the normal business hours of vialink, as they may
be established from time to time, in furtherance of the business of viaLink,
and (iii) faithfully, diligently, and to the best of his ability, perform the
duties described above and further viaLink's best interests.
3. EMPLOYEE'S OBLIGATIONS, COVENANTS AND RESTRICTIONS.
3.1. RULES AND POLICIES. During the employment, Employee shall at all times
be subject to, observe and carry out such reasonable rules,
regulations, polices, directions and restrictions as viaLink may from
time to time establish, and those imposed by law.
3.2. COMPANY PROPERTY. All papers, books and records of every kind and
description relating to the business and affairs of viaLink, whether
or not prepared by the Employee, shall be the sole and exclusive
property of viaLink, and the Employee shall surrender them to viaLink
at any time upon request. This section shall survive the termination
of the employment.
3.3. NON-COMPETITION. During the employment, Employee shall not knowingly
engage, and shall not knowingly solicit any employees of viaLink or
its subsidiaries or other affiliates to engage in any commercial
activities which are in any way in competition with the activities of
viaLink, or which in any way materially interfere with the performance
of Employee's duties or responsibilities to viaLink.
3.4. CONFLICTS OF INTEREST. During the employment, Employee shall not,
directly or indirectly, alone or as a partner, officer, director,
employee, shareholder, consultant or agent of any other corporation,
partnership or other business organization, be actively engaged in or
concerned with any
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*Personal and Confidential*
other duties or pursuits which materially interfere with the
performance of his duties as an Employee of viaLink. Without limiting
the generality of the foregoing, Employee shall comply with any other
conflict of interest policies which may be adopted by viaLink from
time to time.
3.5. MISAPPROPRIATION. Employee shall not knowingly acquire, use, copy, or
misappropriate any trade secret or proprietary information belonging
to any other company or person and shall not cause, encourage or
induce viaLink to acquire, use, copy, or misappropriate any trade
secret or proprietary information belonging to any other company or
person.
3.6. COMPLIANCE. Employee represents and warrants that Employee is and
shall at all times during the employment remain in compliance with any
and all applicable federal and/or state laws, rules or regulations
regarding Employee's eligibility for employment and/or continued
employment with viaLink.
3.7. NON-BREACH. Employee represents that by entering into the employment,
Employee is not in violation of any agreement, term or condition of
any other agreement Employee has had with any third party, nor does
the execution of the Employment Agreement constitute a breach of any
other agreement to which Employee is a party.
4. WORK PRODUCT.
4.1. Employee agrees that any and all inventions, improvements,
developments, discoveries, copyrightable works, or contributions
thereto, including, without limitation, any written works, software
products or code, images, designs, and/or instructions, whether or not
they are the subject of patent or copyright or other proprietary
rights protection under any federal, state, local or foreign law(s),
created in whole or part by Employee during the term of this Agreement
or relating in any way to the business of viaLink (hereinafter "Work
Product") shall be the sole and exclusive property of viaLink and
shall belong to viaLink free and clear from all right, title and
interest of any other person, including, without limiting the
generality of the foregoing, Employee. It is specifically agreed and
understood that Employee shall not retain any right, title, interest
or any right to use any of such Work Product. Employee shall promptly
and fully disclose to viaLink all such Work Product. Employee
acknowledges that all Work Product shall be a work for hire.
4.2. Employee conveys, transfers and assigns all rights, title and interest
in and to any Work Product to viaLink, and further agrees to execute
any written assignment or other agreement viaLink deems necessary at
any time to effect the foregoing and to obtain or uphold, for
viaLink's benefit, all copyright, patent and/or other rights of
viaLink in such Work Product.
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*Personal and Confidential*
4.3. Employee's obligations in this Section 4 shall survive the termination
of this Agreement.
5. TRADE SECRETS AND CONFIDENTIALITY.
5.1. CONFIDENTIAL INFORMATION. "Confidential Information" means proprietary
business information, Trade Secrets and/or other confidential
information regarding viaLink or any of its subsidiaries which (i)
have not otherwise become public knowledge, (ii) were not already
known to Employee or learned by Employee from independent and
unrestricted sources prior to the Effective Date, and (iii) have not
been disclosed by viaLink to others without substantial restriction on
further disclosure. "Trade Secrets" means any proprietary information
not generally known in the industry in which viaLink is engaged or may
become engaged, including, without limitation, information relating to
viaLink's business affairs, finances, properties, methods of
operation, software developed by viaLink, sources of and arrangements
for hardware supplied to clients of viaLink, submission and proposal
procedures of viaLink, viaLink's client or contact lists, commercial
information supplied to viaLink by viaLink's clients, and other
confidential information respecting the business or affairs of
viaLink. Employee acknowledges and agrees that the business and good
will of viaLink depend upon its keeping such Confidential Information
confidential.
5.2. NON-DISCLOSURE. Except when directed to do otherwise by the President
or Chief Executive Officer of viaLink, or any successor to either of
them, and except as required by law, court order or subpoena, Employee
shall keep confidential and shall not divulge to any other person or
entity, during the term of this Agreement or at any time thereafter,
any of viaLink's Confidential Information. In any case where Employee
is compelled by law, court order or subpoena to disclose any
Confidential Information to any third person, Employee shall advise
viaLink in advance of such requirement and shall permit viaLink to
object, contest, intervene or obtain appropriate protection of such
information prior to its disclosure to any person.
5.3. RETURN OF PROPERTY. Upon termination of this Agreement, Employee and
Employee's Personnel will turn over to viaLink all documents, papers
and other matter in the possession of or under the control of Employee
or Employee's Personnel that are or relate to Confidential Information
or Work Product.
5.4. INJUNCTIVE RELIEF. Employee acknowledges that disclosure of any
Confidential Information or Work Product by Employee will give rise to
irreparable injury, which is inadequately compensable in damages, to
viaLink or the owner of such Confidential Information. Accordingly,
viaLink or such other party, in addition to any other remedies which
are
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*Personal and Confidential*
elsewhere granted in this Agreement or which may be otherwise
available at law or in equity, may seek and obtain injunctive relief
against the breach or threatened breach of the foregoing Section 5.2,
any infringement upon any intellectual property rights of viaLink, or
any other breach of any term, covenant, condition, warranty or
representation of this Agreement.
5.5. All obligations under this Section 5 shall survive the termination of
this Agreement.
6. EMPLOYEE'S OBLIGATIONS AFTER EMPLOYMENT ENDS. Employee acknowledges and
agrees that the obligations contained in this Section shall begin upon
termination of employment.
6.1. For a period of two (2) years after cessation of Employee's employment
with viaLink for any reason (including termination of employment by
viaLink), Employee shall not, directly or indirectly, alone, or as a
partner, officer, director, employee, shareholder, consultant or agent
of any other corporation, partnership or other business organization,
knowingly solicit the employment of, or hire, any employee of viaLink,
or any viaLink subsidiary, or cause any such employee to terminate the
employee's relationship with viaLink or any viaLink subsidiary,
without the prior written approval of viaLink.
6.2. For a period of two (2) years after cessation of Employee's employment
with viaLink for any reason (including termination of employment by
viaLink), Employee shall not, directly or indirectly, alone, or as a
partner, officer, director, employee, shareholder, consultant or agent
of any other corporation, partnership or other business organization,
knowingly solicit any of the accounts of viaLink which were directly
or indirectly serviced by the Employee unless such solicitation is
undertaken on behalf of a business venture which does not compete,
directly or indirectly, with the products or services owned, sold,
manufactured, marketed, provided or developed by viaLink and its
subsidiaries during Employee's employment by viaLink. For the purposes
of this section, a business shall be deemed to be in competition with
viaLink and its subsidiaries if the products or services of such
business are substantially similar in purpose, function or capability
to the products or services then being developed, manufactured,
marketed, provided or sold by viaLink or a viaLink subsidiary.
6.3. The parties agree that the any breach or threatened breach of the
provisions of this Section 6 will cause irreparable injury to viaLink
and that money damages will not provide an adequate remedy.
Accordingly, viaLink shall, in addition to other remedies provided by
law, be entitled to such equitable and injunctive relief as may be
necessary to enforce the provisions of these Terms and Conditions
against the Employee or any person or entity participating in such
breach or threatened breach.
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*Personal and Confidential*
Nothing contained herein shall be construed as prohibiting viaLink
from pursuing any other and additional remedies available to it, at
law or in equity, for such breach or threatened breach, including any
recovery of damages from the Employee and the immediate termination of
the employment.
7. RESOLUTION OF DISPUTES. Any controversy or claim arising out of or relating
to the employment or termination thereof (including, without limitation,
claims under Title VII of the Civil Rights Act of 1964, as amended, the
Americans with Disabilities Act, and any other federal and/or state
employment rights laws), and/or arising out of a controversy or claim
regarding the Employment Agreement, these Terms and Conditions, the Programs,
or any breach of any of the foregoing, and except for any claims for
injunctive relief permitted by these Terms and Conditions, shall be settled
by arbitration pursuant to the then current National Rules for the Resolution
of Employment Disputes ("Rules") of the American Arbitration Association
("AAA"), subject to the following:
7.1. Within 15 days after the commencement of arbitration, each party shall
select one person to act as an arbitrator and the two selected persons
shall select a third arbitrator within 10 days of their appointment.
If the arbitrators selected by the parties are unable or fail to agree
upon the third arbitrator, the third arbitrator shall be selected by
the American Arbitration Association. All arbitrators selected shall
be persons having experience with and knowledge of the resolution of
employment-related disputes in the area in which the claim or
controversy arises.
7.2. The arbitration shall be conducted at the offices of viaLink or such
other location at which Employee is then or was most recently employed
by viaLink.
7.3. The arbitration shall be completed within six months of the filing of
the notice of intention to arbitrate (demand), and the arbitrators
shall agree to comply with this schedule before accepting appointment.
However, this time limit may be extended by agreement of the parties.
7.4. Any arbitration award made shall not exceed the amount that would have
been available to the parties had the matter been determined by
litigation in a court of law.
7.5. The prevailing party shall be entitled to an award of all of its
reasonable costs incurred, including, without limitation, reasonable
attorneys' fees.
7.6. Except as may be required by law, neither a party nor an arbitrator
may disclose the existence, content, or results of any arbitration
hereunder without the prior written consent of both parties.
7.7. Judgment upon any award rendered by the arbitrators may be entered by
any court having jurisdiction thereof.
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*Personal and Confidential*
8. SUCCESSORS AND ASSIGNS. The rights and obligations of viaLink hereunder
shall run in favor of and shall be binding upon viaLink, its successors,
assigns, nominees or other legal representatives. Employee acknowledges that
viaLink may assign its rights and obligations under the Employment Agreement
without the consent of Employee. Employee may not assign his rights and
obligations under the Employment Agreement.
9. NOTICES. All notices, requests, demands and other communications hereunder
must be in writing and shall be deemed to have been duly given upon receipt
if delivered by hand, sent by telecopier or by courier, or three (3) days
after such communication is mailed within the continental United States by
first class certified mail, return receipt requested, postage prepaid, to
the other party, in each case addressed as follows: (i) if to viaLink, to
Human Resources, The viaLink Company, 00000 Xxxxxx Xxxx Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000 and (ii) if to the Employee, to the last address shown for
the Employee in the personnel records of viaLink. Addresses may be changed
by written notice sent to the other party at the last recorded address of
that party.
10. SEVERABILITY. If any provision of the Employment shall be adjudged by any
court of competent jurisdiction to be invalid or unenforceable for any
reason, such judgment shall not affect, impair or invalidate the remainder
of said terms and provisions.
11. HEADINGS. The captions and headings in these Terms and Conditions are for
convenience and reference only and shall not be construed as part of these
Terms and Conditions or to limit or otherwise affect the meaning hereof.
12. GOVERNING LAW. Jurisdiction over disputes with regard to the Employment
Agreement and/or these Terms and Conditions shall be exclusively in the
courts of the State of Oklahoma, and shall be construed in accordance with
and governed by the laws of the state of Oklahoma.
13. NONWAIVER. The waiver of any violation or breach of these Terms and
Conditions by either party hereto shall not be deemed to be a waiver of any
continuing violation or breach or a waiver of any other violation or breach
of these Terms and Conditions.
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*Personal and Confidential*
THE viaLINK COMPANY
COMPENSATION PLAN
FOR:
XXXXXXX XXXXXXXXXX
"Employee"
Salary: The Annual Salary is earned and payable bi-weekly.
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Employee's Position: Annual Salary:
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Senior Vice President of Sales $ 190,000.000*
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EMPLOYEE IS ELIGIBLE FOR THE ADDITIONAL COMPENSATION PROVISIONS BELOW.
[ ] Performance Bonus:
Employee shall be eligible for a potential bonus of $150,000.00, payable in
accordance with the following schedule:
o $60,000.00 for the first target account signed (must be retailer),
o $40,000.00 for the second target account signed (must be retailer),
o $20,000.00 for the third target account signed (can be either retailer or
supplier),
o $20,000.00 for the fourth targeted account (can be either retailer or
supplier), and
o $10,000.00 for the fifth target account (can be either retailer or
supplier).
A list of target accounts shall be supplied (see attachment "A").
Notwithstanding anything to the contrary in this Bonus provision, in order to
receive a Bonus due hereunder, Employee must be an employee of viaLink under
this Agreement at the time target account is signed.
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[ ] Severance:
In the event that viaLink terminates the employment without cause at any time,
Employee shall be entitled to severance compensation in an amount equal to six
months of salary at Employee's salary rate at date of hire, payable over 12
months.
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*Personal and Confidential*
[ ] Relocation:
Employee shall be eligible for relocation reimbursement pursuant to the attached
policy of viaLink regarding relocation expenses.
Current lease shall be indemnified up to $7,000.00 per month for one year. If
taxes are paid on lease by Employee, viaLink will not gross up Employee to cover
amount.
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[ ] Hiring Bonus
Following acceptance of Employment Agreement, Employee shall receive a
$10,000.00 hiring bonus which shall be payable on the first payroll following
date of employment.
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[ ] Stock Options:
Subject to the conditions and restrictions ("Conditions and Restrictions")
hereinafter set forth and subject to the terms, covenants and conditions of
viaLink's 1999 Stock Option Plan ("Plan"), viaLink shall grant to Employee an
option to purchase 100,000 shares of viaLink common stock at the xxxxx xxxxx
equal to the closing price of the viaLink common stock on the date of the
actual grant of the options to Employee by viaLink. Such Conditions and
Restrictions are as follows:
o Employee must be an employee of viaLink on the actual date of said grant.
o Employee must execute a Stock Option Agreement generally used by viaLink for
the granting of stock options under said Plan. Such Stock Option Agreement
shall include, but not limited to, the following terms and conditions:
o 50,000 option rights shall vest over two years (25,000 each year) and
50,000 shall vest in accordance with the following schedule:
o 5,000 when first target account is signed, (can be either retailer
or supplier);
o 5,000 when the second target account is signed,
o 10,000 when each of the third and fourth target accounts are signed,
and
o 20,000 when the fifth target account is signed.
o If Employee is terminated or the Employment Agreement is not renewed, whether
with or without cause, or if said Agreement otherwise expires, except as may
otherwise be provided in the change of control provisions in the Plan under
which any options granted, Employee shall not be entitled to exercise any of
such options which have not vested as of the date of such termination,
non-renewal or earlier expiration of the Employment Agreement
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ATTACHMENT A
The viaLink Company
Relocation Reimbursement Agreement
I hereby acknowledge that I have received and read a summary regarding benefits
available to me under the Company relocation policy. I understand the benefits
available and agree to the following:
1. Any expenses that deviate from the policy must be approved in advance by the
Vice President of Human Resources or his/her designee. If I should incur
such an expense without prior approval, the Company may refuse to provide
reimbursement, even though past practice has implied that the expense
would/should have been reimbursed.
2. Tax assistance will be paid on certain allowable items, which the Company
believes are nondeductible (excluding the Relocation Allowance).
3. The payment of my relocation expenses by the Company is conditional on my
remaining in the employ of the Company for twelve (12) consecutive months
after my effective start date with the Company, or my effective date of
transfer into my new position (whichever may apply). If I should voluntarily
resign from the Company or should my employment with the Company be
terminated for cause prior to the completion of twelve (12) consecutive
months after such date, I will repay to the Company all relocation
reimbursement payments made to me or on my behalf, in accordance with the
following schedule:
TERMINATION WITHIN REPAYMENT
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1-3 months 100%
4-6 months 75%
7-9 mouths 50%
10-12 months 25%
After 1 year 0
4. Any repayment required under this agreement would be due and payable to the
Company on the final working day of employment.
5. If required, I authorize deductions to be withheld from my wages, salary,
bonus, or other sums due me for any reason for any relocation expense
amounts due the Company in accordance with the above schedule.
6. Reimbursement or repayment of relocation expenses by the Company does not
constitute a commitment by the Company with respect to the duration of
employment.
/s/ XXX XXXXXXXXXX Xxx Xxxxxxxxxx
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Name (Signature) Name (Print)
Date: 1/3/00
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