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EXHIBIT 10.28
*Personal and Confidential*
EMPLOYMENT AGREEMENT
between THE viaLINK COMPANY, a Delaware corporation
("viaLink")
and
XXXX XXXXX, 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 September 25th, 2000 and replaces the prior employment agreement
of 19th January 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 September 25th, 2000.
This Employment Agreement shall only be effective if signed by both parties
hereto.
The viaLink Company Employee
By: /s/ XXXXX XXXXXXXX /s/ XXXX XXXXX
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Its: VP of Human Resources Date: 9-28-00
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Date: 9-28-2000
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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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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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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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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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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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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, Xxxx Xxxx Xxxxx 000, Galleria Tower 3, Xxxxxx,
Xxxxx 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 Delaware, and shall be construed in accordance
with and governed by the laws of the state of Delaware.
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*
viaLINK
COMPENSATION PLAN
FOR:
XXXX XXXXX
"Employee"
Salary: The Annual Salary is earned and payable bi-weekly.
Employee's Position: Annual Salary:
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Chief Information Officer $157,500
EMPLOYEE IS ELIGIBLE FOR THE ADDITIONAL COMPENSATION PROVISIONS BELOW.
[ ] Performance Bonus:
Beginning with the fourth quarter of 2000, Employee shall be eligible to
receive an annual bonus equal to 25% of Employee's then current annual salary
("Bonus") if Employee satisfies the criteria established by viaLink's
President and COO ("Criteria"). Such Criteria for a given quarter shall be
established by viaLink's President and COO and communicated to Employee prior
to the beginning of such quarter. Said Bonus shall accrue quarterly and shall
be calculated and paid quarterly. 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 end of a given quarter
for which a bonus is earned pursuant to this provision. Any payment due for a
quarter under this provision shall be paid not later than the next regular
payroll after the sixtieth (60th) day following the end of each quarter for
which any Bonus amount is earned.
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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 base salary rate at the date of hire, without
interest, payable over twelve months, with the first of such monthly payments
being due upon the effective date of such termination without cause, and no
further compensation shall accrue to Employee pursuant to this Agreement.
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[ ] Company Vehicle:
Employee, in Employee's sole discretion, may, subject to the appropriate
withholdings for federal and/or state taxes, elect to receive a $ 700.00 per
month car allowance in lieu of use of a company car. If Employee elects to
receive such allowance, viaLink, subject to the appropriate withholdings for
federal and/or state taxes, will reimburse Employee for expenses incurred in
the maintenance of such vehicle, but not for gas, and for the cost of such
insurance thereon as may be required by viaLink.
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[ ] Stock Options:
The Notice of Grant of Stock Options dated January 17, 2000 shall remain in
full force and effect subject however to all the terms and conditions set
forth therein, in the Stock Option Agreement related thereto and in the "Plan"
as defined in the said Notice of Grant.
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