EXHIBIT 10.29
EXECUTION COPY
|__| Employee's Copy
|__| Company's Copy
LUMINANT WORLDWIDE CORPORATION
AMENDMENT ONE TO EMPLOYMENT AGREEMENT
To XXXXXXXXX X. XXXXXX:
This amendment to your existing employment agreement establishes the
terms of your continued employment with Luminant Worldwide Corporation, a
Delaware corporation (the "COMPANY"). The Company has been formed as a parent
company to acquire companies engaged in the business of providing internet
professional services and to make an initial public offering ("IPO") of the
Company's common stock. This Agreement amends your employment agreement (the
"1998 EMPLOYMENT AGREEMENT") dated as of September 1, 1998 with WebOne, Inc.,
the Company's former name, which agreement remains in place in all respects not
amended below.
EMPLOYMENT AND DUTIES You and the Company agree to your employment
as Chief Executive Officer (and, until the
IPO, as President) of the Company on the
terms contained herein. (You agree that
ceasing to serve as President does not give
you any rights under your employment
agreement.) In such position, you will
report directly to the Company's Board of
Directors (the "BOARD"). You agree to
perform whatever duties the Board may assign
you from time to time, consistent with your
position as Chief Executive Officer. During
your employment, you agree to devote your
primary business time, attention, and
energies to performing those duties (except
as you and the Board otherwise agree from
time to time). You agree to comply with the
noncompetition, secrecy, and other
provisions of Exhibit A to this Agreement.
OPTIONS As of the date the Company's underwriters
price the IPO, the Company will grant
options to you under the Company's 1999
Equity Incentive Plan (the "EQUITY PLAN"),
exercisable at the IPO price, to acquire 5%
of the shares of common stock that will be
outstanding immediately after the IPO
(including for that purpose any shares
subject to the underwriters' overallotment
but excluding
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any shares subject to options, whether or
not then exercisable). The options will
consist of incentive stock options under
Section 422 of the Internal Revenue Code to
the extent the tax laws permit and of
nonqualified stock options for the
remainder. The option agreement will provide
that such options will be one-quarter
exercisable when granted and that an
additional quarter will become exercisable
on and after each anniversary of the date of
grant so long as either you are then
employed or the option agreement provides
for additional exercisability. The Company
will permit cashless exercises of the
options, subject to any applicable lockups
and securities law restrictions. The options
will have a term of up to 10 years (subject
to early expiration upon termination for
Cause or as otherwise provided under the
Equity Plan or the option agreement),
provided that the Company agrees you will
have the lesser of the remainder of the 10
years or 36 months after your termination of
employment for any reason (other than for
Cause or your own resignation other than for
Good Reason) to exercise any options that
are already exercisable or that become
exercisable under another agreement with the
Company. You agree that this OPTIONS
provision is in lieu of the Stock Options
provision in Section 2.3 of the 1998
Employment Agreement.
ASSIGNMENT The Company may assign or otherwise transfer
this Agreement and any and all of its
rights, duties, obligations, or interests
under it to
any of the affiliates or
subsidiaries of the Company or
to any business entity that at any
time by merger, consolidation, or
otherwise acquires all or
substantially all of the Company's
stock or assets or to which the
Company transfers all or
substantially all of its assets.
Upon such assignment or transfer, any such
business entity will be deemed to be
substituted for the Company for all purposes
(except that the Company will remain
secondarily liable if it transfers this
Agreement to a subsidiary). You agree that
any such permitted assignment or transfer
does not entitle you to severance. This
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Agreement binds and benefits the Company,
its successors or assigns, and your heirs
and the personal representatives of your
estate. Without the Board's prior written
consent, you may not
assign or delegate this Agreement or any or
all rights, duties, obligations, or
interests under it.
SEVERABILITY If the final determination of an arbitrator
or a court of competent jurisdiction
declares, after the expiration of the time
within which judicial review (if permitted)
of such determination may be perfected, that
any term or provision of this Agreement,
including any provision of Exhibit A, is
invalid or unenforceable, the remaining
terms and provisions will be unimpaired, and
the invalid or unenforceable term or
provision will be deemed replaced by a term
or provision that is valid and enforceable
and that comes closest to expressing the
intention of the invalid or unenforceable
term or provision.
If you accept the terms of this Agreement, please sign in the space indicated
below. We encourage you to consult with any advisers you choose.
LUMINANT WORLDWIDE CORPORATION
By:
------------------------------
Xxxxxx X. Xxxxxx, Director
I accept and agree to the terms of employment set forth in this Agreement:
---------------------------
Xxxxxxxxx X. Xxxxxx
Dated:
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EXHIBIT A
NO COMPETITION You agree to the provisions of this Exhibit
A in consideration of (i) your employment by
the Company and salary and benefits under
this Agreement and the training you will
receive in connection with such employment
and (ii) the Company's granting of options
to you, and you agree that Exhibit A should
be considered ancillary to the option
agreement. YOU AGREE THAT THIS EXHIBIT WILL
CONTINUE TO APPLY FOR TERMS IT SPECIFIES,
WITHOUT REGARD TO ANY PROVISION IN YOUR
WEBONE AGREEMENT THAT PROVIDED FOR
TERMINATION OF OBLIGATIONS IN CERTAIN
CIRCUMSTANCES. While the Company (or its
successor or transferee) employs you and to
the end of the Restricted Period (as defined
below), you agree as follows:
You will not, directly or indirectly, be
employed by, lend money to, or engage in any
Competing Business within the Market Area
(each as defined below). That prohibition
includes, but is not limited to, acting,
either singly or jointly or as agent for, or
as an employee of or consultant to, any one
or more persons, firms, entities, or
corporations directly or indirectly (as a
director, independent contractor,
representative, consultant, member, or
otherwise) that constitutes such a Competing
Business. You also will not invest or hold
equity or options in any Competing Business,
provided that you may own up to 3% of the
outstanding capital stock of any corporation
that is actively publicly traded without
violating this NO COMPETITION covenant, so
long as you have no involvement beyond
passive investing in such business and you
comply with the second sentence of this
paragraph.
If, during the Restricted Period, you are
offered and want to accept employment with a
business that engages in activities similar
to the Company's, you will inform your
Direct Report in writing of the identity of
the business, your proposed duties with that
business, and the proposed starting date of
that employment. You will also inform that
business of the terms of this Exhibit A. The
Company will analyze the proposed employment
and make a good faith
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determination as to whether it would
threaten the Company's legitimate
competitive interests. If the Company
determines that the proposed employment
would not pose an unacceptable threat to its
interests, the Company will notify you that
it does not object to the employment.
You acknowledge that, during the portion of
the Restricted Period that follows your
employment, you may engage in any business
activity or gainful employment of any type
and in any place except as described above.
You acknowledge that you will be reasonably
able to earn a livelihood without violating
the terms of this Agreement.
You understand and agree that the rights and
obligations set forth in this NO COMPETITION
Section will continue and will survive
through the Restricted Period.
DEFINITIONS
COMPETING COMPETING BUSINESS means any service or
BUSINESS product of any person or organization other
than the Company and its successors,
assigns, or subsidiaries (collectively, the
"COMPANY GROUP") that competes with any
service or product of the Company Group
provided by any member of the Company Group
during your employment. COMPETING BUSINESS
includes any enterprise engaged in the
formation or operation of internet
professional services firms that provide
strategic, interactive design and technical
business services, information technology
and interactive business consulting, and
other related services to assist clients in
integrating and maintaining their electronic
commerce capabilities.
MARKET AREA The Market Area consists of the United
States and Canada. You agree that the
Company provides services both at its
facilities and at the locations of its
customers or clients and that, by the nature
of its business, it operates globally.
RESTRICTED For purposes of this Agreement, the
PERIOD RESTRICTED PERIOD ends at the first
anniversary of the date your employment with
the Company Group ends FOR ANY REASON.
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NO INTERFERENCE; During the Restricted Period, you agree that
NO SOLICITATION you will not, directly or indirectly,
whether for yourself or for any other
individual or entity (other than the Company
or its affiliates or subsidiaries),
intentionally
solicit any person or entity who is,
or was, within the 24 months
preceding your date of termination
or resignation, a customer, prospect
(with respect to which any member of
the Company Group has incurred
substantial costs or with which you
have been involved), or client of
the Company Group within the Market
Area, with the 24 month period
reduced to 12 months for prospects
with which you have not been
involved;
hire away or endeavor to entice away
from the Company Group any employee
or any other person or entity whom
the Company Group engages to perform
services or supply products and
including, but not limited to, any
independent contractors,
consultants, engineers, or sales
representatives or any contractor,
subcontractor, supplier, or vendor;
or
hire any person whom the Company
Group employs or employed within the
prior 12 months.
SECRECY
PRESERVING Your employment with the Company under and,
COMPANY if applicable, before this Agreement (with a
CONFIDENCES predecessor to a member of the Company
Group), has given and will give you access
to Confidential Information (as defined
below). You acknowledge and agree that
using, disclosing, or publishing any
Confidential Information in an unauthorized
or improper manner could cause the Company
or Company Group to incur substantial loss
and damages that could not be readily
calculated and for which no remedy at law
would be adequate. Accordingly, you agree
with the Company that you will not at any
time, except in performing your employment
duties to the Company or the Company Group
under this Agreement (or with the Board's or
your Direct Report's
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prior written consent), directly or
indirectly, use, disclose, or publish, or
permit others not so authorized to use,
disclose, or publish any Confidential
Information that you may learn or become
aware of, or may have learned or become
aware of, because of your prior or
continuing employment, ownership, or
association with the Company or the Company
Group or any of their predecessors, or use
any such information in a manner detrimental
to the interests of the Company or the
Company Group.
PRESERVING You agree not to use in working for the
OTHERS' Company Group and not to disclose to the
CONFIDENCES Company Group any trade secrets or other
information you do not have the right to use
or disclose and that the Company Group is
not free to use without liability of any
kind. You agree to promptly inform the
Company in writing of any patents,
copyrights, trademarks, or other proprietary
rights known to you that the Company or the
Company Group might violate because of
information you provide.
CONFIDENTIAL "CONFIDENTIAL INFORMATION" includes, without
INFORMATION limitation, information that the Company or
the Company Group has not previously
disclosed to the public or to the trade with
respect to the Company's or the Company
Group's present or future business,
including its operations, services,
products, research, inventions, discoveries,
drawings, designs, plans, processes, models,
technical information, facilities, methods,
trade secrets, copyrights, software, source
code, systems, patents, procedures, manuals,
specifications, any other intellectual
property, confidential reports, price lists,
pricing formulas, customer lists, financial
information (including the revenues, costs,
or profits associated with any of the
Company's or the Company Group's products or
services), business plans, lease structure,
projections, prospects, opportunities or
strategies, acquisitions or mergers,
advertising or promotions, personnel
matters, legal matters, any other
confidential and proprietary information,
and any other information not generally
known outside the Company or the Company
Group that may be of value to the Company or
the Company Group but, notwithstanding
anything to the contrary, excludes any
information properly in the
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public domain. "CONFIDENTIAL INFORMATION"
also includes confidential and proprietary
information and trade secrets that third
parties entrust to the Company or the
Company Group in confidence.
You understand and agree that the rights and
obligations set forth in this SECRECY
Section will continue indefinitely and will
survive termination of this Agreement and
your employment with the Company or the
Company Group.
EXCLUSIVE PROPERTY You confirm that all Confidential
Information is and must remain the exclusive
property of the Company or the relevant
member of the Company Group. Any office
equipment (including computers) you receive
from the Company Group in the course of your
employment and all business records,
business papers, and business documents you
keep or make, whether on digital media or
otherwise, in the course of your employment
by the Company relating to the Company or
any member of the Company Group must be and
remain the property of the Company or the
relevant member of the Company Group. Upon
the termination of this Agreement with the
Company or upon the Company's request at any
time, you must promptly deliver to the
Company or to the relevant member of the
Company Group any such office equipment
(including computers) and any Confidential
Information or other materials (written or
otherwise) not available to the public or
made available to the public in a manner you
know or reasonably should recognize the
Company did not authorize, and any copies,
excerpts, summaries, compilations, records,
or documents you made or that came into your
possession during your employment. You agree
that you will not, without the Company's
consent, retain copies, excerpts, summaries,
or compilations of the foregoing information
and materials. You understand and agree that
the rights and obligations set forth in this
EXCLUSIVE PROPERTY Section will continue
indefinitely and will survive termination of
this Agreement and your employment with the
Company Group.
COPYRIGHTS, You agree that all records, in whatever
DISCOVERIES, media (including written works), documents,
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INVENTIONS, AND papers, notebooks, drawings, designs,
PATENTS technical information, source code, object
code, processes, methods or other
copyrightable or otherwise protected works
you conceive, create, make, invent, or
discover that relate to or result from any
work you perform or performed for the
Company or the Company Group or that arise
from the use or assistance of the Company
Group's facilities, materials, personnel, or
Confidential Information in the course of
your employment (whether or not during usual
working hours), whether conceived, created,
discovered, made, or invented individually
or jointly with others, will be and remain
the absolute property of the Company (or
another appropriate member of the Company
Group, as specified by the Company), as will
all the worldwide patent, copyright, trade
secret, or other intellectual property
rights in all such works. (All references in
this section to the Company include the
members of the Company Group, unless the
Company determines otherwise.) You
irrevocably and unconditionally waive all
rights, wherever in the world enforceable,
that vest in you (whether before, on, or
after the date of this Agreement) in
connection with your authorship of any such
copyrightable works in the course of your
employment with the Company Group or any
predecessor. Without limitation, you waive
the right to be identified as the author of
any such works and the right not to have any
such works subjected to derogatory
treatment. YOU RECOGNIZE ANY SUCH WORKS ARE
"WORKS FOR HIRE" OF WHICH THE COMPANY IS THE
AUTHOR.
You will promptly disclose, grant, and
assign ownership to the Company for its sole
use and benefit any and all ideas,
processes, inventions, discoveries,
improvements, technical information, and
copyrightable works (whether patentable or
not) that you develop, acquire, conceive or
reduce to practice (whether or not during
usual working hours) while the Company or
the Company Group employs you. You will
promptly disclose and hereby grant and
assign ownership to the Company of all
patent applications, letters patent, utility
and design patents, copyrights, and reissues
thereof or any foreign equivalents thereof,
that may at any time be filed or granted for
or upon any such invention, improvement, or
information. In connection therewith:
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You will, without charge but at the
Company's expense, promptly execute
and deliver such applications,
assignments, descriptions, and other
instruments as the Company may
consider reasonably necessary or
proper to vest title to any such
inventions, discoveries,
improvements, technical information,
patent applications, patents,
copyrightable works, or reissues
thereof in the Company and to enable
it to obtain and maintain the entire
worldwide right and title thereto;
and
You will provide to the Company at
its expense all such assistance as
the Company may reasonably require
in the prosecution of applications
for such patents, copyrights, or
reissues thereof, in the prosecution
or defense of interferences that may
be declared involving any such
applications, patents, or copyrights
and in any litigation in which the
Company may be involved relating to
any such patents, inventions,
discoveries, improvements, technical
information, or copyrightable works
or reissues thereof. The Company
will reimburse you for reasonable
out-of-pocket expenses you incur and
pay you reasonable compensation for
your time if the Company Group no
longer employs you.
To the extent, if any, that you own rights
to works, inventions, discoveries,
proprietary information, and copyrighted or
copyrightable works, or other forms of
intellectual property that are incorporated
in the work product you create for the
Company Group, you agree that the Company
will have an unrestricted, non-exclusive,
royalty-free, perpetual, transferable
license to make, use, sell, offer for sale,
and sublicense such works and property in
whatever form, and you hereby grant such
license to the Company (and the Company
Group).
This COPYRIGHTS, DISCOVERIES, INVENTIONS AND
PATENTS section does not apply to an
invention or discovery for which no
equipment, supplies, facility or trade
secret information of the Company Group
(including its predecessors) was used and
that
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was developed entirely on your own time,
unless (a) the invention relates (i)
directly to the business of the Company
Group, or (ii) the Company Group's actual or
then reasonably anticipated research or
development, or (b) the invention results
from any work you performed for the Company
Group or any predecessor.
MAXIMUM LIMITS If any of the provisions of Exhibit A are
ever deemed to exceed the time, geographic
area, or activity limitations the law
permits, you and the Company agree to reduce
the limitations to the maximum permissible
limitation, and you and the Company
authorize a court or arbitrator having
jurisdiction to reform the provisions to the
maximum time, geographic area, and activity
limitations the law permits; PROVIDED,
HOWEVER, that such reductions apply only
with respect to the operation of such
provision in the particular jurisdiction
with respect to which such adjudication is
made.
INJUNCTIVE RELIEF Without limiting the remedies available to
the Company, you acknowledge
that a breach of any of the
covenants in this Exhibit A may
result in material irreparable
injury to the Company and Company
Group for which there is no adequate
remedy at law, and
that it will not be possible to
measure damages for such injuries
precisely.
You agree that, if there is a breach or
threatened breach, the Company or any member
of the Company Group may be entitled to
obtain a temporary restraining order and/or
a preliminary or permanent injunction
restraining you from engaging in activities
prohibited by any provisions of this Exhibit
A or such other relief as may be required to
specifically enforce any of the covenants in
this Exhibit A. The Company or any member of
the Company Group will, in addition to the
remedies provided in this Agreement, be
entitled to avail itself of all such other
remedies as may now or hereafter exist at
law or in equity for compensation and for
the specific enforcement of the covenants
contained in this Agreement.
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Resort to any remedy provided for in
this Section or provided for by law
will not prevent the concurrent or
subsequent employment of any other
appropriate remedy or remedies, or
preclude the Company's or the
Company Group's recovery of monetary
damages and compensation. You also
agree that the Restricted Period or
such longer period during which the
covenants hereunder by their terms
survive will extend for any and all
periods for which a court with
personal jurisdiction over you finds
that you violated the covenants
contained in this Exhibit A.
EXHIBIT B
DISPUTE RESOLUTION
MEDIATION If either party has a dispute or claim
relating to this Agreement, including any
predecessor employment agreements, or their
relationship and except as set forth in
ALTERNATIVES, the parties must first seek to
mediate the same before an impartial
mediator the parties mutually designate, and
the parties must equally share the expenses
of such proceeding (other than their
respective attorneys' fees). Subject to the
mediator's schedule, the mediation must
occur within 45 days of either party's
written demand. However, in an appropriate
circumstance, a party may seek emergency
equitable relief from a court of competent
jurisdiction notwithstanding this obligation
to mediate.
BINDING If the mediation reaches no solution or the
ARBITRATION parties agree to forego mediation, the
parties will promptly submit their disputes
to binding arbitration before one or more
arbitrators (collectively or singly, the
"ARBITRATOR") the parties agree to select
(or whom, absent agreement, a court of
competent jurisdiction selects). The
arbitration must follow applicable law
related to arbitration proceedings and,
where appropriate, the Commercial
Arbitration Rules of the American
Arbitration Association.
ARBITRATION All statutes of limitations and substantive
PRINCIPLES laws applicable to a court proceeding will
apply to this proceeding. The Arbitrator
will have the power to grant relief in
equity as well as at law, to issue subpoenas
duces tecum, to question witnesses, to
consider affidavits (provided there is a
fair
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opportunity to rebut the affidavits), to
require briefs and written summaries of the
material evidence, and to relax the rules of
evidence and procedure, provided that the
Arbitrator must not admit evidence it does
not consider reliable. The Arbitrator will
not have the authority to add to, detract
from, or modify any provision of this
Agreement. The parties agree (and the
Arbitrator must agree) that all proceedings
and decisions of the Arbitrator will be
maintained in confidence, to the extent
legally permissible, and not be made public
by any party or the Arbitrator without the
prior written consent of all parties to the
arbitration, except as the law may otherwise
require.
DISCOVERY; The parties have selected arbitration to
EVIDENCE; expedite the resolution of disputes and to
PRESUMPTIONS reduce the costs and burdens associated with
litigation. The parties agree that the
Arbitrator should take these concerns into
account when determining whether to
authorize discovery and, if so, the scope of
permissible discovery and other hearing and
pre-hearing procedures. The Arbitrator may
permit reasonable discovery rights in
preparation for the arbitration, provided
that it should accelerate the scheduling of
and responses to such discovery so as not to
unreasonably delay the arbitration. Exhibits
must be marked and left with the Arbitrator
until it has rendered a decision. Either
party may elect, at its expense, to record
the proceedings by audiotape or stenographic
recorder (but not by video). The Arbitrator
may conclude that the applicable law of any
foreign jurisdiction would be identical to
that of Texas on the pertinent issue(s),
absent a party's providing the Arbitrator
with relevant authorities (and copying the
opposing party) at least five business days
before the arbitration hearing.
NATURE OF AWARD The Arbitrator must render its award, to the
extent feasible, within 30 days after the
close of the hearing. The award must set
forth the material findings of fact and
legal conclusions supporting the award. The
parties agree that it will be final,
binding, and enforceable by any court of
competent jurisdiction. Where necessary or
appropriate to effectuate relief, the
Arbitrator may issue equitable orders as
part of or ancillary to the award. The
Arbitrator must equitably allocate the costs
and fees of the proceeding and may consider
in doing so the relative fault of the
parties. The Arbitrator may award reasonable
attorneys' fees to the prevailing party to
the extent a court could have made such an
award.
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APPEAL The parties may appeal the award based on
the grounds allowed by statute, as well as
upon the ground that the award misapplies
the law to the facts, provided that such
appeal is filed within the applicable time
limits law allows. If the award is appealed,
the court may consider the ruling, evidence
submitted during the arbitration, briefs,
and arguments but must not try the case DE
NOVO. The parties will bear the costs and
fees associated with the appeal in
accordance with the arbitration award or, in
the event of a successful appeal, in
accordance with the court's final judgment.
ALTERNATIVES This DISPUTE RESOLUTION provision does not
preclude a party from seeking equitable
relief from a court (i) to prevent imminent
or irreparable injury or (ii) pending
arbitration, to preserve the last peaceable
status quo, nor does it preclude the parties
from agreeing to a less expensive and faster
means of dispute resolution. It does not
prevent the Company from immediately seeking
in court an injunction or other remedy with
respect to Exhibit A.
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