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EXHIBIT 10.28
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") made as of this 9th day of
April, 1999, by and between The viaLink Company, an Oklahoma corporation with
its principal place of business at 00000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx, 00000
("viaLink"), and Xxxxx X. Xxxxx ("Xxxxx"), 0000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx
00000.
WHEREAS, viaLink desires to hire Xxxxx as its Vice President of Human
Resources, and
WHEREAS Xxxxx desires to become an employee of viaLink, and
WHEREAS, the parties hereto wish to set forth the terms and conditions
of Lloyd's employment with viaLink.
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants hereinafter set forth, the parties hereto do agree as follows:
1. Employment. viaLink hereby employs Xxxxx, and Xxxxx hereby accepts such
employment, as Vice President of Human Resources for viaLink upon the
terms and subject to the conditions contained herein.
2. Duties. Xxxxx shall perform all duties which are commensurate with his
position and any other duties which may be reasonably assigned to him
by viaLink's Chief Executive Officer ("CEO") from time to time during
the Term of this Agreement.
3. Covenants. In order to induce viaLink to enter into this Agreement,
Xxxxx hereby represents, covenants and agrees as follows:
3.1. Throughout his employment hereunder, Xxxxx shall devote his full
business time, attention, knowledge and skills during normal
business hours in furtherance of the business of viaLink and will
faithfully, diligently, and to the best of his ability, perform
such duties.
3.2. During the Term of this Agreement, Xxxxx shall not knowingly
engage in, 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 such employee's duties or
responsibilities to viaLink.
3.3. Throughout his employment hereunder, Xxxxx shall at all times be
subject to, observe and carry out such rules, regulations,
policies, directions and restrictions as viaLink may from time to
time establish
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and those imposed by law, provided that the same are generally
applicable to all employees similarly situated to Xxxxx.
3.4. Confidential Information. "Confidential Information" means
proprietary business information, Trade Secrets and/or other
confidential information regarding viaLink or any of its
subsidiaries and/or clients which (i) has not otherwise become
public knowledge, (ii) was not already learned by Xxxxx from
independent and unrestricted sources prior to the Effective Date
of this Agreement (as hereinafter defined), and (iii) has 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 or otherwise
relating to the business or affairs of viaLink. Xxxxx agrees and
acknowledges that any such Confidential Information or Trade
Secrets disclosed to Xxxxx at any time before, during or after
the Term of this Agreement shall be subject to the terms and
conditions of this Agreement.
3.5. Non-Disclosure. Xxxxx acknowledges and agrees that the business
and good will of viaLink depend upon its protection of such
Confidential Information. Except when directed to do otherwise by
viaLink's Chief Executive Officer, and except as may be required
by law, court order or subpoena, Xxxxx 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 Xxxxx is
compelled by law, court order or subpoena to disclose any
Confidential Information to any third person, Xxxxx shall advise
viaLink in advance of such required disclosure and shall permit
viaLink to object, contest, intervene or obtain appropriate
protection of such information prior to its disclosure to any
person.
3.6. Return of Property. Upon termination of this Agreement, Xxxxx
shall turn over to viaLink all documents, papers and other matter
in the possession of or under the control of Xxxxx that are or
relate to such Confidential Information or to viaLink's Work
Product.
3.7. Work Product. Xxxxx 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
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they are the subject of patent or copyright or other proprietary
rights protection under any federal, state, local or foreign
law(s), which are created in whole or part by Xxxxx 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,
Xxxxx. It is specifically agreed and understood that Xxxxx shall
not retain any right, title, interest or any right to use any of
such Work Product. Xxxxx shall promptly and fully disclose to
viaLink all such Work Product. Xxxxx acknowledges that all Work
Product shall be a work for hire. Moreover, Xxxxx 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.
3.8. Misappropriation. Xxxxx 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.
3.9. Compliance. Xxxxx agrees:
3.9.1. Throughout the Term of this Agreement, that he is and
shall at all times remain in compliance with any and all
applicable federal and/or state laws, rules or
regulations regarding Lloyd's eligibility for employment
and/or continued employment with viaLink; and
3.9.2. That by executing this Agreement he will not be in
violation of any agreement, term or condition of any
other agreement that he has with any third party; and
3.9.3. That the execution of this Agreement will not constitute
or nor otherwise cause a breach of any other agreement to
which Xxxxx is a party
3.10. Injunction. Xxxxx acknowledges that disclosure of any
Confidential Information or Work Product by Xxxxx will give rise
to irreparable injury, which is inadequately compensable in
damages, to viaLink and/or the owner of such Confidential
Information. Accordingly, viaLink or such other party, in
addition to any other remedies which are elsewhere granted in
this Agreement, may seek and obtain injunctive relief against the
breach or threatened breach of (i) the foregoing Sections 3.5,
3.6,
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3.7 and/or 3.8 (ii) any infringement upon any intellectual
property rights of viaLink and/or (iii) any other breach of any
term, covenant, condition, warranty or representation of this
Agreement relating thereto.
3.11. Survival. Lloyd's obligations in this Section 3 shall survive the
termination of this Agreement.
4. Compensation. As full compensation for Lloyd's services hereunder and
in exchange for his promises contained herein, during the Term of this
Agreement, viaLink shall compensate Xxxxx in the manner set forth
below. The amounts set forth below shall be subject to any withholding
or other deductions required by law.
4.1. Xxxxx shall receive an annualized salary of one hundred and
ninety thousand dollars ($190,000) which shall be earned and
payable biweekly. viaLink may increase Lloyd's salary during the
Term of this Agreement in viaLink's sole discretion. Lloyd's
salary may not be decreased during the Term of this Agreement
without the prior consent of Xxxxx.
4.2. During the Term of this Agreement, commencing with the second
quarter of 1999, Xxxxx shall also be eligible to receive
quarterly bonuses, which if completely earned for each quarter of
a given calendar year, would equal thirty-three percent (33%) of
his annualized salary as of the beginning of such calendar year
("Applicable Annualized Salary"); except that such bonuses for
1999, if fully earned, would equal forty-seven thousand
twenty-five dollars ($47,025.00). The bonuses shall accrue and be
calculated quarterly. The criteria which Xxxxx must meet to earn
a bonus for a given quarter shall be established by viaLink's CEO
and communicated to Xxxxx prior to the beginning of such quarter;
except that the criteria for the second quarter of 1999 shall be
established by viaLink's CEO and communicated to Xxxxx within ten
days of the commencement of Lloyd's employment with viaLink
pursuant to this Agreement. The amount of each such quarterly
bonus, if the criteria to earn such bonus for a given quarter is
met, shall be an amount equal to eight and one-quarter percent
(8.25%) of Lloyd's Applicable Annualized Salary. If such criteria
is not met for a given quarter, no bonus shall be earned for that
quarter. Notwithstanding anything to the contrary in this Section
4.2, in order to receive a bonus hereunder, Xxxxx must be an
employee of viaLink under this Agreement at the end of the
quarter for which such bonus is earned pursuant to this Section
4.2. Any payment due for a quarterly bonus under this Section 4.2
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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4.3. Xxxxx shall be vested with two (2) weeks vacation as of the
commencement of this Employment Agreement and shall also receive
two weeks vacation during each subsequent calendar year of the
Term of this Agreement.
4.4. Xxxxx shall be eligible for viaLink's group benefits programs
which are in place from time to time to the extent that the same
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.
4.5. Subject to the conditions and restrictions ("Conditions and
Restrictions") hereinafter set forth and subject to the terms,
covenants and conditions of viaLink's 1995 Stock Option Plan
("Plan"), viaLink shall grant to Xxxxx an option to purchase one
hundred thousand (100,000) shares of viaLink common stock at the
xxxxx xxxxx equal to eighty-five percent (85%) of the closing
price of the viaLink common stock on the date of the actual grant
of the options to Xxxxx by viaLink. For purposes of this Section,
the date of the grant shall be the date upon which the
shareholders approve the increase in the number of options
available under the Plan. Such Conditions and Restrictions are as
follows:
4.5.1. That Xxxxx is an employee of viaLink on the date of said
grant.
4.5.2. The approval by viaLink's shareholders of an increase in
the number of options available under viaLink's 1995
Stock Option Plan. viaLink agrees to use its best efforts
to obtain such approval. Xxxxx agrees and understands
that in the event that viaLink's shareholders fail at
their 1999 annual meeting to increase the number of
shares available under the Plan in an amount sufficient
to satisfy both the grant of options set forth herein
hereof as well as all other grants of options granted to
other persons which are subject to similar Conditions and
Restrictions, the grant of options hereunder is null and
void and of no further force and effect. Provided,
however, that in the event viaLink's shareholders fail at
their 1999 annual meeting to increase the number of
shares available under the Plan as above set forth,
Xxxxx, within forty-five (45) days after such annual
meeting, and notwithstanding anything to the contrary in
this Agreement, may give viaLink notice of termination of
this Agreement. Such termination shall be effective as of
the latter of the following: (i) two (2) weeks from the
day such notice of termination is received by viaLink or
(ii) the end of such forty-five (45) day period. In the
event that Xxxxx elects to exercise such
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right to terminate under this Section 4.5.2, viaLink,
within five (5) business days following the effective
date of such termination, shall pay Xxxxx a sum equal to
90/365ths of his then current annualized salary (i.e.
annual salary divided by 365, times 90).
4.5.3. The execution by Xxxxx of 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:
4.5.3.1. The option rights shall vest in equal amounts over
a three year period during the Term of this
Agreement; and
4.5.3.2. If Xxxxx is terminated or this Agreement is not
renewed, whether with or without cause, or if this
Agreement otherwise expires, except as may
otherwise be provided in the change of control
provisions in the Plan under which any options
granted, Xxxxx 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 this Agreement.
4.5.3.3. The approval by viaLink's shareholders of an
increase in the number of options available under
viaLink's 1995 Stock Option Plan. viaLink agrees
to use its best efforts to obtain such approval.
4.6. During the term of this Agreement, Xxxxx shall have the use of a
company car of his choice while an employee of viaLink on such
terms and conditions and subject to such policy(s) as may be
reasonably adopted by viaLink from time to time. The car shall be
of Lloyd's choosing but shall not have a final sales price,
exclusive of tags, title and tax expenses, in excess of thirty
thousand dollars ($30,000.00). Alternatively, Xxxxx, in his sole
discretion, may, subject to the appropriate withholdings for
federal and/or state taxes, elect to receive a seven hundred
dollar ($700) per month car allowance in lieu of use of a company
car. Also, if Xxxxx elects to receive such allowance, viaLink,
subject to the appropriate withholdings for federal and/or state
taxes, will reimburse Xxxxx for expenses incurred in the
maintenance of his vehicle, but not for gas, and for the cost of
such insurance thereon as may be required by viaLink.
5. Non-competition.
5.1. If viaLink terminates this Agreement for cause (as defined in
Section 6 of this Agreement) or if Xxxxx terminates this
Agreement for other than
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cause, for a period of two (2) years after the termination of
this Agreement, Xxxxx shall not, directly or indirectly, alone,
or as a partner, officer, director, employee, stockholder,
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 such employee's relationship
with viaLink or any viaLink subsidiary, without the prior written
approval of viaLink. If viaLink terminates Lloyd's employment
without Cause, the provisions of this section 5.1 of this
Agreement shall be enforceable against Xxxxx only as long as
Xxxxx is receiving the compensation set forth in Section 4.1 of
this Agreement.
5.2. If viaLink terminates this Agreement for cause (as defined in
Section 6 of this Agreement) or if Xxxxx terminates this
Agreement for other than cause, for a period of two (2) years
after the termination of this Agreement, Xxxxx shall not,
directly or indirectly, alone, or as a partner, officer,
director, employee, stockholder, consultant or agent of any other
corporation, partnership or other business organization,
knowingly solicit any of the accounts of viaLink which were
customers of viaLink unless such solicitation is undertaken on
behalf of a business venture or entity which does not compete
directly with the products or services owned, sold, manufactured,
marketed, provided or developed by viaLink during Lloyd's
employment by viaLink. For the purposes of this subparagraph, a
business shall be deemed to be in competition with viaLink 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. If viaLink terminates Lloyd's employment without Cause,
the provisions of this section 5.2 of this Agreement shall be
enforceable against Xxxxx only as long as Xxxxx is receiving the
compensation set forth in Section 4.1 of this Agreement.
6. Duration and Termination.
6.1. Except as hereinafter set forth, the term ("Term") of this
Agreement shall commence on the Ninth day of April, 1999
("Effective Date") and shall continue through the Ninth day of
April, 2000 and shall be automatically renewed on a year to year
basis thereafter unless one party hereto notifies the other party
hereto in writing at least thirty (30) days prior to the end of
the then current Term that it will not renew this Agreement at
the end of such then current Term. Provided, however, and
notwithstanding anything to the contrary herein, this Agreement
may also be terminated by viaLink (i) at any time during its then
current Term pursuant to Sections 6.2, 6.3, or 6.4, or (ii)
without cause at any time during a then current Term upon thirty
(30) days written notice to the other party. In the event that
viaLink terminates this Agreement
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without cause either as of the end of a then current term or at
any time during a then current term, Xxxxx shall be entitled to
receive all compensation earned by Xxxxx hereunder to the date of
termination but then unpaid, plus an additional amount equal to
the entirety of his then full current annual salary (i.e., in the
original term of this Agreement, $190,000), all of which will be
paid to Xxxxx on the effective date of such termination. Upon
such payment, Xxxxx shall not be entitled to any further
compensation. For purposes of this Agreement, unless otherwise
specifically indicated, the word "Term" shall include both the
original one year period of this Agreement and any renewal period
thereof.
6.2. Notwithstanding anything to the contrary herein, this Agreement
shall immediately terminate, and all rights, benefits and
obligations hereunder shall cease, in the event of Lloyd's death,
except such rights of Xxxxx which have accrued as of the date of
death.
6.3. Notwithstanding anything to the contrary herein, upon the
occurrence of the earlier of the following events, this
Agreement shall immediately terminate and all rights, benefits
and obligations hereunder shall cease, except such rights of
Xxxxx which have accrued as of the date of disability:
6.3.1. if a mutually acceptable physician determines that Xxxxx
is unable to substantially perform his usual and
customary duties under this Agreement for more than three
(3) months in any calendar year, or
6.3.2. if Xxxxx is eligible to begin receiving monthly benefits
under any current long-term disability insurance plan.
6.4. In addition to the other rights granted to viaLink under this
Agreement, viaLink shall have the right to terminate this
Agreement in any of the following events, each of which shall
constitute "Cause". Cause is defined as:
6.4.1. Any breach by Lloyd's of his obligations under Sections
3.5, 3.6, 3.7 and/or 3.8 of this Agreement;
6.4.2. Lloyd's breach of any of his other duties under this
Agreement if such breach continues unremedied for thirty
(30) days after written notice thereof to Xxxxx
specifying the acts constituting the breach and
requesting that they be remedied; or
6.4.3. a conviction, plea of nolo contendere, plea to a lesser
charge in lieu of a felony, of a felony, a crime
involving fraud or
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misrepresentation, or any other crime, the effect of
which is likely to materially adversely affect viaLink;
or
6.4.4. violation of any law which results in material liability
to viaLink.
6.4.5. abuse of alcohol or other drugs, or the illegal use of
drugs, which materially interferes with the performance
by Xxxxx of his duties hereunder.
7. 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. Xxxxx may
not assign his rights and obligations hereunder.
8. 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 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:
8.1. if to viaLink, The viaLink Company, 00000 Xxxxxx Xxxx,
Xxxxxx, Xxxxxxxx 00000, Attention Chief Executive
Officer; and
8.2. if to Xxxxx, 0000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx 00000
Addresses may be changed by written notice sent to the other party at
the last recorded address of that party.
9. Severability. If any provision of this Agreement 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 this Agreement.
10. Entire Understanding. This Agreement embodies the entire understanding
of the parties hereto, and supersedes all other oral or written
agreements or understandings between them regarding the subject matter.
No change, alteration or modification hereof may be made except in a
writing, signed by both parties hereto. Without limiting the generality
of the foregoing, but except as may be otherwise stated in this
Agreement, any prior oral or written offer(s) of employment to Xxxxx by
viaLink shall be null and void and of no further force and effect.
11. Headings. The headings in this Agreement are for convenience and
reference only and shall not be construed as part of this Agreement or
to limit or otherwise affect the meaning hereof.
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12. Execution in Counterparts. This Agreement may be executed by the
parties hereto in counterparts, each of which shall be deemed to be
original, but all such counterparts shall constitute one and the same
instrument, and all signatures need not appear on any one counterpart.
13. Choice of Laws. Jurisdiction over disputes with regard to this
Agreement shall be exclusively in the courts of the State of Oklahoma,
and this Agreement shall be construed in accordance with and governed
by the laws of the state of Oklahoma without giving effect to
principles of conflicts of law hereunder.
14. Attorney Fees. In the event of any litigation between the parties
hereto, the prevailing shall be entitled to all of its costs incurred
in such litigation, including reasonable attorneys' fees.
15. Nonwaiver. The waiver of any violation or breach of this Agreement 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 this Agreement.
16. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or its breach, or its validity or interpretation,
except claims for injunctive relief and/or claims involving necessary
third parties who refuse to participate, shall be settled by binding
arbitration in accordance with the then current rules for arbitration
of the American Arbitration Association subject to the following:
16.1. The location for the arbitration shall be at such location as
agreed by the parties in Oklahoma County, Oklahoma or if the
parties cannot agree at such location in Oklahoma County,
Oklahoma as designated by the American Arbitration Association.
16.2. Such arbitration shall be heard and determined by a panel of
three (3) arbitrators in accordance with the then current rules
or regulations of the AAA relating to commercial disputes
("Rules").
16.3. All arbitrators shall be selected pursuant to the then current
Rules thereof within thirty (30) days after the filing of a
demand for arbitration. Each arbitrator shall be a person with
experience in handling disputes relating to the employment
contracts of corporate executives.
16.4. The hearing on the arbitration shall be heard not later than six
(6) months after the demand for arbitration has been made by a
party.
16.5. The arbitration award shall be binding on the parties and may be
enforced in any court of competent jurisdiction.
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16.6. The prevailing party in the arbitration and/or in any court
action authorized by this Agreement shall be entitled to recover
its reasonable costs and attorney fees incurred by such
prevailing party, provided however, the parties will split the
cost of the arbitrators' fees regardless of who prevails in the
arbitration.
16.7. The arbitrators will not have the authority to nor shall they
award punitive or exemplary damages. Each party hereby waives the
right to such damages.
16.8. In resolving all disputes between the parties, the arbitrators
will apply the laws of the State of Oklahoma and/or the
applicable federal law, as the case may be
17. Survival. In addition to any others Sections of this Agreement which
survive pursuant to their terms, Sections 3.4, 3.5, 3.6, 3.7, 3.8, 3.9,
3.10, 5.1, 5.2, 7-16 (inclusive) and this Section 17 shall survive the
termination or expiration of this Agreement.
IN WITNESS HEREOF, the parties hereto have executed and delivered this Agreement
as of the day and year first above written.
THE viaLink Company Xxxxx X. Xxxxx
By: /s/ XXXXX X. XXXXXXXXX /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxxxxxx Xxxxx X. Xxxxx
Its: Chief Executive Officer
Date: 4/8/99 Date: 4/9/99
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