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EXHIBIT 10.29
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") made as of this 8th 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 Xxxxxx X. Xxx ("Xxx"), 0000 Xxxxxx Xxxxx, XXxxx, Xxxxx 00000.
WHEREAS, viaLink desires to hire Xxx as its Executive Vice President of
Business Development, and
WHEREAS Xxx desires to become an employee of viaLink, and
WHEREAS, the parties hereto wish to set forth the terms and conditions
of Xxx'x 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 Xxx, and Xxx hereby accepts such
employment, as Executive Vice President of Business Development for
viaLink upon the terms and subject to the conditions contained herein.
2. Duties. Xxx 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, Xxx
hereby represents, covenants and agrees as follows:
3.1. Throughout his employment hereunder, Xxx 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, Xxx 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, Xxx 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 Xxx.
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 Xxx 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. Xxx agrees and
acknowledges that any such Confidential Information or Trade
Secrets disclosed to Xxx 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. Xxx 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, Xxx 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 Xxx is compelled by
law, court order or subpoena to disclose any Confidential
Information to any third person, Xxx 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, Xxx shall
turn over to viaLink all documents, papers and other matter in
the possession of or under the control of Xxx that are or relate
to such Confidential Information or to viaLink's Work Product.
3.7. Work Product. Xxx 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 Xxx 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, Xxx.
It is specifically agreed and understood that Xxx shall not
retain any right, title, interest or any right to use any of such
Work Product. Xxx shall promptly and fully disclose to viaLink
all such Work Product. Xxx acknowledges that all Work Product
shall be a work for hire. Moreover, Xxx 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. Xxx 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. Xxx 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 Xxx'x 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 Xxx is a party
3.10. Injunction. Xxx acknowledges that disclosure of any Confidential
Information or Work Product by Xxx 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. Xxx'x obligations in this Section 3 shall survive the
termination of this Agreement.
4. Compensation. As full compensation for Xxx'x services hereunder and in
exchange for his promises contained herein, during the Term of this
Agreement, viaLink shall compensate Xxx 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. Xxx shall receive an annualized salary of two hundred and fifty
thousand dollars ($250,000) which shall be earned and payable
biweekly. viaLink may increase Xxx'x salary during the Term of
this Agreement in viaLink's sole discretion. Xxx'x salary may not
be decreased during the Term of this Agreement without the prior
consent of Xxx.
4.2. During the Term of this Agreement, commencing with the second
quarter of 1999, Xxx shall also be eligible to receive quarterly
bonuses, which if completely earned for each quarter of a given
calendar year, would equal fifty percent (50%) 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 ninety three thousand seven hundred fifty
dollars ($93,750.00). The bonuses shall accrue and be calculated
quarterly. The criteria which Xxx must meet to earn a bonus for a
given quarter shall be established by viaLink's CEO and
communicated to Xxx 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 Xxx within ten
days of the commencement of Xxx'x 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 twelve and one-half percent
(12.50%) of Xxx'x 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, Xxx 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. Xxx shall be vested with four (4) weeks vacation as of the
commencement of this Agreement and shall also receive four (4)
weeks vacation during each subsequent calendar year of the Term
of this Agreement.
4.4. Xxx 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.
Notwithstanding the foregoing, viaLink shall maintain during the
Term of this Agreement either a group or an individual long term
disability insurance policy, at viaLink's option, providing
coverage, subject to the terms and limitations of such policy,
for Xxx, with coverage amounts not less than those currently
provided to viaLink's employees under viaLink's group long term
disability policy in place as of the execution date of this
Agreement.
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 Xxx an option to purchase one
hundred fifty thousand (150,000) 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 Xxx 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 Xxx 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. Xxx 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, Xxx, within forty-five
(45) days after such annual meeting, and
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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 Xxx elects to exercise such right to terminate under
this Section 4.5.2, viaLink, within five (5) business
days following the effective date of such termination,
shall pay Xxx 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 Xxx 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 Xxx 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, Xxx 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, Xxx shall have the use of
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 Xxx'x choosing but shall not have a final sales price,
exclusive of tags, title and tax expenses, in excess of forty
thousand dollars ($40,000.00). Alternatively, Xxx, 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 Xxx elects to receive such allowance, viaLink,
subject to the appropriate withholdings for federal and/or state
taxes, will reimburse Xxx for expenses incurred in the
maintenance of his
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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 Xxx terminates this Agreement
for other than cause, for a period of two (2) years after the
termination of this Agreement, Xxx 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 Xxx'x employment without Cause, the provisions of this
section 5.1 of this Agreement shall be enforceable against Xxx
only as long as Xxx 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 Xxx terminates this Agreement
for other than cause, for a period of two (2) year after the
termination of this Agreement, Xxx 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 during
the Term of this Agreement unless such solicitation is undertaken
on behalf of a business venture or entity which does not compete
with viaLink in the shared database electronic commerce services
industry for supply chain management in consumer package goods.
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 Xxx'x employment without Cause, the provisions of this
section 5.2 of this Agreement shall be enforceable against Xxx
only as long as Xxx 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 or before the 30th day of April, 1999
("Effective Date") and shall continue for one year from the
Effective Date, 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)
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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
without cause either as of the end of a then current term or at
any time during a then current term, Xxx shall be entitled to
receive an amount equal to his then current annualized salary,
payable upon the effective date of such termination. Upon such
payment, Xxx 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 Xxx'x death,
except such rights of Xxx which have accrued as of the date of
death.
6.3. Notwithstanding anything to the contrary herein, this Agreement
shall immediately terminate and all rights and benefits hereunder
shall cease thirty (30) days after Xxx is eligible to begin
receiving monthly benefits under any then current long-term
disability insurance plan maintained by viaLink pursuant to this
Agreement, except to the extent that any such rights or benefits
have already accrued to Xxx as of such date. Notwithstanding the
foregoing, the parties agree and understand that viaLink, at its
option, may waive this termination provision.
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 Xxx'x of his obligations under Sections
3.5, 3.6, 3.7 and/or 3.8 of this Agreement;
6.4.2. Xxx'x breach of any of his other duties under this
Agreement if such breach continues unremedied for thirty
(30) days after written notice thereof to Xxx 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 Xxx 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. Xxx 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 Xxx, 0000 Xxxxxx Xxxxx, Xxxxx, 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 Xxx 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. Residence. During the Term of this Agreement, it is agreed and
understood that Xxx, unless otherwise agreed by the parties, will be
allowed to live in Dallas, Texas and work at viaLink's Dallas, Texas
office.
18. 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, 7-17 (inclusive) and this Section 18 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 Xxxxxx X. Xxx
By: /s/ XXXXX X. XXXXXXXXX /s/ XXXXXX X. XXX
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Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxx
Its: Chief Executive Officer
Date: 4/9/99 Date: 4/8/99
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