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EXHIBIT 10.27
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") made as of this 1st 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 J. Xxxxxx Xxxxxx ("Xxxxxx"), 0000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxx 00000.
WHEREAS, viaLink desires to hire Xxxxxx as its Vice President of
Finance and Chief Financial Officer, and
WHEREAS Xxxxxx desires to become an employee of viaLink, and
WHEREAS, the parties hereto wish to set forth the terms and conditions
of Xxxxxx'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 Xxxxxx, and Xxxxxx hereby accepts
such employment, as Vice President of Finance and Chief Financial
Officer for viaLink upon the terms and subject to the conditions
contained herein.
2. Duties. Xxxxxx 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,
Xxxxxx hereby represents, covenants and agrees as follows:
3.1. Throughout his employment hereunder, Xxxxxx 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, Xxxxxx 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, Xxxxxx 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 Xxxxxx.
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 Xxxxxx 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. Xxxxxx agrees and
acknowledges that any such Confidential Information or Trade
Secrets disclosed to Xxxxxx 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. Xxxxxx 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, Xxxxxx 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 Xxxxxx is
compelled by law, court order or subpoena to disclose any
Confidential Information to any third person, Xxxxxx 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, Xxxxxx
shall turn over to viaLink all documents, papers and other matter
in the possession of or under the control of Xxxxxx that are or
relate to such Confidential Information or to viaLink's Work
Product.
3.7. Work Product. Xxxxxx 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,
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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), which are created in whole or part by
Xxxxxx 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, Xxxxxx. It is specifically agreed and understood that
Xxxxxx shall not retain any right, title, interest or any right
to use any of such Work Product. Xxxxxx shall promptly and fully
disclose to viaLink all such Work Product. Xxxxxx acknowledges
that all Work Product shall be a work for hire. Moreover, Xxxxxx
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. Xxxxxx 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. Xxxxxx 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 Xxxxxx'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 Xxxxxx is a party
3.10. Injunction. Xxxxxx acknowledges that disclosure of any
Confidential Information or Work Product by Xxxxxx 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
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relief against the breach or threatened breach of (i) the
foregoing Sections 3.5, 3.6, 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. Xxxxxx'x obligations in this Section 3 shall survive
the termination of this Agreement.
4. Compensation. As full compensation for Xxxxxx'x services hereunder and
in exchange for his promises contained herein, during the Term of this
Agreement, viaLink shall compensate Xxxxxx 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. Xxxxxx shall receive an annualized salary of two hundred and
twenty-five thousand dollars ($225,000) which shall be earned and
payable biweekly. viaLink may increase Xxxxxx'x salary during the
Term of this Agreement in viaLink's sole discretion. Xxxxxx'x
salary may not be decreased during the Term of this Agreement
without the prior consent of Xxxxxx.
4.2. Subject to the terms of this Section 4.2, and beginning with the
beginning with the second quarter of 1999, Xxxxxx shall also be
eligible to receive a total annual bonus which if completely
earned for a given calendar year would be equal to fifty percent
(50%) of his then current annual salary as of the beginning of
such calendar year ("Bonus") if Xxxxxx satisfies the criteria
established by viaLink's CEO ("Criteria"). Such Criteria shall be
established by viaLink's CEO for each quarter in a given calendar
year and communicated to Xxxxxx 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 Section 4.2, in order to receive a Bonus due
hereunder, Xxxxxx 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 Section 4.2. Any payment due for a
quarter 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.
4.3. Xxxxxx 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.
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4.4. Xxxxxx 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 Xxxxxx an option to purchase one
hundred twenty-five thousand (125,000) 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 Xxxxxx 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 Xxxxxx 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. Xxxxxx 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, Xxxxxx, 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 Xxxxxx 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 Xxxxxx a sum equal to 90/365ths of
his then current annualized salary (i.e. annual salary
divided by 365, times 90).
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4.5.3. The execution by Xxxxxx 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 Xxxxxx 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, Xxxxxx 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
via Link's 1995 Stock Option Plan. viaLink agrees
to use its best efforts to obtain such approval.
4.6. During the Term of this Agreement, Xxxxxx 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 Xxxxxx'x 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, Xxxxxx, 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 Xxxxxx elects to receive such allowance, viaLink,
subject to the appropriate withholdings for federal and/or state
taxes, will reimburse Xxxxxx 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 Xxxxxx terminates this
Agreement for other than cause, for a period of two (2) years
after the termination of this Agreement, Xxxxxx 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,
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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 Xxxxxx'x employment without Cause,
the provisions of this section 5.1 of this Agreement shall be
enforceable against Xxxxxx only as long as Xxxxxx 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 Xxxxxx terminates this
Agreement for other than cause, for a period of two (2) years
after the termination of this Agreement, Xxxxxx 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 Xxxxxx'x
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 Xxxxxx'x employment without Cause,
the provisions of this section 5.2 of this Agreement shall be
enforceable against Xxxxxx only as long as Xxxxxx 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 5th day of April, 1999 ("Effective
Date") and shall continue through 4th 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 as of the end of a then current term by
delivering notice of non-renewal as required by the first
sentence of this Section 6.1 or at any time during a then current
term by giving the notice required by Section 6.1(ii) above,
Xxxxxx shall be entitled to receive a one-time lump sum payment
in an
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amount equal to his then current annualized salary, payable upon
the effective date of such termination. Upon such payment, Xxxxxx
shall not be entitled to any further compensation except to the
extent that it has otherwise accrued as of such date of
termination. 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 Xxxxxx'x
death, except such rights of Xxxxxx 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 Xxxxxx
which have accrued as of the date of disability:
6.3.1. if a mutually acceptable physician determines that Xxxxxx
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 Xxxxxx 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 Xxxxxx'x of his obligations under Sections
3.5, 3.6, 3.7 and/or 3.8 of this Agreement;
6.4.2. Xxxxxx'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 Xxxxxx
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 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.
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6.4.5. abuse of alcohol or other drugs, or the illegal use of
drugs, which materially interferes with the performance
by Xxxxxx 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. Xxxxxx
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 Xxxxxx, 0000 Xxxxxxxx Xxxxxx, 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 Xxxxxx
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.
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.
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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 Dallas, Texas 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.
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.
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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 Xxxxxx, 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 J. Xxxxxx Xxxxxx
By: /s/ XXXXX X. XXXXXXXXX /s/ J. XXXXXX XXXXXX
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Xxxxx X. Xxxxxxxxx J. Xxxxxx Xxxxxx
Its: Chief Executive Officer
Date: April 1, 1999 Date: 3/31/99
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