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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
between THE VIALINK COMPANY, Delaware corporation
("viaLink")
and
MARK L. BROMBERG an individual
("Employee").
A. Employee hereby accepts employment with viaLink for the position described
on the attached Compensation Plan. The commencement date of the employment
shall be May 15, 2000. This Employment Agreement shall also be subject to
the Terms and Conditions of Employment attached hereto. Employee agrees
that disputes arising from the employment will be subject to binding
arbitration according to Section 7 of the Terms and Conditions. Employee
acknowledges that Employee understands and agrees to said Terms and
Conditions.
B. Employee's annualized salary as set forth on the Compensation Plan shall be
earned and payable bi-weekly, and subject to withholdings or other
deductions required by law or otherwise authorized.
C. Employee agrees and acknowledges that, notwithstanding anything in this
Employment Agreement, the Compensation Plan, the Terms and Conditions, or
in any other document, policy or practice of viaLink, Employee's employment
is and shall remain AT WILL, and the employment may be terminated with or
without cause at any time, for any reason or for no reason. No change in
such AT WILL status shall be effective unless such change is in writing and
executed by an authorized officer of viaLink.
D. This Employment Agreement, the Compensation Plan, the Terms and Conditions
of Employment and any other documents, if any, attached hereto constitute
the entire agreement of the parties and supersedes all oral or written
agreements or understandings between them regarding the subject matter
hereof. No change, alteration or modification hereof may be made except in
a writing signed by both parties to this Employment Agreement.
E. viaLink's offer of employment as contained in this Employment Agreement
expires and shall be deemed cancelled and revoked if not accepted by
Employee, through Employee's signature hereon, by April 24, 2000. This
Employment Agreement shall only be effective if signed by both parties
hereto.
The viaLink Company Employee
By: /s/ Jim Davidson /s/ Mark Bromberg
Its: V.P. of Human Resources Date: April 20, 2000
Date: April 21, 2000
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THE VIALINK COMPANY
TERMS AND CONDITIONS OF EMPLOYMENT
1. BENEFITS.
1.1. VACATION. Employee shall accrue vacation at the rate set forth in
the then current policy of viaLink relating thereto.
1.2. PROGRAMS. Employee shall be eligible for viaLink's group benefits
programs currently in place which are offered to all employees of
viaLink ("Programs"); provided, however, that such Programs may be
amended by viaLink from time to time in its sole and absolute
discretion. Eligibility for each of such Programs shall be subject
to and administered according to any applicable documents relating
to such Programs.
2. EMPLOYEE DUTIES. Employee shall (i) perform all duties which are
assigned to Employee by viaLink from time to time, (ii) devote his full
time, attention, knowledge and skills during the normal business hours
of vialink, as they may be established from time to time, in
furtherance of the business of viaLink, and (iii) faithfully,
diligently, and to the best of his ability, perform the duties
described above and further viaLink's best interests.
3. EMPLOYEE'S OBLIGATIONS, COVENANTS AND RESTRICTIONS.
3.1. RULES AND POLICIES. During the employment, Employee shall at all
times be subject to, observe and carry out such reasonable rules,
regulations, polices, directions and restrictions as viaLink may
from time to time establish, and those imposed by law.
3.2. COMPANY PROPERTY. All papers, books and records of every kind and
description relating to the business and affairs of viaLink,
whether or not prepared by the Employee, shall be the sole and
exclusive property of viaLink, and the Employee shall surrender
them to viaLink at any time upon request. This section shall
survive the termination of the employment.
3.3. NON-COMPETITION. During the employment, Employee shall not
knowingly engage, and shall not knowingly solicit any employees of
viaLink or its subsidiaries or other affiliates to engage in any
commercial activities which are in any way in competition with the
activities of viaLink, or which in any way materially interfere
with the performance of Employee's duties or responsibilities to
viaLink.
3.4. CONFLICTS OF INTEREST. During the employment, Employee shall not,
directly or indirectly, alone or as a partner, officer, director,
employee, shareholder, consultant or agent of any other
corporation, partnership or other business organization, be
actively engaged in or concerned with any
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other duties or pursuits which materially interfere with the
performance of his duties as an Employee of viaLink. Without
limiting the generality of the foregoing, Employee shall comply
with any other conflict of interest policies which may be adopted
by viaLink from time to time.
3.5. MISAPPROPRIATION. Employee shall not knowingly acquire, use, copy,
or misappropriate any trade secret or proprietary information
belonging to any other company or person and shall not cause,
encourage or induce viaLink to acquire, use, copy, or
misappropriate any trade secret or proprietary information
belonging to any other company or person.
3.6. COMPLIANCE. Employee represents and warrants that Employee is and
shall at all times during the employment remain in compliance with
any and all applicable federal and/or state laws, rules or
regulations regarding Employee's eligibility for employment and/or
continued employment with viaLink.
3.7. NON-BREACH. Employee represents that by entering into the
employment, Employee is not in violation of any agreement, term or
condition of any other agreement Employee has had with any third
party, nor does the execution of the Employment Agreement
constitute a breach of any other agreement to which Employee is a
party.
4. WORK PRODUCT.
4.1. Employee agrees that any and all inventions, improvements,
developments, discoveries, copyrightable works, or contributions
thereto, including, without limitation, any written works, software
products or code, images, designs, and/or instructions, whether or
not they are the subject of patent or copyright or other
proprietary rights protection under any federal, state, local or
foreign law(s), created in whole or part by Employee during the
term of this Agreement or relating in any way to the business of
viaLink (hereinafter "Work Product") shall be the sole and
exclusive property of viaLink and shall belong to viaLink free and
clear from all right, title and interest of any other person,
including, without limiting the generality of the foregoing,
Employee. It is specifically agreed and understood that Employee
shall not retain any right, title, interest or any right to use any
of such Work Product. Employee shall promptly and fully disclose to
viaLink all such Work Product. Employee acknowledges that all Work
Product shall be a work for hire.
4.2. Employee conveys, transfers and assigns all rights, title and
interest in and to any Work Product to viaLink, and further agrees
to execute any written assignment or other agreement viaLink deems
necessary at any time to effect the foregoing and to obtain or
uphold, for viaLink's benefit, all copyright, patent, and/or other
rights of viaLink in such Work Product.
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4.3. Employee's obligations in this Section 4 shall survive the
termination of this Agreement.
5. TRADE SECRETS AND CONFIDENTIALITY.
5.1. CONFIDENTIAL INFORMATION. "Confidential Information" means
proprietary business information, Trade Secrets and/or other
confidential information regarding viaLink or any of its
subsidiaries which (i) have not otherwise become public knowledge,
(ii) were not already known to Employee or learned by Employee from
independent and unrestricted sources prior to the Effective Date,
and (iii) have not been disclosed by viaLink to others without
substantial restriction on further disclosure. "Trade Secrets"
means any proprietary information not generally known in the
industry in which viaLink is engaged or may become engaged,
including, without limitation, information relating to viaLink's
business affairs, finances, properties, methods of operation,
software developed by viaLink, sources of and arrangements for
hardware supplied to clients of viaLink, submission and proposal
procedures of viaLink, viaLink's client or contact lists,
commercial information supplied to viaLink by viaLink's clients,
and other confidential information respecting the business or
affairs of viaLink. Employee acknowledges and agrees that the
business and good will of viaLink depend upon its keeping such
Confidential Information confidential.
5.2. NON-DISCLOSURE. Except when directed to do otherwise by the
President or Chief Executive Officer of viaLink, or any successor
to either of them, and except as required by law, court order or
subpoena, Employee shall keep confidential and shall not divulge to
any other person or entity, during the term of this Agreement or at
any time thereafter, any of viaLink's Confidential Information. In
any case where Employee is compelled by law, court order or
subpoena to disclose any Confidential Information to any third
person, Employee shall advise viaLink in advance of such
requirement and shall permit viaLink to object, contest, intervene
or obtain appropriate protection of such information prior to its
disclosure to any person.
5.3. RETURN OF PROPERTY. Upon termination of this Agreement, Employee
and Employee's Personnel will turn over to viaLink all documents,
papers and other matter in the possession of or under the control
of Employee or Employee's Personnel that are or relate to
Confidential Information or Work Product.
5.4. INJUNCTIVE RELIEF. Employee acknowledges that disclosure of any
Confidential Information or Work Product by Employee will give rise
to irreparable injury, which is inadequately compensable in
damages, to viaLink or the owner of such Confidential Information.
Accordingly, viaLink or such other party, in addition to any other
remedies which are
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elsewhere granted in this Agreement or which may be otherwise
available at law or in equity, may seek and obtain injunctive
relief against the breach or threatened breach of the foregoing
Section 5.2, any infringement upon any intellectual property rights
of viaLink, or any other breach of any term, covenant, condition,
warranty or representation of this Agreement.
5.5. All obligations under this Section 5 shall survive the termination
of this Agreement.
6. EMPLOYEE'S OBLIGATIONS AFTER EMPLOYMENT ENDS. Employee acknowledges and
agrees that the obligations contained in this Section shall begin upon
termination of employment.
6.1. For a period of two (2) years after cessation of Employee's
employment with viaLink for any reason (including termination of
employment by viaLink), Employee shall not, directly or indirectly,
alone, or as a partner, officer, director, employee, shareholder,
consultant or agent of any other corporation, partnership or other
business organization, knowingly solicit the employment of, or
hire, any employee of viaLink, or any viaLink subsidiary, or cause
any such employee to terminate the employee's relationship with
viaLink or any viaLink subsidiary, without the prior written
approval of viaLink.
6.2. For a period of two (2) years after cessation of Employee's
employment with viaLink for any reason (including termination of
employment by viaLink), Employee shall not, directly or indirectly,
alone, or as a partner, officer, director, employee, shareholder,
consultant or agent of any other corporation, partnership or other
business organization, knowingly solicit any of the accounts of
viaLink which were directly or indirectly serviced by the Employee
unless such solicitation is undertaken on behalf of a business
venture which does not compete, directly or indirectly, with the
products or services owned, sold, manufactured, marketed, provided
or developed by viaLink and its subsidiaries during Employee's
employment by viaLink. For the purposes of this section, a business
shall be deemed to be in competition with viaLink and its
subsidiaries if the products or services of such business are
substantially similar in purpose, function or capability to the
products or services then being developed, manufactured, marketed,
provided or sold by viaLink or a viaLink subsidiary.
6.3. The parties agree that the any breach or threatened breach of the
provisions of this Section 6 will cause irreparable injury to
viaLink and that money damages will not provide an adequate remedy.
Accordingly, viaLink shall, in addition to other remedies provided
by law, be entitled to such equitable and injunctive relief as may
be necessary to enforce the provisions of these Terms and
Conditions against the Employee or any person or entity
participating in such breach or threatened breach.
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Nothing contained herein shall be construed as prohibiting viaLink
from pursuing any other and additional remedies available to it, at
law or in equity, for such breach or threatened breach, including
any recovery of damages from the Employee and the immediate
termination of the employment.
7. RESOLUTION OF DISPUTES. Any controversy or claim arising out of or
relating to the employment or termination thereof (including, without
limitation, claims under Title VII of the Civil Rights Act of 1964, as
amended, the Americans with Disabilities Act, and any other federal
and/or state employment rights laws), and/or arising out of a
controversy or claim regarding the Employment Agreement, these Terms
and Conditions, the Programs, or any breach of any of the foregoing,
and except for any claims for injunctive relief permitted by these
Terms and Conditions, shall be settled by arbitration pursuant to the
then current National Rules for the Resolution of Employment Disputes
("Rules") of the American Arbitration Association ("AAA"), subject to
the following:
7.1. Within 15 days after the commencement of arbitration, each party
shall select one person to act as an arbitrator and the two
selected persons shall select a third arbitrator within 10 days of
their appointment. If the arbitrators selected by the parties are
unable or fail to agree upon the third arbitrator, the third
arbitrator shall be selected by the American Arbitration
Association. All arbitrators selected shall be persons having
experience with and knowledge of the resolution of
employment-related disputes in the area in which the claim or
controversy arises.
7.2. The arbitration shall be conducted at the offices of viaLink or
such other location at which Employee is then or was most recently
employed by viaLink.
7.3. The arbitration shall be completed within six months of the filing
of the notice of intention to arbitrate (demand), and the
arbitrators shall agree to comply with this schedule before
accepting appointment. However, this time limit may be extended by
agreement of the parties.
7.4. Any arbitration award made shall not exceed the amount that would
have been available to the parties had the matter been determined
by litigation in a court of law.
7.5. The prevailing party shall be entitled to an award of all of its
reasonable costs incurred, including, without limitation,
reasonable attorneys' fees.
7.6. Except as may be required by law, neither a party nor an arbitrator
may disclose the existence, content, or results of any arbitration
hereunder without the prior written consent of both parties.
7.7. Judgment upon any award rendered by the arbitrators may be entered
by any court having jurisdiction thereof.
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8. SUCCESSORS AND ASSIGNS. The rights and obligations of viaLink hereunder
shall run in favor of and shall be binding upon viaLink, its
successors, assigns, nominees or other legal representatives. Employee
acknowledges that viaLink may assign its rights and obligations under
the Employment Agreement without the consent of Employee. Employee may
not assign his rights and obligations under the Employment Agreement.
9. NOTICES. All notices, requests, demands and other communications
hereunder must be in writing and shall be deemed to have been duly
given upon receipt if delivered by hand, sent by telecopier or by
courier, or three (3) days after such communication is mailed within
the continental United States by first class certified mail, return
receipt requested, postage prepaid, to the other party, in each case
addressed as follows: (i) if to viaLink, to Human Resources, The
viaLink Company, 13800 Benson Road Suite 100, Edmond, Oklahoma 73013
and (ii) if to the Employee, to the last address shown for the Employee
in the personnel records of viaLink. Addresses may be changed by
written notice sent to the other party at the last recorded address of
that party.
10. SEVERABILITY. If any provision of the Employment shall be adjudged by
any court of competent jurisdiction to be invalid or unenforceable for
any reason, such judgment shall not affect, impair or invalidate the
remainder of said terms and provisions.
11. HEADINGS. The captions and headings in these Terms and Conditions are
for convenience and reference only and shall not be construed as part
of these Terms and Conditions or to limit or otherwise affect the
meaning hereof.
12. GOVERNING LAW. Jurisdiction over disputes with regard to the Employment
Agreement and/or these Terms and Conditions shall be exclusively in the
courts of the State of Delaware, and shall be construed in accordance
with and governed by the laws of the state of Delaware.
13. NONWAIVER. The waiver of any violation or breach of these Terms and
Conditions by either party hereto shall not be deemed to be a waiver of
any continuing violation or breach or a waiver of any other violation
or breach of these Terms and Conditions.
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THE VIALINK COMPANY
COMPENSATION PLAN
FOR:
MARK L. BROMBERG
"Employee"
Salary: The Annual Salary is earned and payable bi-weekly.
<TABLE>
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<S> <C>
Employee's Position: Annual Salary:
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President-viaLink Food Service $ 225,000
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</TABLE>
EMPLOYEE IS ELIGIBLE FOR THE ADDITIONAL COMPENSATION PROVISIONS BELOW.
[ ] Performance Bonus:
Beginning with the second quarter of 2000, Employee shall be eligible to
receive an annual bonus of $75,000 ("Bonus"), paid in quarterly payments, if
Employee satisfies the criteria established by viaLink's CEO ("Criteria").
Such Criteria for a given quarter shall be established by viaLink's CEO and
communicated to Employee prior to the beginning of such quarter. Said Bonus
shall accrue quarterly and shall be calculated and paid quarterly.
Notwithstanding anything to the contrary in this Bonus provision, in order to
receive a Bonus due hereunder, Employee must be an employee of viaLink under
this Agreement at the end of a given quarter for which a bonus is earned
pursuant to this provision. Any payment due for a quarter under this provision
shall be paid not later than the next regular payroll after the sixtieth
(60th) day following the end of each quarter for which any Bonus amount is
earned. Bonus of $18,750 is guaranteed for the second quarter of 2000 only.
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[ ] Severance:
In the event that viaLink terminates the employment without cause at any time,
Employee shall be entitled to severance compensation in an amount equal to six
months of salary at Employee's base salary rate at the date of hire, without
interest, payable over twelve months, with the first of such monthly payments
being due upon the effective date of such termination without cause, and no
further compensation shall accrue to Employee pursuant to this Agreement.
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[ ] Stock Options:
Subject to the conditions and restrictions ("Conditions and Restrictions")
hereinafter set forth and subject to the terms, covenants and conditions of
viaLink's 1999 Stock Option Plan ("Plan"), viaLink shall grant to Employee an
option to purchase 125,000 shares of viaLink common stock at the grant price
equal to the closing price of the viaLink common stock on the date of the
actual grant of the options to Employee by viaLink. Such Conditions and
Restrictions are as follows:
o Employee must be an employee of viaLink on the actual date of said grant.
o Employee must execute 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:
o The option rights shall vest in equal amounts over a three year period
during the Term of the Employment Agreement; and
o If Employee is terminated or the Employment Agreement is not renewed,
whether with or without cause, or if said Agreement otherwise expires,
except as may otherwise be provided in the change of control provisions
in the Plan under which any options granted, Employee 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 the
Employment Agreement.
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[ ] Company Vehicle:
o Option 1: During the Employment, Employee 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 Employee's choosing but shall not have a final
sales price, exclusive of tags, title and tax expenses, in excess of
$30,000.
o Option 2: Employee, in Employee's sole discretion, may, subject to the
appropriate withholdings for federal and/or state taxes, elect to receive a
$700 per month car allowance in lieu of use of a company car. If Employee
elects to receive such allowance, viaLink, subject to the appropriate
withholdings for federal and/or state taxes, will reimburse Employee for
expenses incurred in the maintenance of such vehicle, but not for gas, and
for the cost of such insurance thereon as may be required by viaLink.
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