EXHIBIT 10.6
Separation Agreement
Effective as of August 1, 2002, that parties hereto agree that the Employment
Agreement made and entered into as of April 9, 1999, by and between The viaLink
Company (the "Company") and Xxxxx X. Xxxxx (the "Employee"), together with all
amendments thereto (collectively, the "Employment Agreement") shall be
terminated on the following terms:
1. The Company and Employee acknowledge that the effective date of Employee's
separation and termination of employment shall be the effective date of
this Agreement; provided, however, only that compensation set forth in this
Agreement shall be paid to Employee, whether or not accrued prior to the
effective date of separation date. Compensation or other payment set forth
in the Employment Agreement not specifically addressed herein, such as
automobile allowances or expenses, shall terminate effective August 1,
2002.
2. In connection with such termination, Company and Employee agree that
Company shall pay Employee twenty-six (26) biweekly payments of $4,880.77
each, paid in cash, starting on August 16, 2002, for a total aggregate
payment of $126,900.02. All normal and customary payroll deductions
currently in effect (such as FICA, Federal income tax withholding, and
employee-authorized deductions for benefit plans), and which per this
Agreement are anticipated to continue, shall continue to be made as
appropriate. Any expenses submitted by or payable to Employee and which are
pending as of the effective date of this Agreement shall be reviewed,
approved, and paid by the Company to Employee in the normal course of
reimbursement or payment.
3. The Company will cause its records to reflect that Employee is on furlough
until August 2, 2003; however, Employee may be employed elsewhere during
the furlough period. For purposes of continuing Employee's coverage under
the Company's health (medical, dental, and vision) insurance plans, to the
extent legally permissible the Company shall report to the Company's
insurers Employee's status in such manner as best calculated to continue
Employee's coverage under those plans. Employee shall not be regarded as
continuing Employee's employment with the Company for any other reason. In
the event Employee finds alternative employment and obtains medical and
dental insurance coverage from or through that employment, then the Company
shall no longer be obligated to provide coverage to Employee.
4. Employee hereby surrenders 520,000 stock options having per share strike
prices of $3.6125, $15.21875, and $1.04. For the balance, the Company will
cause the administrator of the stock option plan of the Company to reflect
continuing vesting (pursuant either to vesting over time or a change in
control as defined in the plan under which the options were granted) until
August 2, 2003, of 244,000 stock options granted by the Company to Employee
on August 17, 2001, and October 25, 2001; options not vested by August 2,
2003, shall be terminated and not replaced. All options vested and to
become vested shall continue in force in accordance with the terms and
conditions of the stock option plan until August 2, 2005, upon which date
they will expire without notice
to Employee, (unless Employee has previously exercised the options, in
which case they will be terminated by virtue of exercise and not replaced).
5. Employee shall keep the laptop computer, monitor, printer, computer cables
and accessories, and cellular telephone currently owned by the Company but
in Employee's possession. To the extent Employee has any other property of
the Company in Employee's possession, including files, manuals, and papers,
Employee shall return it to the Company. Employee shall promptly surrender
Employee's laptop computer to the Company for appropriate security
screening and removal of appropriate programs and files, and the Company
shall return Employee's laptop computer to Employee within 48 hours of
receipt by the Company. Employee's cellular telephone number shall promptly
be transferred to Employee at Employee's expense.
6. Employee has five (5) days accrued vacation as of the effective date of
this Agreement, having a gross value of $3,253.85. The Company shall pay to
Employee in lump sum the gross value of the accrued vacation on August 16,
2002, as a special item included with the biweekly payment set forth in
this Agreement.
7. Provided e-mail services continue to be available at addresses ending in
"@xxxxxxx.xxx," Employee's e-mail address at the Company and service in
connection therewith shall be continued for a period of one (1) year or
until Employee requests termination, whichever occurs first. Employee
acknowledges and agrees that the e-mail transmitted to Employee's e-mail
address at the Company is Company property and shall be screened by either
Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx, or a substitute in the event neither of them
is available before release to Employee by forwarding to
xxxxxx0000@xxxxx.xxx; screening and release shall occur at least three
times per week. For such time as the Company's voicemail system shall
continue to be active at the Company's current address, all voicemail
messages intended for Employee shall be regarded by the parties and treated
in the same manner as e-mail messages intended for Employee.
8. From time to time until August 2, 2003, the Company may, solely at its
election, call upon Employee to perform consulting services, subject to
Employee's availability, at no charge to the Company; provided, Employee
shall not be asked to perform services in excess of five (5) hours per
week.
9. The covenants pertaining to non-competition, confidentiality, and
non-hiring of employees of the Company, all as set forth in the Employment
Agreement, shall continue in full force and effect throughout the term of
this Agreement, ending effective as of August 2, 2004.
10. Other than as herein agreed, each party hereto releases the other, and to
the extent applicable the other's affiliates, directors, officers,
employees, heirs, and assigns, from any and all claims, demands or causes
of action regarding the Employment Agreement, Employee's employment by the
Company, any law or regulation purporting to control or actually
controlling Employee's employment by the Company, as well as Employee's
acts or omissions while employed by the Company. The terms of this
Agreement shall
supersede and control any contrary provision of any other agreement between
the parties and shall be binding upon each party's heirs, successors, and
assigns, as applicable.
11. Both parties acknowledge and agree that this Agreement must be approved by
the Compensation Committee of the Company's Board of Directors prior to its
being binding upon either party to this Agreement. The Company undertakes
to circulate this Agreement for said approval promptly upon complete
execution of this Agreement, and both parties undertake to recommend its
approval by the Compensation Committee of the Company's Board of Directors.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have executed this Separation Agreement effective as of the date first above
written.
The viaLink Company Employee:
By: Xxxxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Title: Vice President
