Prepared by MERRILL CORPORATION




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EXHIBIT 10.1  


 
 

EMPLOYMENT AGREEMENT    
  


PARTIES:  


    EMPLOYER: TANNING TECHNOLOGY CORPORATION 


              ("Tanning"
or "Employer") 


    and



    EMPLOYEE:
GREGORY A. CONLEY 


              ("Employee")



AGREEMENT:  


    Employer agrees to hire Employee and Employee accepts employment on the terms and conditions set forth below and in the attached Employee Term Sheet, which is
incorporated into and made a part of this Agreement. Such terms and conditions are acknowledged by the parties to be good and sufficient consideration for this Agreement. 


    1.  Term.  The term of employment shall be 3 years, unless extended or terminated sooner as
provided herein. Unless either party shall have given the other party written notice no less than 90 days prior to the then-scheduled expiration of the employment term, the
employment term shall be automatically extended for successive one-year periods. 


    2.  Position/Compensation/Benefits.  Employee's position, compensation and benefits are specified in the
attached Employee Term Sheet. 


    3.  Duties/Best Efforts.  Employee agrees to devote Employee's full professional time and attention to
the business of Employer and those duties and obligations entrusted to Employee and/or as specified by Employee's supervisor or superiors from time to time. Employee shall at all times perform
Employee's duties faithfully, industriously and to the best of Employee's ability, experience and talent. 


    4.  Confidentiality, Non-Disclosure and Proprietary Rights.  



	a.
	Employee
understands and agrees that the following classes of information (collectively "Confidential Information"), related to Employer's business or to which Employee may become
exposed in the course of his employment, whether or not in writing and whether or not formally marked, but which is identified as confidential or which would be reasonably understood to be
confidential, are and shall remain the exclusive and confidential property of Employer:



	•
	data,
software, processes, client contacts, client/customer lists, service techniques, market development and expansion plans, personnel training and
development methods, internal business organization and methods, "Inventions" (as defined below), and other technical, business and financial information;



	•
	information
and data provided to Employer from time to time by third parties on the understanding and condition that such data and information will be kept
confidential; and



	•
	ideas,
processes, software, information, data, or other items that may be developed by Employee from time to time in the course of the employment
relationship. 








Any
information that is known to the public (other than as a result of disclosure by Employee in violation of Employee's confidentiality obligations to Employer) will not be deemed Confidential
Information. 



	b.
	Throughout
the time Employee is employed by Employer (the "Period of Employment"), and thereafter, Employee will not use or disclose Confidential Information, and will take all 






 


reasonable
precautions to prevent any person or entity from gaining access to any of the Confidential Information, other than as required in the performance of Employee's duties to Employer. In order
to satisfy the needs of Employer's clients and customers, Employee will sign any confidentiality agreement reasonably requested by such third parties and/or Employer. Employee understands that he/she
is not permitted to use the Confidential Information for his/her own purposes or benefit. 



	c.
	Except
in the performance of Employee's duties to Employer, Employee shall not duplicate in any way or remove from the work premises any property of Employer or its business
associates, including but not limited to any Confidential Information. At the end of the Period of Employment, Employee will deliver to Employer all such property, including all copies of materials
embodying Confidential Information, and including, without limitation, files contained on paper, electronic, optical or other media.



	d.
	Employee
hereby agrees to assign, and does hereby assign, to Employer all of Employee's right, title and interest in or to any and all ideas, concepts, know-how,
techniques, processes, inventions, discoveries, developments, software, works of authorship, innovations and improvements (collectively "Inventions") conceived, created or made by Employee during the
Period of Employment, whether alone or in concert with others, whether patentable or subject to potential copyrights or not, except those that Employee developed or develops entirely on Employee's own
time without using the equipment, supplies, facilities, or Confidential Information of Employer, and provided that such Inventions are unrelated to the business of Employer. Employee agrees to
promptly inform and disclose all Inventions to Employer in writing, and with respect to those Inventions that Employee is required to assign to Employer hereunder, to provide all assistance reasonably
requested by Employer in the preservation of its interests in the Inventions (such as by making applications, executing documents, testifying, etc.), such assistance to be provided at Employer's
expense but without additional compensation to Employee so long as such assistance is provided during the Period of Employment or within 12 months thereafter. Employee agrees that all such
Inventions are Confidential Information and are the sole and absolute property of Employer.



	e.
	Employee
agrees that any work or Invention created by Employee, alone or with others, during the Period of Employment that is subject to assignment under paragraph (d) above,
and that is eligible for United States copyright protection or protection under the Universal Copyright Convention, the Berne Copyright Convention and/or the Buenos Aires Copyright Convention shall be
a "work made for hire" and the sole and absolute property of Employer. In the event that any such work is deemed not to be a "work made for hire", Employee hereby assigns all right, title and interest
in and to the copyright in such work to Employer, and agrees to provide all assistance reasonably requested in the establishment, preservation and enforcement of Employer's copyright in such work,
such assistance to be provided at Employer's expense but without any additional compensation to Employee so long as such assistance is provided during the Period of Employment or within
12 months thereafter.



	f.
	In
the event that Employer is unable, as a result of inability to find Employee after a reasonably diligent effort, as a result of the death or incapacity of Employee, or as a
result of the unjustifiable refusal of Employee, to secure Employee's signature on any documents, applications, or letters patent, copyright or other analogous protection relating to Inventions or
other proprietary rights, Employee hereby irrevocably designates and appoints Employer, by its duly authorized officers and agents as Employee's agent and attorney-in-fact, to
act for and on Employee's behalf and stead to execute and file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters
patent, copyright, or other analogous protection thereon with the same legal force and effect as if executed by Employee. 



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    5.  Non-Competition/Non-Solicitation.  Employee holds an executive position with
Employer in which Employee manages portions of the business operations of Employer and supervises or oversees other employees. Employee is considered a key employee of Employer whose efforts are
integral to Employer's business and for which Employee receives commensurately high compensation and benefits. In addition, Employee has or will become aware of Confidential Information including the
trade secrets, trade practices, and customer lists/names of Employer, which Confidential Information in the hands of a competitor or potential competitor would cause substantial loss and damage to
Employer and/or its customers and clients. Finally, Employee will have close customer contact, which would enable Employee to divert customer trade. Employee acknowledges that Employee's employment
creates a relationship of confidence and trust between Employer and Employee with respect to the Confidential Information of Employer, its affiliates, customers and clients. Employee also acknowledges
the highly competitive nature of Employer's business. In consideration of the above matters, Employee agrees and acknowledges that it is reasonable, necessary and appropriate in order to protect the
immediate interests of and avoid substantial injury to Employer for Employee to accept restrictions on Employee's right to work or be employed in a fashion which will compete with Employer's business
and type of business. 



Therefore,
Employee covenants, agrees to, and accepts the following restrictions: 


	a.
	Employee
will not, without the prior written consent of an authorized officer of Employer, during the Period of Employment, and for 12 months after the termination of
employment for any reason, alone or in concert or cooperation with any other person or entity, as owner, manager, principal, employee, investor, shareholder, consultant, or any other type of operator
or advisor, directly or indirectly, engage in the business of, develop, seek to develop, market, produce or provide any commercial product or service in the nature of those provided by, or under
development by Employer or any of its affiliates during the Period of Employment. This non-competition obligation shall apply to North America, Europe, Asia, and any other country where
Employer or any of its subsidiaries or affiliates are actively engaged in or pursuing business during the Period of Employment. This paragraph (a) shall not prohibit the ownership by Employee
of less than 2% of any publicly traded corporation, provided that Employee is not otherwise engaged with such corporation in any of the activities prohibited by this Section 5.



	b.
	During
the Period of Employment and for 12 months after termination of employment for any reason, Employee shall not, directly or indirectly, alone or in concert or
cooperation with any other person or entity, (1) hire an employee, consultant, agent or representative of Employer or its affiliates, successors or assigns or solicit the employment or services
of any person who is employed by Employer or its successors or assigns, or any former employee of Employer whose employment has been terminated for less than three (3) months; or
(2) solicit, directly or indirectly, the business of, or business competitive with Employer's then current business with, any customer or client of Employer.



	c.
	The
time periods of the restrictions set forth in paragraphs (a) and (b) above shall be extended for any period of time that Employee is in violation of any provision
of this Section 5. 




If
any court shall determine that the duration, geographic limitations, subject or scope of any restriction contained in this Section 5 is unenforceable, it is the intention of the parties that
this Section 5 shall not thereby be terminated but shall be deemed amended to the extent required to make it valid and enforceable, such amendment to apply only with respect to the operation of
this Section 5 in the jurisdiction of the court that has made the adjudication. 




    6.  Cooperation.  In the event of any termination of Employee's employment for any reason, Employee
agrees for a period of 12 months to cooperate reasonably with Employer, its affiliates, 


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directors, officers and employees and to be reasonably available to them with respect to continuing and/or future matters arising out of Employee's employment hereunder or any other relationship with
Employer or its affiliates. 


    7.  Affiliated Entities.  Employee understands that Employer's business may be carried out by or in
conjunction with affiliated companies or subsidiaries. Employee agrees that Employee's obligations hereunder, including confidentiality, non-competition and non-solicitation
shall apply equally to the Confidential Information, business and employees of Employers' subsidiaries and affiliates. For such purposes, any reference to Employer or Tanning in this Agreement shall
also be deemed to be a reference to its subsidiaries and affiliates. 


    8.  Remedies for Breach.  Employee acknowledges and agrees that the provisions of Sections 4 through 7 of
this Agreement are essential to Employer and are reasonable and necessary to protect the legitimate interests of Employer and its affiliates and that the damages sustained by Employer or its
affiliates as a result of a breach of the agreements contained in such Sections will subject Employer or its affiliates to immediate, irreparable harm and damage, the amount of which, although
substantial, cannot be reasonably ascertained, and that recovery of damages at law will not be an adequate remedy. Employee
therefore agrees that Employer and its affiliates, in addition to any other remedy they may have under this Agreement or at law, shall be entitled to injunctive and other equitable relief to prevent
or curtail any breach of any such provision of this Agreement. In the event suit or action is instituted to enforce such provisions of this Agreement or any of the terms and conditions of such
Sections, including, but not limited to, suit for a temporary restraining order or preliminary or permanent injunction, the prevailing party shall be entitled to costs and reasonable attorneys' fees.
Employee waives any right to the posting of a bond in the event of an issuance of a temporary restraining order, preliminary injunction or permanent injunction upon the issuance of such an order by a
court of competent jurisdiction. The provisions of this Section 9 shall not prevent Employer or any of its subsidiaries from pursuing any other available remedies for any breach or threatened
breach hereof, including but not limited to the recovery of damages from Employee. 


    9.  Employee Notification Requirement.  During the Period of Employment, and thereafter for a period of
12 months, Employee will notify Employer of any change of address, and Employee will identify and notify Employer of each and any new job or other business activity in which Employee plans to
engage, together with the name and address of the new employer and a reasonably detailed description of the nature of Employee's new position with such new employer sufficient for Employer to be able
to enforce its rights under this Agreement. 


    10.  Former Employment or Work.  Employee represents and agrees, that in Employee's employment with
Employer, Employee shall not breach any obligation of confidentiality that Employee has to any former employer or client. 


    11.  Assignment.  This Agreement, and the duties, obligations and benefits hereunder shall bind and
benefit the parties hereto, and to the extent necessary to carry out its intentions, the legal and personal representatives of the parties. This Agreement may not be assigned without the written
permission of the parties. 


    12.  Entire Agreement and Amendment.  This Agreement, including the attached Employee Term Sheet which is
incorporated by this reference, constitutes the entire agreement between Employer and Employee, and any verbal or written communication between the parties prior to the adoption of this Agreement,
including any offer letter from Employer to Employee, shall be deemed merged herein and of no further force and effect. Notwithstanding the foregoing, however, Employee shall continue to be liable for
the veracity of any representations concerning Employee made in connection with his or her job application to Employer. This Agreement supersedes any conflicting policies relating to Tanning
employees. Except as provided in the attached Employee Term Sheet, this Agreement may only be altered or amended by a writing signed by Employee and an authorized officer of Employer and no 


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officer, employee, agent or representative of Tanning has the authority to orally modify any term of this Agreement. 


    13.  Waiver.  Neither the delay nor failure by Employer or Employee to enforce any provision or exercise
any right under this Agreement, nor partial or single enforcement or exercise of any such provision or right, shall constitute a waiver of that or any other provision or right. 


    14.  Governing Law and Venue.  This Agreement is entered into in Denver, Colorado, and as such it shall
be interpreted and enforced under the laws of the State of Colorado applicable to contracts made to be performed entirely within Colorado. Except as necessary to enforce Employer's rights pursuant to
Sections 4 through 7 above, to the extent that any action is brought in a court of law in connection with this Agreement, the exclusive venue for such action shall be a court of appropriate
jurisdiction, including the Federal courts, located in the City and County of Denver, Colorado. 


    15.  Interpretation.  In the event that any one or more provision in this Agreement shall, for any
reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, but this Agreement
shall be construed as if such provision had never been contained herein. If any provision in this Agreement shall be held to be excessively broad as to duration, activity or subject in any
jurisdiction, it shall be construed by limiting and reducing the provision which is deemed excessively broad. 


    16.  Notices.  Any notice required or permitted by this Agreement shall be effective when received, and
shall be sufficient if in writing and personally delivered (including by express courier) or sent by certified mail with return receipt to the address set forth at the end of this Agreement or at such
other address as may by notice be specified by one party to the other. 


    17.  Survival.  The provisions of this Agreement which by their nature are intended to survive, including
without limitation the confidentiality, non-disclosure, non-competition, non-solicitation and cooperation provisions, shall survive the termination of this
Agreement. 


    18.  Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall together constitute one and the same Agreement. 


    Employee accepts employment with Employer on the above-terms and those set forth in the attached Employee Term Sheet.



	 
	 	 

	TANNING TECHNOLOGY

CORPORATION, a Delaware

corporation (Employer)	 	EMPLOYEE
	

By: /s/ FREDERICK H. FOGEL   	
 	

/s/ GREGORY A. CONLEY   
	

Printed Name: Frederick H. Fogel	
 	

Gregory A. Conley
	

Title: General Counsel, SVP, Business Affairs	
 	

Date: September 14, 2001
	

Date: September 14, 2001	
 	

 
	

 	
 	

Address and Phone:
	4600 South Syracuse St., Suite 1200	 	1153 Bergen Parkway, M-184
	Denver, CO 80237	 	Evergreen, CO 80439
	303-220-9944	 	303-567-255




5






EMPLOYEE TERM SHEET  


Name of Employee: Gregory A. Conley  


	1.
	Position. President and Chief Operating Officer, commencing November 1, 2001. Employee will report to Larry Tanning. Employer
will recommend the election of Employee to serve as a Class I director until the annual meeting of stockholders in the year 2003 or until his successor shall have been duly appointed and
qualified. Employer shall consider Employee for promotion to the role of Chief Executive Officer of Employer no later than 12 months after Employee commences employment with Employer. If
Employer fails to promote Employee to Chief Executive Officer within the first 12 months of Employee's employment, for the 60 day period following the expiration of such 12 month
period Employee will be entitled to terminate employment with Employer and receive such severance benefits as Employee would be entitled to if Employer had terminated Employee's employment without
Cause.



	2.
	Compensation and Benefits. 
	a.
	Salary: Employee will receive a semi-monthly base salary of $12,500.00, which is equal to an annual salary of $300,000.
No additional compensation will be paid for services as a director of the Employer or any subsidiary.



	b.
	Incentive Plan: Incentive opportunity of up to $500,000 per annum, for achieving business and leadership objectives to be mutually
agreed with the executive team within 90 days of commencing employment. The incentive plan will provide for annual incentive earnings paid in February for the prior fiscal year, commencing
February 2003 for fiscal year 2002. Employee will be entitled to a guaranteed minimum of $170,000 for such annual incentive payments.



	c.
	Other Payments: Employee will receive the amounts (less applicable deductions and withholding) described in Exhibit A on the
dates set forth opposite such amounts; provided that Employee is continuously employed by Employer through each such date.



	d.
	Stock Options: Employee is eligible to participate in the Tanning Technology Corporation Stock Option Plan, subject to specified
terms for vesting,and other qualifications and conditions of the Plan, and as set forth in the governing Stock Option Agreement to be executed by Employee.



	e.
	Vacation: Employee is eligible to accrue 20 vacation days per calendar year, the use of which is to be chosen in consideration of the
business needs of Tanning. The accrual and use of vacation is governed by the Tanning vacation policy.



	f.
	Other Benefits: Employee is eligible to participate in any life insurance, disability, medical, dental, pension, profit sharing and
retirement programs as may be made available in Tanning's discretion to Tanning employees of similar seniority or position within Tanning. 







	3.
	Taxes and Related Matters. Employee shall be solely responsible for taxes imposed on Employee by reason of any compensation and
benefits provided by Employer and all such compensation and benefits shall be subject to applicable withholding in respect of taxes.



	4.
	Severance. Notwithstanding anything to the contrary in the Employment Agreement, in the event of termination of employment by
Employer without Cause (other than by reason of death or disability), Employee shall be entitled to a severance payment in an amount equal to twelve months of Employee's base salary in effect at the
time of termination plus the greater of (x) Employee's guaranteed minimum annual incentive opportunity in effect at the time of termination and (y) the amount of the annual incentive
payment actually paid to Employee for the immediately preceding fiscal year, pro rated based on the number of days elapsed from the start of the current fiscal year up to and including the date of
termination. Such severance will be payable over a twelve-month period in accordance with the Employer's usual payroll practices. As a condition precedent to Employee receiving the severance payments
described in the preceding 







sentence
and any accelerated vesting pursuant to the Option Agreement, Employee shall be required to execute and not revoke an original of the general release attached hereto as Exhibit B (with
such changes as may be appropriate to reflect changes in law). 


The
payment of severance described in this Section 4 and acceleration of the vesting of Employee's options described in the governing option agreement shall be the sole compensation payable to
Employee on termination of Employee's employment. 



	5.
	Definitions: 



    "Cause"
shall mean: (i) conduct by Employee thatis materially detrimental to Employer or reflects unfavorably on Employer to such an extent that Employer's best interests
reasonably require Employee's discharge, (ii) Employee's willful misconduct or gross negligence seriously detrimental to Employer, (iii) conduct by Employee that constitutes willful
misconduct or gross negligence in the performance of his duties hereunder, (iv) conduct by Employee that constitutes fraud or dishonesty, (v) embezzlement of funds or misappropriation of
other property by Employee, (vi) conviction of Employee of a felony or any other crime that involves fraud, dishonesty, or moral turpitude, (vii) the breach by Employee of any of the
provisions of the Employment Agreement or (viii) the failure by Employee to perform his duties hereunder after demand for performance is delivered by Employer that identifies the manner in
which Employer believes Employee has not performed his duties. 


    Employee
accepts employment with Employer on the terms set forth in this Employee Term Sheet and the Employment Agreement to which it is attached. 



	TANNING TECHNOLOGY

CORPORATION, a Delaware

corporation (Employer)	 	GREGORY A. CONLEY
	
By: /s/ Frederick H. Fogel	
 	

/s/ Gregory A. Conley
	

Printed Name: Frederick H. Fogel	
 	

Gregory A. Conley
	

Title: General Counsel, SVP, Business Affairs	
 	

Date: September 14, 2001
	

Date: September 14, 2001	
 	

 









EXHIBIT A  


 
 

PAYMENT SCHEDULE    
  



	Amount
 
	 	Date

	$234,000	 	November 15, 2001
	$230,000	 	January 15, 2002
	$375, 659	 	February 15, 2002
	$380,000	 	March 15, 2002
	$230,000	 	November 15, 2002








EXHIBIT B  


 
 

RELEASE    
  


    I, Gregory A. Conley, hereby release and discharge Tanning Technology Corporation and its successors, predecessors, affiliates, officers, directors,
shareholders, employees, agents, and representatives from any and all liability or claims of whatever nature, which could be asserted against Tanning arising out of or in any way relating to my
employment with Tanningor my separation therefrom prior to the date of this Release. This Release specifically includes, among other things, any and all claims under the
federal Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. I agree not to file suit or file any
complaint or charge with any federal, state, or local agency against Tanning or the released parties, whether relating to my employment with Tanning or my separation therefrom. 


    I
acknowledge that I have been given up to 21 days to consider Release before signing it. I also acknowledge that I have been encouraged by Tanning to seek the advice of legal
counsel before signing this Release. I understand that I may revoke this Release within seven days after I sign it by delivering written notice of my desire to revoke to the Director of Human
Resources, North America at 4600 South Syracuse Street, Suite 1200, Denver, Colorado 80237. 



	Date:	 	  
  	 	  
 Gregory A. Conley











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EMPLOYMENT AGREEMENT


PAYMENT SCHEDULE

RELEASE