EXHIBIT 10.10
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EMPLOYMENT AGREEMENT
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This Agreement is entered into as of November 12, 1997 by and between
TELEPHONE BUSINESS MEETINGS, INC., a Delaware corporation with its principal
place of business at 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx (the "Company") and C.
XXXXXXX XXXXXX, an individual residing at the address set forth under his
signature below ("Executive").
FACTS
The Company and various other business entities have become wholly-owned
subsidiaries (the "Subsidiaries") of VIALOG Corporation, a Massachusetts
corporation ("VIALOG"), in connection with the acquisition of the Subsidiaries
by VIALOG (the "Acquisitions") pursuant to various Agreements and Plans of
Reorganization or Stock or Asset Purchase Agreements (the "Acquisition
Agreements").
Executive has realized substantial value as a result of the Acquisitions.
The Company desires to employ Executive as a senior executive with the
duties, responsibilities, rights and obligations set forth below, and Executive
desires to be so employed.
In Executive's capacity as a senior executive of the Company, Executive
will obtain access to, and be in a position to adversely affect, the
confidential information and good will of VIALOG and its Subsidiaries (VIALOG
and the Subsidiaries collectively and each individually referred to as the
"VIALOG Group").
AGREEMENT
In consideration of the foregoing and of the covenants and agreements set
forth in this Agreement, the Company and the Executive agree as follows:
1. Term. The term of this Agreement will commence at the Effective Time,
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as that term is defined in the Acquisition Agreements (the "Effective Time"),
and will continue for two years from the Effective Time unless terminated in
accordance with the provisions of Section 6 of this Agreement (the "Term").
2. Duties and Responsibilities. The Company agrees to employ Executive,
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and Executive agrees to be employed, as President, and Executive will perform
all of the duties and responsibilities of said office, subject to direction by
the Chief Executive Officer and the Board of Directors of the Company. In
addition, Executive will perform such other specific tasks and responsibilities,
consistent with Executive's position as President, as may be assigned to him
from time to time by Chief Executive Officer and the Board of Directors of the
Company. The Company will have the right to reassign Executive to such other
positions in the Company or within the VIALOG Group as the Company may determine
so long as such other positions involved a substantially similar level of
compensation, authority and responsibility as the
position of President. However, Executive will not be required to locate
outside the Reston, Virginia area without Executive's consent. Executive will
devote substantially all of Executive's business time, labor, skill and best
efforts to carrying out Executive's duties and responsibilities under this
Agreement. Executive may engage in side business activities so long as (i)
Executive does not otherwise violate any other provision of this Agreement, and
(ii) such side business activities do not interfere with Executive's ability to
carry out Executive's duties and responsibilities under this Agreement.
Executive will travel to whatever extent may be reasonably necessary in the
conduct of the VIALOG Group's business and Executive's duties and
responsibilities under this Agreement.
3. Compensation. Subject to Executive's adherence to Executive's
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responsibilities and obligations under this Agreement, the Company agrees to pay
Executive a base compensation at the annual rate of $242,000 and such additional
compensation as may be mutually agreed upon from time to time by the Company and
Executive. Executive will be eligible for such increases (but not decreases) in
base compensation, and to participate in such bonus and/or incentive
compensation plans, as shall be made available from time to time to similarly
situated senior executives of the Company.
4. Benefits and Vacation. Executive will be eligible to participate in
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and/or receive such group insurance plans, other fringe benefit plans and
vacation as the Company makes available to similarly situated senior executives.
5. Expense Reimbursement. Executive will be entitled to reimbursement for
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business expenses incurred by Executive in connection with the performance of
Executive's duties and responsibilities under this Agreement upon submission of
documentation in accordance with such procedures as the Company may establish
from time to time.
6. Termination. The Company may terminate Executive's employment at any
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time during the Term for any reason as follows:
(a) By the Company for Cause. The Company has the right to terminate
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Executive's employment immediately for "Cause". For purposes of this Agreement
only, the term "Cause" means material breach of any provision of this Agreement;
material willful misconduct in the performance of Executive's duties or
responsibilities; material willful nonperformance of Executive's duties or
responsibilities other than by reason of disability; conviction of, or written
admission to, a felony or other crime involving moral turpitude; imprisonment
for any crime constituting a felony; any act involving theft, embezzlement or
fraud; or a material violation of any written policy of the Company. If
Executive's employment is terminated for Cause, the Company will only be
obligated to pay Executive his base compensation through the date of such
termination, together with such other benefits or payments to which Executive
may be entitled (in the event of a Cause termination) by law or pursuant to
benefit plans of the Company then in effect. Executive will remain bound by
Executive's obligations under Sections 7 and 8 of this Agreement.
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(b) Disability. The Company has the right to terminate Executive's
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employment if Executive is prevented, by illness, accident, disability or any
other physical or mental condition, from substantially performing Executive's
duties and responsibilities under this Agreement for one or more periods
totaling one hundred fifty (150) days in any (12) month period. If Executive's
employment is terminated pursuant to this section, Executive will be entitled to
receive such base compensation and group insurance benefits as Executive would
have received (at such times as Executive would have received them) during a
period equal to the greater of (i) one (1) year, or (ii) the remainder of the
Term had Executive remained employed by the Company, which amount will be
reduced by only the amount actually received by Executive under any disability
plans maintained by the Company. Executive will also be entitled to receive
such payments or benefits to which Executive may be entitled by law or pursuant
to benefit plans of the Company then in effect. Executive will remain bound by
Executive's obligations under Sections 7 and 8 of this Agreement.
(c) Death. If Executive dies during the Term, then the Company will
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pay to Executive's estate, designated beneficiary, or legal representative such
base compensation and group insurance benefits as Executive would have received
(at such times as Executive would have received them) during a period equal to
the greater of (i) one (1) year, or (ii) the remainder of the Term, together
with such other benefits or payments to which Executive may be entitled by law
or pursuant to benefit plans of the Company then in effect.
(d) Resignation and Termination by the Company Other than for Cause,
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Disability or Death. The Company and Executive each have the right to terminate
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Executive's employment upon thirty (30) days' prior written notice. If
Executive's employment is terminated pursuant to this Section 6 (d) during the
Term, Executive will be entitled to receive such base compensation and group
insurance benefits as Executive would have received (at such times as Executive
would have received them) during a period equal to the greater of (i) one (1)
year or (ii) the remainder of the Term had Executive remained employed by the
Company (the "Severance Period"), together with such other payments and benefits
to which Executive may be entitled by law or pursuant to benefit plans of the
Company then in effect. Executive will remain bound by Executive's obligations
under Sections 7 and 8 of this Agreement.
7. Confidentiality. Executive will not at any time, without the
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Company's prior written consent, reveal or disclose to any person outside of the
VIALOG Group, or use for his own benefit or the benefit of any other person or
entity, any confidential information concerning the business or affairs of the
VIALOG Group, or concerning the customers, clients or employees of the VIALOG
Group ("Confidential Information"). For purposes of this Agreement, Confidential
Information includes, but is not limited to, financial information or plans;
sales and marketing information or plans; business or strategic plans; salary,
bonus or other personnel information of any type; information concerning methods
of operation; proprietary systems or software; legal or regulatory information;
cost and pricing information or policies; information concerning new or
potential products or markets; models, practices, procedures, strategies or
related information; research and/or analysis; and information concerning new or
potential investors, customers, or clients. Confidential Information does not
include Confidential
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Information already available to the public through no act of Executive's, nor
does it include salary, bonus or other personnel information specific to
Executive.
Executive further understands and agrees that all Confidential Information,
however or whenever produced, will be the VIALOG Group's sole property, and will
not be removed by Executive (or anyone acting at Executive's direction or on
Executive's behalf) from the VIALOG Group's custody or premises without the
Company's prior written consent. Upon the termination of Executive's
employment, Executive will promptly deliver to the Company all copies of all
documents, equipment, property or materials of any type in Executive's
possession, custody or control, that belong to the VIALOG Group, and/or that
contain, in whole or in part, any Confidential Information.
8. Restrictive Covenants. During the Restricted Period (defined
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below), Executive will not, directly or indirectly, for Executive's own account
or for or on behalf of any other person or entity, whether as an officer,
director, employee, partner, principal, joint venturer, consultant, investor,
shareholder, independent contractor or otherwise:
(a) engage in any business in competition with the teleconferencing
service business (defined as audio, data, and video multi-point conferencing) of
the VIALOG Group;
(b) solicit or accept business in such competition with the VIALOG
Group from any (i) clients of the VIALOG Group who were clients of the VIALOG
Group at the time of the termination of Executive's employment, or who were
clients during the one (1) year period preceding such termination, or (ii) any
prospective clients of the VIALOG Group who, within two (2) years prior to such
termination, had been solicited directly by Executive or where Executive
supervised or participated in such solicitation activities; or
(c) attempt to hire or employ, in any fashion (whether as an
employee, independent contractor or otherwise), any employee or independent
contractor of the VIALOG Group, or solicit or induce, or attempt to solicity or
induce, any of the VIALOG Group's employees, consultants, clients, customers,
vendors, suppliers, or independent contractors to terminate their relationship
with the VIALOG Group; or
(d) speak or act in any manner that is intended to, or does in
fact, damage the goodwill or the business or reputation of the VIALOG Group.
For purposes of this Agreement, the Restricted Period will be a period
beginning on the Merger Closing, as that term is defined in the Acquisition
Agreements, and ending on the later of (i) three (3) years after the Merger
Closing or (ii) the first anniversary of the last day of the Severance Period.
Executive may own not more than 5 percent of any class of securities
registered pursuant to the Securities Exchange Act of 1934, as amended, of any
corporation engaged in competition with the VIALOG Group so long as Executive
does not otherwise (i) participate in the
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management or operation of any such business, or (ii) violate any other
provision of this Agreement.
Executive understands and agrees that, by virtue of Executive's position
with the Company, Executive will have substantial access to and impact on the
good will, confidential information and other legitimate business interests of
the VIALOG Group, and therefore will be in a position to have a substantial
adverse impact on the VIALOG Group's business interests should Executive engage
in business in such competition with the VIALOG Group. Executive acknowledges
that Executive's adherence to the restrictive covenants set forth in this
Section is an important and substantial part of the consideration that the
Company is receiving under this Agreement, and agrees that the restrictive
covenants in this Section are enforceable in all respects. Executive consents
to the entry of injunctive relief to enforce such covenants, in addition to such
other relief to which the Company may be entitled by law.
9. Specific Performance. Executive acknowledges that the VIALOG
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Group's remedy at law for breach of Sections 7 and 8 of this Agreement would be
inadequate, and agrees that, for breach of such provisions, the VIALOG Group is
entitled to injunctive relief and to enforce its rights by an action for
specific performance.
10. Choice of Law. This Agreement, and all disputes arising under or
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related to it, will be governed by the law of the Commonwealth of Virginia.
11. Choice of Forum. All disputes arising under or out of this
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Agreement will be brought in courts of competent jurisdiction located within the
Commonwealth of Virginia.
12. Assignment. This Agreement, and the rights and obligations of
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Executive and the Company, inures to the benefit of and is binding upon,
Executive, Executive's heirs and representatives, and upon the Company, the
Subsidiaries and their respective successors and assigns. This Agreement may
not be assigned by Executive. This Agreement may be assigned to any member of
the VIALOG Group.
13. Notices. All notices required by this Agreement will be in
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writing and will be deemed to have been duly delivered when delivered in person
or when mailed by certified mail, return receipt requested, or nationally
recognized next day delivery service, as follows:
(a) If to Executive, to the address which appears below
Executive's signature to this Agreement
(b) If to the Company:
Telephone Business Meetings, Inc.
c/o VIALOG Corporation
Ten New England Business Center, Xxxxx 000
Xxxxxxx, XX 00000
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or to such other address as a party specifies in writing given in accordance
with this Section.
14. Severability. If any one or more of the provisions of this
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Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired. Moreover, if any one or more of the provisions contained
in this Agreement is held to be excessively broad as to duration, activity or
subject, such provision will be construed by limiting or reducing it so as to be
enforceable to the maximum extent compatible with applicable law.
15. Consultation with Counsel; No Representations. Executive
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acknowledges that Executive has had a full and complete opportunity to consult
with counsel of Executive's own choosing concerning the terms, enforceability
and implications of this Agreement, and that the Company has made no
representations or warranties to Executive concerning the terms, enforceability
or implications of this Agreement other than are as reflected in this Agreement.
16. Entire Agreement. This Agreement represents the entire agreement
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between the Executive and the Company with respect to the subject matter hereof
and supersedes all other agreements between the Company and Executive with
respect to such subject matter.
Executed under seal as of November 12, 1997.
EXECUTIVE TELEPHONE BUSINESS MEETINGS, INC.
/s/ C. Xxxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: C. Xxxxxxx Xxxxxx Name: Xxxxx X. Xxxxxx
Title: Director
0000 Xxxxx Xxxx
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Address:
XxXxxx, XX 00000
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