EXHIBIT 10.12
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EMPLOYMENT AGREEMENT
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This Agreement is entered into as of November 12, 1997 by and between
CSII Acquisition Corporation, a Georgia corporation with its principal place of
business at 000 Xxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx (the "Company")
and XXXX X. XXXXXXXX, an individual residing at the address which appears below
her signature to this Agreement ("Executive").
FACTS
Various 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 one year 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 her
from time to time by the Chief Executive Officer and the Board of Directors of
the Company. Executive will not be required to locate outside the Atlanta 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 for the Term of $255,000 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.
Executive is entitled to the same level of health and dental benefits as the
health and dental benefits provided to the Executive by Conference Source
International, Inc. immediately prior to the Effective Time. The Company will
maintain a life insurance policy on the Executive's life in the minimum amount
of $1,000,000, and payable to a beneficiary designated by the Executive. The
Executive is entitled to a monthly automobile allowance equal to her current
monthly auto allowance of $1,440.
5. Expense Reimbursement. Executive will be entitled to reimbursement for
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business expenses incurred by Executive 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 willful misconduct in the performance of
Executive's duties or responsibilities; conviction of, or written admission to,
a felony or other crime involving moral turpitude; imprisonment for any crime
constituting a felony; or conviction of any crime involving theft, embezzlement
or fraud. If Executive's employment is terminated for Cause, the Company will
only be obligated to pay Executive her 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, 8 and 9 of this Agreement.
(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
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Agreement for one or more periods totaling one hundred fifty (150) days during
the Term. 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 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, 8 and 9 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 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 by the Company, 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
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, 8 and 9 of this Agreement.
7. Confidentiality. Executive will not at any time, without the Company's
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prior written consent, reveal or disclose to any person outside of the VIALOG
Group, or use for her 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 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
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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. Inventions. During the Term of this Agreement, Executive will promptly
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disclose to the Company or any successor or assign, and grant to the Company and
its successors and assigns (without any separate remuneration or compensation
other than that received by Executive in the course of employment), Executive's
entire right, title and interest in and to any and all inventions, developments,
discoveries, models, or any other intellectual property of any type or nature
whatsoever ("Intellectual Property") developed during the Term of this
Agreement, whether developed by Executive during or after business hours, or
alone or in connection with others, reasonably related to the business of the
Company, the Subsidiaries and their respective successors or assigns, determined
as such business is constituted at the time of the invention. Executive agrees,
at the Company's expense, to take all steps necessary or proper to vest title to
all such Intellectual Property in the Company, its affiliates, successors,
assigns, nominees or designees, and to cooperate fully and assist the VIALOG
Group in any litigation or other proceedings involving any such Intellectual
Property.
9. Restrictive Covenants. During the Restricted Period (defined below),
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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 then
teleconferencing business of the VIALOG Group;
(b) solicit or accept business in 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) hire or employ, or 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.
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For purposes of this Agreement, the Restricted Period will be a period
beginning at the Effective Time, as that term is defined in the Acquisition
Agreements, and ending three (3) years after the Effective Time.
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 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 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.
10. Specific Performance. Executive acknowledges that the VIALOG Group's
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remedy at law for breach of Sections 7, 8 and 9 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.
11. 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 State of Georgia.
12. Choice of Forum. All disputes arising under or out of this Agreement
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will be brought in courts of competent jurisdiction located within the State of
Georgia.
13. 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.
14. Notices. All notices required by this Agreement will be in writing
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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:
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Conference Source International, Inc.
c/o VIALOG Corporation
0 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
ATTN: President
or to such other address as a party specifies in writing given in accordance
with this Section.
15. Severability. If any one or more of the provisions of this Agreement
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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.
16. Consultation with Counsel; No Representations. Executive acknowledges
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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.
17. 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 the date first written above.
XXXX X. XXXXXXXX CONFERENCE SOURCE INTERNATIONAL, INC.
/s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Director
0000 Xxxxxxxxxxx Xxxxx
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Address:
Xxxxxxx, XX 00000
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