EXHIBIT 10.36
EMPLOYMENT AGREEMENT
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This Agreement is entered into as of August 3, 1998 by and between VIALOG
Corporation, a Massachusetts corporation (the "Company") and XXXXXXXX XXXXXXXX
("Xx. Xxxxxxxx").
FACTS
The Company desires to employ Xx. Xxxxxxxx as Vice President of Human
Resources with the duties, responsibilities, rights and obligations set forth
below, and Xx. Xxxxxxxx desires to be so employed.
In Xx. Xxxxxxxx'x capacity as Vice President of Human Resources of the
Company, Xx. Xxxxxxxx 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 Xx. Xxxxxxxx agree as follows:
1. Term. The term of this Agreement commences on the date first written
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above (the "Effective Date"), and will continue until terminated in accordance
with the provisions of Section 6 of this Agreement (the "Term").
2. Duties and Responsibilities. The Company agrees to employ Ms.
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Xxxxxxxx, and Xx. Xxxxxxxx agrees to be employed, as Vice President of Human
Resources, and Xx. Xxxxxxxx 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, Xx. Xxxxxxxx will perform such
other specific tasks and responsibilities, consistent with Xx. Xxxxxxxx'x
position as Vice President of Human Resources, as may be assigned to Xx.
Xxxxxxxx from time to time by the Chief Executive Officer and the Board of
Directors of the Company. The Company will have the right to reassign Xx.
Xxxxxxxx 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 Vice President of Human Resources. Xx. Xxxxxxxx will devote
substantially all of her business time, labor, skill and best efforts to
carrying out her duties and responsibilities under this Agreement. Xx. Xxxxxxxx
may engage in side business activities so long as (i) Xx. Xxxxxxxx does not
otherwise violate any other provision of this Agreement, and (ii) such side
business activities do not interfere with her ability to carry out the duties
and responsibilities under this Agreement.
Xx. Xxxxxxxx will travel to whatever extent may be reasonably necessary in the
conduct of the VIALOG Group's business and her duties and responsibilities under
this Agreement.
3. Compensation. Subject to Xx. Xxxxxxxx'x adherence to the
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responsibilities and obligations under this Agreement, the Company agrees to pay
Xx. Xxxxxxxx a base compensation at the bi-weekly rate of four thousand four
hundred and twenty-three dollars and eight cents ($4,423.08). Xx. Xxxxxxxx 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, Vacation and Stock Options. Xx. Xxxxxxxx will be eligible to
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participate in and/or receive such group retirement plans (qualified and non-
qualified), insurance plans, other fringe benefit plans and vacation as the
Company makes available to similarly situated senior executives. Subject to the
approval of the Board of Directors, Xx. Xxxxxxxx will be granted an incentive
stock option to purchase 25,000 shares of the Company's Common Stock, which
option shall vest over three years pursuant to the provisions of an Incentive
Stock Option Agreement to be entered into between the Company and the Xx.
Xxxxxxxx.
5. (A) Expense Reimbursement. Xx. Xxxxxxxx will be entitled to
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reimbursement for business expenses incurred by Xx. Xxxxxxxx connection with the
performance of Xx. Xxxxxxxx'x duties and responsibilities under this Agreement
upon submission of documentation in accordance with such procedures as the
Company may establish from time to time.
(B) Relocation Expenses. The Company will reimburse Xx. Xxxxxxxx for
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reasonable and necessary expenses incurred in connection with her relocation in
a total amount not to exceed Twenty Thousand Dollars ($20,000.00). Xx. Xxxxxxxx
acknowledges that she must submit all receipts or appropriate documentation
within six (6) months from the date of her employment in order to receive
reimbursement from the Company. Xx. Xxxxxxxx further acknowledges that should
she leave her employment with the Company less than one (1) year from the date
of her employment with the Company, she will reimburse the Company the full
amount she has received under this Agreement; and, she hereby authorizes the
Company to deduct any monies owing to the Company for expenses reimbursed to Xx.
Xxxxxxxx under this Agreement, from her final paycheck and severance payments if
applicable. She acknowledges that any amount remaining due to the Company shall
be a debt owed by her to the Company. Xx. Xxxxxxxx further agrees that if any
taxing authority determines taxes, penalties or interest to be due or owing with
respect to any monies paid to Xx. Xxxxxxxx under this Section, she will be
solely responsible for the payment of such taxes, and agrees further to
indemnify and hold harmless the Company in the event any such taxing authority
alleges that the Company should pay such taxes, penalties or interest.
6. Termination. The Company may terminate Xx. Xxxxxxxx'x employment at
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any time during the Term for any reason as follows:
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(a) By the Company for Cause. The Company has the right to terminate Ms.
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Xxxxxxxx'x employment immediately for "Cause". For purposes of this Agreement
only, the term "Cause" means material breach of any provision of this Agreement;
misconduct in the performance of Xx. Xxxxxxxx'x duties or responsibilities;
nonperformance of Xx. Xxxxxxxx'x 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 Xx. Xxxxxxxx'x employment is terminated for
Cause, the Company will only be obligated to pay Executive's base compensation
through the date of such termination, together with such other benefits or
payments to which Xx. Xxxxxxxx may be entitled (in the event of a Cause
termination) by law or pursuant to benefit plans of the Company then in effect.
Xx. Xxxxxxxx will remain bound by Xx. Xxxxxxxx'x obligations under Sections 7, 8
and 9 of this Agreement.
(b) Disability. The Company has the right to terminate Xx. Xxxxxxxx'x
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employment if Xx. Xxxxxxxx is prevented, by illness, accident, disability or any
other physical or mental condition, from substantially performing Xx. Xxxxxxxx'x
duties and responsibilities under this Agreement for one or more periods
totaling one hundred fifty (150) days in any (12) month period. If Xx.
Xxxxxxxx'x employment is terminated pursuant to this section, Xx. Xxxxxxxx will
be entitled to receive such base compensation and comparable group insurance
benefits as Xx. Xxxxxxxx would have received (at such times as Xx. Xxxxxxxx
would have received them) during a period equal to one (1) year which amount
will be reduced by only the amount actually received by Xx. Xxxxxxxx under any
disability plans maintained by the Company. Xx. Xxxxxxxx will also be entitled
to receive such payments or benefits to which Xx. Xxxxxxxx may be entitled by
law or pursuant to benefit plans of the Company then in effect. Xx. Xxxxxxxx
will remain bound by Xx. Xxxxxxxx'x obligations under Sections 7, 8 and 9 of
this Agreement.
(c) Death. If Xx. Xxxxxxxx dies during the Term, then the Company will pay
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to Xx. Xxxxxxxx'x estate, designated beneficiary, or legal representative such
base compensation and comparable group insurance benefits as Xx. Xxxxxxxx would
have received (at such times as Xx. Xxxxxxxx would have received them) during a
period equal to one (1) year, together with such other benefits or payments to
which Xx. Xxxxxxxx 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 Xx. Xxxxxxxx each have the right to
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terminate Xx. Xxxxxxxx'x employment upon thirty (30) days' prior written notice.
Xx. Xxxxxxxx will in any event remain bound by Executive's obligations under
Sections 7, 8 and 9 of this Agreement. If Xx. Xxxxxxxx'x employment is
terminated by Xx. Xxxxxxxx, then the Xx. Xxxxxxxx will not be entitled to any
severance payments. If Xx. Xxxxxxxx'x employment is terminated by the Company
pursuant to this Section 6 (d): (i) Xx. Xxxxxxxx will receive a severance
payment of one year's then current base salary, such severance payment to be
paid in twelve equal month installments commencing on the first day of the first
month following such termination; provided, however, that for each of the last
six monthly installments, the
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amount of such installment shall be reduced, but not below zero, by the amount
of compensation, if any, earned by the Xx. Xxxxxxxx for service rendered to any
third party during such month; and (ii) to the extent permitted by law and by
the terms of any applicable insurance contract, the Company shall at its own
cost and expense continue to make available to, and to continue Xx. Xxxxxxxx'x
participation in, those group insurance plans and other fringe benefit plans in
which she was a participant as of the date of her termination by the Company for
the period commencing on the date of such termination of employment and ending
on the earlier of (A) twelve months from the date of the termination (the
"Severance Period") or (B) such time as Xx. Xxxxxxxx obtains other employment.
7. Confidentiality. Xx. Xxxxxxxx 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 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 Xx. Xxxxxxxx'x, nor does it include salary, bonus or other personnel
information specific to Xx. Xxxxxxxx.
Xx. Xxxxxxxx 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 Xx. Xxxxxxxx (or anyone acting at Xx.
Xxxxxxxx'x direction or on Xx. Xxxxxxxx'x behalf) from the VIALOG Group's
custody or premises without the Company's prior written consent. Upon the
termination of Xx. Xxxxxxxx'x employment, Xx. Xxxxxxxx will promptly deliver to
the Company all copies of all documents, equipment, property or materials of any
type in Xx. Xxxxxxxx'x 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, Xx. Xxxxxxxx will
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promptly 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 Xx. Xxxxxxxx in the course of
employment), Xx. Xxxxxxxx'x 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 Xx. Xxxxxxxx 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. Xx. Xxxxxxxx agrees, at the Company's expense, to take all steps
necessary or proper to vest title to all such Intellectual Property in the
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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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Xx. Xxxxxxxx will not, directly or indirectly, for Xx. Xxxxxxxx'x 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 business of the
VIALOG Group, or in competition with any business that the VIALOG Group, to the
Xx. Xxxxxxxx'x knowledge, actively was planning to enter at the time of the
termination of Xx. Xxxxxxxx'x employment;
(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 Xx. Xxxxxxxx'x 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 Xx. Xxxxxxxx or where Xx. Xxxxxxxx
supervised or participated in such solicitation activities;
(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
solicit 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 Effective Date and ending on the later of (i) two years after
the Closing Date or (ii) the first anniversary of the last day of the Severance
Period.
Xx. Xxxxxxxx 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 Xx. Xxxxxxxx
does not otherwise (i) participate in the management or operation of any such
business, or (ii) violate any other provision of this Agreement.
Xx. Xxxxxxxx understands and agrees that, by virtue of Xx. Xxxxxxxx'x
position with the Company, Xx. Xxxxxxxx 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 Xx.
Xxxxxxxx engage in business in competition with the VIALOG Group. Xx. Xxxxxxxx
acknowledges that
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Xx. Xxxxxxxx'x 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. Xx. Xxxxxxxx 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. Xx. Xxxxxxxx acknowledges that the VIALOG
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Group's 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 Commonwealth of Massachusetts.
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
Commonwealth of Massachusetts.
13. Assignment. This Agreement, and the rights and obligations of Ms.
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Xxxxxxxx and the Company, inures to the benefit of and is binding upon, Xx.
Xxxxxxxx, Xx. Xxxxxxxx'x heirs and representatives, and upon the Company, the
Subsidiaries and their respective successors and assigns. This Agreement may
not be assigned by Xx. Xxxxxxxx. 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 Xx. Xxxxxxxx, to the address which appears below Xx.
Xxxxxxxx'x signature to this Agreement, and
(b) If to the Company, at:
Ten New England Business Center, Xxxxx 000
Xxxxxxx, XX 00000
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.
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16. Consultation with Counsel; No Representations. Xx. Xxxxxxxx
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acknowledges that Xx. Xxxxxxxx has had a full and complete opportunity to
consult with counsel of Xx. Xxxxxxxx'x own choosing concerning the terms,
enforceability and implications of this Agreement, and that the Company has made
no representations or warranties to Xx. Xxxxxxxx concerning the terms,
enforceability or implications of this Agreement other than are as reflected in
this Agreement.
EMPLOYEE VIALOG CORPORATION
/s/ Xxxxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Xxxxxxxx Xxxxxxxx Xxxxx X. Xxxxxx
President/CEO
00 Xxx Xxxxxx #0
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Address:
Xxxxxxx, XX 00000
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