EXHIBIT 10.9
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AMENDED & RESTATED EMPLOYMENT AGREEMENT
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This Agreement is entered into on May 6, 1997, effective as of
September 19, 1996, by and between VIALOG Corporation, a Massachusetts
corporation (the "Company") and Glenn D. Bolduc ("Executive").
FACTS
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 commenced on September 19, 1996 (the
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"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 Executive,
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and Executive agrees to be employed, as President and Chief Executive Officer,
and Executive will perform all of the duties and responsibilities of said
office, subject to direction by 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 and Chief Executive Officer,
as may be assigned to Executive from time to time by 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 and
Chief Executive Officer. However, Executive will not be required to locate
outside the Greater Boston metropolitan 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 $1.00 until the earlier of
(a) the completion by the Company of its Initial Public Offering ("IPO") or
(b) the completion of a merger of the Company with any other entity or the sale
of substantially all of the assets of the Company to another entity or the sale
of more than fifty percent of the common stock of the Company to an unrelated
party in one or a series of transactions (any such event, a "Change in Control")
and thereafter at the annual rate of $220,000 and such additional compensation
as may be mutually agreed upon from time to time by the Company and Executive.
Within thirty (30) days following the closing of the IPO or a Change in Control
(the "Closing Date") the Executive will receive a cash bonus equal to the number
of days from the Effective Date to the Closing Date multiplied by the
Executive's "daily rate" ($220,000 divided by 365). 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 will also receive a monthly car allowance of $1,000.
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" if Executive shall not have cured
such breach within thirty (30) days of receipt of a written notice from the
Company detailing such breach (if such breach could in fact be cured). 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 any act
involving theft, embezzlement or fraud. If Executive's 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 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 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
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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 at the Company's expense 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 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. Executive
will in any event remain bound by Executive's obligations under Sections 7, 8
and 9 of this Agreement. If Executive's employment is terminated by the
Executive, then the Executive will not be entitled to any severance payments.
If Executive's employment is terminated by the Company pursuant to this Section
6(d), Executive will be entitled to receive (i) a severance payment of eighteen
months' then current salary, such severance payment to be paid in eighteen equal
month installments commencing on the first day of the first month following such
termination and (ii) continuation, at the Company's sole expense, of all fringe
benefits until the earlier of (A) eighteen months from the date of the
termination (the "Severance Period") or (B) such time as the Executive obtains
other employment.
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 Executive's 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. Upon
the termination of Executive's employment, Executive will promptly deliver to
the Company all copies of all documents, equipment,
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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 business of
the VIALOG Group;
(b) solicit or accept business in competition with the VIALOG Group
from any 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;
(c) 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.
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.
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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 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
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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, and
(b) If to the Company, at:
46 Manning Road
Billerica, MA 01821
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
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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.
Executed under seal on May 6, 1997.
VIALOG Corporation
/s/ Glenn D. Bolduc By: /s/ John Hassett
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Name: Glenn D. Bolduc Name: John J. Hassett
7 Springvale Street Title: Chairman
Hollis, NH 03049
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