As filed with the Securities and Exchange Commission on September 1, 1999.
File No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------------
VIALOG Corporation
(Exact name of registrant as specified in its charter)
---------------------
MASSACHUSETTS 04-3305282
(State or other jurisdiction of (I.R.S Employer Identification Number)
incorporation or organization)
---------------------
35 New England Business Center
Suite 160
Andover, Massachusetts 01810
(Address of Principal Executive Offices)
---------------------
VIALOG CORPORATION
1999 Stock Plan
(Full title of the plan)
---------------------
KIM MAYYASI
President and Chief Executive Officer
VIALOG CORPORATION
35 New England Business Center, Suite 160
Andover, Massachusetts 01810
(Name and address of agent for service)
(978) 975-3700
(Telephone number, including area code, of agent for service)
---------------------
Copy to:
DAVID L. LOUGEE, ESQ.
Mirick, O'Connell, DeMallie & Lougee, LLP
1700 BankBoston Tower
100 Front Street
Worcester, Massachusetts 01608-1477
(508) 791-8500
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed maximum Proposed
Title of securities Amount to offering price per maximum aggregate Amount of
to be registered be share (4) offering price registration fee
registered(1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value........... 317,500(2) $3.29 $1,044,857.50 $ 290.47
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value........... 1,182,500(3) $3.28 $3,878,600.00 $1,078.25
====================================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(b), this Registration Statement also relates to such
indeterminate number of shares as may be necessary to satisfy the
antidilution provisions of the 1999 Stock Plan (the "Option Plan") to which
this Registration Statement relates.
(2) Represents all shares reserved for issuance upon exercise of options under
the Option Plan which are currently outstanding.
(3) Represents all shares reserved for issuance upon exercise of options
reserved for grant under the Option Plan.
(4) The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for the
purpose of determining the registration fee pursuant to Rule 457(h) of the
Securities Act of 1933. With respect to 317,500 shares of Common Stock as
to which outstanding options were granted prior to the date of this
Registration Statement, the registration fee is based on the weighted
average exercise price per share of $3.29. With respect to the balance of
1,182,500 shares being registered, the fee is based upon a price of $3.28
per share, which is the average of the high and low prices of the Common
Stock on August 30, 1999 as quoted on the Nasdaq National Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
VIALOG Corporation (the "Registrant" or the "Company") hereby
incorporates by reference the following documents:
(a) The Company's Annual Report on Form 10-K, File No. 333-22585, for
the fiscal year ended December 31, 1998 as filed with the Securities and
Exchange Commission on March 31, 1999.
(b) All of the reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since December 31, 1998.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1, File No. 333-53395, filed on May
22, 1998, as amended on July 8, 1998; July 27, 1998; December 31, 1998 and
January 8, 1999.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Age of 1934 and prior to
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the authorization and issuance of the Common Stock
offered hereby will be passed upon for the Company by Mirick, O'Connell,
DeMallie & Lougee, LLP, Worcester, Massachusetts. David L. Lougee, a partner in
such firm, is a director of the Company. Partners and associates of Mirick,
O'Connell, DeMallie & Lougee, LLP own an aggregate of 68,000 shares of the
Company's Common Stock and hold options to acquire an additional 25,000 shares,
8,678 of which may be exercised as of August 1, 1999.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the Massachusetts General Laws, or the
Massachusetts Business Corporation Law (the "MBCL"), provides that the
indemnification of directors, officers, employees or other agents of a
corporation and persons who serve at its request as directors, officers,
employees or other agents of another organization, or who serve at its request
in any capacity with respect to any employee benefit plan, may be provided by it
to whatever extent shall be specified in or authorized by (i) the articles of
organization or (ii) a by-law adopted by the stockholders or (iii) a vote
adopted by the holders of a majority of the shares of stock entitled to vote on
the election of directors. Except as the articles of organization or by-laws
otherwise require, indemnification of any persons who are not directors of the
corporation may be provided by it to the extent authorized by the directors.
Such indemnification may include payment by the corporation of expenses incurred
in defending a civil or criminal action or proceeding in advance of the final
disposition of such action or proceeding, upon receipt of an undertaking by the
person indemnified to repay such payment if he shall be adjudicated to be
entitled to indemnification, which undertaking may be accepted without reference
to the financial ability of such person to make repayment. Any such
indemnification may be provided although the person to be indemnified is no
longer an officer, director, employee or agent of the corporation or of such
other organization or no longer serves with respect to any such employee benefit
plan. Section 67 further provides that no indemnification shall be provided for
any person with respect to any matter as to which he shall have been adjudicated
in any proceeding not to have acted in good faith in the reasonable belief that
his action was in the best interest of the corporation or to the extent that
such matter relates to service with respect to any employee benefit plan, in the
best interest of the participants or beneficiaries of such employee benefit
plan.
Article VI of the Company's Articles of Organization provides that the
Company shall, to the fullest extent permitted by the laws of the Commonwealth
of Massachusetts, indemnify each person who is, or shall have been, a director,
officer, employee or agent of the Company, or who is serving or shall have
served, at the request of the Company, as director or officer of another
organization or in any capacity with respect to any employee benefit plan of the
Company, against all liabilities and expenses (including judgments, fines,
penalties, amounts paid or to be paid in settlement and reasonable attorney's
fees) imposed upon or incurred by any such person in connection with or arising
out of claims made, or any action, suit or proceeding threatened or brought
against him or in which he may be involved by reason of any action taken or
omitted by him as a director, officer, employee or agent, or as a result of any
service with respect to any such employee benefit plan.
<PAGE>
Section 13(b)(1 1/2) of Chapter 156B of the MBCL permits a corporation
to include in its articles of organization a provision eliminating or limiting
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 61 or 62 of the
MBCL (relating to unlawful payment of dividends, unlawful stock purchase and
redemption and loans to insiders) or (iv) for any transaction from which the
director derived an improper personal benefit. Article VI of the Company's
Articles of Organization provides that the Company's directors shall not be
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except in the circumstances that are set forth in
the MBCL.
The effect of these provisions is to permit indemnification by the
Company for, among other liabilities, liabilities arising out of the Securities
Act.
Section 67 of the MBCL also affords a Massachusetts corporation the
power to obtain insurance on behalf of its directors and officers against
liabilities incurred by them in those capacities. The Company currently
maintains a $5,000,000 Directors and Officers Liability Insurance Policy.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4.1 Restated Articles of Organization of the Company (incorporated by reference to Exhibit
3.1 of the Company's Registration Statement on Form S-4 (File No. 333-44041)
4.2 Amended and Restated By-Laws of the Company (incorporated by reference to Exhibit 3.2 of
the Company's Registration Statement on Form S-4 (File No. 333-44041)
4.3 1999 Stock Plan
5.1 Opinion of Mirick, O'Connell, DeMallie & Lougee, LLP
23.1 Consent of KPMG LLP, Independent Certified Public Accountants
23.2 Consent of Mirick, O'Connell, DeMallie & Lougee, LLP (included in Exhibit 5.1)
24 Power of Attorney (included on signature pages)
</TABLE>
<PAGE>
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement.
Provided, however, that paragraphs (l)(i) and (l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Andover, Commonwealth of Massachusetts on August 31,
1999.
VIALOG Corporation
By: /s/Kim Mayyasi
---------------
Kim Mayyasi,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that VIALOG CORPORATION, a corporation
organized under the laws of the Commonwealth of Massachusetts (the
"Corporation"), and the undersigned officers and directors of the Corporation,
individually and in their respective capacities indicated below, hereby make,
constitute and appoint KIM MAYYASI and JOHN J. DION its and their true and
lawful attorneys, their separate or joint signatures sufficient to bind, with
power of substitution, to execute, deliver and file in its or their behalf, and
in each person's respective capacity or capacities as shown below, with the
Securities and Exchange Commission (or any other governmental authority) a
Registration Statement on Form S-8 under the Securities Act of 1933, as amended,
any amendments to and any and all documents in support of or supplemental to
said registration statement by the Corporation and each said person hereby
grants to said attorneys full power and authority to do and perform each and
every act and thing whatsoever as any one of said attorneys may deem necessary
or advisable to carry out the full intent of this Power of Attorney to the same
extent and with the same effect as the Corporation or the undersigned officers
and directors of the Corporation might or could do personally in its or their
capacity or capacities as aforesaid; and each of said persons hereby ratifies,
confirms, and approves all acts and things that any one of said attorneys may do
or cause to be done by virtue of this Power of Attorney and its signature or
their signatures as the same may be signed by any one of said attorneys to said
registration statement and any and all documents in support of or supplemental
to said Registration Statement and any and all amendments thereto.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/Kim Mayyasi President, Chief Executive Officer and August 31, 1999
- ------------------------------ Director
Kim Mayyasi
/s/John J. Dion Vice President-Finance, Treasurer, August 31, 1999
- ------------------------------ Principal Financial Officer and Principal
John J. Dion Accounting Officer
/s/Joanna M. Jacobson
- ------------------------------ Director August 31, 1999
Joanna M. Jacobson
/s/David L. Lougee
- ------------------------------ Director August 31, 1999
David L. Lougee
/s/Patti R. Bisbano
- ------------------------------ Director August 31, 1999
Patti R. Bisbano
/s/Richard G. Hamermesh
- ------------------------------ Director August 31, 1999
Richard G. Hamermesh
/s/Edward M. Philip
- ------------------------------ Director August 31, 1999
Edward M. Philip
/s/Glenn D. Bolduc
- ------------------------------ Director August 31, 1999
Glenn D. Bolduc
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
Exhibit
Number Description
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<S> <C>
4.1 Restated Articles of Organization of the Company (incorporated by reference to Exhibit 3.1
of the Company's Registration Statement on Form S-4 (File No. 333-44041)
4.2 Amended and Restated By-Laws of the Company (incorporated by reference to Exhibit 3.2 of
the Company's Registration Statement on Form S-4 (File No. 333-44041)
4.3 1999 Stock Plan
5.1 Opinion of Mirick, O'Connell, DeMallie & Lougee, LLP
23.1 Consent of KPMG LLP, Independent Certified Public Accountants
23.2 Consent of Mirick, O'Connell, DeMallie & Lougee, LLP (included in Exhibit 5.1)
24 Power of Attorney (included on signature pages)
</TABLE>
VIALOG CORPORATION
1999 STOCK PLAN
1. Purpose. This 1999 Stock Plan is designed to enable VIALOG
Corporation and its Affiliates to attract and retain capable key employees,
officers, directors and consultants and to motivate such persons to exert their
best efforts on behalf of the Company by providing them with compensation in the
manner provided in this Plan.
2. Definitions.
"Act" means the Securities Exchange Act of 1934, as amended.
"Award" means Common Stock awarded under this Plan.
"Affiliate" means any parent corporation or subsidiary corporation of
the Company as those terms are defined in Section 424 of the Code.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the committee established to administer this Plan as
provided in Section 3 or, if no such committee is established, the Board.
"Common Stock" means shares of common stock of the Company and such
substitutions therefor as are determined by the Committee pursuant to Section 11
to be appropriate.
"Company" means VIALOG Corporation, a Massachusetts corporation.
"Date of Grant" means the date on which the Committee authorizes the
grant of a Stock Right, or such later date as may be specified by the Committee
at the time of such authorization.
"Disability" means a disability that entitles the Grantee to disability
income benefits under the terms of any long-term disability plan maintained by
the Company which covers the Grantee, or if no such plan exists or is applicable
to the Grantee, the permanent and total disability of the Grantee within the
meaning of Section 22(e)(3) of the Code.
"Disqualifying Disposition" means any disposition (including any sale)
by an Optionee of Common Stock acquired pursuant to the exercise of an ISO
before the later of (a) two years after the Date of Grant of the ISO or (b) one
year after the date the Optionee acquired such Common Stock by exercising the
ISO. The foregoing rules do not apply to dispositions of Common Stock after the
death of an Optionee by his or her estate or by a person who acquired the Common
Stock or the right to exercise the ISO by bequest or inheritance or by reason of
the death of the Optionee.
<PAGE>
"Grantee" means a person to whom a Stock Right has been granted under
this Plan.
"ISO" means an Option which qualifies as an incentive stock option
under Section 422(b) of the Code.
"Non-Qualified Option" means an Option which does not qualify as an
ISO.
"Option" means a right to purchase Common Stock granted pursuant to
this Plan.
"Optionee" means a person to whom an Option has been granted under this
Plan.
"Plan" means the VIALOG Corporation 1999 Stock Plan.
"Purchase" means the right to make a direct purchase of Common Stock
granted pursuant to this Plan.
"Stock Appreciation Right" means a right granted under Section 7.
"Stock Rights" collectively refers to Options, Awards, Purchases and
Stock Appreciation Rights.
3. Administration of the Plan.
(a) The Board may administer this Plan or may appoint a
Committee to administer this Plan. Members of the Committee, while members, will
be eligible to participate in this Plan only as provided in Section 3(d).
Subject to any limits or restrictions imposed by the Board from time to time
(which limits or restrictions may be amended and/or removed by the Board at any
time), the Committee will have the authority to (i) determine the employees and
other persons to whom Stock Rights may be granted; (ii) determine when Options,
Awards and Stock Appreciation Rights may be granted or Purchases made; (iii)
determine the purchase price, if any, of Stock Rights and the shares underlying
them; (iv) determine the other terms and provisions of each Stock Right (which
may vary among Grantees in the Committee's discretion), including but not
limited to the timing, vesting and duration of the exercise period and the
nature and duration of transfer and/or forfeiture restrictions; (v) amend,
modify, convert, or replace any Stock Right to the extent allowed by law, (vi)
accelerate a Stock Right exercise date in whole or in part, subject only to the
ISO acceleration provisions of Section 422(d) of the Code (if applicable); (vii)
employ attorneys, consultants, accountants or other persons upon whose advice
the Committee may rely; (viii) establish the maximum aggregate number of Stock
Appreciation Rights which may be granted under this Plan from time to time; and
(ix) interpret this Plan and prescribe and rescind rules and regulations
relating to it. All actions taken and all interpretations and determinations
made by the Committee in good faith will be final and binding on all parties,
unless otherwise determined by the Board.
<PAGE>
(b) No member of the Board or the Committee will be liable for
any action or determination made in good faith with respect to this Plan or any
Stock Right granted under it. Each member of the Committee will be indemnified
and held harmless by the Company against any cost or expense (including counsel
fees) reasonably incurred by such member or liability (including any sum paid in
settlement of a claim with the approval of the Company) arising out of any act
or omission to act in connection with this Plan unless arising out of such
member's own fraud or bad faith. Such indemnification will be in addition to any
rights of indemnification the members of the Committee may have as directors or
otherwise under the by-laws of the Company, or any agreement, vote of
stockholders or disinterested directors, or otherwise.
(c) The Committee may select one of its members as its chair,
and will hold meetings at its discretion. A majority of the Committee will
constitute a quorum. The acts of a majority of the members of the Committee
present at any meeting at which a quorum is present or acts approved in writing
by a majority of the members of the Committee will be the valid acts of the
Committee. From time to time the Board may increase the size of the Committee
and appoint additional members, remove members (with or without cause) and
appoint replacement members, fill vacancies however caused, and remove all
members of the Committee and thereafter directly administer this Plan.
(d) Stock Rights may be granted to members of the Committee
pursuant to this Plan if such grants have been approved by a majority vote of
the disinterested members of the Board.
4. Stock. The aggregate number of shares of Common Stock which may be
issued under this Plan is One Million Five Hundred Thousand (1,500,000), subject
to adjustment as provided in Section 11. The Committee may grant Options and
Stock Appreciation Rights and may authorize Purchases and Awards with respect to
such shares in such combinations and for such amount of shares as it determines
are appropriate, provided that the aggregate number of shares issuable upon
exercise of such Options, Purchases and Stock Appreciation Rights and upon grant
of such Awards does not exceed such number, as adjusted. Stock subject to Stock
Rights may be authorized but unissued shares of Common Stock or Common Stock
held in the treasury of the Company. If any Stock Right expires or terminates
for any reason without having been exercised in full or ceases for any reason to
be exercisable in whole or in part, or if the Company reacquires any unvested
shares issued pursuant to Stock Rights, then the unexercised shares subject to
such Stock Right and any unvested shares so reacquired by the Company will again
be available for grants of Stock Rights.
5. Granting of Stock Rights; Eligibility. The Committee is authorized
to grant Stock Rights to such employees, consultants, officers and directors
(whether or not an employee) of the Company or its Affiliates at such time or
times as it may determine, all in its sole discretion. Each Stock Right will be
evidenced by a written agreement in such form as the Committee may from time to
time approve. Each agreement for an ISO will require the Optionee to notify the
Company in writing immediately after the Optionee makes a Disqualifying
Disposition of any Common Stock acquired pursuant to the exercise of the ISO.
The Committee may from time to time confer authority on one or more of its own
members and/or one or more officers of the Company to execute and deliver such
agreements. The officers of the Company are authorized and directed to take any
and all action necessary or advisable from time to time to carry out the terms
of each agreement entered into pursuant to this Plan.
<PAGE>
6. Option Price and Term; ISO Limitations.
(a) The exercise price for each ISO share will be at least
equal to the fair market value per share on the Date of Grant. However, if the
Optionee owns more than ten percent of the total combined voting power of all
classes of stock of the Company or an Affiliate, the exercise price must be at
least one hundred ten percent (110%) of the fair market value per share on the
Date of Grant, determined without regard to any restriction other than a
restriction which, by its terms, will never lapse. The Committee may determine
the exercise price of Non-Qualified Options in its sole discretion.
(b) Each Option will expire on the date specified by the
Committee. However, any ISOs granted to an employee owning more than ten percent
of the total combined voting power of all classes of stock of the Company or an
Affiliate must expire not more than five years from the Date of Grant and all
other ISOs must expire not more than ten years from the Date of Grant.
(c) ISOs may be granted only to employees of the Company or an
Affiliate. Non-Qualified Options may be granted to any director or officer
(whether or not an employee), employee or consultant of the Company or an
Affiliate.
(d) To the extent that the aggregate fair market value
(determined as of the Date of Grant) of Common Stock with respect to which ISOs
(determined without regard to this paragraph) are exercisable for the first time
by any Optionee during any calendar year under all plans of the Company and its
Affiliates exceeds $100,000, such ISOs will be treated as Non-Qualified Options.
(e) The fair market value of a share of Common Stock on the
Date of Grant will be the mean between the highest and lowest quoted selling
prices on such date on the securities market where the Common Stock of the
Company is traded, or if there were no sales on the Date of Grant, on the next
preceding date within a reasonable period (as determined in the sole discretion
of the Committee) on which there were sales. In the event that there were no
sales in such a market within a reasonable period or if the Common Stock is not
publicly traded on the Date of Grant, the fair market value will be as
determined in good faith by the Committee in its sole discretion after taking
into consideration all factors which it deems appropriate including, without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
7. Stock Appreciation Rights.
(a) The Committee will have the authority to grant Stock
Appreciation Rights with or apart from the grant of Options under this Plan.
Stock Appreciation Rights may be paid in cash or shares of Common Stock, or any
combination of each, as the Committee may determine and will be subject to such
terms and conditions as the Committee may specify.
(b) Each Stock Appreciation Right granted with a specified
Option will entitle the Grantee to receive the following amount if and when the
specified Option becomes exercisable: unless the Committee determines otherwise,
the amount to be received by the Grantee will equal the difference between (i)
the fair market value of a share of Common Stock on the date of exercise of the
Right and (ii) the exercise price of a share under the specified Option.
<PAGE>
(c) Each Stock Appreciation Right granted without reference to
a specified Option will entitle the Grantee to receive, unless the Committee
determines otherwise, the difference between (i) the fair market value of a
share of Common Stock on the date of exercise of the Right and (ii) the fair
market value of a share of Common Stock on the date the Right was granted.
(d) Notwithstanding the foregoing, for those Grantees subject
to Section 16(b) of the Act, any transaction involving the exercise of a Stock
Appreciation Right will be structured to satisfy the requirements of Rule 16b-3.
8. Means of Exercising Stock Rights. To exercise a Stock Right (or any
part thereof), a Grantee must give written notice to the Company at its
principal office address identifying the Stock Right being exercised, specifying
the portion of the Stock Right being exercised (including the number of shares,
if any, for which Stock Right is being exercised), and accompanied by full
payment of the purchase price (if any) either (a) in United States cash or cash
equivalent or, at the discretion of the Committee, (b) in shares of Common Stock
having a fair market value on the date of exercise equal to the exercise price
of the Stock Right, (c) by written notice to the Company to withhold from those
shares of Common Stock that would otherwise be obtained on the exercise of such
Stock Right the number of shares having a fair market value on the date of
exercise equal to the exercise price, (d) in cash by a broker-dealer acceptable
to the Company to whom the Grantee has submitted an irrevocable notice of
exercise, or (e) by any combination of the foregoing. The holder of a Stock
Right will not have the rights of a shareholder with respect to any shares
covered by the Stock Right until the date of issuance of a stock certificate for
such shares. Except as otherwise determined by the Committee, no adjustment will
be made for dividends or similar rights for which the record date is before the
date such stock certificate is issued.
9. Termination of Employment; Limitations on Exercise. Upon termination
of a Grantee's employment with or service to the Company, (i) no further vesting
of the Grantee's Options and Stock Appreciation Rights will occur subsequent to
the date of termination, (ii) the Grantee's ISOs will terminate on the earlier
of (x) their specified expiration dates; (y) in the case of a termination due to
the Grantee's death or Disability, one (1) year after the date of termination,
or (z) in the case of termination for any other reason, on the date three months
after the date of termination, (iii) the Grantee's Non-Qualified Stock Options
and Stock Appreciation Rights will terminate one (1) year after the date of
termination, or on their specified expiration dates, if earlier, and (iv) all
other types of Stock Rights will immediately terminate and cease to be
exercisable except to the extent otherwise provided by the Committee. Nothing in
this Plan will be deemed to give any Grantee the right to continued employment
with the Company.
10. Assignability. No Stock Right will be assignable or transferable by
a Grantee, either voluntarily or by operation of law, except by will or by the
laws of descent and distribution. During the lifetime of the Grantee no Stock
Right will be exercisable by or payable to anyone other than the Grantee or his
legal representative.
<PAGE>
11. Adjustments. Notwithstanding any other provision of this Plan, the
Committee may at any time make or provide for such adjustments to this Plan, to
the number and class of shares available under this Plan or to any outstanding
Stock Rights, as it deems appropriate to prevent dilution or enlargement of
rights, including adjustments in the event of distributions to holders of Common
Stock of other than a normal cash dividend, and changes in the outstanding
Common Stock by reason of stock dividends, split-ups, recapitalizations,
mergers, consolidations, combinations or exchanges of shares, separations,
reorganizations, liquidations and the like. In the event of any general offer to
holders of Common Stock relating to the acquisition of their shares, the
Committee may make such adjustment as it deems equitable in respect of
outstanding Stock Rights including, in the Committee's discretion, revision of
outstanding Stock Rights so that they may be exercisable for the consideration
payable in the acquisition transaction. Any such determination by the Committee
will be conclusive.
12. Amendment of Plan. The Board may terminate or amend this Plan in
any manner allowed by law at any time, provided that no amendment to this Plan
will be effective without approval of the stockholders of the Company if
stockholder approval of the amendment is then required under Rule 16b-3 of the
Act, Sections 162(m) or 422 of the Code, the rules of any stock exchange or
other applicable federal or state law. In no event may action of the Board or
stockholders impair the rights of a Grantee, without the Grantee's consent,
under any Stock Right previously granted to such Grantee. Stock Rights may be
granted prior to the date of stockholder approval of this Plan.
13. Application Of Funds. All proceeds received by the Company with
respect to Stock Rights will be used for general corporate purposes.
14. Governmental Regulation. The Company's obligation to sell and
deliver shares of Common Stock under this Plan is subject to the approval of any
governmental authority required in connection with the authorization, issuance
or sale of such shares and the availability of a federal and appropriate state
securities law exemptions.
15. Withholding of Additional Income Taxes. It will be a condition of
the Company's obligation to issue Common Stock or make any payment upon exercise
of a Stock Right that the person exercising the Stock Right pay, or make
provision satisfactory to the Company for the payment of, any taxes which the
Company is obligated to collect in connection with such issuance or payment.
16. Governing Law. This Plan and any agreements entered into under this
Plan will be governed and construed in accordance with the laws of the
Commonwealth of Massachusetts.
17. Effective Date. This Plan is effective as of April 29, 1999, the
date of its adoption by the Board. Unless previously terminated, the Plan will
terminate at midnight on April 28, 2009 and no Stock Right may be granted after
such date.
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Exhibit 5.1
OPINION OF MIRICK, O'CONNELL, DeMALLIE & LOUGEE, LLP
August 25, 1999
Ladies and Gentlemen:
We are general counsel to VIALOG Corporation, a Massachusetts
corporation (the "Company"). We are familiar with the corporate proceedings
taken in connection with the adoption of the Company's 1999 Stock Plan (the
"Plan"). We are also familiar with the registration statement on Form S-8 to
which a copy of this opinion will be attached as an exhibit.
We have examined the corporate records of the Company, including the
Restated Articles of Organization, Amended and Restated By-laws, stock records,
minutes of meetings of its Board of Directors and stockholders and such other
documents as we have deemed necessary as a basis for the opinions herein
expressed.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
1. The Company is duly organized and validly existing under the laws of
the Commonwealth of Massachusetts.
2. The Company is authorized to issue 30,000,000 shares of Common
Stock, $.01 par value and 10,000,000 shares of Preferred Stock, $.01 par value.
3. The shares of common stock issuable pursuant to the Plan, when sold
in accordance with the terms thereof, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8.
Very truly yours,
/s/Mirick, O'Connell, DeMallie & Lougee, LLP
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
VIALOG Corporation:
We consent to the incorporation herein by reference to our reports
included in the December 31, 1998 Annual Report on Form 10-K (File No.
333-22585) of VIALOG Corporation filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934.
/s/ KPMG LLP
Boston, Massachusetts
August 27, 1999
