Exhibit 10.1
THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is made
as of the 31st day of December 2005 between Glowpoint, Inc., a Delaware
corporation having its principal office at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx
00000 (hereinafter "Glowpoint"), and Xxxxxxx Xxxxx, 00 Xxxxxx Xxxxx Xxxx,
Xxxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter "Employee").
WHEREAS, Employee and Glowpoint entered into an Amended and Restated Employment
Agreement on October 14, 2003, as amended on December 31, 2004 (as so amended,
the "Employment Agreement"); and
WHEREAS, Employee possesses certain executive-level knowledge of Glowpoint, the
videoconferencing industry and competitors of Glowpoint; and
WHEREAS, this Agreement amends and restates the Employment Agreement in its
entirety effective as of the Effective Date; and
WHEREAS, Glowpoint wishes to retain Employee to assist Glowpoint's management
and Board of Directors by providing general executive-level advice regarding
Glowpoint, the videoconferencing industry and competitors of Glowpoint.
NOW, THEREFORE, in consideration of their mutual promises made herein, and for
other good and valuable consideration, the parties hereby agree as follows:
1. Employee Duties. Employee shall provide general
executive-level advice regarding Glowpoint, the
videoconferencing industry, and competitors of Glowpoint.
Employee shall devote such portion of his business time as is
reasonably required to fully perform his services under this
Agreement.
2. Term of Agreement. The term of Employee's services under this
Agreement (the "Employment Term") shall commence as of the
date hereof and shall terminate on December 31, 2006.
3. Compensation. As compensation for Employee's services under
this Agreement, beginning January 1, 2005, Glowpoint shall pay
Employee a salary of $165,000 (the "Salary") for the remainder
of the Employment Term, in the amount of $13,750 per month,
payable on the fifteenth day of each month. Employee's rights
as an optionee under Glowpoint's 2000 Stock Incentive Plan
(the "Plan") shall continue to be governed by the terms of the
Plan and the associated stock option agreements currently in
effect (the "Award Agreements"). Glowpoint shall, in addition
to Employee's compensation, reimburse Employee for expenses
incurred by Employee in the performance of his duties under
this Agreement, upon submission of evidence thereof reasonably
satisfactory to Glowpoint, with respect to:
(a) Employee's BMW car lease through its expiration on December 31, 2006,
as well as related service and insurance costs;
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(b) Employee's cell phone monthly charges through December 31, 2006,
including the cost of all calls made by Employee in the performance of
his duties under this Agreement;
(c) the cost to maintain a Glowpoint line and a business telephone line at
Employee's home through December 31, 2006, as well as the cost of all
video and telephone calls made by Employee in the performance of his
duties under this Agreement;
(d) Employee's business travel expenses related to performance of his
duties under this Agreement through December 31, 2006 which expenses
have been pre-approved by Glowpoint; and
(e) the premiums on a life insurance policy in the principal amount of
$1,000,000 for a term through December 31, 2006, containing
substantially the same terms and conditions as the life insurance
policy currently maintained by Glowpoint on Employee's life, payable to
Employee's designated beneficiary or Employee's estate.
4. Benefits. In addition to the above-listed compensation and
expense reimbursements, Employee shall be entitled to:
(a) retain the laptop computer, cell phone and Polycom ViewStation and
associated monitor currently in Employee's possession which were
purchased by Glowpoint for Employee's use.
(b) extension of the post-termination exercise period under the Plan and
each Award Agreement to twenty-four (24) months after the expiration of
the Employment Term; provided, however, that to the extent not
exercised within the time permitted by law for the exercise of
incentive stock options following the termination of Employee's
employment, such options shall convert automatically to non-qualifying
stock options.
(c) In the event that Employee elects COBRA coverage following the
termination of the Employment Term, Glowpoint will, for the eighteen
(18) month period provided pursuant to COBRA following such
termination, pay the applicable COBRA premiums on Employee's behalf to
maintain Employee's individual and family Glowpoint health insurance
coverage (including without limitation hospital and dental care). As of
the termination of that 18-month period, Employee will be solely
responsible for all applicable insurance premiums.
5. Confidential Information; Non-Solicitation. Except as required
in connection with the performance of services to Glowpoint,
Employee shall not, during or after the termination of the
Employment Term, use or disclose to any person, partnership or
corporation any confidential business information or trade
secrets of Glowpoint obtained or learned by Employee during
the Employment Term. Employee also agrees that he shall not,
for a period of one (1) year following the termination of the
Employment Term, induce any employee of Glowpoint to terminate
his or her employment with Glowpoint. Solely with respect to
this Paragraph 5 and Paragraph 6 herein, the term "Employment
Term" shall include all periods of Employee's employment with
Glowpoint, including those which precede the date hereof.
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6. Work Product. Employee hereby agrees that all ideas,
creations, improvements and other works of authorship created,
developed, written or conceived by Employee within the scope
of his employment under this agreement at any time during the
Employment Term are works for hire and shall be the property
of Glowpoint free of any claim whatever by Employee or any
person claiming any rights or interests through Employee.
7. Employee's Other Endeavors. Glowpoint acknowledges that
Employee plans to pursue employment or consultancy engagements
by parties other than Glowpoint ("Other Endeavors") and that
Employee shall (subject to the final sentence of Paragraph 1
above) have the unrestricted right to pursue Other Endeavors,
whether or not any such Other Endeavor results in a conflict
of interest with the interests of Glowpoint (a "Conflict"). If
Employee secures any Other Endeavor (of which Employee shall
promptly notify Glowpoint, for purposes of this Paragraph 7),
(a) Employee shall have the right to terminate the Employment
Term effective upon no less than least ten days' prior written
notice to Glowpoint and (b) if Glowpoint reasonably determines
that such Other Endeavor results in a Conflict, Glowpoint
shall have the right to terminate the Employment Term
effective upon no less than ten days' prior written notice to
Employee (provided that, in the event of such a termination
under this Paragraph 7, Employee shall nevertheless continue
to be entitled to receive any then-outstanding installments of
the Salary when otherwise payable hereunder through the end of
the Employment Term).
8. Miscellaneous. This Agreement is made in the State of New
Jersey and shall be governed by the laws of the State of New
Jersey. The parties in any action arising from this Agreement
shall be subject to the jurisdiction and venue of the federal
and state courts, as applicable, situated within the State of
New Jersey. This Agreement constitutes the entire agreement,
and shall supersede any prior or contemporaneous agreement
oral or written, between the parties hereto regarding
Employee's services to Glowpoint as an employee as and from
the Effective Date forward and may not be modified or amended
except by a written document signed by the party against whom
enforcement is sought. This Agreement may be signed in more
than one counterpart, in which case each counterpart shall
constitute an original of this Agreement.
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IN WITNESS WHEREOF, the parties have signed this Agreement as of the day and
year first above written.
GLOWPOINT, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxxx
Title: Chief Executive Officer and President
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
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