Employment Agreement
Exhibit 99.1
This Agreement is entered into as of June 20th, 2006 by Xxxxx Xxxxx (the
“Employee”) and PLANETOUT INC. (the “Company”), a Delaware corporation.
1) Duties and Scope of Employment.
a) Position. For the term of her employment under this Agreement (the “Employment”), the
Company agrees to employ the Employee, which, effective as of July 1, 2006, shall be in the
position of Chief Executive Officer of the Company or in such other level equivalent or
higher-level position as the Company subsequently may assign to the Employee. The Employee shall
report to the Company’s Board of Directors (the “Board”) and shall continue to serve throughout the
term of this Agreement as a member of the Board. Throughout the term of her employment, Employee
shall have such power, authority and responsibility and perform such duties as are prescribed by or
under the Bylaws of the Company and as are customarily associated with the position of Chief
Executive Officer. Schedule “A” to this Agreement sets forth particular objectives associated with
Employee’s position, which Employee shall endeavor to meet.
b) Obligations to the Company. During her Employment, the Employee shall devote her full
business efforts and time to the Company. During her Employment, the Employee may, during
nonworking hours away from the Company’s premises, engage in lawful conduct as an employee,
consultant or volunteer for an organization other than the Company (“Other Work”); provided,
however, that such Other Work does not include, without limitation, conduct that (i) constitutes a
breach of fiduciary duty to the Company, (ii) constitutes a breach of the duty of loyalty to the
Company, (iii) constitutes a breach of Employee’s Proprietary Information and Inventions Agreement
with the Company, (iv) constitutes a breach of this Agreement, (v) competes with the Company’s
business, (vi) knowingly assists any person or entity in competing with the Company, (vii)
knowingly assists any person or entity in preparing to compete with the Company, or (viii) assists
any person or entity in soliciting any employees or consultants of the Company to leave the
Company. In the event that the Employee engages in Other Work, the Employee must, at least five
(5) business days prior to engaging in lawful conduct in business activities other than the
Company’s business, or in material charitable and political activities not directly associated with
the Company during nonworking hours away from the Company’s premises, notify the Company in writing
of the Employee’s activity and purpose of activity, name of employer (if any) or organization,
position with respect to the activity or the entity and any potential conflict that may arise from
that activity, including the number of hours spent engaging in such activity that may or will
detract from the business of the Company, and the Board shall have the right to approve such Other
Work or activities. The Employee shall comply with the Company’s policies and rules, as they may
be in effect from time to time during her Employment. Notwithstanding the foregoing, the Company
acknowledges and approves Employee’s current role as a member of the board of trustees of Princeton
University, and her pursuit of activities in support of that role.
c) No Conflicting Obligations. The Employee represents and warrants to the Company that she
is under no obligations or commitments, whether contractual or otherwise, that are inconsistent
with her obligations under this Agreement. The Employee represents and warrants that she will not
use or disclose, in connection with her employment by the Company, any trade secrets or other
proprietary information or intellectual property in which the Employee or any other person other
than the Company, has any right, title or interest and that her employment by the Company as
contemplated by this Agreement will not infringe or violate the rights of any other person. The
Employee represents and warrants to the Company that she has returned all property and confidential
information belonging to any prior employer. The Employee agrees to sign the current versions and
any future versions of the Company’s various agreements related to confidentiality, inventions and
related intellectual property matters.
d) Commencement Date, CEO Date and Location. The Employee shall officially commence work for
the Company effective as of the date of this Agreement (“Commencement Date”) and shall commence her
duties as the Chief Executive Officer effective on July 1, 2006 (“CEO Start Date”). The Employee
shall be located in the San Francisco office of the Company.
2) Cash and Incentive Compensation.
a) Salary. The Company initially shall pay the Employee as compensation for her services a
base salary at a gross annual rate, excluding incentive bonuses that may be approved by the Board,
of Three Hundred Ninety Thousand Dollars ($390,000) from the Commencement Date. Such base salary
shall be payable in accordance with the Company’s standard payroll procedures. (The annual base
salary specified in this subsection (a), together with any increases in such compensation that the
Company may grant from time to time, is referred to in this Agreement as “Base Compensation.”) All
future changes to compensation will be based on the results of evaluations of the Employee’s
performance, whether such evaluations are performed annually, or more frequently as may be
initiated by Employee’s senior management or the Board; provided, however, that the $390,000 base
salary referred to above shall be increased by a minimum of five percent (5%) during each of the
first and second twelve (12) month periods following the Commencement Date.
b) Incentive Bonuses. The Employee will be eligible for annual incentive bonuses at a target
level of 40% of Base Compensation during the term of this Agreement (“Target Level”). Incentive
bonuses payable for periods from the Commencement Date until December 31, 2007 will be guaranteed
and shall be paid at seventy percent (70%) of the Target Level; incentive bonuses payable for
calendar year 2008 will be guaranteed and shall be paid at 55% of the Target Level; and incentive
bonuses payable for calendar year 2009 will be guaranteed and shall be paid at 40% of the Target
Level; provided that the incentive bonus for the period from the Commencement Date through December
31, 2006 shall be pro-rated to reflect the fact that it covers only a portion of a year; and
provided further that such guaranteed amount shall be pro-rated (based on number of days employed
out of a 365 day year) for any year in which the Employee terminates Employment. Except as
specifically set forth above in this paragraph, incentive bonuses shall be awarded based on
objective or subjective criteria established in advance by the Board or the Compensation Committee
of the Board in its sole discretion (but after consultation with the Employee) and presented to the
Employee, and the determinations of the Board with respect to such bonuses shall be in the sole
discretion of the Board and shall be final and binding.
c) Performance Bonus Stock. Subject to the approval of the Board, the Company may grant the
Employee restricted stock, stock options or other equity securities, from time-to-time, covering
the shares of the Company’s equity securities. The terms of such grants, options and other equity
securities shall be as determined by the Board at the time of any such grant. Such terms shall be
provided in writing to the Employee at the time of any such grant. Subject to the approval of the
Board, the Employee will be granted on the CEO Start Date 90,000 shares of restricted common stock
of the Company, vesting over a period of four (4) years in four annual installments with 1/4th of
the shares vesting on the first day following each of the anniversaries of the CEO Start Date on
which the Company’s trading window opens pursuant to the Company’s Xxxxxxx Xxxxxxx Policy, unless
the trading window does not open during a quarter, in which case such portion of the restricted
stock will vest on the last business day immediately preceding the 16th day of the last month of
that quarter, in accordance with the Company’s 2004 Equity Incentive Plan (the “Plan”). The
restricted stock described above will be subject to the terms and conditions of the Plan. The
Company will review the Employee annually for purposes of making additional annual equity grants;
provided that such grants shall based on objective or subjective criteria established by the Board
or the Compensation Committee of the Board in its sole discretion (but after consultation with the
Employee). The determinations of the Board with respect to such grants shall be in the sole
discretion of the Board and shall be final and binding.
3) Vacation and Employee Benefits. During her Employment, the Employee shall be eligible for paid
time off (“PTO”) in accordance with the Company’s standard policy for similarly situated employees,
as it may be amended from time to time, with her initial accrual at the rate of twenty five (25)
days per year, accrued hourly in accordance with the Company’s payroll practices, with a maximum
accrual of twenty five (25) days or two hundred (200) hours. During her Employment, the Employee
shall be eligible to participate in any employee benefit plans maintained by the Company for
similarly situated employees, subject in each case to the generally applicable terms and conditions
of the plan in question and to the determinations of any person or committee administering such
plan based on the terms of the plan and Company policy.
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4) COBRA Reimbursement. During her Employment, if the Employee declines for a period of time to
participate in the employee health insurance (medical and/or dental) benefit plans maintained by
the Company and instead timely elects to continue her health insurance coverage pursuant to COBRA
(as defined in Section 9(c)) under her prior employer’s plan, the Company agrees to pay the
Employee a lump sum of $9,000 promptly following the Commencement Date as reimbursement for
payments made by the Employee for such COBRA coverage.
5) Parking. During the term of this Agreement, but only for so long as the Company, in its
reasonable discretion, determines that it is cost-effective, the Company shall pay for a parking
space for the Employee’s use in a parking garage close to the Company’s San Francisco office.
6) Relocation, Legal and Business Expenses. During her Employment, the Employee shall be
authorized to incur necessary and reasonable travel, entertainment and other business expenses in
connection with her duties hereunder. The Employee shall be entitled to the reimbursement of (i)
her relocation expenses, (consisting of temporary housing expenses, travel, costs of relocating and
temporary storage of possessions, and real estate fees (but not taxes paid on the sale of real
estate), including such costs incurred by the Employee’s domestic partner) and (ii) her legal fees
in connection with her transition from her prior employment, up to a maximum of One Hundred
Ninety-Five Thousand Dollars ($195,000) for fees and expenses under clauses (i) and (ii). The
Company shall reimburse the Employee for such relocation, legal and other business expenses upon
presentation of an itemized account and appropriate supporting documentation, all in accordance
with the Company’s generally applicable policies.
7) Term of Employment.
a) Background Check. This employment is contingent on the Company receiving a satisfactory
background and consumer credit report. When the credit report is conducted, the Company will comply
with the federal Fair Credit Reporting Act and applicable state laws, including providing the
Employee with any required notices or forms.
b) Basic Rule. The Company agrees to continue the Employee’s Employment, and the Employee
agrees to remain in Employment with the Company, from the period commencing on the Commencement
Date until the date when the Employee’s Employment terminates pursuant to subsection (c) or (d)
below. The Employee’s Employment with the Company shall be “at will,” meaning that either the
Employee or the Company shall be entitled to terminate the Employee’s employment at any time and
for any reason, with or without Cause (as defined below). Any contrary representations that may
have been made to the Employee shall be superseded by this Agreement. This Agreement shall
constitute the full and complete agreement between the Employee and the Company on the “at will”
nature of the Employee’s Employment, which may only be changed in an express written agreement
signed by the Employee and a duly authorized member of the Board of the Company.
c) Termination. The Company may terminate the Employee’s Employment at any time and for any
reason (or no reason), and with or without Cause, by giving the Employee notice in writing. The
Employee may terminate her Employment by giving the Company thirty (30) days’ advance notice in
writing. The Employee’s Employment shall terminate automatically in the event of her death.
d) Rights Upon Termination. Except as expressly provided in Section 9, upon the termination
of the Employee’s Employment for any reason (or no reason), including for Cause, the Employee shall
only be entitled to the compensation, benefits and reimbursements described in Sections 2, 3, 4, 5
and 6 for the period preceding the effective date of the termination, except for benefits that by
their terms are for periods following such effective date. The payments under this Agreement shall
fully discharge all responsibilities of the Company to the Employee.
e) Termination of Agreement. This Agreement shall take effect on the Commencement Date and
shall terminate when all obligations of the parties hereunder have been satisfied. The termination
of this Agreement shall not limit or otherwise affect any of the Employee’s obligations under
Section 9.
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9) Termination Benefits.
a) General Release. In order to receive the benefits described in subsections (b) and (c)
below, the Employee must (i) execute a reasonable general release (in a form prescribed by the
Company) of all known and unknown claims that she may then have against the Company or persons
affiliated with the Company, (ii) as part of such general release, agree to a mutual
non-disparagement with the Company, and (iii) agree not to prosecute any legal action or other
proceeding based upon any of such claims.
b) Severance Pay.
i) If, during the term of this Agreement, the Company terminates the Employee’s
Employment (including through “Constructive Termination” as defined below) for any reason
other than Cause or Permanent Disability (as defined below), then the Company shall pay the
Employee her Base Compensation for a period of twelve (12) months (the “Base Continuation
Period”), shall pay monthly and ratably over such twelve (12) month period the average of
the last two annual incentive bonuses paid during the 24 months prior to termination (the
“Average Bonus”), and shall accelerate the vesting of any outstanding stock options or
other equity securities such that the Employee will become vested in an additional number
of shares subject to such stock options or other equity securities, as if the Employee
provided another twelve (12) months of service with the Company. Notwithstanding anything
in this Agreement to the contrary, to the extent required by Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), if at the time of termination of Employment,
the Company has a class of stock that is publicly traded on an established securities
market or otherwise, and Employee is a “specified employee” of the Company within the
meaning of section 409A(a)(2)(B)(i) of the Code, or any successor provision thereto, any
severance payments contemplated hereunder that are otherwise due during the six month
period beginning on the date of termination shall be paid instead on the first date of the
seventh month following termination or, if earlier, Employee’s date of death (the “Six
Months Delay Period”). For purposes of this Agreement, if a termination of Employment
occurs when there has been only one incentive bonus paid, then the “Average Bonus” shall be
the amount of such single incentive bonus, and if a termination of Employment occurs prior
to the payment of any incentive bonus, then the “Average Bonus” shall be the guaranteed
amount equal to 70% of the Target Level bonus amount described in Section 2(b).
ii) If, within sixteen (16) months following a Change of Control (as defined below),
the Employee’s Employment is terminated (including through “Constructive Termination”) for
any reason other than Cause or Permanent Disability, then, subject to the “Parachute
Payment” provisions of subsection (e) of this Section 9 and, further, subject to the Six
Months Delay Period, if applicable, the Company shall pay the Employee, her Base
Compensation for a period of twenty four (24) months following the termination of her
Employment (the “Change of Control Continuation Period”), shall pay monthly and ratably
over the Change of Control Continuation Period an amount equal to two (2) times the Average
Bonus, and shall accelerate the vesting of any outstanding stock options or other equity
securities such that the Employee will become vested in an additional number of shares
subject to such stock options or other equity securities, as if the Employee provided
another twenty-four (24) months of service with the Company. Such Base Compensation shall
be paid at the rate in effect at the time of the termination of Employment and in
accordance with the Company’s standard payroll procedures.
iii) Definition of “Constructive Termination.” For all purposes under this Agreement
“Constructive Termination” shall mean the Employee’s resignation within sixty (60) days
following (i) a material reduction or change in title, job duties, authority,
responsibilities or job requirements inconsistent with Employee’s position with the Company
to which the Employee has not agreed to in writing; (ii) any material reduction of
Employee’s Base Compensation or the guaranteed portion of her incentive bonus, to which the
Employee has not agreed in writing; (iii) any elimination of a material health, dental,
insurance or other similar benefit or perquisite provided to the Employee pursuant to
employment with the Company to which the Employee has not agreed to in writing unless such
material benefit or perquisite is being eliminated for all Employees in comparable
positions or Employee’s class due to a reasonable business need or
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condition; (iv) a relocation of place of employment more than sixty (60) miles from
San Francisco, California; (v) the Company’s failure to cure any material breach by it of
the terms of this Agreement within a reasonable time following written notice from the
Employee to the Board or (vi) the failure by any successor to substantially all of the
business of the Company to assume the Company’s obligations under this Agreement within
five business days after a written request from the Employee. The provisions of subparts
(i) through (iii) of this subparagraph b(iii) shall not apply if any Cause (as defined in
subsection (d) below) has occurred, and, if curable pursuant to subsection (d), has not
been cured within the period of time permitted pursuant to subsection (d).
iv) Definition of “Permanent Disability.” For all purposes under this Agreement,
“Permanent Disability” shall mean that the Employee, at the time notice is given, has
failed to perform her duties under this Agreement for a period of not less than ninety (90)
consecutive days (or such longer period as may be required by law) as the result of her
incapacity due to physical or mental injury, disability or illness.
v) Definition of “Change of Control.” For all purposes under this Agreement, “Change
of Control” shall mean (A) a merger or consolidation of the Company with any other entity,
other than a merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity) at least
fifty percent (50%) of the total voting power represented by the voting securities of the
surviving entity outstanding immediately after such merger or consolidation; or (B) the
sale or disposition by the Company of all or substantially all the Company’s assets.
vi) Notwithstanding anything in this Agreement to the contrary, for purposes of this
Section 9, Employee’s Employment with the Company shall be considered to have terminated
only if (i) Employee provides no further services for the Company in any capacity following
the termination, or (ii) there is otherwise a “separation from service” within the meaning
of section 409A(a)(2)(A)(i) of the Code. For purposes of the foregoing, Employment shall
not be considered terminated while Employee is on a bona fide leave of absence (i) if
Employee’s right to reemployment is provided by statute or contract, or (ii) if no such
right exists, until six months following the start of any such period of leave of absence.
c) Health Insurance. If subsection (b) above applies, and if the Employee elects to continue
her health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”)
following the termination of her Employment, then the Company shall reimburse, subject to the Six
Months Delay Period, if applicable, the Employee’s monthly premium under COBRA until the earliest
of (i) the close of the Base Continuation Period or the Change of Control Continuation Period, as
applicable, (ii) the expiration of the Employee’s continuation coverage under COBRA or (iii) the
date when the Employee receives substantially equivalent health insurance coverage in connection
with new employment or self-employment.
d) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean:
i) Any material breach of this Agreement, the Proprietary Information and Inventions
Agreement between the Employee and the Company, or any other written agreement between the
Employee and the Company, without Employee’s satisfactory and reasonable cure, if curable,
within thirty (30) days of Employee’s receipt of written notice from the Company of such
failure to comply, provided that such notice by Company to Employee specifies the material
breach(es) compliance issues and shall delineate the performance improvements,
modifications or action items necessary for Employee to effect a satisfactory and
reasonable cure;
ii) Any material failure to comply with the Company’s written policies or rules, as
they may be in effect from time to time during the Employee’s Employment, which adversely
impacts any aspect of the business or personnel of the Company without Employee’s
satisfactory and reasonable cure, if curable, within thirty (30) days of Employee’s receipt
of written notice from the Company of such failure to comply, provided that such notice by
Company to Employee shall
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specify the material failure(s) to comply and delineate the performance improvements,
modifications or action items necessary for Employee to effect a satisfactory and
reasonable cure;
iii) Conviction of, or a plea of “guilty” or “no contest” to, a felony under the laws
of the United States or any state thereof;
iv) Threats or acts of violence or unlawful harassment directed at any present,
former or prospective employee, independent contractor, vendor, customer or business
partner of the Company or directed to the Company;
v) The sale, possession or use of illegal drugs on the premises of the Company or of
a customer or business partner of the Company or when engaged in the business of the
Company at Company events, Company sponsored events and at any other events, premises and
venues at which the Employee is engaged in the business of the Company;
vi) Misappropriation of the assets of the Company or other acts of dishonesty;
vii) Illegal or unethical business practices;
viii) Gross misconduct or gross negligence in the performance of duties assigned to
the Employee under this Agreement; or
ix) Failure to perform reasonable duties assigned to the Employee under this
Agreement without Employee’s satisfactory and reasonable cure, if curable, within sixty
(60) days of Employee’s receipt of written notice from the Company of such failure to
perform, provided that such notice by Company to Employee shall specify the failure(s) to
perform and delineate the performance improvements, modifications or action items necessary
for Employee to effect a satisfactory and reasonable cure.
e) Parachute Payments. If any payment or benefit an Employee would receive in connection with
a Change of Control from the Company or otherwise (“Payment”) would (i) constitute a “parachute
payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject
to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall
be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of
the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y)
the largest portion, up to and including the total, of the Payment, whichever amount, after taking
into account all applicable federal, state and local employment taxes, income taxes, and the Excise
Tax (all computed at the highest applicable marginal rate), results in the Employee’s receipt, on
an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion
of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits
constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount,
reduction shall occur in the following order: reduction of cash payments; cancellation of
accelerated vesting of stock awards; reduction of employee benefits. In the event that
acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting
shall be cancelled in the reverse order of the date of grant of the Employee’s stock awards.
The accounting firm engaged by the Company for general audit purposes as of the day prior to
the effective date of the Change of Control shall perform the foregoing calculations. If the
accounting firm so engaged by the Company is serving as accountant or auditor for the individual,
entity or group effecting the Change of Control, the Company shall appoint a nationally recognized
accounting firm to make the determinations required hereunder. The Company shall bear all expenses
with respect to the determinations by such accounting firm required to be made hereunder. The
accounting firm engaged to make the determinations hereunder shall provide its calculations,
together with detailed supporting documentation, to the Company and the Employee within fifteen
(15) calendar days after the date on which the Employee’s right to a Payment is triggered (if
requested at that time by the Company or the Employee) or such other time as requested by the
Company or the Employee. If the accounting firm determines that no Excise Tax is payable with
respect to a Payment, either before or after the application of the Reduced Amount, it shall
furnish the Company and the Employee with an opinion reasonably acceptable to
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Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith
determinations of the accounting firm made hereunder shall be final, binding and conclusive upon
the Company and the Employee.
10) Non-Solicitation and Non-Disclosure.
a) Non-Solicitation. During the period commencing on the date of this Agreement and
continuing until the first anniversary of the date when the Employee’s Employment terminated for
any reason, the Employee shall not directly or indirectly, personally or through others, solicit or
attempt to solicit (on the Employee’s own behalf or on behalf of any other person or entity) either
(i) the employment of any employee of the Company or any of the Company’s affiliates or (ii) the
business of any customer of the Company or any customer of any of the Company’s affiliates with
whom the Employee had contact during her Employment. Notwithstanding the foregoing, the Employee
shall be entitled to solicit the Employee’s executive assistant at the time of termination with the
approval of the Company (which will not be unreasonably withheld).
b) Non-Disclosure. The Employee has entered into a Proprietary Information and Inventions
Agreement with the Company, which is incorporated herein by reference.
11) Successors.
a) Company’s Successors. This Agreement shall be binding upon any successor (whether direct
or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all
or substantially all of the Company’s business and/or assets. For all purposes under this
Agreement, the term “Company” shall include any successor to the Company’s business and/or assets
which become bound by this Agreement.
b) Employee’s Successors. This Agreement and all rights of the Employee hereunder shall
inure to the benefit of, and be enforceable by, the Employee’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and legatees.
12) Miscellaneous Provisions.
a) Notice. Notices and all other communications contemplated by this Agreement shall be in
writing and shall be deemed to have been duly given when personally delivered or when mailed by
U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of the
Employee, mailed notices shall be addressed to her at the home address which she most recently
communicated to the Company in writing, and a copy shall be sent to Xxxxx & Xxxxxxxxxx LLP, 000
Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, N.Y. 10110, Attn: Xxxxxx Xxxxx. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed
to the attention of its Secretary.
b) Modifications and Waivers. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing and signed by the
Employee and by an authorized officer of the Company (other than the Employee). No waiver by either
party of any breach of, or of compliance with, any condition or provision of this Agreement by the
other party shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
c) Whole Agreement. This Agreement supersedes any previous offer letters and employment
agreements. No other agreements, representations or understandings (whether oral or written and
whether express or implied), which are not expressly set forth in this Agreement have been made or
entered into by either party with respect to the subject matter hereof. This Agreement, the
Proprietary Information and Inventions Agreement, and any agreements relating to the previously
granted options or other stock awards contain the entire understanding of the parties with respect
to the subject matter hereof.
d) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to
reflect taxes or other charges required to be withheld by law.
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e) Choice of Law and Severability. This Agreement is executed by the parties in the State of
California and shall be interpreted in accordance with the laws of such State (except its
provisions governing the choice of law). If any provision of this Agreement becomes or is deemed
invalid, illegal or unenforceable in any jurisdiction by reason of the scope, extent or duration of
its coverage, then such provision shall be deemed amended to the extent necessary to conform to
applicable law so as to be valid and enforceable or, if such provision cannot be so amended without
materially altering the intention of the parties, then such provision shall be stricken and the
remainder of this Agreement shall continue in full force and effect. Should there ever occur any
conflict between any provision contained in this Agreement and any present or future statute, law,
ordinance or regulation contrary to which the parties have no legal right to contract, then the
latter shall prevail but the provision of this Agreement affected thereby shall be curtailed and
limited only to the extent necessary to bring it into compliance with applicable law. All the other
terms and provisions of this Agreement shall continue in full force and effect without impairment
or limitation.
f) Arbitration. Any controversy or claim arising out of or relating to this Agreement or the
breach thereof, or the Employee’s Employment or the termination thereof, shall be settled in San
Francisco, CA, by arbitration before a single neutral arbitrator in accordance with the Employment
Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services. The decision
of the arbitrator shall be final and binding on the parties, and judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. The parties hereby agree
that the arbitrator shall be empowered to enter an equitable decree mandating specific enforcement
of the terms of this Agreement. The Company will pay all costs unique to arbitration. The Company
shall also pay to the fullest extent permitted by law, all legal fees and expenses which the
Employee may incur as a result of or in connection with or arising out of such arbitration
(including as a result of any contest by the Employee about the amount or timing of any payment
due under this paragraph); provided that the arbitrator or other person(s) presiding over the
arbitration affirmatively finds that the Employee “prevailed” in the arbitration. Each of the
Company and the Employee agree that such arbitrator or other person shall be instructed to make a
determination as to whether the Company or the Employee “prevailed” in the arbitration. The
parties hereby agree to waive their right to jury trial to the extent permitted by law.
g) No Assignment. This Agreement and all rights and obligations of the Employee hereunder are
personal to the Employee and may not be transferred or assigned by the Employee at any time. The
Company may assign its rights under this Agreement to any entity that assumes the Company’s
obligations hereunder in connection with any sale or transfer of all or a substantial portion of
the Company’s assets to such entity.
h) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
i) No Mitigation/Offset. In the event of any termination of employment, Employee shall not
be required to mitigate damages or the amount of any payment provided for under this Agreement by
seeking other employment or otherwise, and compensation earned from such employment or otherwise
shall not reduce the amounts otherwise payable under this Agreement. No amounts payable under this
Agreement shall be subject to reduction or offset in respect of any claims which the Company or any
of its subsidiaries or affiliates (or any other person or entity) has or may have against Employee.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by its duly authorized representative, as of the day and year first above written.
| /s/ Xxxxx Xxxxx | ||||
| Xxxxx Xxxxx | ||||
| PLANETOUT INC. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Member of the Board of Directors
and Chair, Compensation Committee |
|||
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Schedule A
EMPLOYEE DUTIES
EMPLOYEE DUTIES
1. Position and Structure:
Chief Executive Officer, Reporting to the Board
2. Position Overview:
i) Overall accountability for and the leadership, management,
development and continuous improvement of the Company and all of its operations, finances,
transactions, business relationships, and human resources.
ii) Strategic planning and strategic business development for the business and
implementation of transactions, tasks and projects resulting from such planning through the
organization.
iii) Leadership, management, recruiting, and continuous development of the Company’s
leadership team.
iv) Consistent and accurate planning, forecasting, and budgeting related to all areas of the
business and managing to meet or exceed those plans, forecasts and budgets.
v) Managing, meeting and exceeding those expectations of member, client and business
partner, as are specified in advance in writing between the Employee and the Company.
vi) As the most senior leader, with integrity, wisdom and prudence, interacting with,
communicating to, helping to educate and to develop upline management, peer management, and
non-reporting staff throughout the Company to the benefit of all Company personnel and the business
as a whole.
vii) Representing the Company and its personnel in formal and informal communications and
presentations, on panels, with the press, in the field, with clients and other business partners,
and in all other business-related circumstances, with the highest attainable form of
professionalism, integrity, honesty, and sincerity in the desire to serve, provide service, and
relate information, and in all other forms of communication and presentation.
viii) Responsibilities as further defined in written descriptions of the job and other roles
and responsibilities.
