GLOWPOINT LETTERHEAD]
Exhibit
10.31
[GLOWPOINT
LETTERHEAD]
March
28,
2006
Xxxxxx
X.
Xxxxxx
[ADDRESS
REDACTED]
Re:
Separation
Agreement Including A General Release
Dear
Xxx:
This
letter sets forth the terms of our agreement with respect to your separation
from employment with Glowpoint (“Glowpoint”).
Your
final date of active employment with Glowpoint will be April 7, 2006 (the
"Separation Date"). As of the Separation Date, except as specifically provided
in this Agreement, all compensation, including bonuses, and all other benefits
and perquisites of employment will cease.
You
will
receive your regular pay through the Separation Date.
Following
the Separation Date, you will be entitled to receive payment for the vacation
time that you have accrued during 2006 in the gross amount of $5,653.85, less
authorized and required deductions.
You
may
elect to continue your medical coverage at the prevailing active employee
rate(s) as provided by the Consolidated Omnibus Budget Reconciliation Act of
1986 (“COBRA”). Additional information concerning your COBRA rights will be
provided separately.
If
the
terms of this Agreement are accepted by you and if you return a fully executed
original of this Agreement as described below, and on or prior to the Separation
Date you return to Glowpoint all of Glowpoint's property in your possession,
and
do not revoke your acceptance, you will receive:
(i)
salary continuation benefits equal to $9,623.08 every two weeks, in accordance
with Glowpoint's regular payroll practice, less authorized and required
deductions, for a period of 6 months (the "Salary Continuation Period"), to
commence on the day after the Separation Date;
(ii)
a
bonus of $29,401.01, less authorized and required deductions, which represents
30% of the 2005 target bonus set forth in the Employment Agreement between
you
and Glowpoint dated December 7, 2004 (the "Employment Agreement"), to be paid
to
you ten days after the Separation Date;
(iii)
accelerated vesting of options to purchase 41,667 shares of Glowpoint common
stock granted to you pursuant to the Employment Agreement; and
(iv)
an
extended post-employment exercise period for all vested options held by you
to
one hundred eighty (180) days following the Separation Date.
The
benefits described above shall be referenced in this Agreement collectively
as
the "Separation Benefits."
In
exchange for Glowpoint providing you with the Separation Benefits, and for
other
good and valuable consideration, you hereby waive all claims against Glowpoint,
and release and discharge Glowpoint, its affiliated, related, parent or
subsidiary corporations, and their present and former directors, officers,
and
employees from liability for any claims or damages you may now have or ever
have
had against Glowpoint or any of them, whether known or unknown, including,
but
not limited to, any alleged violation of the Age Discrimination in Employment
Act, as amended, the Older Worker Benefits Protection Act; Title VII of the
Civil Rights of 1964, as amended; Sections 1981 through 1988 of Title 42 of
the
United States Code; the Civil Rights Act of 1991; the Equal Pay Act; the
Americans with Disabilities Act; the Rehabilitation Act; the Family and Medical
Leave Act; the Fair Labor Standards Act; the Employee Retirement Income Security
Act of 1974, as amended; the Worker Adjustment and Retraining Notification
Act;
the National Labor Relations Act; the Fair Credit Reporting Act; the
Occupational Safety and Health Act; the Uniformed Services Employment and
Reemployment Act; the Employee Polygraph Protection Act; the Immigration Reform
Control Act; the retaliation provisions of the Xxxxxxxx-Xxxxx Act of 2002;
the
New Jersey Law Against Discrimination; the New Jersey Conscientious Employee
Protection Act; the New Jersey Family Leave Act; the New Jersey Wage and Hour
Law; the New Jersey Equal Pay Law; the New Jersey Occupational Safety and Health
Law; the New Jersey Smokers’ Rights Law; the New Jersey Genetic Privacy Act; the
New Jersey Fair Credit Reporting Act; the retaliation provisions of the New
Jersey Workers’ Compensation Law (and including any and all amendments to the
above) and/or any other alleged violation of any federal, state or local law,
regulation or ordinance, and/or contract or implied contract or tort law or
public policy claim, having any bearing whatsoever on your employment by and
the
termination of your employment with Glowpoint, including, but not limited to,
any claims asserting wrongful termination or discharge, breach of contract,
negligent or intentional infliction of emotional distress, negligent or
intentional misrepresentation, negligent or intentional interference with
contract, fraud, disparagement, defamation, or claims for back pay, vacation
pay, sick pay, severance, wage, commission or bonus payment, attorneys’ fees,
costs, expenses and/or future wage loss. Glowpoint releases and discharges
you
of and from any and all manner of actions and causes of action, suits, debts,
claims, and demands whatsoever in law or in equity, which Glowpoint ever had,
now has or hereafter may have, by reason of any matter, cause or thing
whatsoever, from the beginning of time until the date of execution of this
Agreement.
You
agree
not to disclose any confidential or proprietary information or know-how
belonging to Glowpoint or acquired by you during your employment with Glowpoint
as described in the Confidentiality and Non-Disclosure Undertaking (“Proprietary
Agreement”) contained in the Glowpoint Employee Handbook. You acknowledge that
the Proprietary Agreement remains in effect after your employment with Glowpoint
ends.
You
agree
that with reference to your past relationship with Glowpoint, you shall not
disparage or denigrate Glowpoint or any person or entity known by you to be
an
affiliate, agent, officer, director or employee of Glowpoint. With reference
to
its past relationship with you, Glowpoint agrees that it shall not, and shall
take reasonable action to cause its officers, directors and employees not to,
disparage or denigrate you.
You
represent that as of the Separation Date you will have returned to Glowpoint
all
Glowpoint property (including without limitation, keys to all offices and
facilities, mobile telephones, employee handbooks, business cards, client files,
corporate credit cards, telephone calling card, files, sales material) in your
possession and you will not have retained any reproductions of these
items.
You
understand and agree that this Agreement shall be maintained in strict
confidence, and that you shall not disclose this Agreement or any of its terms
to any other person unless required by law.
You
acknowledge that your promise not to disclose confidential and proprietary
information belonging to Glowpoint and your promise not to disclose the terms
of
this Agreement are material terms of the Agreement without which Glowpoint
would
not provide the payments discussed in this Agreement. In addition to any other
remedy available to Glowpoint, in the event that you file a lawsuit or
administrative charge relating to any claim released in this Agreement, or
if
you disclose confidential or proprietary information or disclose the terms
of
the Agreement, you will return to Glowpoint all sums paid and other
consideration granted to you pursuant to this Agreement.
The
making of this Agreement is not intended, and shall not be construed, as an
admission that Glowpoint has violated any federal, state or local law, ordinance
or regulation, breached any contract, or committed any wrong whatsoever against
you.
This
Agreement contains the entire agreement between you and Glowpoint regarding
the
termination of your employment, and supersedes and terminates any and all
previous agreements and understandings between you and Glowpoint, whether
written or oral (including, without limitation, the Employment Agreement);
except that the Proprietary Agreement between you and Glowpoint remains in
full
force and effect. This Agreement may not be changed orally, and no modification,
amendment or waiver of any of the provisions contained in this Agreement, nor
any future representation, promise or condition in connection with the subject
matter of this Agreement shall be binding upon either party unless made in
writing and signed by such party. You acknowledge that Glowpoint has made no
promises, commitments or representations to you other than those set forth
in
this Agreement, and that you have not relied upon any statement or
representation made by or behalf of Glowpoint with respect to the basis or
effect of this Agreement or otherwise.
It
is
understood that you will have twenty-one days to consider the terms of this
Agreement (although you need not use all twenty-one days). During the twenty-one
day period and before signing below, you have the right to consult with an
attorney regarding the terms of this Agreement, at your own expense. You agree
that if you execute this Agreement before the end of the twenty-one day period,
such early execution was completely voluntary, and that you had ample time
in
which to review this Agreement with your attorney. You acknowledge that you
have
elected to sign this Agreement voluntarily. Your signature below indicates
that
you are entering into this Agreement freely, knowingly and voluntarily, with
a
full understanding of its terms. You also will have seven days to revoke this
Agreement after you sign this Agreement by providing me with written notice
of
your desire to revoke this Agreement (delivered by hand or by registered or
certified mail, return receipt requested), provided such writing is received
by
me no later than 11:59 p.m. on the seventh (7th) day after your execution of
this Agreement. This Agreement will not become fully effective and enforceable
until after the expiration of the seven-day revocation period. You understand
that your acceptance of the Separation Benefits at any time more than seven
days
after you sign this Agreement confirms that you did not revoke your assent
to
this Agreement and, therefore, that it is fully effective and
enforceable.
Finally,
by your signature below, you acknowledge each of the following: (a) that you
have read this Agreement or have been afforded every opportunity to do so;
(b)
that you are fully aware of the Agreement’s contents and legal effect; and (c)
that you have chosen to enter into this Agreement freely, without coercion
and
based upon your own judgment and not in reliance upon any promises made by
Glowpoint or any of its representatives other than those contained in this
letter.
This
Agreement shall be governed by the laws of the State of New Jersey and the
parties in any action arising from this Agreement shall be submitted to
arbitration that will be held in New Jersey, before a mutually agreed upon
single arbitrator licensed to practice law. The arbitrator shall have authority
to award or grant legal, equitable, and declaratory relief. Such arbitration
shall be final and binding on the parties.
If
this
letter comports with your understanding of our Agreement, please sign on the
line provided below and return the original via overnight mail to me in a
confidential envelope.
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Sincerely,
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/s/
Xxxxxxxx X X Xxxxxx
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Xxxxxxxx
X X Xxxxxx,
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Director,
Human Resources
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Glowpoint
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I
have
read and understand the Agreement above and agree to be bound by its terms
and
conditions.
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/s/
Xxxxxx X. Xxxxxx
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Dated:
3/28/06
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Xxxxxx
X. Xxxxxx
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