Exhibit 10.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement") is made as of
the 14th day of October 2003 between Glowpoint, Inc., a Delaware corporation
having its principal office at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
(hereinafter "Glowpoint"), and Xxxxxxx Xxxxx, c/o Glowpoint, Inc., 000 Xxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter "Employee").
WHEREAS, Employee and Glowpoint entered into an Employment Agreement on January
2, 2001 which was amended April 24, 2002, July 30, 2002 and January 1, 2003
(collectively, the "Employment Agreement");
WHEREAS, under the Employment Agreement, Employee has served Glowpoint as its
Chief Executive Officer and possesses certain executive-level knowledge of
Glowpoint, the videoconferencing industry, and competitors of Glowpoint;
WHEREAS, pursuant to this Agreement, effective as of October 14, 2003 (the
"Effective Date"), Employee will no longer serve Glowpoint as its Chief
Executive Officer;
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 in
the development and marketing of Glowpoint's Glowpoint network, including
participating in the development of additional network features and the
formulation of pricing plans, and to provide 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 (a) assist Glowpoint's management in
the development and marketing of Glowpoint's Glowpoint network,
including participating in the development of additional network
features and the formulation of pricing plans, and (b) 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. Termination of Employment as Chief Executive Officer. Employee's
final date of employment as Chief Executive Officer of Glowpoint is
October 14, 2003.
3. 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, 2004.
4. Compensation. As compensation for Employee's services under this
Agreement, for a period of three months, from October 1, 2003 until
December 31, 2003, Glowpoint shall pay Employee salary payments in a
total amount equal to $82,500, less authorized and required
deductions. These salary payments shall be
29
in lieu of and not in addition to any payments to which Employee
would otherwise be entitled pursuant to the Employment Agreement
during this period and shall be paid in accordance with Glowpoint's
regular payroll practices during this period on Glowpoint's regular
paydays. Beginning January 1, 2004, Glowpoint shall pay Employee a
salary of $150,000 (the "Salary") for the remainder of the
Employment Term, in the amount of $12,500 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 of the associated stock
option agreements currently in effect (the "Award Agreements").
Glowpoint shall, in addition to Employee's compensation, reimburse
Employee for any reasonable expenses incurred by Employee in the
performance of his duties under this agreement, upon submission of
evidence thereof reasonably satisfactory to Glowpoint, including but
not limited to:
(a) Employee's BMW car lease through its expiration on December 31, 2004, as
well as related service and insurance costs;
(b) Employee's cell phone monthly charges through December 31, 2004, 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, 2004, 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, 2004, 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, 2004, 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.
5. Bonus and Benefits. In addition to the above-listed compensation and
expense reimbursements, Employee shall be entitled to:
(a) payment upon execution of this Agreement of a cash bonus in
the amount of $50,000 less authorized and required deductions.
(b) 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.
30
(c) 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.
(d) 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.
6. 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 6 and Paragraph 7
herein, the term "Employment Term" shall include all periods of
Employee's employment with Glowpoint, including those which precede
the date hereof.
7. 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.
8. 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 8), (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 8, Employee shall
31
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).
9. 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.
IN WITNESS WHEREOF, the parties have signed this agreement as of the day and
year first above written.
GLOWPOINT, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name:
Title:
/s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx
32
