EXHIBIT 10.27
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Agreement is entered into as of April 26, 2004, by and between
XXXXXXX XXXXXXXXX (the "Employee") and PLANETOUT PARTNERS, INC., a Delaware
corporation (the "Company").
1) DUTIES AND SCOPE OF EMPLOYMENT.
a) POSITION. For the term of his employment under this Agreement (the
"Employment"), the Company agrees to employ the Employee in the position
of Senior Vice President 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 CEO, President, COO, CFO, Executive Vice
President, Senior Vice President or to such other person as the Company
subsequently may determine. The Employee's duties shall include, but are
not limited to, those items set forth in Schedule A of this Agreement, as
may be updated from time-to-time as mutually agreed by Employee and
Employee's senior management, provided however that Employee's duties
following such changes shall be commensurate with Employee's Senior Vice
President-level or higher-level position with the Company.
b) OBLIGATIONS TO THE COMPANY. During his Employment, the Employee shall
devote his full business efforts and time to the Company. During his
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) assists any
person or entity in competing with the Company, (vii) assists any person
or entity in preparing to compete with the Company, or (viii) assists any
person or entity in hiring away any employees or consultants of 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
charitable and political activities not directly associated with the
Company during nonworking hours away from the Company's premises, the
Employee must in writing notify the Company 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 and the number of hours spent
engaging in such activity that may or will detract from the business of
the Company. The Employee shall comply with the Company's policies and
rules, as they may be in effect from time to time during his Employment.
c) NO CONFLICTING OBLIGATIONS. The Employee represents and warrants to the
Company that he is under no obligations or commitments, whether
contractual or otherwise, that are inconsistent with his obligations under
this Agreement. The Employee represents and warrants that he will not use
or disclose, in connection with his employment by the Company, any trade
secrets or other proprietary information or intellectual property in which
the Employee or any other person has any right, other than the Company,
title or interest and that his 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 he 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 matters.
d) COMMENCEMENT DATE AND LOCATION. The Employee shall officially commence
work for the Company (or a predecessor company) on November 1, 2000
("Commencement Date") and shall be located in the San Francisco office of
the Company.
2) CASH AND INCENTIVE COMPENSATION.
a) SALARY. The Company shall pay the Employee as compensation for his
services a base salary at a gross annual rate, excluding incentive bonuses
that may be approved by the Company's CEO or Board of Directors (the
"Board"), of One Hundred Eighty Thousand Dollars ($180,000) from the
Effective 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.") The Employee will be entitled to
receive an evaluation of performance on or about each successive annual
anniversary of the Employee's commencement. 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.
b) INCENTIVE BONUSES. The Employee shall be eligible to be considered for an
annual incentive bonus. Such bonus (if any) shall be awarded based on
objective or subjective criteria established in advance by the CEO, CFO or
COO, as may be approved by the Board and, after such approval, presented
to Employee. The determinations of the Board with respect to such bonus
shall be final and binding.
c) PERFORMANCE BONUS OPTIONS. Subject to the approval of the Board, the
Company may grant the Employee stock options, from time-to-time, covering
the shares of the Company's equity securities. The terms of such options
shall be as determined by the Company's Board of Directors at the time of
any such grant. Such terms shall be provided in writing to the Employee at
the time of any such grant.
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3) VACATION AND EMPLOYEE BENEFITS. During his Employment, the Employee shall
be eligible for paid vacations in accordance with the Company's standard
policy for similarly situated employees, as it may be amended from time to
time. During his 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. At Employee's option, Employee shall be eligible to
use personal life and disability insurance to cover the approximate
difference between the company plan's maximum and his Base Compensation up
to a cost of $150 per month for disability insurance and $100 per month
for life insurance and to present the Company receipts for such insurance
for reimbursement by the Company.
4) BUSINESS EXPENSES. During his Employment, the Employee shall be authorized
to incur necessary and reasonable travel, entertainment and other business
expenses in connection with his duties hereunder. The Company shall
reimburse the Employee for such expenses upon presentation of an itemized
account and appropriate supporting documentation, all in accordance with
the Company's generally applicable policies.
5) TERM OF EMPLOYMENT.
a) BASIC RULE. The Company agrees to continue the Employee's Employment, and
the Employee agrees to remain in Employment with the Company, from the
commencement date set forth in Section 1(d) until the date when the
Employee's Employment terminates pursuant to Subsection (b) or (c) 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. 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 officer of the Company.
b) 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 his
Employment by giving the Company twenty-one (21) days advance notice in
writing. The Employee's Employment shall terminate automatically in the
event of his death.
c) RIGHTS UPON TERMINATION. Except as expressly provided in Section 6, upon
the termination of the Employee's Employment pursuant to this Section 5,
the Employee shall only be entitled to the compensation, benefits and
reimbursements described in Sections 2, 3 and 4 for the period preceding
the effective date of the termination. The payments under this Agreement
shall fully discharge all responsibilities of the Company to the Employee.
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d) TERMINATION OF AGREEMENT. This Agreement 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 7.
6) TERMINATION BENEFITS.
a) GENERAL RELEASE. Any other provision of this Agreement notwithstanding,
Subsections (b) and (c) below shall not apply unless the Employee (i) has
executed a reasonable general release (in a form prescribed by the
Company) of all known and unknown claims that he may then have against the
Company or persons affiliated with the Company and (ii) has agreed 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, then the Company shall pay the Employee his Base
Compensation for a period of nine (9) months following the
termination of his Employment (the "Base Continuation Period") and
shall accelerate the vesting of any outstanding stock options such
that the Employee will become vested in an additional number of
shares subject to such stock options, as if the Employee provided
another six (6) 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
ii) If, within sixteen (16) months following a Change of Control (as
defined in Part 2(e) of the Planetout Partners, Inc. Performance and
Equity Participation (PEP) Plan as adopted on January 22, 2002 (the
"PEP Plan")) and the Company terminates the Employee's Employment
(including through "Constructive Termination" as defined below) for
any reason other than Cause or Permanent Disability, then, subject
to the "Parachute Payment" provisions of paragraph 5(d) of the PEP
Plan (as if such provisions were a full part of this agreement, even
if such plan is not in effect at the time of a Change of Control),
the Company shall pay the Employee his Base Compensation for a
period of twelve (12) months following the termination of his
Employment (the "Change of Control Continuation Period"), and shall
accelerate the vesting of any outstanding stock options such that
the Employee will become vested in an additional number of shares
subject to such stock options, as if the Employee provided the
greater of either (A) another six (6) months of service with the
Company or (B) 50% of the remaining unvested shares. 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.
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iii) DEFINITION OF "CONSTRUCTIVE TERMINATION." For all purposes under
this Agreement "Constructive Termination" shall mean that 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
to which the Employee has not agreed to in writing; (iii) any
elimination of a material benefit provided to the Employee pursuant
to employment with the Company to which the Employee has not agreed
to in writing unless such material benefit is being eliminated for
all Employees in comparable positions or Employee's class due to a
reasonable business need or 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 letter agreement within a reasonable time
following written notice from the Employee to the Company's Board of
Directors; or (vi) the actual occurrence of any "constructive
termination" of the Employee by the Company under California law.
The provisions of subparts (i) through (iii) of this subparagraph
b(iii) shall not apply if any "cause" as defined in subparagraph (d)
has occurred, and, if curable pursuant to subparagraph (d), has not
been cured.
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 his duties under
this Agreement for a period of not less than 90 consecutive days (or
such longer period as may be required by law) as the result of his
incapacity due to physical or mental injury, disability or illness.
c) HEALTH INSURANCE. If Subsection (b) above applies, and if the Employee
elects to continue his health insurance coverage under the Consolidated
Omnibus Budget Reconciliation Act ("COBRA") following the termination of
his Employment, then the Company shall pay the Employee's monthly premium
under COBRA until the earliest of (i) the close of the Base Continuation
Period or 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
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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 specify the material failure(s) to comply compliance issues
and delineates 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.
7) NON-SOLICITATION AND NON-DISCLOSURE.
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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 of the Company's affiliates with whom the Employee had
contact during his Employment.
b) NON-DISCLOSURE. The Employee has entered into a Proprietary Information
and Inventions Agreement with the Company, which is incorporated herein by
reference.
8) 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 becomes 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.
9) 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 him at the home address
which he most recently communicated to the Company in writing. 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.
WHOLE AGREEMENT. This Agreement supersedes any previous offer letters and
employment agreements including, among any others, the Employment
Agreement dated
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August 1, 2002.. 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, the Company's 2001
Equity Incentive Plan, the applicable Stock Option Agreements evidencing
Stock Options granted to you by the Company, any grants made to you of the
Company's Series B Preferred Stock, and the Company's Performance and
Equity Participation (PEP) Plan previously entered into by Employee
contain the entire understanding of the parties with respect to the
subject matter hereof.
c) 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.
d) 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 their 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 statue, 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.
e) 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 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 and the
Employee shall share equally all fees and expenses of the arbitrator. The
Employee hereby consents to personal jurisdiction of the state and federal
courts located in the State of California for any action or proceeding
arising from or relating to this Agreement or relating to any arbitration
in which the parties are participants.
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f) 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.
g) 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.
IN WITNESS WHEREOF, each of the parties has executed this Agreement,
in the case of the Company by its duly authorized officer, as of the day and
year first above written.
By /s/ XXXXXXX XXXXXXXXX
------------------------------------
Xxxxxxx Xxxxxxxxx
PlanetOut Partners, Inc.
By /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
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SCHEDULE A
EMPLOYEE DUTIES
1. POSITION AND STRUCTURE:
1.1. Senior Vice President, Member Sales and Marketing
1.2. Reporting to the President
2. POSITION OVERVIEW
2.1. Overall management and P&L responsibility for PlanetOut Partners'
(POP) Premium Services business lines, including Xxx.xxx Chat and
Personals, PlanetOut Personals, and other member-to-member
communications services; as well as its E-Commerce business lines,
including Xxxxxxxxxxxx.xxx and other transaction-based E-Commerce
services.
2.2. Primary management responsibility for business planning, strategy
and tactical implementation to support all POP E-Commerce and
subscription sales.
2.3. Manages POP's business, marketing, creative services and customer
service teams and works to promote collaboration between these
groups to ensure efficient workflow, superior product quality and
rapid time-to-market of all product deliverables.
2.4. Primary responsibility for all near- and long-term strategic
business planning for POP's consumer sales groups, including revenue
planning, labor and marketing resource allocation, and product
development planning.
2.5. Works with company business and technology leaders to prioritize
corporate development projects and to provide revenue analysis to
support that prioritization.
2.6. Interfaces regularly with POP's other business leaders to ensure
cohesive company strategy, identify areas for cross-promotion
opportunities, and work toward increased synergies.
2.7. In an effort to promote global adoption of POP Premium Services,
oversees international Premium Services managers to drive sales of
those services in foreign markets and identify new geographical
areas of expansion for PlanetOut Partners.
3. RESPONSIBILITIES
3.1. Develop short-term and long-term global business plans and budgets
for POP's Premium Services and E-Commerce divisions.
3.2. Primary P&L responsibility for all consumer sales business lines.
3.3. Manage business, marketing and creative services departments;
oversee and approve all product development, marketing and other
customer acquisition and retention plans related to Premium Services
and E-Commerce.
3.4. Manages customer service group; oversee and approve all product
development and other plans related to customer service.
3.5. Manage international Premium Services teams to ensure rapid growth
in key international markets and cohesive brand strategy worldwide
3.6. Work with company leaders to set corporate objectives and
priorities, including both long-term strategic planning and
shorter-term tactical development.
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3.7. Oversee short and long-term market strategies and tactics to support
overall revenue and customer acquisition goals for Xxx.xxx and
PlanetOut Premium Services; oversee marketing leads to ensure
consistency of message, marketing tactics and promotional plans.
3.8. Work closely with product development and technology divisions to
drive customer acceptance of new products, changes to existing
products, and to obsolete products as needed.
3.9. Establish shot and long-term business and marketing relationships
with strategic partners to drive adoption of POP consumer products
and services and create new offerings for POP users.
3.10. Provide revenue, SWOT (strength, weakness, opportunity, threat) and
other business analysis regarding all consumer sales to the POP
Board on a regular basis.
3.11. Monitor competitive landscape for product direction, go-to-market
message shifts, and other threats.
3.12. Act as primary company spokesperson for business and consumer
interviews related directly to Premium Services and E-Commerce
products.
3.13. Responsibilities as further defined in job descriptions and other
roles and responsibilities memoranda.
4. As a leader, with integrity, wisdom and prudence, interacting with,
communicating to, helping to educate and to develop upline and downline
management, peer management, and non-reporting staff throughout the
Company to the benefit of all Company individuals and the business as a
whole.
5. Representing the Company and its individuals in formal and informal
communications and presentations, on panels, with the press as
pre-approved, 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.
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