GLOWPOINT LETTERHEAD]
Exhibit
10.33
[GLOWPOINT
LETTERHEAD]
April
6,
2006
Xxxxx
Xxxxxxxxxxxx
Glowpoint,
Inc.
000
Xxxx
Xxxxxx
Hillside,
NJ 07025
Re:
Separation
Agreement Including A General Release
Dear
Xxxxx:
In
response to discussions you initiated, this letter sets forth the terms of
our
agreement with respect to your voluntary separation from employment with
Glowpoint ( “Glowpoint”).
Your
final date of active employment with Glowpoint will be April 28, 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. Upon the Separation Date, you will
have no unused vacation time that you have accrued during 2006.
Effective
as of the date you sign this Agreement (the “Signature Date”), you will step
down as President and Chief Executive Officer of Glowpoint and resign from
Glowpoint’s Board of Directors. From the Signature Date through the Separation
Date, you will act as a consultant to Glowpoint to the extent requested by
Glowpoint to assist in the transition to the new management team led by Xxxxxxx
Xxxxxxxxxx as Xxxxxxxxx’s next President and Chief Executive Officer. During
this consultancy period, as afterwards, you will be permitted to look for other
employment and to consult for other entities to the extent such activities
are
not prohibited by Section 6 of the Employment Agreement dated October 3, 2003
between you and Glowpoint.
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.
Following
the Effective Date (as defined below), you will receive:
(i)
on
the first business day after the Effective Date, a lump-sum payment in the
gross
amount of $250,000.00, less authorized and required deductions;
(ii)
four
additional payments, each in the gross amount of $62,500.00, less authorized
and
required deductions, on or before July 31, 2006, October 31, 2006, January
31,
2007, and March 15, 2007, respectively;
(iii)
on
the first business day after the Effective Date, accelerated vesting of 120,000
shares of restricted Glowpoint common stock granted to you pursuant to your
Employment Agreement dated October 3, 2003 and the Restricted Stock Award of
the
same date;
(iv)
effective as of the first business day after the Effective Date, the
post-termination exercise period for the options to purchase Glowpoint common
stock that you then hold will be extended by 90 days for a total
post-termination exercise period of 180 days;
(v)
if
you timely elect COBRA continuation of your medical insurance, Glowpoint will
reimburse you for the COBRA premiums necessary to continue this coverage until
the earlier of the date you receive medical insurance coverage from another
source or April 30, 2007;
(vi)
after the removal by a Glowpoint representative of Glowpoint information, the
laptop computer, printer, and monitor currently in your Glowpoint
offices;
(vii)
a
final copy of the press release regarding your departure in the form attached
as
Exhibit A; and
(viii)
at
the sole and binding discretion of Glowpoint’s Board of Directors, consideration
for the possible award of additional restricted shares of Glowpoint common
stock
upon closure before December 31, 2006 of a “Project Xxxx” deal.
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, shareholders,
legal representatives, 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 (excluding
claims for accrued, vested benefits under any employee benefit plan of Glowpoint
in accordance with the terms of such plan and applicable law); 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. Nothing in this paragraph shall be deemed to effect any existing rights
you may have to indemnification as an Officer and Director of
Glowpoint.
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 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. The only disclosures excepted by
this paragraph are: (i) as may be required by court order or subpoena and after
notice as provided for below; and (ii) you may disclose confidential information
regarding this Agreement to your attorneys, accountants or tax or financial
advisors, and significant other, provided that you make each such person aware
of the confidentiality provisions of this paragraph and each agrees to keep
such
information confidential. You further agree not to solicit or initiate any
demand by others not party to this Agreement for disclosure of any or all of
the
confidential information described above. You agree that, in the event you
are
served with legal process purporting to require a disclosure of any such
confidential information, that, unless required by law, you: (i) will make
no
such disclosure until Glowpoint has had a reasonable opportunity to contest
the
right of the requesting person or entity to such disclosure; and (ii)
immediately upon your receipt of such process or request to testify or produce
documents (and no later than five (5) days before you are required to testify
and/or produce documents), you will ensure that Glowpoint receives written
notification and copies of all legal papers and documents served upon
you.
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.
You
represent and warrant 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, except for the laptop computer, printer, and
monitor as described above, and you will not have retained any reproductions
of
these items.
You
represent and warrant that you are not aware of any material non-public
information concerning Glowpoint, its business or its affiliates that you have
not disclosed to the Board of Directors of Glowpoint prior to the date of this
Agreement or that is required to be disclosed by Glowpoint in its filings under
the Securities Exchange Act of 1934 with the Securities and Exchange Commission
(“SEC”) and that has not been so disclosed. Additionally, you agree to make
yourself available for and cooperate truthfully and fully in consultations
with
Glowpoint and its advisors and the SEC) and other governmental agencies at
reasonable times, upon reasonable notice, and without additional compensation
(except reimbursement for reasonable travel and other out-of-pocket expenses)
regarding issues related in any way to the ongoing informal SEC investigation
and/or any related investigation of Glowpoint.
You
acknowledge that all your agreements and warranties above are material terms
of
the Agreement without which Glowpoint would not provide the payments and other
benefits 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 violate one or more of
these
agreements and warranties, you agree that any remaining payment obligations
from
Glowpoint to you are null and void and, to the maximum extent permitted by
law,
that you must 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. You and Glowpoint agree that this Agreement may be used as evidence only
in
a subsequent proceeding in which any of the parties alleges a breach of this
Agreement
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, except that Sections Four through Six of the Employment
Agreement dated October 3, 2003 between you and Glowpoint shall remain 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.
This
Agreement is binding upon, and shall inure to the benefit of, the parties and
their respective heirs, executors, administrators, successors, and assigns,
including Glowpoint’s successor entity in the event of a sale or other change in
control of Glowpoint.
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 should 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 day after your execution of this
Agreement. This Agreement will not become fully effective and enforceable until
the eighth day after you have signed it (the “Effective Date”). 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 York, New York, before a mutually agreed
upon single arbitrator licensed to practice law and on the
employment-arbitration panel of the American Arbitration Association (“AAA”),
International Institute for Conflict Prevention & Resolution (“CPR”), and/or
JAMS. The arbitrator shall follow the rules and procedures then in effect for
the panel provider (either AAA, CPR, or JAMS) from which he/she has been
selected; and he/she 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/
Xxxxxxx Xxxxxxxxxx
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Glowpoint,
Inc.
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By:
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Xxxxxxx
Xxxxxxxxxx
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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/
DTrachtenberg
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Dated:
4/6/06
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Xxxxx
Xxxxxxxxxxxx
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