Preview of our top selling Vice President (VP) Marketing Employment Agreement
Glowpoint - Vice President, Marketing Employment Agreement - Stuart Gold
Exhibit 10.42
EMPLOYMENT AGREEMENT
This Employment Agreement, dated March 11, 2004 is between Glowpoint, Inc., a Delaware corporation (the "Company"), and Stuart Gold ("Employee").
WHEREAS, the Company wishes to employ Employee and Employee wishes to work for Company.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. POSITION AND RESPONSIBILITIES.
1.1 POSITION. Employee is employed by the Company to render services to the Company in the position of Vice President, Marketing. Employee shall perform such duties and responsibilities as are normally related to such position in accordance with the standards of the industry and any additional duties consistent with his position now or hereafter assigned to Employee by the President and CEO of the Company Employee shall abide by the rules, regulations and practices of the Company as adopted or modified from time to time in the Company's reasonable discretion.
1.2 OTHER ACTIVITIES. Employee shall devote his full business time, attention and skill to perform any assigned duties, services and responsibilities, consistent with the position of Vice President, Marketing, while employed by the Company, for the furtherance of the Company's business, in a diligent, loyal and conscientious manner. Except upon the prior written consent of the Board of Directors, Employee will not, during the term of this Agreement: (i) accept any other employment; or (ii) engage, directly or indirectly, in any other business activity (whether or not pursued for pecuniary advantage) that interferes with Employee's duties and responsibilities hereunder or create a conflict of interest with the Company.
1.3 NO CONFLICT. Employee represents and warrants that Employee's execution of this Agreement, Employee's employment with the Company, and the performance of Employee's proposed duties under this Agreement will not violate any obligations Employee may have to any other employer, person or entity, including any obligations with respect to proprietary or confidential information of any other person or entity.
1.4 COMMENCEMENT OF WORK. Employee will commence employment with the Company on Monday, March 29, 2004.
2. COMPENSATION AND BENEFITS.
2.1 BASE SALARY. In consideration of the services to be rendered under this Agreement and so long as Employee remains employed by the Company, the Company shall pay Employee a salary of at least $185,000.00 per year (the "Base Salary"). The Base Salary shall be paid in accordance with the Company's regularly established payroll practice. Employee's Base Salary shall be reduced by withholdings required by law. Employee's Base Salary will be reviewed from time to time in accordance with the established procedures of the Company.
2.2 RESTRICTED STOCK. The Company shall recommend to the Compensation Committee ("Compensation Committee") and to the Board of Directors (the "Board") that Employee be granted (i) restricted stock ("Restricted Stock ") in the amount of 55,000 shares of Common Stock of the Company and (ii) up to 20,000 additional shares of restricted stock (the "Additional Restricted Stock") to be awarded to Employee concurrently with and in the same percentage as determined in calculating Employee's 2004 incentive compensation pursuant to Section 2.3 below (e.g., if Employee receives 75% of the total possible incentive compensation pursuant to Section 2.3, Employee shall concurrently be granted 15,000 shares of Additional Restricted Stock).
(a) Other than as expressly provided herein, the Restricted
Stock shall be forfeited if the Employee's employment with the Company
is terminated for any reason. Notwithstanding the foregoing, as long as
the Employee remains employed by the Company, the risk of forfeiture of
the Restricted Stock will irrevocably lapse with respect to 18,333
shares on each of the first and second anniversaries of the
commencement of the Employee's employment, and 18,334 upon the third
anniversary of the Employee's employment. The employee may, in his
discretion and subject to the satisfaction of applicable income and
employment tax withholding obligations, make an election under Section
83(b) of the Internal Revenue Code with respect to the Restricted
Stock. Employee's entitlement to any Restricted Stock that may be
approved by the Board and/or Compensation Committee is conditioned upon
Employee's signing of a separate Restricted Stock Agreement and payment
of the par value of the Restricted Stock if required.
(b) The risk of forfeiture of the Restricted Stock shall lapse
upon a Change in Control or Corporate Transaction (as each is defined
in the Restricted Stock Agreement) as long as Employee remains employed
by the Company on the date of the Change of Control or Corporate
Transaction; provided, however, if the surviving company of such Change
of Control or Corporate Transaction offers Employee continued
employment at an equivalent level in terms of position, compensation
and benefits to that existing immediately prior to the Change in
Control or Corporate Transaction and the successor entity or its parent
assumes the contractual obligations with respect to the Restricted
Stock, such risk of forfeiture shall not automatically lapse, but will
lapse in accordance to the schedule set forth in paragraph 2.2(a).
2.3 INCENTIVE COMPENSATION. No later than sixty days after Employee commences his employment, Employee and the President and CEO will establish mutually agreed upon, appropriate goals and metrics by which Employee will be evaluated for 2004.
Such goals and metrics will be updated by the Employee and the President and CEO on an annual basis thereafter. If in the opinion of the President and CEO, the Employee meets the mutually agreed upon goals and metrics, Employee will receive incentive compensation in an amount equivalent to forty percent (40%) of his base salary annually. Upon commencement of employment on March 29, 2004, Employee will be eligible to earn the full 40% of his first year's incentive compensation, or seventy-four thousand dollars ($74,000.00) through December 31, 2004.
2.4 BENEFITS. Employee shall be eligible to participate in all benefits made generally available by the Company to similarly-situated employees, in accordance with the benefit plans established by the Company, and as may be amended from time to time in the Company's sole discretion. Employee may submit reimbursable COBRA expenses until becoming eligible to participate in GlowPoint's health and welfare benefits plan. Employee may also submit reimbursable expenses for eligible dependents electing to remain on COBRA. Such expenses will not exceed the Company's total cost to provide coverage for the Employee and eligible dependents.
2.5 EXPENSES. The Company shall reimburse Employee for reasonable travel and other business expenses incurred by Employee in the performance of Employee's duties hereunder in accordance with the Company's expense reimbursement guidelines, as they may be amended in the Company's sole discretion. These benefits include COBRA expenses for Employee and eligible dependents until Employee becomes eligible to participate under the GlowPoint health and welfare plan.
2.6 CAR ALLOWANCE. The Company will reimburse Employee up to $400 per month for the lease or use of a car to conduct Company business. Reimbursement will be made upon presentation of receipts according to the Company's reimbursement guidelines.
2.7 VACATION. Employee will be entitled to accrue 3 weeks of paid vacation per year. Such vacation must be used in the year in which it is accrued and may not be carried over from year to year.
3. EMPLOYMENT AND SEVERANCE.
3.1 EMPLOYMENT. Either the Company or Employee may terminate Employee's employment with the Company at any time, for any reason or no reason at all so long as they comply with the terms in this section 3.
3.2 TERMINATION FOR CAUSE OR VOLUNTARY RESIGNATION. If Employee is terminated for Cause (as defined below) or if Employee voluntarily resigns, Employee will be entitled to his Base Salary and other benefits through the last day actually worked. Thereafter, all benefits, compensation and perquisites of employment will cease.
3.3 TERMINATION WITHOUT CAUSE. If Employee is terminated without Cause, Employee shall be entitled to severance equal to 12 months salary, at his then current rate of compensation. Such severance shall be paid either as a lump sum or as salary continuation, at the Company's discretion, as well as the pro-rated amount of incentive compensation due as of the effective date of termination. Such severance shall be paid either as a lump sum or as salary continuation, at the Company's discretion. In the event that the Employee is terminated without Cause, Employee will also be entitled to one year of accelerated vesting on the Restricted Stock granted under this Agreement, and the
forfeiture provisions as to the Restricted Stock which is subject to accelerated vesting will lift. Accelerated vesting provisions do not apply to Additional Restricted Stock. In addition, in the event that the Employee is terminated without Cause, and if Employee timely elects COBRA coverage, the Company will pay 100% of the premium costs of COBRA coverage on Employee's behalf for a period of up to one year.
3.4 DEFINITION OF CAUSE. For purposes of this Agreement, Cause shall mean, in the judgment of the Company: (i) Employee willfully engages in any act or omission which is in bad faith and to the detriment of the Company; (ii) Employee exhibits unfitness for service, dishonesty, habitual neglect, persistent and serious deficiencies in performance, or gross incompetence, which conduct is not cured within fifteen (15) days after receipt by Employee of written notice of the conduct; (iii) Employee is convicted of a crime; or (iv) Employee refuses or fails to act on any reasonable and lawful directive or order from the President and CEO.
4. TERMINATION OBLIGATIONS.
4.1 RETURN OF PROPERTY. Employee agrees that all property (including without limitation all equipment, tangible proprietary information, documents, records, notes, contracts and computer-generated materials) furnished to or created or prepared by Employee incident to Employee's employment belongs to the Company and shall be promptly returned to the Company upon termination of Employee's employment.
4.2 COOPERATION. Following any termination of employment, Employee shall cooperate with the Company in the winding up of pending work on behalf of the Company and the orderly transfer of work to other employees. Employee shall also cooperate with the Company in the defense of any action brought by any third party against the Company that relates to Employee's employment by the Company.
5. INVENTIONS AND PROPRIETARY INFORMATION; PROHIBITION ON THIRD PARTY
INFORMATION.
5.1 PROPRIETARY INFORMATION. Employee hereby covenants, agrees and acknowledges as follows:
(a) The Company is engaged in a continuous program of
research, design, development, production, marketing and servicing with
respect to its business.
(b) Employee's employment hereunder creates a relationship of
confidence and trust between Employee and the Company with respect to
certain information pertaining to the business of the Company or
pertaining to the business of any customer of the Company which may be
made known to the Employee by the Company or by any customer of the
Company or learned by the Employee during the period of Employee's
employment by the Company.
(c) The Company possesses and will continue to possess
information that has been created, discovered or
developed by, or otherwise becomes known to it (including, without
limitation, information created, discovered or developed by, or made
known to, Employee during the period of Employee's employment or
arising out of Employee's employment and which pertains to the
Company's actual or contemplated business, products, intellectual
property or processes) or in which property rights have been or may be
assigned or otherwise conveyed to the Company, which information has
commercial value in the business in which the Company is engaged and is
treated by the Company as confidential.
(d) Any and all inventions, products, discoveries,
improvements, processes, manufacturing, marketing and services methods
or techniques, formulae, designs, styles, specifications, data bases,
computer programs (whether in source code or object code), know-how,
strategies and data, whether or not patentable or registrable under
copyright or similar statutes, made, developed or created by Employee
(whether at the request or suggestion of the Company or otherwise,
whether alone or in conjunction with others, and whether during regular
hours of work or otherwise) during the period of Employee's employment
by the Company which pertains to the Company's actual or contemplated
business, products, intellectual property or processes (collectively
hereinafter referred to as "Developments"), shall be the sole property
of the Company and will be promptly and fully disclosed by Employee to
the Bo...
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