Exhibit 10.22
EMPLOYMENT AGREEMENT
This employment agreement
(the “Agreement”) is entered into as of July 16,
2007 (the “Effective Date”) by and between
Avistar Communications Corporation (the
“Company”) and Simon Moss
(“Executive”).
1. Duties and Scope of
Employment.
(a)
Positions and Duties. As of the Effective Date,
Executive will serve as President of the
Company. Executive will render such business and
professional services in the performance of his duties, consistent
with Executive’s position within the Company, as shall
reasonably be assigned to him by the Chairman of the
Company’s Board of Directors (the
“Board”).
(b)
Obligations. During the Employment Term (as defined
herein), Executive will perform his duties faithfully and to the
best of his ability and will devote his full business efforts and
time to the Company. For the duration of the Employment
Term, Executive agrees not to actively engage in any other
employment, occupation or consulting activity for any direct or
indirect remuneration without the prior approval of the
Board.
(c)
Work Eligibility. In order to comply with employer
regulations adopted in the Immigration Reform and Control Act of
1986, within three (3) business days of employment, Executive will
need to present documentation demonstrating authorization to work
in the United States.
2.
At-Will Employment. Executive’s employment
with the Company pursuant to this Agreement (the “Employment
Term”) shall commence on the Effective Date and shall
continue, unless otherwise terminated as provided
herein. Notwithstanding the foregoing, the parties agree
that Executive’s employment with the Company will be
“at-will” employment and may be terminated at any time
with or without cause or notice. Executive understands
and agrees that neither his job performance nor promotions,
commendations, bonuses or the like from the Company give rise to or
in any way serve as the basis for continuation, modification,
amendment, or extension, by implication or otherwise, of his
employment with the Company. However, as described in
this Agreement, Executive may be entitled to severance benefits
depending on the circumstances of Executive’s termination of
employment with the Company.
3.
Compensation.
(a)
Base Salary. During the Employment Term, the
Company will pay Executive as compensation for his services a base
salary at the annualized rate of $250,000.00 or such other rate not
below $250,000.00 as the Compensation Committee of the Board (the
“Compensation Committee”) may determine from time to
time (the “Base Salary”). The Base Salary
will be paid periodically in accordance with the Company’s
normal payroll practices and be subject to applicable withholding
taxes.
Once
the Compensation Committee has approved or increased such Base
Salary, it thereafter shall not be reduced; provided, however,
that if a Change of Control (as defined below) has not
occurred, such Base Salary may be reduced by the Compensation
Committee if such reduction is in proportion to a salary
reduction program approved by the Board which affects a
majority of the other executive officers of the Company
generally.
(b)
Stock Options. The Company shall recommend to its
Compensation Committee that Executive be granted an option to
purchase up to 1,100,000 shares of the Company’s Common Stock
at an exercise price equal to the fair market value of the
Company’s Common Stock on the date of grant (the
“Option”). The Option shall vest over a four
(4) year period subject to Executive’s continued service with
the Company through the relevant vesting dates. In all
other respects, the Option shall be subject to the terms,
definitions and provisions of the Company’s 2000 Stock Plan
and form of option agreement adopted for use
thereunder.
Executive
will be eligible to participate in the Company’s annual
incentive option program pursuant to such terms and conditions
as determined by the Compensation Committee in its sole
discretion. Subject to individual and Company
performance objectives set by the Compensation Committee, such
annual incentive option grant to Executive for 2008 could be
between 250,000 and 500,000 shares. However, any
such annual option grant or additional grants and the amount
of such grants will be in the sole discretion of the Board
and/or the Compensation Committee, as applicable.
(c)
Bonus. For each fiscal year of the Company,
Executive will be eligible to receive an annual bonus based upon
the achievement of performance criteria specified by the
Compensation Committee (the “Bonus”). Any
Bonus paid shall be subject to all applicable withholding taxes and
will be paid within sixty (60) days of the date that the Bonus is
earned. The annual bonus shall be determined and paid in
two installments, the first as of June 30 and the second as of
December 31 of each year during the Employment Term.
For
fiscal 2007 the actual amount of Bonus paid will depend upon
revenue earned by the Products Division of the Company during
Quarter 3 and Quarter 4 of fiscal 2007 and will not be subject
to any minimum revenue threshold. The amount to be
paid will be calculated based on a product and services
revenue target of $5.4 million and a target Bonus of $74,500
for Quarters 3 and 4 of fiscal 2007 combined. The
percentage of the revenue target earned by the close of each
quarter will be used to calculate the percentage of $74,500
earned for that quarter and paid out following the close of
that quarter. Should product revenues total $6.05
million or more by the end of Q4 of fiscal 2007, the Executive
will be paid an additional $13,000, making the total possible
Bonus for fiscal 2007 equal to $87,500. This
additional bonus will not be subject to pro-ration for
revenues less than $6.05 million.
For
fiscal 2008, the total possible Bonus will equal $175,000
based on metrics to be approved in the sole discretion of the
Compensation Committee (metrics may include, but are not
limited to, minimum revenue, total revenue, revenue growth,
profits, and the like). Bonus calculations will be
subject to a minimum revenue threshold determined by the
Compensation Committee in its sole discretion.
4.
Employee Benefits. During the Employment Term,
Executive will be entitled to participate in the employee benefit
plans currently and hereafter maintained by the Company of general
applicability to other senior executives of the
Company. The Company reserves the right to cancel or
change the benefit plans and programs it offers to its employees at
any time.
5.
Expenses. The Company will reimburse Executive for
reasonable travel, entertainment or other expenses incurred by
Executive in the furtherance of or in connection with the
performance of Executive’s duties hereunder, in accordance
with the Company’s expense reimbursement policy as in effect
from time to time.
6.
Severance.
(a)
Involuntary Termination. If prior to a Change of
Control (as defined below), Executive’s employment with the
Company terminates (excluding a termination based on
Executive’s death or Disability (as defined herein)) other
than voluntarily or for Cause (as defined herein), and Executive
signs and does not revoke a standard release of claims with the
Company, then, subject to Section 10, Executive shall be entitled
to receive: (i) continuing payments of severance pay (less
applicable withholding taxes) at a rate equal to his Base Salary
rate, as then in effect, for a period of six (6) months from the
date of such termination of employment, to be paid periodically in
accordance with the Company’s normal payroll policies; (ii)
all shares of common stock subject to the Option which have vested
as of the date of Executive’s termination of employment shall
be exercisable for a period of six (6) months following the date of
such termination, provided, however, that in no event shall this
provision operate to extend the Option beyond the term/expiration
date of such Option (and in no event will extend the term of the
Option beyond ten (10) years from the date of grant), nor shall the
unvested portion of the Option continue to vest during the six (6)
month severance period; (iii) reimbursement for the cost of
continued life insurance and health plan coverage for the Executive
and his dependents for a period of six (6) months from the date of
such termination of employment; provided, however, that
(A) the Executive constitutes a qualified beneficiary, as
defined in Section 4980B(g)(1) of the Internal Revenue Code of
1986, as amended (the “Code”) and
(B) Executive elects continuation coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”), within the time period prescribed pursuant
to COBRA; and (iv) the portion of the projected Bonus for the
fiscal year in which such termination of employment occurs accrued
up to the date of termination as determined by the Compensation
Committee in its sole discretion.
(b)
Voluntary Termination; Termination for Cause. If
the Executive’s employment with the Company terminates
voluntarily by Executive (including a termination due to death or
Disability) or for Cause by the Company, then (i) all vesting of
all options to purchase the Common Stock of the Company and other
equity awards will terminate immediately and all payments of
compensation by the Company to Executive hereunder will terminate
immediately (except as to amounts already earned) and (ii)
Executive shall not receive any severance benefits or the
continuation of any other benefits.
(c)
Change of Control. In the event of a Change of
Control that occurs prior to the second anniversary of the
Effective Date, then, subject to Section 10, fifty percent (50%) of
the shares subject to the Option shall become fully vested and
exercisable.
7.
Section 409A .
(a) Notwithstanding
anything to the contrary in this Agreement, if Executive is a
“specified employee” within the meaning of Section
409A of the Code and the final regulations and any other
guidance promulgated thereunder (“Section 409A”)
at the time of his termination, and the severance payable to
Executive, if any, pursuant to this Agreement, when considered
together with any other severance payments or separation
benefits which may be considered deferred compensation under
Section 409A (together, the “Deferred Compensation
Separation Benefits”) will not and could not under any
circumstances, regardless of when such termination occurs, be
paid in full by March 15 of the year following
Executive’s termination, then only that portion of the
Deferred Compensation Separation Benefits which do not exceed
the Section 409A Limit (as defined below) may be made within
the first six (6) months following Executive’s
termination of employment in accordance with the payment
schedule applicable to each such payment or
benefit. For these purposes, each severance payment
and benefit is hereby designated as a separate payment and
will not collectively be treated as a single
payment. Any portion of the Deferred Compensation
Separation Benefits in excess of the Section 409A Limit shall
accrue and, to the extent such portion of the Deferred
Compensation Separation Benefits would otherwise have been
payable within the first six (6) months following
Executive’s termination of employment, will become
payable on the first payroll date that occurs on or after the
date six (6) months and one (1) day following the
date of Executive’s termination of
employment. All subsequent Deferred Compensation
Separation Benefits, if any, will be payable in accordance
with the payment schedule applicable to each payment or
benefit.
(b) The
foregoing provision is intended to comply with the
requirements of Section 409A so that none of the severance
payments and benefits to be provided hereund
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