EXHIBIT 10.60
[GLOWPOINT LETTERHEAD]
March 12, 2009
Michael Brandofino
c/o Glowpoint, Inc.
225 Long Avenue
Hillside, NJ 07025
Re: Separation Agreement Including A General
Release
Dear Mike:
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, Inc.
(“Glowpoint”).
Your final date of active employment with Glowpoint will be March
20, 2009 (the "Separation Date"). As of the Separation Date, except
as specifically provided in this Agreement, your right to any
compensation and other consideration, including without limitation
bonuses of any kind for any period, and all other benefits and
perquisites of employment will cease. You acknowledge and
agree that all unvested restricted stock previously awarded to you,
including without limitation the grant dated May 15, 2007, will
remain unvested and the award agreement will expire, except for the
grant to be provided to you pursuant to this Agreement and Exhibit
A thereto. Upon the Separation Date, you will be paid for any
unused vacation time that you have accrued during 2009.
Effective as of the date you sign this Agreement (the
“Signature Date”), you will step down as 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 Joseph Laezza and David Robinson as
Glowpoint’s next Co-Chief Executive Officers. During
this consultancy period, and 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 the covenant not to
compete in Section 6 of the Amended and Restated Employment
Agreement between you and Glowpoint dated as of July 1, 2004, as
amended May 15, 2007, June 26, 2007 and March 12, 2009 (as amended,
the “Employment Agreement”).
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.
Commencing with the payroll period ending immediately after the
Effective Date (as defined below), you will receive:
(i) nine months of Base Salary (as defined in the Employment
Agreement) paid in accordance with Glowpoint’s current normal
payroll practices, less authorized and required deductions,
provided however, that all such amounts shall be paid to you no
later than March 15, 2010;
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(ii) following the nine months of Base Salary, as long as you are
not employed or engaged as a consultant in any capacity, you will
be eligible to receive up to a maximum of three additional months
of Base Salary, payable as described in paragraph (i) above,
including the requirement that all such amounts shall be paid to
you no later than March 15, 2010. This additional
compensation will end on the date you accept such a role as an
employee of or consultant for another person or entity;
(iii) 400,000 shares of restricted Glowpoint common stock that will
vest on the earlier of the second anniversary of the Separation
Date or upon a change in control of Glowpoint, and pursuant to a
restricted stock award agreement in substantially the form attached
hereto as Exhibit A;
(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, and the
first anniversary of the Separation Date;
(vi) after the removal by a Glowpoint representative of Glowpoint
information, the laptop computer currently in your Glowpoint
offices, as well as your mobile telephone, home fax machine and
home printer; and
(vii) a final copy of the press release regarding your departure in
the form attached hereto as Exhibit B; and
(viii) payment of your reasonable legal fees associated with your
separation from employment in an amount up to $5,000.00 after
review of the complete invoices that were presented to you by your
attorneys, said payment to occur within 60 days following the date
on which you furnish copies of such invoices to
Glowpoint.
The benefits described above shall be referenced in this Agreement
collectively as the "Separation Benefits." You acknowledge
and agree that Glowpoint does not make any representation or
warranty as to whether the Separation Benefits satisfy the
provisions of Section 409A of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder.
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, financial advisers, investors, 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
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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 Sarbanes-Oxley 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. Likewise, nothing in this paragraph
shall be deemed a waiver of claims that may arise after the
Effective Date, or a waiver of claims that may arise from a breach
of this Agreement.
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 Section 5 of
the Employment Agreement and the Confidentiality and Non-Disclosure
Undertaking (“Proprietary Agreement”) contained in the
Glowpoint Employee Handbook. You acknowledge that Section 5
of the Employment Agreement and the Proprietary Agreement remain in
effect after your employment with Glowpoint ends, and that your
strict adherence to these provisions is of great importance to
Glowpoint for many reasons, including your intimate involvement
with confidential and proprietary information as Glowpoint’s
Chief Executive Officer and former Chief Technology Officer.
