|
Exhibit
10.33
[GLOWPOINT
LETTERHEAD]
April
6, 2006
David
Trachtenberg
Glowpoint,
Inc.
225
Long Avenue
Hillside,
NJ 07025
Re:
Separation Agreement Including A General Release
Dear
David:
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 Michael
Brandofino as Glowpoint’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
Lisa” 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 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, dispa
|
