EX 99.1

	Date of Award:
	Exercise Price per Share:
	Total Number of Shares subject to the Option:
	Type of Option:	Incentive Stock Option
	Expiration Date:
	Post-Termination Exercise Period:	Three (3) Months

EX 99.2

GLOWPOINT, INC.

 

NOTICE OF RESTRICTED STOCK AWARD

 

Grantee’s Name and Address:           ______________________

c/o Glowpoint, Inc.

430 Mountain Avenue, Ste. 301

Murray Hill, NJ 07974

You have been granted shares of Common Stock of the Company, subject to the terms and conditions of this Notice of Restricted Stock Award (the “Notice”), the Restricted Stock Award Agreement (the “Agreement”) attached hereto, and the Company’s 2007   Stock   Incentive Plan (as amended from time to time, the “Plan”), as follows (the “Award”).  Defined terms used in this Notice but not defined herein shall have the same meanings given in the Plan.

 

 

 

Vesting Schedule :

 

Subject to the limitations set forth in this Notice, the Agreement and the Plan, all of the Shares will become unrestricted upon the earlier to occur of:

 

(i)	A Change in Control or Corporate Transaction; and

 

(ii)	The tenth anniversary of the Date of Award.

 

If Grantee is terminated with or without cause or he resigns for any reason, then these shares of Restricted Stock shall be forfeited by Employee and ownership shall revert back to the Company.  For purposes of this Notice, the Agreement, and the Plan, the term “unrestricted” shall mean, with respect to any Shares, that such Shares no longer remain subject to the restrictions on transfer set forth in the Agreement.

 

IN WITNESS WHEREOF, the Company and the Grantee have executed this Notice and agree that the Award is to be governed by the terms and conditions of this Notice, the Agreement, and the Plan.

 

	GLOWPOINT, INC.
	By:
	Name:
	Title:

 

THE GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS NOTICE, THE AGREEMENT OR THE PLAN SHALL CONFER UPON THE GRANTEE ANY RIGHT TO ANY FUTURE AWARDS, NOR SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE’S RIGHT OR THE COMPANY’S RIGHT TO TERMINATE THE GRANTEE AT ANY TIME, WITH OR WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE.

 

The Grantee acknowledges receipt of a copy of the Agreement and the Plan and represents that he/she is familiar with the terms and provisions thereof, and hereby accepts the Award subject to all of the terms and provisions hereof and thereof.  The Grantee has reviewed this Notice, the Agreement, and the Plan in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Notice and fully understands all provisions of this Notice, the Agreement, and the Plan.  The Grantee hereby agrees that all disputes arising out of or relating to this Notice and the Agreement shall be resolved in accordance with Section 16 of the Agreement.  The Grantee further agrees to notify the Company upon any change in the residence address indicated in this Notice.

 

 

GLOWPOINT, INC.

 

RESTRICTED STOCK AWARD AGREEMENT

 

1.   Issuance of Shares .  Glowpoint, Inc., a Delaware corporation (the “Company”), hereby issues to the Grantee (the “Grantee”) named in the Notice of Restricted Stock Award (the “Notice”), the Total Number of Shares of Common Stock Awarded set forth in the Notice (the “Shares”), subject to the Notice, this Restricted Stock Award Agreement (this “Agreement”), and the Company’s 2007 Stock Incentive Plan (as amended from time to time, the “Plan”).  All Shares issued hereunder will be deemed issued to the Grantee as fully paid and nonassessable shares, and the Grantee will have the right to vote the Shares at meetings of the Company’s stockholders.  The Company shall pay any applicable stock transfer taxes imposed upon the issuance of the Shares to the Grantee hereunder.

 

2.   Consideration .  The Shares have been issued to the Grantee in consideration for his/her service to the Company.  The Grantee agrees to pay upon receipt of the Notice the par value of $0.0001 for each Share issued, receipt of which is hereby acknowledged by the Company.

 

3.   Transfer Restrictions .  The Shares issued to the Grantee hereunder may not be sold, transferred by gift, pledged, hypothecated, or otherwise transferred or disposed of by the Grantee prior to the date when the Shares become unrestricted pursuant to the Vesting Schedule set forth in the Notice.  Any attempt to transfer Restricted Shares in violation of this Section 3 will be null and void and will be disregarded.

 

4.   Escrow of Stock .  For purposes of facilitating the enforcement of the provisions of this Agreement, the Grantee agrees, immediately upon receipt of the certificate(s) for the Restricted Shares, to deliver such certificate(s), together with an Assignment Separate from Certificate in the form attached hereto as Exhibit A , executed in blank by the Grantee and the Grantee’s spouse (if required for transfer) with respect to each such stock certificate, to the Secretary or Assistant Secretary of the Company, or their designee, to hold in escrow for so long as such Restricted Shares have not vested pursuant to the Vesting Schedule set forth in the Notice, with the authority to take all such actions and to effectuate all such transfers and/or releases as may be necessary or appropriate to accomplish the objectives of this Agreement in accordance with the terms hereof.  The Grantee hereby acknowledges that the appointment of the Secretary or Assistant Secretary of the Company (or their designee) as the escrow holder hereunder with the stated authorities is a material inducement to the Company to make this Agreement and that such appointment is coupled with an interest and is accordingly irrevocable.  The Grantee agrees that such escrow holder shall not be liable to any party hereto (or to any other party) for any actions or omissions unless such escrow holder is grossly negligent or engages in willful misconduct relative thereto.  The escrow holder may rely upon any letter, notice or other document executed by any signature purported to be genuine and may resign at any time.  Upon the vesting of Restricted Shares, the escrow holder will, without further order or instruction, transmit to the Grantee the certificate evidencing such Shares, subject, however, to satisfaction of any withholding obligations provided in Section 6 below.

 

5.   Distributions .  The Company shall disburse to the Grantee all regular cash dividends with respect to the Shares and Additional Securities (whether vested or not).

 

6.       Section 83(b) Election and Withholding of Taxes .  The Grantee shall provide the Administrator with a copy of any timely election made pursuant to Section 83(b) of the Internal Revenue Code or similar provision of state law (collectively, an “83(b) Election”), a form of which is attached hereto as Exhibit B.  If the Grantee makes a timely 83(b) Election, the Grantee shall immediately pay the Company the amount necessary to satisfy any applicable foreign, federal, state, and local income and employment tax withholding obligations.  If the Grantee does not make a timely 83(b) Election, the Grantee shall, as Restricted Shares shall vest or at the time withholding is otherwise required by any applicable law, pay the Company the amount necessary to satisfy any applicable foreign, federal, state, and local income and employment tax withholding obligations.  The Grantee hereby represents that he understands (a) the contents and requirements of the 83(b) Election, (b) the application of Section 83(b) to the receipt of the Shares by the Grantee pursuant to this Agreement, (c) the nature of the election to be made by the Grantee under Section 83(b), and (d) the effect and requirements of the 83(b) Election under relevant state and local tax laws.  The Grantee further represents that if he intends to file an election pursuant to Section 83(b) with the Internal Revenue Service within thirty (30) days following the date of this Agreement, he will submit a copy of such election to the Company and with his federal tax return for the calendar year in which the date of this Agreement falls.

7.   Additional Securities .  Any securities or cash received (other than a regular cash dividend) as the result of ownership of the Restricted Shares (the “Additional Securities”), including, but not by way of limitation, warrants, options and securities received as a stock dividend or stock split, or as a result of a recapitalization or reorganization or other similar change in the Company’s capital structure, shall be retained in escrow in the same manner and subject to the same conditions and restrictions as the Restricted Shares with respect to which they were issued, including, without limitation, the Vesting Schedule set forth in the Notice.  The Grantee shall be entitled to direct the Company to exercise any warrant or option received as Additional Securities upon supplying the funds necessary to do so, in which event the securities so purchased shall constitute Additional Securities, but the Grantee may not direct the Company to sell any such warrant or option.  If Additional Securities consist of a convertible security, the Grantee may exercise any conversion right, and any securities so acquired shall constitute Additional Securities.  In the event of any change in certificates evidencing the Shares or the Additional Securities by reason of any recapitalization, reorganization or other transaction that results in the creation of Additional Securities, the escrow holder is authorized to deliver to the issuer the certificates evidencing the Shares or the Additional Securities in exchange for the certificates of the replacement securities.

 

8.   Stop-Transfer Notices .  In order to ensure compliance with the restrictions on transfer set forth in this Agreement, the Notice, or the Plan, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if any, and, if the Company transfers its own securities, it may make appropriate notations to the same effect in its own records.

 

9.   Refusal to Transfer .  The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Agreement or the Plan or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred.

 

10.   Restrictive Legends .  The Grantee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws:

 

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED SECURITIES SUBJECT TO A RESTRICTED STOCK AWARD AGREEMENT AND MAY NOT BE TRANSFERRED UNTIL THE RESTRICTIONS ON TRANSFER HAVE LAPSED PURSUANT TO THE TERMS OF SUCH AGREEMENT.”

 

11.   Entire Agreement: Governing Law .  The Notice, this Agreement, Grantee’s employment agreement, if any, and the Plan constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Grantee with respect to the subject matter hereof, and may not be modified adversely to the Grantee’s interest except by means of a writing signed by the Company and the Grantee.  These documents are to be construed in accordance with and governed by the internal laws of the State of New York without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New York to the rights and duties of the parties.  Should any provision of the Notice or this Agreement be determined by a court of law to be illegal or unenforceable, the other provisions shall nevertheless remain effective and shall remain enforceable.

 

12.   Headings .  The captions used in this Agreement are inserted for convenience and shall not be deemed a part of this Agreement for construction or interpretation.

 

13.   Dispute Resolution .  The provisions of this Section 13 shall be the exclusive means of resolving disputes arising out of or relating to the Notice, this Agreement and the Plan.  The Company, the Grantee, and the Grantee’s assignees (the “parties”) shall attempt in good faith to resolve any disputes arising out of or relating to the Notice, this Agreement and the Plan by negotiation between individuals who have authority to settle the controversy.  Negotiations shall be commenced by either party by notice of a written statement of the party’s position and the name and title of the individual who will represent the party.  Within thirty (30) days of the written notification, the parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to resolve the dispute.  If the dispute has not been resolved by negotiation, the parties agree that any suit, action, or proceeding arising out of or relating to the Notice or this Agreement shall be brought in the United States District Court for the Southern District of New York (or should such court lack jurisdiction to hear such action, suit or proceeding, in a New York state court in the County of New York) and that the parties shall submit to the jurisdiction of such court.  The parties irrevocably waive, to the fullest extent permitted by law, any objection the party may have to the laying of venue for any such suit, action or proceeding brought in such court.  THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT, ACTION OR PROCEEDING.  If any one or more provisions of this Section 13 shall for any reason be held invalid or unenforceable, it is the specific intent of the parties that such provisions shall be modified to the minimum extent necessary to make it or its application valid and enforceable.

 

14.   Notices .  Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery or upon deposit in the United States mail by certified mail (if the parties are within the United States) or upon deposit for delivery by an internationally recognized express mail courier service (for international delivery of notice), with postage and fees prepaid, addressed to the other party at its address as shown beneath its signature in the Notice, or to such other address as such party may designate in writing from time to time to the other party.

 

15.   Corporate Transactions/Changes in Control

 

(a)     Acceleration of Award Upon Corporate Transaction .  In the event of any Corporate Transaction, the Award shall automatically become fully vested and exercisable and be released from any restrictions on transfer and forfeiture rights, immediately prior to the specified effective date of such Corporate Transaction, for all of the Shares at the time represented by the Award.

 

(b)     Acceleration of Award Upon Change in Control .  Immediately upon the consummation of a Change in Control, the Award shall automatically become fully vested and exercisable and be released from any restrictions on transfer and repurchase or forfeiture rights.

 

16.   Definitions .  Defined terms used in this Agreement but not defined herein shall have the meanings ascribed thereto in the Notice or the Plan, as applicable.

 

 

EXHIBIT A

STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE

[Please sign this document but do not date it.  The date and information of the transferee will be completed if and when the shares are assigned.]

 

     FOR VALUE RECEIVED, ____________________________ hereby sells, assigns and transfers unto _______________________, __________________ (____) shares of the Common Stock of Glowpoint, Inc., a Delaware corporation (the “Company”), standing in his or her name on the books of, the Company represented by Certificate No. __ herewith, and does hereby irrevocably constitute and appoint the Secretary of the Company attorney to transfer the said stock in the books of the Company with full power of substitution.

 

DATED: ________________

 

 

EXHIBIT B

 

ELECTION UNDER SECTION 83(b)

OF THE INTERNAL REVENUE CODE OF 1986

The undersigned taxpayer hereby elects, pursuant to the Internal Revenue Code, to include in gross income for 20__ the amount of any compensation taxable in connection with the taxpayer’s receipt of the property described below:

 

The name, address, taxpayer identification number and taxable year of the undersigned are:

 

TAXPAYER’S NAME:

SPOUSE’S NAME:

TAXPAYER’S SOCIAL SECURITY NO.:

SPOUSE’S SOCIAL SECURITY NO.:

TAXABLE YEAR:  Calendar Year 20__

ADDRESS:

The property which is the subject of this election is __________ shares of common stock of Glowpoint, Inc.  The property was transferred to the undersigned on ____________.  The fair market value of the property at the time of transfer (determined without regard to any restriction other than a restriction which by its terms will never lapse) is:  $_______ per share x ________ shares = $___________.  The undersigned paid $______ per share x _________ shares for the property transferred or a total of $______________.

 

The undersigned has submitted a copy of this statement to the person for whom the services were performed in connection with the undersigned’s receipt of the above-described property.  The undersigned taxpayer is the person performing the services in connection with the transfer of said property.

 

The undersigned will file this election with the Internal Revenue Service office to which he files his annual income tax return not later than 30 days after the date of transfer of the property.  A copy of the election also will be furnished to the person for whom the services were performed.  Additionally, the undersigned will include a copy of the election with his income tax return for the taxable year in which the property is transferred.  The undersigned understands that this election will also be effective as an election under applicable state law.

 

Dated:

Taxpayer

 

Dated:

Spouse of Taxpayer

EX 99.3

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

 

This Amended and Restated Employment Agreement, dated March 12, 2012 (the "Effective Date"), is between Glowpoint, Inc., a Delaware corporation (the “Company”), and Joseph Laezza ("Employee").

 

WHEREAS, the Employee was hired by the Company on March 11, 2004 and became the Company’s sole Chief Executive Officer on July 12, 2010; and

 

WHEREAS, the Company and the Employee are parties to that certain Amended and Restated Employment Agreement (the “Prior Employment Agreement”) dated August 30, 2010 (the “Prior Effective Date”).

 

WHEREAS, the Company wishes to continue to employ Employee, and Employee wishes to continue 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 President and Chief Executive Officer.  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 Board of Directors 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 President and Chief Executive Officer, 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 (as defined below):  (a) accept any other employment; or (b) 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 creates 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.

 

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 not less than $283,000.00 per year (as such may be increased by the Company from time to time, the "Base Salary").  The Base Salary shall be paid in accordance with the Company’s regularly established payroll practice.  Employee’s Base Salary will be reviewed from time to time in accordance with the established procedures of the Company.

 

2.2   Equity.

 

(a)   Employee expressly acknowledges and agrees that, except as otherwise expressly provided in Section 3.3 of this Agreement or any particular agreement governing the grant shares of restricted stock of the Company (“Restricted Stock”), any and all shares of Restricted Stock owned by Employee shall be forfeited and revert back to the Company (immediately and without need for any notice) if and when the Employee’s employment with the Company is terminated for any reason.

 

(b)   In no way limiting the terms of Section 3.3(c) below, any additional agreements pertaining to new grants of Restricted Stock or options to purchase shares of Company common stock (“Options”) shall expressly state that such securities shall become unrestricted and fully vested, as applicable, upon the occurrence of a Change in Control or Corporate Transaction (as each is defined in the Glowpoint, Inc. 2007 Stock Incentive Plan (as amended, the “Plan”)).

 

(c)   Other than as expressly provided herein, the terms and conditions governing the shares of Restricted Stock shall be set forth in the applicable Restricted Stock Award Agreement.

 

2.3   Incentive Compensation . Employee and the Board of Directors will establish mutually agreed upon appropriate goals and metrics applicable to Employee's performance under this Agreement.  Such goals and metrics will be taken into consideration by the Compensation Committee of the Board of Directors in determining the amount, if any, of incentive compensation to be paid to Employee each year.  Updated goals and metrics will be established no later than 60 days after the start of each new calendar year.  Employee will be eligible to receive incentive compensation with a target of forty percent (40%) of his Base Salary annually.  The determination of the awarding of any incentive compensation to Employee shall be at the sole discretion of the Compensation Committee.  The Company shall pay the incentive compensation no later than March 15 following the calendar year for which the Employee earned the incentive compensation.

 

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.

 

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.

 

2.6   Car Allowance .  The Company shall increase the Base Salary currently in effect by $600.00 per month for the use of a car to conduct Company business.

 

2.7   Vacation.   Employee will be entitled to accrue four (4) weeks of paid vacation per year.  Such vacation may be carried over from year to year only as permitted by the Company’s then-current employee handbook.

 

3.	TERM AND SEVERANCE.

 

3.1   Term.   The initial term of this Agreement expires on December 31, 2013 (the “Initial Term”).  If the Company does not provide Employee with written notice of non-renewal of this Agreement at least six (6) months prior to expiration, then this Agreement shall automatically renew for additional one-year periods (each, a “Renewal Term” and, together with the Initial Term, the “Term”).  If the Company does provide Employee with written notice of non-renewal of this Agreement at least six (6) months prior to expiration of the current Term, then this Agreement shall automatically expire as of the expiration date for such Term (an “Expiration Event”).  Notwithstanding the foregoing, either the Company or Employee may terminate Employee’s employment hereunder at any time, for any reason or no reason at all so long as they comply with the terms of 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, Resignation for Good Reason, Expiration or Death .   If (a) Employee is terminated without Cause (as defined below) or Employee resigns for Good Reason (as defined below) or an Expiration Event occurs or Employee dies (each, a “Qualifying Termination Event”), (b) there exists a “separation from service” as defined under the Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), (c) Employee executes the Company’s standard form of release and waiver (the “Release”) and the Release becomes irrevocable and effective in accordance with its terms within thirty (30) days after Employee’s separation from service, and (d) Employee is not in material breach of any of the terms and conditions of this Agreement, then Employee shall be entitled to the following benefits, payable commencing with the payroll period immediately following the effective date of the Release:

 

(a)   Cash severance payments equal to six (6) months of his current Base Salary, which severance shall be paid as salary continuation in accordance with the Company’s regular payroll practices, plus a lump-sum payment in an amount equal to the prorated portion of the annual bonus for the current fiscal year, as determined at the established target performance levels for Employee and accrued by the Company (collectively, the “Severance Payments”); provided , that notwithstanding the foregoing, in the event that a Change of Control or Corporate Transaction (as each is defined in the Plan) shall occur, (i) the Base Salary portion of the Severance Payments shall be increased from six (6) months to twelve (12) months and (ii) if such Change of Control or Corporate Transaction constitutes a "change in the ownership", a "change in the effective control" or a "change in the ownership of a substantial portion of the assets" of the Company within the meaning of Section 409A of the Code, the payment of all unpaid Severance Payments will be accelerated and become immediately due and payable (A) upon the consummation of such Change of Control or Corporate Transaction if a Qualifying Termination Event has already occurred or (B) as of the effective date of such Qualifying Termination Event, if the separation from service occurs within the two-year period immediately following the Change of Control or Corporate Transaction;

 

(b)   If Employee timely elects COBRA coverage, the Company will pay for COBRA coverage on Employee’s behalf (less the employee contribution portion, if any, immediately prior to such separation from service) until the earlier to occur of (i) the date Employee is entitled to receive substantially similar health insurance coverage from another source and (ii) date that is six (6) months after such separation from service; provided , that notwithstanding the foregoing, in the event that a Change of Control or Corporate Transaction shall occur, the duration of COBRA coverage shall be extended from six (6) months to twelve (12) months; and

 

(c)   Notwithstanding the vesting provisions of any applicable equity grant agreement to the contrary, with respect to the issued and outstanding shares of Restricted Stock and unvested Options then held by Employee other than the 250,000 shares of Restricted Stock and 500,000 Options granted to Employee on or about March 12, 2012 (collectively, the “Eligible Equity”), a certain percentage of such Eligible Equity shall immediately become unrestricted and vested as follows:

 

(i)   If the Qualifying Termination Event occurs before the first anniversary of the Prior Effective Date, then 15% of the Eligible Equity;

 

(ii)   If the Qualifying Termination Event occurs between the first anniversary and second anniversary of the Prior Effective Date, then 40% of the Eligible Equity;

 

(iii)   If the Qualifying Termination Event occurs between the second anniversary and third anniversary of the Prior Effective Date, then 75% of the Eligible Equity; and

 

(iv)   If the Qualifying Termination Event occurs after the third anniversary of the Prior Effective Date, then 100% of the Eligible Equity; provided , that for purposes of this Section 3(c), the parties expressly agree that the Options, if any, with the lowest exercise price shall vest first.

 

3.4   Definition of Cause.   For purposes of this Agreement, Cause shall mean, in the judgment of the Company: (a) Employee willfully engages in any act or omission which is in bad faith and to the detriment of the Company;  (b) 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; (c) Employee is convicted of a crime; or (d) Employee refuses or fails to act on any reasonable and lawful directive or order from the Board of Directors, which refusal is not cured within fifteen (15) days after receipt by the Employee of written notice thereof. Notice of any termination for Cause shall be given in writing to the Employee, which notice shall set forth in reasonable detail all acts or omission upon which the Company is relying for such termination prior to the effective date of the termination.

 

3.5   Definition of Resignation for Good Reason.   For purposes of this Agreement, resigning for “Good Reason” shall mean if Employee resigns because: (a) there has been a material diminution in his Base Salary (with the parties in agreement that for this purpose, a material diminution means a diminution of at least 10% in Employee’s Base Salary);  (b) he is required to be based in an office that is more than 50 miles from the current location of the office; (c) he is assigned duties that are materially inconsistent with his position as President and Chief Executive Officer of the Company; or (d) there is a material diminution of his status, office, title, responsibility, or reporting requirements.  Notwithstanding the foregoing, Employee’s resignation shall not be considered to be for Good Reason unless Employee provides written notice to the Company of the condition constituting Good Reason within ninety (90) days of the initial existence of such condition, and the Company fails to remedy such condition within thirty (30) days after receipt of such notice from Employee.

 

3.6   Excise Tax .  If any benefits paid or distributed to, or realized by, Employee pursuant to this Agreement, together with any other amounts or value otherwise paid or distributed to Employee by Glowpoint ( e.g. , the lapsing of restrictions on Restricted Stock) in connection with a Change in Control or Corporate Transaction (collectively, the " 280G Payments "), would be an "excess parachute payment" as defined in Section 280G of the Code and would thereby subject Employee to the tax imposed under Section 4999 of the Code or any similar tax (the " Excise Tax "), then Glowpoint shall make Employee whole for any additional taxes or penalties applicable to such 280G Payments due to the Excise Tax by making a gross-up payment to Employee (the " Gross-Up Payment "), such that the total amount of 280G Payments, net of all applicable state, federal and local income taxes (including, without limitation, the Excise Tax), actually received by Employee is equal to those 280G Payments calculated as if only normally applicable state, federal and local income taxes, and not the Excise Tax, had applied; provided , the Gross-Up Payment shall include and cover any state, federal and local taxes that are applicable to such Gross-Up Payment.  Glowpoint’s outside auditing firm shall determine the Excise Tax and make any other calculations under this Section 3.6 within thirty (30) days following the applicable Change in Control, Corporate Transaction or other event resulting in the imposition of the Excise Tax, and the determinations of Glowpoint's outside auditing firm under this Section 3.6 will be deemed conclusive and binding on Glowpoint and Employee.  Any Gross-Up Payment pursuant to this Section 3.6 shall be paid to Employee within thirty (30) days following the completion of the determinations of Glowpoint’s outside auditing firm under this Section 3.6.

 

 

3.7   Section 409A of the Code.   The parties intend that any payments and benefits under this Agreement shall be exempt from, or comply with, the requirements of Section 409A of the Code, and this Agreement shall be interpreted and administered in accordance with such intent.  In particular, the parties intend that each installment of Severance Payments under this Agreement be treated as a separate payment for purposes of Section 409A of the Code.  Moreover, to the extent required to comply with Section 409A of the Code, then notwithstanding any other provision of this Agreement to the contrary: (a) if, at the time of his separation from service, Employee is not a "specified employee" within the meaning of Section 409A of the Code, payment of any nonqualified deferred compensation provided under this Agreement shall commence within sixty (60) days following the date of Employee’s separation from service, and if such sixty-day period begins in one calendar year and ends in a second calendar, such payment shall commence in the second calendar year; or (b) if, at the time of his separation from service, Employee is a "specified employee" within the meaning of Section 409A of the Code, any nonqualified deferred compensation provided under this Agreement shall be paid on the first business day that is at least six (6) months after Employee's separation from service (such six-month period, the “Tolling Period”) and the first such payment shall include all unpaid amounts that otherwise would have been paid prior to that date pursuant to this Agreement.

 

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 Board without any additional compensation therefor, including, without limitation, all papers, drawings, models, data, documents and other material pertaining to or in any way relating to any Developments made, developed or created by Employee as aforesaid.  The Company shall own all right, title and interest in and to the Developments and such Developments shall be considered “works made for hire” for the Company under applicable law.  If any of the Developments are held for any reason not to be “works made for hire” for the Company or if ownership of all right, title and interest in and to the Developments has not vested exclusively and immediately in the Company upon creation, Employee irrevocably assigns, without further consideration, any and all right, title and interest in and to the Developments to the Company, including any and all moral rights, and “shop rights” in the Developments recognized by applicable law.  Employee irrevocably agrees to execute any document requested by the Company to give effect to this Section 5.1 such as an assignment of invention or other general assignments of intellectual property rights, without additional compensation therefor.

 

(e)    Employee will keep confidential and will hold for the Company's sole benefit any Development which is to be the exclusive property of the Company under this Section 5.1 irrespective of whether any patent, copyright, trademark or other right or protection is issued in connection therewith.

 

(f)    Employee also agrees that Employee will not, without the prior approval of the Board of Directors, use for Employee's benefit or disclose at any time during Employee's employment by the Company, or thereafter, except to the extent required by the performance by Employee of Employee's duties, any information obtained or developed by Employee while in the employ of the Company with respect to any Developments or with respect to any customers, clients, suppliers, products, services, prices, employees, financial affairs, or methods of design, distribution, marketing, service, procurement or manufacture of the Company or any confidential matter, except information which at the time is generally known to the public other than as a result of disclosure by Employee not permitted hereunder.  Notwithstanding the foregoing, the following will not constitute confidential information for purposes of this Agreement: (i) information which is or becomes publicly available other than as a result of disclosure by the Employee; (ii) information designated in writing by the Company as no longer confidential; or (iii) information known by Employee as of the date of this Agreement, to the extent Employee can document such prior knowledge.  In addition, Employee may use or disclose Company confidential information to the extent Employee is legally compelled to disclose such information; provided , that prior to any such compelled disclosure, Employee shall give the Company reasonable advance notice of any such disclosure and shall cooperate with the Company in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of such information.  Employee will comply with all intellectual property disclosure policies established by the Company from time to time with respect to the Company's confidential information, including with respect to Developments.

 

5.2   Non-Disclosure of Third Party Information.   Employee represents, warrants and covenants that Employee shall not disclose to the Company, or use, or induce the Company to use, any proprietary information or trade secrets of others at any time, including but not limited to any proprietary information or trade secrets of any former employer, if any; and Employee acknowledges and agrees that any violation of this provision shall be grounds for Employee’s immediate termination and could subject Employee to substantial civil liabilities and criminal penalties.  Employee further specifically and expressly acknowledges that no officer or other employee or representative of the Company has requested or instructed Employee to disclose or use any such third party proprietary information or trade secrets.

 

5.3   Injunctive Relief.   Employee acknowledges and agrees that a remedy at law for any breach or threatened breach of the provisions of this Section 5 would be inadequate and, therefore, agrees that the Company shall be entitled to injunctive relief in addition to any other available rights and remedies in case of any such breach or threatened breach.

 

6.	LIMITED AGREEMENT NOT TO COMPETE OR SOLICIT.

 

6.1   Non-Competition.   During the Term and also after expiration or termination of the Term if, and only for so long as, Employee is receiving the Severance Payments (collectively, the “Restricted Period”), unless mutually agreed otherwise by the Employee and the Company, Employee shall not, directly or indirectly, work as an employee, consultant, agent, principal, partner, manager, officer, or director for any person or entity who or which engages in a substantially similar business as the Company.  For purposes of this Agreement, the Company is currently engaged in the business of designing, developing, providing and selling video communication services; provided , that the Restricted Period shall run concurrently with, and shall not be extended for, the Tolling Period, if any.

 

6.2   Non-Solicitation.   Employee shall not, during the Restricted Period, either directly or indirectly: (a) call on or solicit for similar services, or, encourage or take away any of the Company’s customers or potential customers about whom Employee became aware or with whom Employee had contact as a result of Employee’s employment with the Company, either for benefit of Employee or for any other person or entity; or (b) solicit, induce, recruit, or encourage any of the Company’s employees or contractors to leave the employ of the Company or cease providing services to the Company on behalf of the Employee or on behalf of any other person or entity; or (c) hire for himself or any other person or entity any employee who was employed or engaged by the Company within six months prior to the termination of Employee’s employment.

6.3   Limitations; Remedies.   The Employee further agrees that the limitations set forth in this Section 6 (including, without limitation, any time limitation) are reasonable and properly required for the adequate protection of the businesses of the Company.  The Employee agrees that the lack of territorial limit is reasonable given the global reach of the Company.  If any of the restrictions contained in Sections 6.1 and 6.2 are deemed by a court or arbitrator to be unenforceable by reason of the extent, duration or geographic scope thereof, or otherwise, then the parties agree that such court or arbitrator may modify such restriction to the extent necessary to render it enforceable and enforce such restriction in its modified form.  The Employee acknowledges and agrees that a remedy at law for any breach or threatened breach of the provisions of this Section 6 would be inadequate and, therefore, agrees that the Company shall be entitled to injunctive relief in addition to any other available rights and remedies in cases of any such breach or threatened breach.

 

7.	ALTERNATIVE DISPUTE RESOLUTION.

 

7.1   The Company and Employee mutually agree that any controversy or claim arising out of or relating to this Agreement or the breach thereof, or any other dispute between the parties arising from or related to Employee’s employment with the Company, shall be submitted to mediation before a mutually agreeable mediator.  In the event mediation is unsuccessful in resolving the claim or controversy, such claim or controversy shall be resolved by arbitration

 

7.2   Company and Employee agree that arbitration shall be held in New Jersey, before a mutually agreed upon single arbitrator licensed to practice law, in accordance with the rules of the American Arbitration Association.  The arbitrator shall have authority to award or grant legal, equitable, and declaratory relief.  Such arbitration shall be final and binding on the parties.  If the parties are unable to agree on an arbitrator, the matter shall be submitted to the American Arbitration Association solely for appointment of an arbitrator.

 

7.3   The claims covered by this Agreement (“Arbitrable Claims”) include, but are not limited to, claims for wages or other compensation due; claims for breach of any contract (including this Agreement) or covenant (express or implied); tort claims; claims for discrimination (including, but not limited to, race, sex, religion, national origin, age, marital status, medical condition, or disability); claims for benefits (except where an employee benefit or pension plan specifies that its claims procedure shall culminate in an arbitration procedure different from this one); and claims for violation of any federal, state, or other law, statute, regulation, or ordinance, except claims excluded in the following paragraph.  The parties hereby waive any rights they may have to trial by jury in regard to Arbitrable Claims.

 

7.4   This Section 7 does not cover (a) claims that Employee may have for Workers' Compensation State disability or unemployment compensation benefits or (b) either party's right to obtain provisional remedies, or interim relief from a court of competent jurisdiction.

 

7.5   Arbitration under this Agreement shall be the exclusive remedy for all Arbitrable Claims.  This agreement to mediate and arbitrate survives termination of Employee’s employment.

 

8.	AMENDMENTS; WAIVERS; REMEDIES.

 

This Agreement may not be amended or waived except by a writing signed by Employee and by a duly authorized representative of the Company.  Failure to exercise any right under this Agreement shall not constitute a waiver of such right.  Any waiver of any breach of this Agreement shall not operate as a waiver of any subsequent breaches.  All rights or remedies specified for a party herein shall be cumulative and in addition to all other rights and remedies of the party hereunder or under applicable law.

 

9.	ASSIGNMENT; BINDING EFFECT.

 

9.1   Assignment.   The performance of Employee is personal hereunder, and Employee agrees that Employee shall have no right to assign and shall not assign or purport to assign any rights or obligations under this Agreement.  This Agreement may be assigned or transferred by the Company; and nothing in this Agreement shall prevent the consolidation, merger or sale of the Company or a sale of any or all or substantially all of its assets.

 

9.2   Binding Effect.   Subject to the foregoing restriction on assignment by Employee, this Agreement shall inure to the benefit of and be binding upon each of the parties, the affiliates, officers, directors, agents, successors and assigns of the Company, and the heirs, devisees, spouses, legal representatives and successors of Employee.

 

10.	SEVERABILITY.

 

If any provision of this Agreement shall be held by a court or arbitrator to be invalid, unenforceable, or void, such provision shall be enforced to the fullest extent permitted by law, and the remainder of this Agreement shall remain in full force and effect.  In the event that the time period or scope of any provision is declared by a court or arbitrator of competent jurisdiction to exceed the maximum time period or scope that such court or arbitrator deems enforceable, then such court or arbitrator shall reduce the time period or scope to the maximum time period or scope permitted by law.

 

11.

TAXES.

 

All amounts paid under this Agreement (including, without limitation, Base Salary) shall be reduced by all applicable state and federal tax withholdings and any other withholdings required by any applicable jurisdiction.

 

12.	GOVERNING LAW.

 

The validity, interpretation, enforceability, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to New Jersey conflict of laws principles.

 

13.	INTERPRETATION.

 

This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party.  Sections and section headings contained in this Agreement are for reference purposes only, and shall not affect in any manner the meaning or interpretation of this Agreement.  Whenever the context requires, references to the singular shall include the plural and the plural the singular.

 

14.	OBLIGATIONS SURVIVE TERMINATION OF EMPLOYMENT.

 

The Parties' rights and obligations that by their nature would extend beyond the termination or expiration of this Agreement, including, without limitation, the confidentiality, non-solicit and non-compete provisions, shall survive such termination or expiration.

 

15.	AUTHORITY.

 

Each party represents and warrants that such party has the right, power and authority to enter into and execute this Agreement and to perform and discharge all of the obligations hereunder and that this Agreement constitutes the valid and legally binding agreement and obligation of such party and is enforceable in accordance with its terms.

 

16.	ENTIRE AGREEMENT.

 

This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements, whether written or oral, between the parties relating to the subject matter hereof and all past courses of dealing or industry custom, including, without limitation, the Prior Employment Agreement and also the Employment Agreement dated January 30, 2007 between the parties. Employee acknowledges Employee has had the opportunity to consult legal counsel concerning this Agreement, that Employee has read and understands the Agreement, that Employee is fully aware of its legal effect, and that Employee has entered into it freely based on Employee’s own judgment and not on any representations or promises other than those contained in this Agreement.

 

In Witness Whereof, the parties have duly executed this Agreement as of the date first written above.

 

 

EX 99.4

Glowpoint, Inc.

Board of Directors Compensation Plan

(as adopted on and as of March 12, 2012)

I.	Compensation

A.	Upon a new director’s appointment to the Board, a one-time grant of 50,000 common stock options.

B.	A grant of 25,000 common stock options each year as of the date of Glowpoint’s annual meeting of stockholders.

C.	$25,000 base salary, payable in cash on a quarterly basis in arrears.

D.	Additional $20,000 per annum, payable in cash on a quarterly basis in arrears, for the Board Chairman.

E.	Additional $10,000 per annum, payable in cash on a quarterly basis in arrears, for the Audit Committee Chairman.

F.	Additional $5,000 per annum, payable in cash on a quarterly basis in arrears, for the Compensation Committee Chairman.

G.	Additional $3,000 per annum, payable in cash on a quarterly basis in arrears, for membership on any committee.

II.

General

A.	Compensation (both cash and equity) is payable only to non-employee directors.

B.

Each director may irrevocably elect, by written notice to the Company on or before December 31, to receive all of his/her cash compensation for the following fiscal year in the form of restricted stock; provided , that each director shall be permitted to make such election for 2012 by written notice to the Company within 30 days of the adoption of this Plan.  The number of shares of restricted stock shall be determined by dividing the applicable dollar amount of any given cash payment by a dollar amount equal to 90% of the VWAP for the Company’s common stock, as reported on the NYSE Amex (or any successor marketplace), for the 20 trading days immediately prior to (and including) the last day of the applicable calendar quarter.

C.	All grants of stock options and restricted stock hereunder shall be made pursuant to the Company’s standard terms and conditions, including, without limitation, the vesting of (i) stock options over three years and (ii) restricted stock upon the earlier to occur of 10 years or a change in control.

D.	Attendance at board meetings and committee meetings may be in person or by telephone.

E.	In furtherance of the Company’s policy to promote best practices in corporate governance, Directors may have their documented expenses for director education programs reimbursed by the Company.

F.	Directors may have their reasonable, documented travel expenses reimbursed by the Company.

 

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