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Sample Business Contracts

Employment Agreement - PlanetOut Partners Inc. and Mark Elderkin

Employment Forms

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  • Executive Employment Agreement. Companies may offer their business executives a contract that is different from the one provided to their regular employees. Executive employment agreements may be more complex because the compensation structure may include a combination of salary and commissions, provide for bonuses based on sales, stock or other financial targets, and include non-compete, confidentiality and severance provisions.
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                    AMENDED AND RESTATED EMPLOYMENT AGREEMENT

      This Agreement is entered into as of April 26, 2004, by and between MARK
ELDERKIN (the "Employee") and PLANETOUT PARTNERS, INC., a Delaware corporation
(the "Company").

1.    DUTIES AND SCOPE OF EMPLOYMENT.

      A)    POSITION. For the term of his employment under this Agreement (the
            "Employment"), the Company agrees to employ the Employee in the
            position of President, or in such other level equivalent or higher
            level position as the Company subsequently may assign to the
            Employee. The Employee shall report to the Company's Chief Executive
            Officer or to such other person as the Company subsequently may
            determine. The Employee's duties shall include, but are not limited
            to:

            i)    Leadership, management and ultimate P&L responsibility for the
                  following:

                  (a)   Global Advertising Services business, to include: US and
                        international sales, client service, trafficking, and
                        marketing support

                  (b)   The Company's web site presentation and editorial
                        programming, including branding, Out & About transition
                        and new business listings

            ii)   Consistent and accurate planning, forecasting, and budgeting
                  related to Global Advertising Services revenues and expenses,
                  and managing to meet or exceed those plans, forecasts and
                  budgets.

            iii)  Strategic planning, in concert with the Chief Executive
                  Officer, and implementation of tasks and projects resulting
                  from such planning including participation in product
                  direction and strategy, service enhancement and expansion, and
                  other strategic activities.

            iv)   Managing, meeting and exceeding user expectations and
                  educating direct and indirect reports to do so as well, such
                  expectations as specified in advance between the Employee and
                  the Company..

            v)    As a senior leader, with integrity, wisdom and prudence,
                  interacting with, communicating to, helping to educate and to
                  develop upline management, peer management, and non-reporting
                  staff throughout the Company to the benefit of all Company
                  individuals and the business as a whole.

            vi)   Representing the Company and its individuals in formal and
                  informal communications and presentations, on panels, with the
                  press as pre-approved, in the
<PAGE>
                  field, with clients and other business partners, and in all
                  other business-related circumstances, with the highest
                  attainable form of professionalism, integrity, honesty, and
                  sincerity in the desire to serve, provide service, and relate
                  information, and in all other forms of communication and
                  presentation.

      b)    OBLIGATIONS TO THE COMPANY. During his Employment, the Employee
            shall devote his full business efforts and time to the Company.
            During his Employment, the Employee may engage in lawful conduct
            occurring during nonworking hours away from the Company's premises;
            provided however, that lawful conduct does not include without
            limitation conduct that constitutes a breach of fiduciary duty to
            the Company, breach of the duty of loyalty to the Company, breach of
            the Proprietary Information and Inventions Agreement with the
            Company, breach of this Agreement, engagement in a competitive
            activity or assisting any person or entity in competing with the
            Company, in preparing to compete with the Company or in hiring any
            employees or consultants of the Company. In the event that the
            Employee engages in lawful conduct in business activities other than
            the Company's business, or in charitable and political activities
            not directly associated with the Company during nonworking hours
            away from the Company's premises, the Employee must in writing
            notify the Company of the Employee's activity and purpose of
            activity, name of employer (if any) or organization, position with
            respect to the activity or the entity and any potential conflict
            that may arise from that activity, including the number of hours
            spent engaging in such activity that may or will detract from the
            business of the Company. The Employee shall comply with the
            Company's policies and rules, as they may be in effect from time to
            time during his Employment.

      c)    NO CONFLICTING OBLIGATIONS. The Employee represents and warrants to
            the Company that he is under no obligations or commitments, whether
            contractual or otherwise, that are inconsistent with his obligations
            under this Agreement. The Employee represents and warrants that he
            will not use or disclose, in connection with his employment by the
            Company, any trade secrets or other proprietary information or
            intellectual property in which the Employee or any other person,
            other than the Company, has any right, title or interest and that
            his employment by the Company as contemplated by this Agreement will
            not infringe or violate the rights of any other person. The Employee
            represents and warrants to the Company that he has returned all
            property and confidential information belonging to any prior
            employer. The Employee agrees to sign the current versions and any
            future versions of the Company's various agreements related to
            confidentiality, inventions and related intellectual matters.

      d)    COMMENCEMENT DATE AND LOCATION. The Employee, having already
            commenced Employment with the Company on January 25, 1999, which
            will serve as Employee's commencement date, and having commenced
            substantive employment with Pride.com on June 1996, which will serve
            as commencement date for benefits and other tenure related
            applications as reasonable and feasible, works in the New York City
            office of the Company.


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<PAGE>
2.    CASH AND INCENTIVE COMPENSATION.

      a)    SALARY. The Company shall pay the Employee as compensation for his
            services a base salary at a gross annual rate of not less than
            $203,000. Such salary shall be payable in accordance with the
            Company's standard payroll procedures. (The annual compensation
            specified in this Subsection (a), together with any increases in
            such compensation that the Company may grant from time to time, is
            referred to in this Agreement as "Base Compensation.") The Employee
            will be entitled to receive an evaluation of performance on or about
            each successive annual anniversary of the Employee's commencement.
            All future changes to compensation will be based on the results of
            evaluations of the Employee's performance, whether such evaluations
            are performed annually, or more frequently as may be initiated by
            Employee's senior management.

      b)    INCENTIVE BONUSES. The Employee shall be eligible to be considered
            for an annual incentive bonus with a target amount equal to a
            maximum of 40% of his Base Compensation. Such bonus (if any) shall
            be awarded based on objective or subjective criteria established in
            advance by the CEO and Board Compensation Committee, approved by the
            Company's Board of Directors (the "Board") and after such approval
            presented to Employee. The determinations of the Board with respect
            to such bonus shall be final and binding.

     c)    PERFORMANCE BONUS OPTIONS. Subject to the approval of the Board, the
            Company may grant the Employee stock options, from time-to-time,
            covering the shares of the Company's equity securities. The terms of
            such options shall be as determined by the Board at the time of any
            such grant. Such terms shall be provided in writing to the Employee
            at the time of any such grant.

      d)    VACATION AND EMPLOYEE BENEFITS. During his Employment, the Employee
            shall be eligible for paid vacations in accordance with the
            Company's standard policy for similarly situated employees, as it
            may be amended from time to time. During his Employment, the
            Employee shall be eligible to participate in any employee benefit
            plans maintained by the Company for similarly situated employees,
            subject in each case to the generally applicable terms and
            conditions of the plan in question and to the determinations of any
            person or committee administering such plan based on the terms of
            the plan and Company policy. At Employee's option, Employee shall be
            eligible to use personal life and disability insurance to cover the
            approximate difference between the company plan's maximum and his
            Base Compensation up to a cost of $150 per month for disability
            insurance and $100 per month for life insurance and to present the
            Company receipts for such insurance for reimbursement by the
            Company.

      e)    BUSINESS EXPENSES. During his Employment, the Employee shall be
            authorized to incur necessary and reasonable travel, entertainment
            and other business expenses in connection with his duties hereunder.
            The Company shall reimburse the Employee for such expenses


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<PAGE>
            upon presentation of an itemized account and appropriate supporting
            documentation, all in accordance with the Company's generally
            applicable policies.

3.    TERM OF EMPLOYMENT.

      a)    BASIC RULE. The Company agrees to continue the Employee's
            Employment, and the Employee agrees to remain in Employment with the
            Company, from the commencement date set forth in Section 1(d) until
            the date when the Employee's Employment terminates pursuant to
            Subsection (b) or (c) below. The Employee's Employment with the
            Company shall be "at will," meaning that either the Employee or the
            Company shall be entitled to terminate the Employee's employment at
            any time and for any reason, with or without Cause. Any contrary
            representations that may have been made to the Employee shall be
            superseded by this Agreement. This Agreement shall constitute the
            full and complete agreement between the Employee and the Company on
            the "at will" nature of the Employee's Employment, which may only be
            changed in an express written agreement signed by the Employee and a
            duly authorized officer of the Company.

      b)    TERMINATION. The Company may terminate the Employee's Employment at
            any time and for any reason (or no reason), and with or without
            Cause, by giving the Employee notice in writing. The Employee may
            terminate his Employment by giving the Company twenty-one (21) days
            advance notice in writing. The Employee's Employment shall terminate
            automatically in the event of his death.

      c)    RIGHTS UPON TERMINATION. Except as expressly provided in Section 6,
            upon the termination of the Employee's Employment pursuant to this
            Section 5, the Employee shall only be entitled to the compensation,
            benefits and reimbursements described in Sections 2, 3 and 4 for the
            period preceding the effective date of the termination. The payments
            under this Agreement shall fully discharge all responsibilities of
            the Company to the Employee.

      d)    TERMINATION OF AGREEMENT. This Agreement shall terminate when all
            obligations of the parties hereunder have been satisfied. The
            termination of this Agreement shall not limit or otherwise affect
            any of the Employee's obligations under Section 7.

4.    TERMINATION BENEFITS.

      a)    GENERAL RELEASE. Any other provision of this Agreement
            notwithstanding, Subsections (b) and (c) below shall not apply
            unless the Employee (i) has executed a reasonable general release
            (in a form prescribed by the Company) of all known and unknown
            claims that he may then have against the Company or persons
            affiliated with the Company and (ii) has agreed not to prosecute any
            legal action or other proceeding based upon any of such claims.

      b)    SEVERANCE PAY.



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<PAGE>
            i)    If, during the term of this Agreement, the Company terminates
                  the Employee's Employment (including through "Constructive
                  Termination" as defined below) for any reason other than Cause
                  or Permanent Disability, then the Company shall pay the
                  Employee his Base Compensation for a period of twelve (12)
                  months following the termination of his Employment (the "Base
                  Continuation Period") and shall accelerate the vesting of any
                  outstanding stock options such that the Employee will become
                  vested in an additional number of shares subject to such stock
                  options, as if the Employee provided another nine (9) months
                  of service with the Company. Such Base Compensation shall be
                  paid at the rate in effect at the time of the termination of
                  Employment and in accordance with the Company's standard
                  payroll procedures.

            ii)   If, within sixteen (16) months following a Change of Control
                  (as defined in Part 2(e) of the Planetout Partners, Inc.
                  Performance and Equity Participation (PEP) Plan as adopted on
                  January 22, 2002 (the "PEP Plan")) and the Company terminates
                  the Employee's Employment (including through "Constructive
                  Termination" as defined below) for any reason other than Cause
                  or Permanent Disability, then, subject to the "Parachute
                  Payment" provisions of paragraph 5(d) of the PEP Plan (as if
                  such provisions were a full part of this agreement, even if
                  such plan is not in effect at the time of a Change of
                  Control), the Company shall pay the Employee his Base
                  Compensation for a period of eighteen (18) months following
                  the termination of his Employment (the "Change of Control
                  Continuation Period"), and shall accelerate the vesting of any
                  outstanding stock options such that the Employee will become
                  vested in an additional number of shares subject to such stock
                  options, as if the Employee provided the greater of either (A)
                  another nine (9) months of service with the Company or (B) 50%
                  of the remaining unvested shares. Such Base Compensation shall
                  be paid at the rate in effect at the time of the termination
                  of Employment and in accordance with the Company's standard
                  payroll procedures.

            iii)  DEFINITION OF "CONSTRUCTIVE TERMINATION." For all purposes
                  under this Agreement "Constructive Termination" shall mean
                  that the Employee's resignation within sixty (60) days
                  following (i) a material reduction or change in title, job
                  duties, authority, responsibilities or job requirements
                  inconsistent with Employee's position with the Company to
                  which the Employee has not agreed to in writing; (ii) any
                  reduction of Employee's Base Compensation to which the
                  Employee has not agreed to in writing; (iii) any elimination
                  of a material benefit provided to the Employee pursuant to
                  employment with the Company to which the Employee has not
                  agreed to in writing unless such material benefit is being
                  eliminated for all Employees in comparable positions or
                  Employee's class due to a reasonable business need or
                  condition; (iv) a relocation of place of employment more than
                  sixty (60) miles from New York City, NY; (v) the Company's
                  failure to cure any material breach by it of the terms of this
                  letter agreement within a reasonable time following written
                  notice from the Employee to the Company's Board of Directors;
                  or (vi) the actual occurrence of any "constructive
                  termination" of the Employee by the Company under New York
                  law. The provisions of subparts (i) through (iii) of this
                  subparagraph b(iii) shall not apply


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<PAGE>
                  if any "cause" as defined in subparagraph (d) has occurred,
                  and, if curable pursuant to subparagraph (d), has not been
                  cured.

            iv)   DEFINITION OF "PERMANENT DISABILITY." For all purposes under
                  this Agreement, "Permanent Disability" shall mean that the
                  Employee, at the time notice is given, has failed to perform
                  his duties under this Agreement for a period of not less than
                  90 consecutive days (or such longer period as may be required
                  by law) as the result of his incapacity due to physical or
                  mental injury, disability or illness.



      c)    HEALTH INSURANCE. If Subsection (b) above applies, and if the
            Employee elects to continue his health insurance coverage under the
            Consolidated Omnibus Budget Reconciliation Act ("COBRA") following
            the termination of his Employment, then the Company shall pay the
            Employee's monthly premium under COBRA until the earliest of (i) the
            close of the Base Continuation Period or Change of Control
            Continuation Period, as applicable, (ii) the expiration of the
            Employee's continuation coverage under COBRA or (iii) the date when
            the Employee receives substantially equivalent health insurance
            coverage in connection with new employment or self-employment.

      c)    DEFINITION OF "CAUSE." For all purposes under this Agreement,
            "Cause" shall mean:

            i)    Any material breach of this Agreement, the Proprietary
                  Information and Inventions Agreement between the Employee and
                  the Company, or any other written agreement between the
                  Employee and the Company, without Employee's satisfactory and
                  reasonable cure, if curable, within thirty (30) days of
                  Employee's receipt of written notice of such failure to
                  comply, such notice by Company to Employee shall specify the
                  material breach(es) and shall delineate performance
                  improvements, modifications or action items necessary for
                  Employee to effect a satisfactory and reasonable cure;

            ii)   Any material failure to comply with the Company's written
                  policies or rules, as they may be in effect from time to time
                  during the Employee's Employment, which adversely impacts any
                  aspect of the business or personnel of the Company without
                  Employee's satisfactory and reasonable cure within thirty (30)
                  days of Employee's receipt of written notice of such failure
                  to comply, such notice by Company to Employee shall specify
                  the material failure(s) to comply and delineate performance
                  improvements, modifications or action items necessary for
                  Employee to effect a satisfactory and reasonable cure;

            iii)  Conviction of, or a plea of "guilty" or "no contest" to, a
                  felony under the laws of the United States or any state
                  thereof;



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<PAGE>
            iv)   Threats or acts of violence or unlawful harassment directed at
                  any present, former or prospective employee, independent
                  contractor, vendor, customer or business partner of the
                  Company or directed to the Company;

            v)    The sale, possession or use of illegal drugs on the premises
                  of the Company or of a customer or business partner of the
                  Company or when engaged in the business of the Company, at
                  Company events, Company sponsored events at any other events,
                  premises and venues at which the Employee is engaged in the
                  business of the Company;

            vi)   Misappropriation of the assets of the Company or other acts of
                  dishonesty;

            vii)  Illegal or unethical business practices;

            viii) Gross misconduct or gross negligence in the performance of
                  duties assigned to the Employee under this Agreement; or

            ix)   Failure to perform reasonable duties assigned to the Employee
                  under this Agreement without Employee's satisfactory and
                  reasonable cure within sixty (60) days of Employee's receipt
                  of written notice of such failure to perform, such notice by
                  Company to Employee shall specify the failure(s) to perform
                  and delineate performance improvements, modifications or
                  action items necessary for Employee to effect a satisfactory
                  and reasonable cure.

5.    NON-SOLICITATION AND NON-DISCLOSURE.

      a)    NON-SOLICITATION. During the period commencing on the date of this
            Agreement and continuing until the first anniversary of the date
            when the Employee's Employment terminated for any reason, the
            Employee shall not directly or indirectly, personally or through
            others, solicit or attempt to solicit (on the Employee's own behalf
            or on behalf of any other person or entity) either (i) the
            employment of any employee of the Company or any of the Company's
            affiliates or (ii) the business of any customer of the Company or
            any of the Company's affiliates with whom the Employee had contact
            during his Employment.

      b)    NON-DISCLOSURE. The Employee has entered into a Proprietary
            Information and Inventions Agreement with the Company, which is
            incorporated herein by reference.

6.    SUCCESSORS.

      a)    COMPANY'S SUCCESSORS. This Agreement shall be binding upon any
            successor (whether direct or indirect and whether by purchase,
            lease, merger, consolidation, liquidation or otherwise) to all or
            substantially all of the Company's business and/or assets. For all
            purposes under this Agreement, the term "Company" shall include any
            successor to the Company's business and/or assets which becomes
            bound by this Agreement.

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<PAGE>
      b)    EMPLOYEE'S SUCCESSORS. This Agreement and all rights of the Employee
            hereunder shall inure to the benefit of, and be enforceable by, the
            Employee's personal or legal representatives, executors,
            administrators, successors, heirs, distributees, devisees and
            legatees.

7.    MISCELLANEOUS PROVISIONS.

      a)    NOTICE. Notices and all other communications contemplated by this
            Agreement shall be in writing and shall be deemed to have been duly
            given when personally delivered or when mailed by U.S. registered or
            certified mail, return receipt requested and postage prepaid. In the
            case of the Employee, mailed notices shall be addressed to him at
            the home address which he most recently communicated to the Company
            in writing. In the case of the Company, mailed notices shall be
            addressed to its corporate headquarters, and all notices shall be
            directed to the attention of its Secretary.

      b)    MODIFICATIONS AND WAIVERS. No provision of this Agreement shall be
            modified, waived or discharged unless the modification, waiver or
            discharge is agreed to in writing and signed by the Employee and by
            an authorized officer of the Company (other than the Employee). No
            waiver by either party of any breach of, or of compliance with, any
            condition or provision of this Agreement by the other party shall be
            considered a waiver of any other condition or provision or of the
            same condition or provision at another time.

      c)    WHOLE AGREEMENT. This Agreement supersedes any and all other
            previous agreements, whether verbal or written. No other agreements,
            representations or understandings (whether oral or written and
            whether express or implied) which are not expressly set forth in
            this Agreement have been made or entered into by either party with
            respect to the subject matter hereof. This Agreement, the
            Proprietary Information and Inventions Agreement, the Company's 1997
            Stock Plan, the Company's 2001 Equity Incentive Plan, the applicable
            Stock Option Agreements evidencing Stock Options granted to you by
            the Company, June 28, 2001 Indemnity Agreement, any grants made to
            you of the Company's Series B Preferred Stock, and the Company's
            Performance and Equity Participation (PEP) Plan and the Merger
            Agreement Between Pride.com and Online Partners previously entered
            into by Employee contain the entire understanding of the parties
            with respect to the subject matter hereof

      d)    WITHHOLDING TAXES. All payments made under this Agreement shall be
            subject to reduction to reflect taxes or other charges required to
            be withheld by law.

      e)    CHOICE OF LAW AND SEVERABILITY. This Agreement is executed by the
            parties in the State of California and shall be interpreted in
            accordance with the laws of such State (except their provisions
            governing the choice of law). If any provision of this Agreement
            becomes or is deemed invalid, illegal or unenforceable in any
            jurisdiction by reason of the scope, extent or duration of its
            coverage, then such provision shall be deemed amended to the extent
            necessary to conform to applicable law so as to be valid and
            enforceable or, if

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<PAGE>
            such provision cannot be so amended without materially altering the
            intention of the parties, then such provision shall be stricken and
            the remainder of this Agreement shall continue in full force and
            effect. Should there ever occur any conflict between any provision
            contained in this Agreement and any present or future statue, law,
            ordinance or regulation contrary to which the parties have no legal
            right to contract, then the latter shall prevail but the provision
            of this Agreement affected thereby shall be curtailed and limited
            only to the extent necessary to bring it into compliance with
            applicable law. All the other terms and provisions of this Agreement
            shall continue in full force and effect without impairment or
            limitation.

      f)    ARBITRATION. Any controversy or claim arising out of or relating to
            this Agreement or the breach thereof, or the Employee's Employment
            or the termination thereof, shall be settled in San Francisco, CA,
            by arbitration in accordance with the Employment Arbitration Rules
            and Procedures the Judicial Arbitration and Mediation Services. The
            decision of the arbitrator shall be final and binding on the
            parties, and judgment on the award rendered by the arbitrator may be
            entered in any court having jurisdiction thereof. The parties hereby
            agree that the arbitrator shall be empowered to enter an equitable
            decree mandating specific enforcement of the terms of this
            Agreement. The Company and the Employee shall share equally all fees
            and expenses of the arbitrator. The Employee hereby consents to
            personal jurisdiction of the state and federal courts located in the
            State of California for any action or proceeding arising from or
            relating to this Agreement or relating to any arbitration in which
            the parties are participants.

      g)    NO ASSIGNMENT. This Agreement and all rights and obligations of the
            Employee hereunder are personal to the Employee and may not be
            transferred or assigned by the Employee at any time. The Company may
            assign its rights under this Agreement to any entity that assumes
            the Company's obligations hereunder in connection with any sale or
            transfer of all or a substantial portion of the Company's assets to
            such entity.

      h)    COUNTERPARTS. This Agreement may be executed in two or more
            counterparts, each of which shall be deemed an original, but all of
            which together shall constitute one and the same instrument.


                IN WITNESS WHEREOF, each of the parties has executed this
Agreement, in the case of the Company by its duly authorized officer, as of the
day and year first above written.

                                    By  /s/ MARK ELDERKIN
                                        ----------------------------------------

                                    Mark Elderkin



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<PAGE>
                                    PlanetOut Partners, Inc.



                                     By  /s/ LOWELL R. SELVIN
                                         ---------------------------------------

                                     Lowell R. Selvin

                                     Chief Executive Officer

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