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Sample Business Contracts

Employment Agreement - PlanetOut Partners Inc. and Lowell R. Selvin

Employment Forms

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                    AMENDED AND RESTATED EMPLOYMENT AGREEMENT

            This Agreement is entered into as of April 26, 2004, by and between
LOWELL R. SELVIN (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 Chair of the Board of Directors and Chief Executive
            Officer, 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 Board of Directors ("Board") and shall
            serve as a member of the Board for the life of his employment with
            the Company. The Employee's duties shall include, but are not
            limited to:

            i)    Overall accountability for and the leadership, management,
                  development and continuous improvement of the Company and all
                  of its operations, finances, transactions, business
                  relationships, and human resources.

            ii)   Strategic planning and strategic business development for the
                  business and implementation of transactions, tasks and
                  projects resulting from such planning through the
                  organization.

            iii)  Leadership, management, recruiting, and continuous development
                  of the Company's leadership team.

            iv)   Consistent and accurate planning, forecasting, and budgeting
                  related to all areas of the business and managing to meet or
                  exceed those plans, forecasts and budgets.

            v)    Managing, meeting and exceeding those expectations of member,
                  client and business partner, as are specified in advance in
                  writing between the Employee and the Company.

            vi)   As the most 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 personnel and the business as a whole.

            vii)  Representing the Company and its personnel in formal and
                  informal communications and presentations, on panels, with the
                  press, in the 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



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                  serve, provide service, and relate information, and in all
                  other forms of communication and presentation.

            viii) Responsibilities as further defined in written descriptions of
                  the job and other roles and responsibilities.

      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 (or a predecessor company) on
            July 12, 1999, works in the San Francisco office of the Company.



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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
            $265,000, as of the date hereof, and rising to $298,000, as of
            October 1, 2004. 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 50% of his Base Compensation. Such bonus (if any) shall
            be awarded based on objective or subjective criteria established in
            advance by the Board Compensation Committee, approved by 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)    2004 BONUS. In addition to any incentive bonus which may be paid
            under paragraph 2b, the Employee shall be paid a one-time bonus of
            $50,000 (or such higher amount as the Board of Directors may
            determine in its sole discretion), for the Employee's work in 2004.
            The timing of the payment of this bonus will be at the discretion of
            the Board of Directors, in consultation with the Chief Financial
            Officer.

      D)    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.

3.    VACATION AND EMPLOYEE BENEFITS. During his Employment, the Employee shall
      be eligible for paid vacations in accordance with the Company's standard
      policy for employees, as it may be amended from time to time. Employee
      shall be eligible to accrue paid vacation days at the rate of 8.33vacation
      hours per semi-monthly pay period, and any unused vacation days may be
      carried over to subsequent calendar years, provided that no more than 350
      hours may be accrued on any given date. Upon your accrual of 350 vacation
      hours, you will cease to accrue vacation days until you use vacation days
      such that the number of vacation days that you have accrued is less than
      350. 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




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      be eligible to use either Company or personal health, dental, vision,
      life, and disability insurance (additional life and disability insurance
      are subject to approval by the Compensation Committee of the Board of
      Directors) and present the Company receipts for such insurance for
      reimbursement by the Company.

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

5.    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 thirty (30) 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.

6.    Termination Benefits.



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      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.

            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 twelve (12)
                  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 twenty-four (24) 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 twelve (12) 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 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





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<PAGE>
                  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 San Francisco, California; (v) the
                  Company's failure to cure any material breach by it of the
                  terms of this letter agreement within thirty (30) days
                  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 California law. The provisions of subparts (i) through
                  (iii) of this subparagraph b(iii) shall not apply 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.

      D)    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




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                  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;

            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 and 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.

7.    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 is 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.



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

8.    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.

      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.

9.    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
      that 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, including, among any others, the
      Employment Letter dated July 1999 and the Employment Agreement dated
      February 15, 2000 between Employee and Online Partners.com, Inc., as well
      as any amendments or modifications thereto. 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 2001 Equity Incentive Plan, any grants made to
      you of the Company's Series B Preferred Stock, the applicable Stock Option
      Agreements evidencing Stock Options granted to you by the




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      Company, and the Company's Performance and Equity Participation (PEP) Plan
      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 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 of 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.




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      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/ LOWELL R. SELVIN
                               -------------------------------------------------

                           Lowell R. Selvin

                           PlanetOut Partners, Inc.



                           By  /s/ JERRY COLONNA
                               -------------------------------------------------

                           Jerry Colonna, Board Director and Chair, Compensation
                           Committee




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