Employment Agreement - PlanetOut Partners Inc. and Lowell R. Selvin
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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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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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
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Lowell R. Selvin
PlanetOut Partners, Inc.
By /s/ JERRY COLONNA
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Jerry Colonna, Board Director and Chair, Compensation
Committee
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