EX-10.45









Exhibit 10.45 



EXCHANGE
AGREEMENT



        This
Exchange Agreement (“Agreement”) is dated as of March 14, 2005, by and
among Glowpoint, Inc., a Delaware corporation (the “Company”), and the
holders of certain Company securities whose signatures appear on the signature page
attached hereto (the “Holders”).  



Recitals:



        WHEREAS,
each Holder currently holds shares of the Company’s Series B convertible preferred
stock (collectively, the “Preferred Shares”); and 



        WHEREAS,
subject to the terms and conditions set forth herein, the Company and the Holders desire
to cancel and terminate the Preferred Shares and forfeit any and all rights of collection,
claim or demand under the Preferred Shares (such cancellation, termination and forfeitures
are collectively, the “Share Cancellation”) in exchange for: (i) the
receipt of shares of restricted common stock of the Company, par value $.0001 per share
(the “Common Stock”); and (ii) the receipt of warrants to purchase shares
of the Common Stock at an exercise price of $2.40 (the “Warrants,” and,
together with the Common Stock, the “Exchange Consideration”). 



        NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby agreed and acknowledged, the parties hereby agree as follows: 



AGREEMENT:



        1.
Securities Exchange.  





        
        (a)
Upon the following terms and subject to the conditions contained herein, the Holders
agree to the Share Cancellation in exchange for the Exchange Consideration. In
consideration of and in express reliance upon the representations, warranties,
convenants, terms and conditions of this Agreement, each Holder agrees to the Share
Cancellation and the Company agrees to issue and deliver the Exchange Consideration.  




        
        (b)
The closing under this Agreement (the “Closing”) shall take place at the
offices of Morrison &Foerster LLP, 1290 Avenue of the Americas, New York, NY
10104-0050 upon the satisfaction of each of the conditions set forth in Sections 4 and 5
hereof (the “Closing Date”).  




        
        (c)
At the Closing, the Company shall issue to the Holders (i)  16,000 shares of Common
Stock and (ii) Warrants to purchase 6400 shares of Common Stock for each Preferred
Share exchanged by such Holder in the amounts set forth on Exhibit A hereto. The
Warrants shall be exercisable until March 14, 2010 and shall have an exercise price equal
to  



 




 






$2.40 (the “Warrant Price”).
At the Closing, the Holders shall deliver to the Company for cancellation the Preferred
Shares.  




        
        (d)
The shares of Common Stock and the Warrants are sometimes collectively referred to
herein as the “Securities”.  



        2.
Representations, Warranties and Covenants of the Holders. Each of the Holders
hereby makes the following representations and warranties to the Company, and
covenants for the benefit of the Company, with respect solely to itself and not with
respect to any other Holder:  





        
        (a)
If a Holder is an entity, such Holder is a corporation, limited liability company or
partnership duly incorporated or organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization.  




        
        (b)
This Agreement has been duly authorized, validly executed and delivered by each Holder
and is a valid and binding agreement and obligation of each Holder enforceable against
such Holder in accordance with its terms, subject to limitations on enforcement by
general principles of equity and by bankruptcy or other laws affecting the enforcement of
creditors’ rights generally, and each Holder has full power and authority to execute
and deliver the Agreement and the other agreements and documents contemplated hereby and
to perform its obligations hereunder and thereunder.  




        
        (c)
Each Holder has received and carefully reviewed copies of the Public Documents (as
hereinafter defined). Each Holder understands that no Federal, state, local or foreign
governmental body or regulatory authority has made any finding or determination relating
to the fairness of an investment in any of the Securities and that no Federal, state,
local or foreign governmental body or regulatory authority has recommended or endorsed,
or will recommend or endorse, any investment in any of the Securities. Each Holder, in
making the decision to agree to the Share Cancellation and accept the Exchange
Consideration, has relied upon independent investigation made by it and has not relied on
any information or representations made by third parties.  




        
        (d)
Each Holder understands that the Securities are being offered and sold to it in reliance
on specific provisions of Federal and state securities laws and that the Company is
relying upon the truth and accuracy of the representations, warranties, agreements,
acknowledgments and understandings of each Holder set forth herein for purposes of
qualifying for exemptions from registration under the Securities Act of 1933, as amended
(the “Securities Act”) and applicable state securities laws.  




        
        (e)
Each Holder is an “accredited investor” as defined under Rule 501 of
Regulation D promulgated under the Securities Act.  




        
        (f)
Each Holder is and will be acquiring the Securities for such Holder’s own account,
and not with a view to any resale or distribution in whole or in part, in violation of
the Securities Act or any applicable securities laws.  




        
        (g)
The offer and sale of the Securities is intended to be exempt from registration under the
Securities Act, by virtue of Section 3(a)(9) and/or 4(2) thereof. Each  



 




 






Holder understands that the
Securities purchased hereunder have not been, and may never be, registered under the
Securities Act and that none of the Securities can be sold or transferred unless they are
first registered under the Securities Act and such state and other securities laws as may
be applicable or the Company receives an opinion of counsel reasonably acceptable to the
Company that an exemption from registration under the Securities Act is available (and
then the Securities may be sold or transferred only in compliance with such exemption and
all applicable state and other securities laws).  



        3.
Representations, Warranties and Covenants of the Company. The Company
represents and warrants to each Holder, and covenants for the benefit of each
Holder, as follows:  





        
        (a)
The Company has been duly incorporated and is validly existing and in good standing under
the laws of the state of Delaware, with full corporate power and authority to own, lease
and operate its properties and to conduct its business as currently conducted, and is
duly registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure to register or
qualify would not have a Material Adverse Effect. For purposes of this Agreement, “Material
Adverse Effect”shall mean any effect on the business, results of operations,
prospects, assets or financial condition of the Company that is material and adverse to
the Company and its subsidiaries and affiliates, taken as a whole and/or any condition,
circumstance, or situation that would prohibit or otherwise materially interfere with the
ability of the Company from entering into and performing any of its obligations under
this Agreement in any material respect; provided, however, that the foregoing shall not
include operating losses of the Company in the amounts contemplated by the Commission
Documents.  




        
        (b)
The Company has made available to the Holders copies of the Company’s Annual Report
on Form 10-K, as amended, for fiscal year ended December 31, 2003, including the
accompanying financial statements (the “Form 10-K”), and the Company’s
Forms 10-Q, as amended, for the fiscal quarters ended March 31, 2004, June 30, 2004
or September 30, 2004 (the Forms 10-Q and Form 10-K, the “Public Documents”).
The Public Documents at the time of their filing did not include any untrue statement of
a material fact or omit to state any material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they were made,
not misleading. As used herein, “Commission Documents” means all
reports, schedules, forms, statements and other documents filed by the Company with the
Commission after December 31, 2003 pursuant to the reporting requirements of the Exchange
Act, including material filed pursuant to Section 13(a) or 15(d) of the Exchange Act.  




        
        (c)
The Securities have been duly authorized by all necessary corporate action and, when paid
for or issued in accordance with the terms hereof, the Securities shall be validly issued
and outstanding, fully paid and nonassessable, free and clear of all liens, encumbrances
and rights of refusal of any kind.  




        
        (d)
This Agreement has been duly authorized, validly executed and delivered on behalf of the
Company and is a valid and binding agreement and obligation of the Company enforceable
against the Company in accordance with its terms, subject to limitations on enforcement
by general principles of equity and by bankruptcy or other laws affecting the enforcement
of creditors’ rights generally, and the Company has full power and authority to 



 




 







execute and deliver the Agreement
and the other agreements and documents contemplated hereby and to perform its obligations
hereunder and thereunder.  




        
        (e)
The execution and delivery of the Agreement and the consummation of the transactions
contemplated by this Agreement by the Company, will not (i) conflict with or result in a
breach of or a default under any of the terms or provisions of, (A) the Company’s
certificate of incorporation or by-laws, or (B) of any material provision of any
indenture, mortgage, deed of trust or other material agreement or instrument to which the
Company is a party or by which it or any of its material properties or assets is bound,
(ii) result in a violation of any provision of any law, statute, rule, regulation, or any
existing applicable decree, judgment or order by any court, Federal or state regulatory
body, administrative agency, or other governmental body having jurisdiction over the
Company, or any of its material properties or assets or (iii) result in the creation or
imposition of any material lien, charge or encumbrance upon any material property or
assets of the Company or any of its subsidiaries pursuant to the terms of any agreement
or instrument to which any of them is a party or by which any of them may be bound or to
which any of their property or any of them is subject except in the case of clauses
(i)(B), (ii) or (iii) for any such conflicts, breaches, or defaults or any liens,
charges, or encumbrances which would not have a Material Adverse Effect.  




        
        (f)
The delivery and issuance of the Securities in accordance with the terms of and in
reliance on the accuracy of each Holder’s representations and warranties set forth
in this Agreement will be exempt from the registration requirements of the Securities
Act.  




        
        (g)
No consent, approval or authorization of or designation, declaration or filing with any
governmental authority on the part of the Company is required in connection with the
valid execution and delivery of this Agreement or the offer, sale or issuance of the
Securities or the consummation of any other transaction contemplated by this Agreement
(other than any filings which may be required to be made by the Company with the
Secretary of State of Delaware, the Commission, or The Nasdaq National Market or pursuant
to any state or “blue sky” securities laws subsequent to the Closing).  




        
        (h)
There is no action, suit, claim, investigation or proceeding pending or, to the knowledge
of the Company, threatened against the Company which questions the validity of this
Agreement or the transactions contemplated hereby or any action taken or to be taken
pursuant thereto. Except as disclosed in the Commission Documents, there is no action,
suit, claim, investigation or proceeding pending or, to the knowledge of the Company,
threatened, against or involving the Company or any subsidiary, or any of their
respective properties or assets which, if adversely determined, is reasonably likely to
result in a Material Adverse Effect.  




        
        (i)
To the Company’s knowledge, neither this Agreement nor the Schedules hereto contain
any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements made herein or therein, in the light of the circumstances
under which they were made herein or therein, not misleading.  




        
        (j)
The authorized capital stock of the Company and the shares thereof issued and outstanding
as of March 10, 2005 are set forth on Schedule 3(j) attached hereto. All of the
outstanding shares of the Company’s Common Stock have been duly and validly
authorized, and are fully paid and non-assessable. Except as set forth in this Agreement
or on Schedule 3(j) 



 




 






attached hereto, as of March 10,
2005, no shares of Common Stock are entitled to preemptive rights and (other than (A) any
option or right to purchase shares of the Company’s Common Stock issued pursuant to
the Company’s 2000 Stock Incentive Plan, as amended, (B) any warrants issued
under existing agreements as set forth on Schedule 3(j) attached hereto or (C)
warrants issued pursuant to license, license option or other collaboration agreements as
set forth on Schedule 3(j) attached hereto) there are no registration rights or
outstanding options, warrants, scrip, rights to subscribe to, call or commitments of any
character whatsoever relating to, or securities or rights convertible into, any shares of
capital stock of the Company. The Company is not a party to, and its executive officers
have no knowledge of, any agreement restricting the voting or transfer of any shares of
the capital stock of the Company. The offer and sale of all capital stock, convertible
securities, rights, warrants, or options of the Company issued prior to the Closing
complied with all applicable federal and state securities laws, or no stockholder has a
right of rescission or damages with respect thereto which is reasonably likely to have a
Material Adverse Effect. The Company has furnished or made available to the Holders true
and correct copies of the Company’s Certificate of Incorporation as in effect on the
date hereof (the “Certificate”), and the Company’s Bylaws as in
effect on the date hereof (the “Bylaws”).  




        
        (k)
Prior to registration of the Exchange Shares under the Securities Act, all such
certificates shall bear the restrictive legend specified in Section 6 of this Agreement.
The Company warrants that the Securities shall be freely transferable on the books and
records of the Company as and to the extent provided in this Agreement. Nothing in this
Section 3(k) shall affect in any way the Holders’ obligations and agreements set
forth in Section 6 to comply with all applicable prospectus delivery requirements, if
any, upon the resale of the Exchange Shares. If a Holder provides the Company with an
opinion of counsel, in form, substance and scope reasonably acceptable to the Company, to
the effect that a public sale, assignment or transfer of the Exchange Shares may be made
without registration under the Securities Act or the Holders provide the Company with
reasonable assurances that the Securities can be sold pursuant to Rule 144 without any
restriction as to the number of securities acquired as of a particular date that can then
be immediately sold, the Company shall permit the transfer and promptly instruct its
transfer agent to issue one or more certificates in such name and in such
denominations as specified by the Holders and without any restrictive legend. The Company
acknowledges that a breach by it of its obligations under this Section 3(k) will cause
irreparable harm to the Holders by vitiating the intent and purpose of the transaction
contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a
breach of its obligations under this Section 3(k) will be inadequate and agrees, in
the event of a breach or the Holders’ reasonable perception of a threatened breach
by the Company of the provisions of this Section 3(k), that the Holders shall be
entitled, in addition to all other available remedies, to an order and/or injunction
restraining any breach and requiring immediate issuance and transfer, without the
necessity of showing economic loss and without any bond or other security being required.  




        
        (l)
The Company has complied and will comply with all applicable federal and state securities
laws in connection with the offer, issuance and delivery of the Exchange Consideration
hereunder. Neither the Company nor anyone acting on its behalf, directly or indirectly,
has or will sell, offer to sell or solicit offers to buy any of the Exchange
Consideration, or similar securities to, or solicit offers with respect thereto from, or
enter into any preliminary conversations or negotiations relating thereto with, any
person, or has taken or will take any action so as to bring the issuance and sale of any
of the Securities under the registration provisions of the Securities Act and applicable
state securities laws. Neither the Company nor  



 




 






any of its affiliates, nor any
person acting on its or their behalf, has engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D under the Securities Act) in
connection with the offer or sale of any of the Securities.  



        4.  Conditions
Precedent to the Obligation of the Company to Issue the Exchange Consideration.
The obligation hereunder of the Company to issue and deliver the Exchange Consideration
to each Holder is subject to the satisfaction or waiver, at or before the Closing Date,
of each of the conditions set forth below. These conditions are for the Company’s
sole benefit and may be waived by the Company at any time in its sole discretion.  





        
        (a)
       Each Holder shall have executed and delivered the Agreement. 




        
        (b)
Each Holder shall have performed, satisfied and complied in all material respects with
all covenants, agreements and conditions required by the Agreement to be performed,
satisfied or complied with by such Holder at or prior to the Closing Date.  




        
        (c)
The representations and warranties of each Holder shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though made at
that time, except for representations and warranties that are expressly made as of a
particular date, which shall be true and correct in all material respects as of such
date.  



        5.  Conditions
Precedent to the Obligation of the Holders to Accept the Exchange Consideration.
The obligation hereunder of each Holder to accept the Exchange Consideration is subject
to the satisfaction or waiver, at or before the Closing Date, of each of the conditions
set forth below. These conditions are for each Holder’s sole benefit and may be
waived by each Holder at any time in its sole discretion.  





        
        (a)
       The Company shall have executed and delivered the Agreement. 




        
        (b)
The Company shall have performed, satisfied and complied in all material respects with
all covenants, agreements and conditions required by the Agreement to be performed,
satisfied or complied with by the Company at or prior to the Closing Date.  




        
        (c)
Each of the representations and warranties of the Company shall be true and correct in
all material respects as of the date when made and as of the Closing Date as though made
at that time, except for representations and warranties that speak as of a particular
date, which shall be true and correct in all material respects as of such date.  




        
        (d)
No statute, regulation, executive order, decree, ruling or injunction shall have been
enacted, entered, promulgated or endorsed by any court or governmental authority of
competent jurisdiction which prohibits the consummation of any of the transactions
contemplated by this Agreement at or prior to the Closing Date.  




        
        (e)
As of the Closing Date, no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, shall be pending against or affecting
the Company, or any of its properties, which questions the validity of the Agreement or
the transactions contemplated thereby or any action taken or to be taken pursuant
thereto. As of the Closing Date, no action, suit, claim or proceeding before or by any
court or governmental agency or body, domestic or foreign, shall be pending against or
affecting the Company, or any of its  



 




 






properties, which, if adversely
determined, is reasonably likely to result in a Material Adverse Effect.  




        
        (f)
       No Material Adverse Effect shall have occurred at or before the Closing Date. 




        
        (g)
The Company shall have delivered on the Closing Date to the Holders a secretary’s
certificate, dated as of the Closing Date, as to (i) the resolutions of the board of
directors of the Company authorizing the transactions contemplated by this Agreement,
(ii) the Certificate, (iii) the Bylaws, each as in effect at the Closing, and (iv) the
authority and incumbency of the officers of the Company executing this Agreement and the
Warrants.  



        6.  Legend.
Each certificate representing the Securities shall be stamped or otherwise imprinted with
a legend substantially in the following form (in addition to any legend required by
applicable state securities or “blue sky” laws): “THE SECURITIES
REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”)
OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR
GLOWPOINT, INC. SHALL HAVE RECEIVED AN OPINION OF COUNSEL THAT REGISTRATION OF SUCH
SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED.” The Company agrees to reissue certificates
representing any of the Securities, without the legend set forth above if at such time,
prior to making any transfer of any such Securities, such holder thereof shall give
written notice to the Company describing the manner and terms of such transfer and
removal as the Company may reasonably request. Such proposed transfer will not be
effected until: (a) the Company has either (i) received an opinion of counsel that the
registration of the Exchange Securities is not required in connection with such proposed
transfer; or (ii) filed a registration statement under the Securities Act covering such
proposed disposition has been filed by the Company with the Commission, which
registration statement has become effective under the Securities Act; and (b) the Company
has received an opinion of counsel that either: (i) the registration or qualification
under the securities or “blue sky” laws of any state is not required in
connection with such proposed disposition, or (ii) compliance with applicable state
securities or “blue sky” laws has been effected. The Company will use
reasonable efforts to respond to any such notice from a holder within five (5) business
days. In the case of any proposed transfer under this Section 6, the Company will use
reasonable efforts to comply with any such applicable state securities or “blue
sky” laws, but shall in no event be required, in connection therewith, to
qualify to do business in any state where it is not then qualified or to take any action
that would subject it to tax or to the general service of process in any state where it
is not then subject. The restrictions on transfer contained in this Section 6 shall be in
addition to, and not by way of limitation of, any other restrictions on transfer
contained in any other section of this Agreement.  




        7.
Fees and Expenses. Each party shall pay the fees and expenses of its advisors,
counsel, accountants and other experts, if any, and all other expenses, incurred by
such party incident to the negotiation, preparation, execution, delivery and
performance of this Agreement.  



 




 






        8.
Piggyback Registration Rights.  





        
        (a)
The Company shall notify the Holders in writing at least twenty (20) days prior to filing
any registration statement under the Securities Act for purposes of effecting a public
offering of securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company, but excluding registration
statements relating to employee benefit plans or with respect to corporate reorganization
or other transactions under Rule 145 of the Securities Act) and will afford each Holder
an opportunity to include in such registration statement all or any part of the Exchange
Shares held by such Holder. Each Holder desiring to include in any such registration
statement all or any part of such Holder’s shares of restricted Common Stock
received in the Exchange Offer or shares of Common Stock underlying the Warrants
(collectively, the “Registrable Shares”) shall within twenty (20) days
after receipt of the above-described notice from the Company, so notify the Company in
writing, and in such notice shall inform the Company of the number of Registrable Shares
such Holder wishes to include in such registration statement.  




        
        (b)
If the registration is for a firm commitment underwritten registered public offering, the
Company shall so advise the Holders as a part of the written notice given pursuant to
Section 8(a) above. In such event, the right of any Holder to registration shall be
conditioned upon the Holder’s participation in such underwriting and the inclusion
of such Holder’s Registrable Shares in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such underwriting
shall (together with the Company and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for the underwriting by the Company.
Notwithstanding any other provision of this Section 8, if the managing underwriter
determines that marketing factors require a limitation of the number of shares to be
underwritten, the managing underwriter may limit the number of shares to be included in
the registration and underwriting. The number of Registrable Shares held by the Holders
to be included in such offering shall be reduced to zero before any reduction in any
securities to be offered by the Company on its own behalf. The Company shall so advise
the Holders, and the number of Registrable Shares held by the Holders that may be
included in the registration and underwriting shall be allocated among the Holders and
any other selling shareholders on a pro rata basis. If any Holder disapproves of the
terms of any such underwriting, he may elect to withdraw therefrom by written notice to
the Company and the managing underwriter prior to the execution of the applicable
underwriting agreement by the Holder. Any shares of Registrable Shares excluded or
withdrawn from such underwriting shall be withdrawn from such registration.  




        
        (c)
All expenses incurred in connection with a registration pursuant to this Section 8
(excluding underwriters’and brokers’ discounts and commissions relating to
shares sold by the Holders), including, without limitation, all federal and “blue sky” registration,
filing and qualification fees, printers’ and accounting fees, and fees and
disbursements of counsel for the Company shall be borne by the Company.  




        
        (d)
In connection with any registration statement under this Section 8 in which the Holders
are participating, the Company agrees to indemnify, to the extent permitted by law, each
of the Holders against all losses, claims, damages, liabilities and expenses caused by
any untrue statement of material fact contained in any registration statement, prospectus
or  



 




 






preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such Holder expressly for use therein or by such
Holder’s failure to deliver a copy of the registration statement or prospectus or
any amendments or supplements thereto after the Company has furnished such Holder with a
sufficient number of copies of the same.  




        
        (e)
In connection with any registration statement under this Section 8 in which a Holder is
participating, each such Holder shall furnish to the Company in writing such information
and affidavits as the Company reasonably requests for use in connection with any such
registration statement or prospectus and, to the extent permitted by law, shall indemnify
the Company, its directors and officers and each person who controls the Company (within
the meaning of the Securities Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of material fact contained
in the registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not misleading,
but only to the extent that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by such Holder; provided that the
obligation to indemnify shall be individual, not joint and several, for each Holder and
shall be limited to the net amount of proceeds received by such Holder from the sale of
securities pursuant to such registration statement.  




        
        (f)
Any person entitled to indemnification hereunder shall (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification
(provided that the failure to give prompt notice shall not impair any person’s right
to indemnification hereunder to the extent such failure has not prejudiced the
indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment
a conflict of interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party who is not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim shall not be obligated to pay the fees and expenses of more
than one counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such indemnified
parties with respect to such claim.  



        9.
Indemnification.  





        
        (a)
The Company hereby agrees to indemnify and hold harmless each Holder and its officers,
directors, shareholders, employees, agents and attorneys against any and all losses,
claims, damages, liabilities and reasonable expenses (collectively “Claims”)
incurred by each such person in connection with defending or investigating any such
Claims, whether or not resulting in any liability to such person, to which any such
indemnified party may become subject, insofar as such Claims arise out of or are based
upon any breach of any representation or warranty or agreement made by the Company in
this Agreement.  



 




 







        
        (b)
Each Holder severally but not jointly hereby agrees to indemnify and hold harmless the
Company and its officers, directors, shareholders, employees, agents and attorneys
against any and all Claims incurred by each such person in connection with defending or
investigating any such claims or liabilities, whether or not resulting in any liability
to such person, to which any such indemnified party may become subject under the
Securities Act, or under any other statute, at common law or otherwise, insofar as such
Claims arise out of or are based upon any breach of any representation, warranty or
agreement made by a Holder in this Agreement.  



        10.  Governing
Law; Consent to Jurisdiction. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of New York without giving effect to the rules
governing the conflicts of laws. Each of the parties consents to the exclusive
jurisdiction of the Federal courts whose districts encompass any part of the County of
New York located in the City of New York in connection with any dispute arising under
this Agreement and hereby waives, to the maximum extent permitted by law, any objection,
including any objection based on forum non conveniens, to the bringing of any such
proceeding in such jurisdictions. Each party waives its right to a trial by jury. Each
party to this Agreement irrevocably consents to the service of process in any such
proceeding by the mailing of copies thereof by registered or certified mail, postage
prepaid, to such party at its address set forth herein. Nothing herein shall affect the
right of any party to serve process in any other manner permitted by law.  




        11.  Notices.
All notices and other communications provided for or permitted hereunder shall be
made in writing by hand delivery, express overnight courier, registered first class mail,
or telecopier (provided that any notice sent by telecopier shall be confirmed by other
means pursuant to this Section 11), initially to the address set forth below, and
thereafter at such other address, notice of which is given in accordance with the
provisions of this Section.  




	 	(a) 	if
to the Company: 







	 	
Glowpoint, Inc.
225 Long Avenue
Hillside, New Jersey 07205
Attention: Chief
Executive Officer & President
Tel. No.: (973) 282-2000
Fax No.: (973)
391-9776 






	 	
with
a copy to:
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, New York
10104
Attention: Michael J.W. Rennock
Tel. No.:  (212) 468-8000
Fax No.:  (212) 468-7999 






	 	(b) 	if
to the Holders: 







	 	
At
the address of such Holder set forth on Exhibit A 
to this Agreement.  






 




 






        All
such notices and communications shall be deemed to have been duly given: when delivered by
hand, if personally delivered; when receipt is acknowledged, if telecopied; or when
actually received or refused if sent by other means. 



        12.  Entire
Agreement. This Agreement constitutes the entire understanding and agreement of
the parties with respect to the subject matter hereof and supersedes all prior and/or
contemporaneous oral or written proposals or agreements relating thereto all of which are
merged herein. This Agreement may not be amended or any provision hereof waived in whole
or in part, except by a written amendment signed by both of the parties.  




        13.
Counterparts. This Agreement may be executed by facsimile signature and in
counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.  




[THE REMAINDER OF THIS
PAGE IS INTENTIONALLY LEFT BLANK] 



 




 






        IN
WITNESS WHEREOF, this Agreement was duly executed on the date first written above. 





		GLOWPOINT,
      INC. 

      

      

      By:______________________________________ 

            Gerard E. Dorsey 

            CFO and Executive Vice President, Finance
	  	
		HOLDER:
      

      

      

      By:_____________________________________

            Name: 

            Title: 
	  	
		HOLDER:
      

      

      

      By:_____________________________________

            Name: 

            Title: 
	  	
		HOLDER:
      

      

      

      By:_____________________________________

            Name: 

            Title: 






 




 






EXHIBIT A



HOLDERS


	
      

    
	Names
      and 

      Addresses of Holders

      	
      Shares of 

      Series B Preferred

      Stock Exchanged 

      	Number
      of Shares of

      Restricted Common 

      Stock 

      	Number
      of Warrants
	
      

    
	 

        			
	
      

    
	 

        			
	
      

    






 




 







Schedule 3(j)  



Capitalization 



	 	1)	As
of March 10, 2005, the Company had 100,000,000 shares of common stock authorized and
38,101,190 outstanding and 5,000,000 shares of preferred stock authorized and 203.667
outstanding. 







	 	2)	As
of March 10, 2005, there were outstanding warrants to acquire approximately
7,486,023 shares of common stock, and there were outstanding options to acquire an
aggregate of approximately 4,913,922 shares of common stock. 







	 	           3) 	The
Company is not a party to any agreement or understanding restricting the voting or
transfer of any shares of                      the capital stock of the Company.