EXHIBIT 10.42
[FVC LETTERHEAD]
October 29, 2002
Mr. Xxxxxxxx Xxxxxx
Rostrevor Partners
Pier 1 Bay 0
Xxx Xxxxxxxxxxx
Xxx Xxxxxxxxx, XX 00000
RE: EMPLOYMENT TERMS
Dear Xxxxxxxx:
First Virtual Communications, Inc. (the "Company") is pleased to offer you the
position of Acting President and Chief Executive Officer, pursuant to the terms
of this letter agreement ("Agreement"). Your start date will be October 29,
2002.
1. DUTIES
You will be expected to perform various duties consistent with your position,
with your primary responsibility being to find a replacement President and Chief
Executive Officer as soon as possible and your secondary responsibilities being
to stabilize the Company's operations and control costs. You will report to the
Company's Board of Directors (the "Board").
2. BASE SALARY
Your base salary will be $300,000 per year, less payroll deductions and all
required withholdings. You will be paid bi-weekly and you will be eligible for
the following standard Company benefits: medical insurance, paid time off and
holidays. Details about these benefit plans are available for your review. The
Company may modify benefits and compensation from time to time as it deems
necessary.
3. STOCK OPTIONS
Upon commencement of employment and subject to approval of the Company's Board
of Directors (the "Board"), you will be granted an Incentive Stock Option under
the Company's 1997 Equity Incentive Plan (the "Plan") to purchase 50,000 shares
of the Company's Common Stock (the "Stock Option"). The Stock Option will be
governed by and granted pursuant to a separate Stock Option Agreement. The
exercise price per share of the Stock Option will be equal to the fair market
value of the Common Stock established on the date of grant. The Stock Option
will be subject to vesting so long as you continue to be employed with or
continue to serve as a director of the Company, according to the following
schedule: twelve and one-half percent (12 1/2%) of the shares subject to the
Stock Option will vest on the last day of the sixth full
calendar month of your employment after the date of grant and the remaining
shares subject to the Stock Option will vest in equal installments at the end of
each monthly period thereafter.
You will be granted an additional stock option under the Plan, upon commencement
of employment and subject to approval of the Board, to purchase 100,000 shares
of Common Stock, which will vest in full on the earlier of (a) November 14,
2003, if the Company has achieved three consecutive quarters of positive Profit
Before Tax, as reported in the Company's respective reports on Form 10-Q for
each of the three quarters ending March 31, 2003, June 30, 2003 and September
30, 2003, each as filed with the Securities Exchange Commission, or (b) October
29, 2007; in either case so long as you continue to be employed with or serve as
a director of the Company through the vesting date (the "Performance Option").
The Performance Option will be governed by and granted pursuant to a separate
Stock Option Agreement. The exercise price per share of the Performance Option
will be equal to the fair market value of the Common Stock established on the
date of grant.
Subject to Board approval, and contingent on the Company hiring a replacement
President and Chief Executive Officer within six months of the date of this
Agreement, you will also be granted a stock option under the Plan to purchase
100,000 shares of Common Stock in the event that the Company hires a replacement
President and Chief Executive Officer within six months of the date of this
Agreement. The stock option will be governed by and granted pursuant to a
separate Stock Option Agreement. The exercise price per share of the stock
option will be equal to the fair market value of the Common Stock established on
the date of grant, which will be a date following the date the Company hires a
replacement President and Chief Executive Officer. The stock option will be
fully vested on the date of grant.
If you have questions regarding the tax implications of the above stock options
or any part of your compensation package, please consult with your own tax
advisor.
4. TERMINATION
Employment at First Virtual Communications is "at will." The Company may
terminate your employment at any time and for any or no reason, with or without
cause or advance notice by giving written notice of such termination. Similarly,
you may terminate your employment with the Company at any time at your election,
in your sole discretion, for any or no reason upon notice to the Company. The
term of your employment relationship may not be modified except by a written
agreement approved and signed by the Board. You and the Board agree that it is
in the best interests of the Company and its stockholders to find a replacement
President and Chief Executive Officer as soon as possible.
5. COMPANY POLICY
As a Company employee, you will be expected to abide by the Company's policies,
procedures, rules and regulations and acknowledge in writing that you have read
the Company's Employee Handbook, which will govern the terms and conditions of
your employment. The Company's Employee Handbook may be modified from time to
time at the sole discretion of the Company.
Normal working hours are from 8:00 a.m. to 5:00 p.m., Monday through Friday. As
an exempt salaried employee, you will be expected to work additional hours as
required by the nature of your work assignments.
6. PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
As a condition of employment, you will be required to sign and comply with the
Proprietary Information and Inventions Agreement attached hereto as EXHIBIT A,
which prohibits unauthorized use or disclosure of the Company's proprietary
information, among other things.
In your work for the Company, you will be expected not to use or disclose any
confidential information, including trade secrets, of any former employer or
other person to whom you have an obligation of confidentiality. Rather, you will
be expected to use only that information which is generally known and used by
persons with training and experience comparable to your own, which is common
knowledge in the industry or otherwise legally in the public domain, or which is
otherwise provided or developed by the Company. During our discussions about
your proposed job duties, you assured us that you would be able to perform those
duties within the guidelines just described.
You agree that you will not bring onto Company premises any unpublished
documents or property belonging to any former employer or other person to whom
you have an obligation of confidentiality.
7. CHANGE OF CONTROL
You will also be covered by the Company's Executive Officers' Change of Control
Plan, which is attached to this agreement as EXHIBIT B.
8. ENTIRE AGREEMENT
This Agreement, together with your Proprietary Information and Inventions
Agreement, the Executive Officers' Change of Control Plan and the stock
documents referred to herein, forms the complete and exclusive statement of the
terms of your employment with the Company. The employment terms in this
Agreement supersede any other agreements or promises made to you by anyone,
whether oral or written. The terms of this Agreement cannot be modified, except
in a writing approved and signed by the Board.
9. GOVERNING LAW
This Agreement will be governed by and construed according to the laws of the
State of California. You hereby expressly consent to the personal jurisdiction
of the state and federal courts located in San Jose, California for any lawsuit
filed there against you by the Company arising from or related to this
Agreement.
10. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon your heirs,
executors, administrators and other legal representatives and will be for the
benefit of the Company, its successors, and its assigns.
As required by law, this offer is subject to satisfactory proof of your right to
work in the United States.
Please sign and date this Agreement, and return it to the Company's Human
Resources Department prior to your commencement of employment, if you wish to
accept employment with the Company under the terms described above.
We look forward to your favorable reply and to a productive and enjoyable work
relationship.
Sincerely,
FIRST VIRTUAL COMMUNICATIONS, INC.
By:
-------------------------------------
Xxxxx Xxxxxxxxx
Chairman of the Board
ACCEPTED:
________________________________________
Xxxxxxxx Xxxxxx
________________________________________
Date
Attachments: Exhibit A: Proprietary Information and Inventions Agreement
Exhibit B: Executive Officers' Change of Control Plan
EXHIBIT A
EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
EXHIBIT B
EXECUTIVE OFFICERS' CHANGE OF CONTROL PLAN
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