EXHIBIT 10.44
December 12, 2002
RE: EMPLOYMENT TERMS
Dear Xx. Xxxx :
First Virtual Communications, Inc. (the "Company") is pleased to offer you the
position of Vice President of Finance and Chief Financial Officer, pursuant to
the terms of this letter agreement ("Agreement"), subject to the satisfactory
review of your references. Please respond to me by 5:00 p.m., West Coast time,
on December 20, 2002, at which time this offer will expire.
1. DUTIES
You will be expected to perform various duties consistent with your position.
Upon acceptance of this offer, you will be an executive officer of the Company.
On the date that you are confirmed as a Section 16 Officer by action of the
Company's Board of Directors, you shall be covered by the Company's Executive
Officers' Change of Control Plan. As a Section 16 officer, you will report to
the Company's Chief Executive Officer, unless otherwise assigned by the Company.
Additionally you will be expected to achieve certain performance targets and
Company goals related to your specific job function ("ANNUAL PERFORMANCE
TARGETS"). Such Performance Targets shall be set and measured at the sole
discretion of the Company's President and Chief Executive Officer ("CEO").
2. COMPENSATION
Your annual base salary will be $200,000 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 in
the Total Rewards benefit guide delivered to you with this Agreement. The
Company may modify its benefits and compensation packages from time to time, in
its sole discretion, as it deems necessary.
3. STOCK OPTIONS
Upon commencement of employment and subject to approval of the Company's Board
of Directors, you will be granted a Stock Option under the Company's 1997 Equity
Incentive Plan to purchase 400,000 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, subject to approval by the Board of Directors. The Stock
Option will be subject to vesting so long as you continue to be employed with
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.
If you have questions regarding the tax implications of the Stock Option 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 you 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 written notice
to the Company. The term of your employment relationship may not be modified
except by a written agreement signed by the Chief Executive Officer or President
of the Company.
In the event that the Company terminates your employment without Cause (as
defined below), and upon your furnishing to the Company an executed release and
waiver of claims, you shall be entitled to receive severance payments in the
form of (i) a continuation of your base salary for a period of four months after
your date of termination, at the rate in effect on your date of termination, and
(ii) During the severance period, assuming that you are eligible for COBRA, you
shall be entitled to receive medical benefits for yourself and eligible
dependents paid for by the Company until the earlier of (a) three (3) months
after your date of termination, or (b) the date that you become eligible to
receive medical benefits from another company or business entity.
"CAUSE" means your: (i) gross negligence or willful misconduct in connection
with the performance of your duties to the Company that in the written
determination of a majority of the Board has not been cured within thirty (30)
days following receipt by you of written notice from the Board identifying such
acts of gross negligence or willful misconduct; (ii) commission of a felony
(other than a traffic-related offense) that in the written determination of a
majority of the Board has caused material injury to the Company's business;
(iii) dishonesty with respect to a significant matter relating to the Company's
business and intended to result in personal enrichment of you or your family at
the expense of the Company; or (iv) material breach of this Offer Letter and
Employment Agreement, Proprietary Information and Inventions Agreement or
Indemnification Agreement by and between you and the Company, which material
breach has not been cured within thirty (30) days following receipt by you of
written notice from the Board identifying such material breach.
If your employment is terminated for Cause, or you voluntarily terminate your
employment from the Company for any reason, all compensation and benefits will
cease immediately and you will receive no additional payment from the Company
other than your accrued base salary and accrued and unused vacation benefits
earned through your date of termination.
5. COMPANY POLICY
As a Company employee, you will be expected to abide by the Company's policies,
procedures, rules and regulations 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.
2.
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. ENTIRE AGREEMENT
This Agreement, together with your Proprietary Information and Inventions
Agreement and the stock documents and Total Rewards benefit guide 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 signed by
the Company's Chief Executive Officer or President.
8. 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 Santa Clara, California for any
lawsuit filed there against you by the Company arising from or related to this
Agreement.
9. 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 by December 20, 2002, if you wish to
accept employment with the Company under the terms described above. If you
accept our offer, we would like you to start as soon as possible.
We look forward to your favorable reply and to a productive and enjoyable work
relationship.
3.
Sincerely,
FIRST VIRTUAL COMMUNICATIONS
By:
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Xxxxx Xxxxxxx
Director, Human Resources
Accepted:
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Xxxxxx Xxxx
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Date
Attachment: Exhibit A: Proprietary Information and Inventions Agreement
4.
EXHIBIT A
EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
