EXHIBIT 10.31
November 6, 2003
Xxxx Xxxx
00 Xxxxxxxxx Xxxxxx,
Xxxxx Xxxxxxx, XX 00000
RE: EMPLOYMENT TERMS
Dear Xx. Xxxx:
First Virtual Communications, Inc. (the "Company") is pleased to offer you the
position of Vice President of Engineering, 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 November 24, 2003, 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 initially report to the Chief Technical
Officer, Xxxxx Xxxxx for an orientation period, to be determined by the Chief
Executive Officer. Upon completion of your orientation, 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 and the First Virtual
Communications, Inc. Indemnity Plan. As a Section 16 officer, you will report to
the Company's Chief Executive Officer, unless otherwise assigned by the Company.
2. COMPENSATION
Your annual base salary will be $190,000 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 Equity
Plans to purchase 80,000 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 three 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) failure to achieve your
Performance Targets, following 30 days written notice from the CEO of such
failure; (iii) 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; (iv) 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 (v) 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.
2.
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 policies 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. 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 Redwood City, 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
3.
Department by November 24, 2003, 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.
Sincerely,
FIRST VIRTUAL COMMUNICATIONS
By:
_____________________________
Xxxxx Xxxxxxx
Director, Human Resources
Accepted:
________________________________
Xxxx Xxxx
_______________________________
Date
Attachment: Exhibit A: Proprietary Information and Inventions Agreement
4.
EXHIBIT A
EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
