**EXHIBIT 10.6**

 

March 20, 2002

 

Robert Scott

83 Sandra Lane

North Andover, MA  01845

 

Dear Robert:

 

This letter sets forth the terms and conditions of our agreement (the“Agreement”) regarding your resignation of employment with First VirtualCommunications, Inc. (the “Company”). The Agreement shall become effective on the day this Agreement is signedby you (the “Effective Date”).  You andthe Company hereby agree as follows:

 

**1.             TRANSITION PERIOD.**

 

**(a)           Resignation. **The Company accepts your resignation as Chief Marketing Officer of theCompany as of April 30, 2002 (the “Separation Date”).

 

**(b)           Transition**. Between the Effective Date and the Separation Date (the “TransitionPeriod”), you will continue to be employed by the Company as a full timeemployee.  You agree that you willperform all duties and assignments requested by the President of the Company,as well as assist with the orderly transition of your job duties andresponsibilities.  You agree to exercisethe highest degree of professionalism and utilize your expertise and talentduring the Transition Period.

 

**(c)           Authority.** During the Transition Period, you will have no authority, in the absenceof express written consent of the President, to bind the Company (or torepresent that you have authority to bind the Company) to any contractualobligations, whether written, oral or implied.

 

**(d)           Salary andBenefits.**  During the Transition Period, the Companywill continue to pay your base salary in effect as of the Effective Date,subject to standard withholdings and deductions.  You will also continue to be entitled to participate in theCompany’s employee health insurance and other benefit plans prior to theSeparation Date, pursuant to the terms of such plans.

 

**2.             ACCRUED SALARY AND VACATION. **You agree and acknowledge that at the time ofyour resignation, the Company will pay you all accrued salary, and all accruedand unused vacation benefits earned through the Separation Date, if any,subject to standard payroll deductions, withholding taxes and other obligations.  You are entitled to this payment regardlessof whether or not you sign this Agreement.

 

**3.             EXPENSE REIMBURSEMENT**.  Withinten (10) business days of the Separation Date, you agree that you will submityour final documented expense reimbursement statement reflecting all businessexpenses you incurred prior to and including the Separation Date, if any, forwhich you seek reimbursement.  TheCompany shall reimburse your expenses pursuant to Company policy and regularbusiness practice.

 

**4.             SEVERANCE. **Althoughthe Company has no policy or procedure for providing severance benefits, inexchange for the promises and covenants set forth herein, the Company agrees tomake severance payments to you in the form of continuation of your base salaryin effect on the Effective Date for a period of twelve (12) weeks following theSeparation Date of this Agreement, if you remain an employee of the Companythrough April 30, 2002.    Thesepayments will be made on the Company’s ordinary payroll dates, and will besubject to standard payroll deductions and withholdings. In addition theCompany agrees that you may take ownership of the following Company ownedequipment**:**  your existing Dell Latitude Cpx laptopcomputer and docking station (after deletion of all Company e-mail and data bythe Company IT Department in accordance with Section 8 of this Agreement),

 

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HewlettPackard Jornada PDA and cradle, Hewlett Packard Printer 970 Cse and the Gatewaymonitor, and Motorola Timeport cell phone Model no. 8767 with phone number978-618-0520 transferred to Robert Scott.

 

**5.             INSURANCE BENEFITS. **Tothe extent provided by the federal COBRA law or, if applicable, state insurancelaws, and by the Company’s current group health insurance policies, you will beeligible to continue your health insurance benefits at your own expense afterJuly 31, 2002.  Later, you may be ableto convert to an individual policy through the provider of the Company’s healthinsurance, if you wish.  You will beprovided with a separate notice of your COBRA rights.

 

**6.             OTHER COMPENSATION AND BENEFITS.** Except as expressly provided herein, you acknowledge and agree that youare not entitled to and will not receive any additional compensation,severance, stock options, stock or benefits from the Company.  You agree and understand that all vestingunder any stock compensation award (e.g., incentive stock option, nonqualifiedstock option, stock purchase agreement, or restricted stock bonus agreement)from the Company shall cease upon the Separation Date.  Any and all rights that you may have in anyEmployee Stock Purchase Plan or Stock Option Plan are determined in accordancewith the provisions of the applicable plan and any agreements signed by you.

 

**8.             COMPANY PROPERTY. **Except as stated in Section 4, “Severance,” upon the Separation Date,you agree to return to the Company all Company documents (and all copiesthereof) and other Company property in your possession or your control,including, but not limited to, Company files, business plans, notes, samples,sales notebooks, drawings, specifications, calculations, sequences, data,computer-recorded information, tangible property, including, but not limitedto, cellular phones, computers, credit cards, entry cards, keys and any othermaterials of any nature pertaining to your work with the Company, and anydocuments or data of any description (or any reproduction of any documents ordata) containing or pertaining to any proprietary or confidential material ofthe Company.

 

**9.             PROPRIETARY INFORMATION OBLIGATIONS. **You acknowledge your continuing obligationsunder your Proprietary Information and Inventions Agreement, a copy of which isattached hereto as Exhibit A.

 

**10.          NON-DISPARAGEMENT. **You agree that you will not at any time disparage the Company, or itsofficers, directors, employees, shareholders and agents, in any manner likelyto be harmful to them or their business, business reputation or personalreputation; provided that you shall respond accurately and fully to anyquestions, inquiry or request for information when required by legal process**. **TheCompany’s  officers and seniorexecutives agree not to at any time disparage Robert Scott in any manner likelyto be harmful to his business or personal reputation;  provided that it may respond accurately and fully to anyquestions, inquiry or request for information when required by legal process.

 

**11.          CONFIDENTIALITY AND PUBLICITY. **The provisions of this Agreement shall be held in strictest confidenceby you and the Company and shall not be publicized or disclosed in any mannerwhatsoever; provided, however, that: (a) you may disclose this Agreement, inconfidence, to your immediate family; (b) the parties may disclose thisAgreement in confidence to their respective attorneys, accountants, auditors,tax preparers, and financial advisors; (c) the Company may disclose thisAgreement as necessary to fulfill standard or legally required corporatereporting or disclosure requirements; and (d) the parties may disclose thisAgreement insofar as such disclosure may be necessary to enforce its terms oras otherwise required by law.

 

**12.          RELEASE OF CLAIMS. **In exchange for the consideration provided to you by this Agreementthat you are not otherwise entitled to receive, you hereby generally andcompletely release the Company and its directors, officers, employees,shareholders, partners, agents, attorneys, predecessors, successors, parent andsubsidiary entities, insurers, affiliates, and assigns from any and all claims,liabilities and obligations, both known and unknown, that arise out of or arein any way related to events, acts, conduct, or omissions occurring prior toyour signing this Agreement.  Thisgeneral release includes, but is not limited to: (1) all claims arising out ofor in any way related to your employment with the Company or the termination ofthat employment; (2) all claims related to your compensation or benefits fromthe Company, including salary, bonuses, commissions, vacation pay, expense reimbursements,severance pay, fringe benefits, stock, stock options, or any other ownershipinterests in the

 

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Company; (3) all claimsfor breach of contract, wrongful termination, and breach of the implied covenantof good faith and fair dealing; (4) all tort claims, including claims forfraud, defamation, emotional distress, and discharge in violation of publicpolicy; and (5) all federal, state, and local statutory claims, including butnot limited to claims for discrimination, harassment, retaliation, attorneys’fees, or other claims arising under the federal Civil Rights Act of 1964 (asamended), the federal Americans with Disabilities Act of 1990, and theCalifornia Fair Employment and Housing Act (as amended).

 

**13.**          **ADEA WAIVER.**  You further acknowledge that you areknowingly and voluntarily waiving and releasing any rights you may have underthe Age Discrimination in Employment Act of 1967 (“ADEA”).  You also acknowledge that the considerationgiven for the waiver and release in the preceding paragraphs hereof is inaddition to anything of value to which you were already entitled.  If you are forty (40) years of age or olderwhen this release is signed, you hereby provide the further acknowledgment thatyou are advised by this writing, as required by the Older Workers BenefitProtection Act, that: (a) your waiver and release do not apply to any rights orclaims that may arise after the Effective Date of this release; (b) you havethe right to consult with an attorney prior to executing this release (althoughyou may voluntarily choose not to do so); (c) you may have at leasttwenty-one (21) days to consider this Agreement (although you may by your ownchoice execute this release earlier); (d) you have seven (7) days following theexecution of this release to revoke this release; and (e) this Agreement shallnot be effective until the date upon which the revocation period has expired,therefore making the effective date the eighth day after this release is signedby you (the “Effective Date”).

 

**14.          SECTION 1542 WAIVER. **In giving this release, which includes claims which may be unknown toyou at present, you hereby acknowledge that you have read and understandSection 1542 of the Civil Code of the State of California which reads asfollows:

 

**A generalrelease does not extend to claims which the creditor does not know or suspectto exist in his favor at the time of executing the release, which if known byhim must have materially affected his settlement with the debtor.**

 

You hereby expressly waive and relinquish all rights and benefits underthis section and any law or legal principle of similar effect in anyjurisdiction with respect to claims released hereby.

 

**15.          NO ADMISSIONS. **Theparties hereto hereby acknowledge that this is a compromise of various matters,and that the promised payments in consideration of this Agreement shall not beconstrued to be an admission of any liability or obligation by either party tothe other party or to any other person whomsoever.

 

16.**           ENTIRE AGREEMENT. **This Agreement, including ExhibitA, constitutes the complete, final and exclusive embodiment of the entireAgreement between you and the Company with regard to the subject matterhereof.  It is entered into withoutreliance on any promise or representation, written or oral, other than thoseexpressly contained herein.  It may notbe modified except in a writing signed by you and a duly authorized officer ofthe Company.  Each party has carefullyread this Agreement, has been afforded the opportunity to be advised of itsmeaning and consequences by his or its respective attorneys, and signed thesame of his or its free will.

 

**17.          SUCCESSORS AND ASSIGNS.**  ThisAgreement shall bind the heirs, personal representatives, successors, assigns,executors, and administrators of each party, and inure to the benefit of eachparty, its agents, directors, officers, employees, servants, heirs, successorsand assigns.

 

**18.          APPLICABLE LAW.**  ThisAgreement shall be deemed to have been entered into and shall be construed andenforced in accordance with the laws of the State of California as applied tocontracts made and to be performed entirely within California.

 

**19.          ATTORNEYS’ FEES.**  Inthe event of any litigation arising out of or relating to this Agreement, itsbreach or enforcement, including an action for declaratory relief, theprevailing party in such action or proceeding shall be

 

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entitledto receive his or its damages, court costs, and all out-of-pocket expenses,including attorneys’ fees.  Suchrecovery shall include court costs, out-of-pocket expenses, and attorneys’ feeson appeal, if any.

 

**20.          SEVERABILITY. **If acourt of competent jurisdiction determines that any term or provision of thisAgreement is invalid or unenforceable, in whole or in part, then the remainingterms and provisions hereof shall be unimpaired.  Such court will have the authority to modify or replace theinvalid or unenforceable term or provision with a valid and enforceable term orprovision that most accurately represents the parties’ intention with respectto the invalid or unenforceable term or provision.

 

**21.          INDEMNIFICATION.**  Eachparty will indemnify and save harmless each other party hereto from any lossincurred directly or indirectly by reason of the falsity or inaccuracy of anyrepresentation made herein.

 

**22.          AUTHORIZATION.**  Eachparty warrants and represents that there are no liens or claims of lien orassignments in law or equity or otherwise of or against any of the claims orcauses of action released herein and, further, that you are fully entitled andduly authorized to give your complete and final general release and discharge.

 

**23.          COUNTERPARTS.**  ThisAgreement may be executed in two counterparts, each of which shall be deemed anoriginal, all of which together shall constitute one and the same instrument.

 

**24.          SECTION HEADINGS.**  Thesection and paragraph headings contained in this Agreement are for referencepurposes only and shall not affect in any way the meaning or interpretation ofthis Agreement.

 

Please confirm your assent tothe foregoing terms and conditions of our Agreement by signing and returning acopy of this letter to me on or before May 7, 2002.

 

Sincerely,

 

**FIRSTVIRTUAL COMMUNICATIONS, INC.**

 

 
| /s/ Killko Caballero                   |   |
|----------------------------------------|--------|
| **Killko  Caballero**                  |
| President and Chief  Executive Officer |

 

Attachments:

Exhibit A — ProprietaryInformation and Inventions Agreement

 

**HAVING READ AND REVIEWED THE FOREGOING, I HEREBY AGREE TO ANDACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT AS STATED ABOVE.**

 
| Dated: March 21, 2002 |   | /s/ Robert Scott |
|-----------------------|--------|------------------|
|                  |   | **ROBERT SCOTT** |
|                       |        |                  |  |

 

 

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**EXHIBIT A**

**PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT**

 

**FIRST VIRTUALCOMMUNICATIONS, INC.**

 

**EMPLOYEE PROPRIETARY INFORMATION,**

**INVENTIONS, AND NON-COMPETITION AGREEMENT******

In consideration of my employment or continued employment by **First Virtual Communications, Inc.** (the “**Company**”),and the compensation now and hereafter paid to me, I hereby agree as follows:

**1.             Nondisclosure.**

**1.1      Recognition of Company’s Rights;Nondisclosure.** At all times during my employment and thereafter, I will hold instrictest confidence and will not disclose, use, lecture upon or publish any ofthe Company’s Proprietary Information (defined below), except as suchdisclosure, use or publication may be required in connection with my work forthe Company, or unless an officer of the Company expressly authorizes such inwriting.  I will obtain the Company’swritten approval before publishing or submitting for publication any material(written, verbal, or otherwise) that relates to my work at the Company and/orincorporates any Proprietary Information. I hereby assign to the Company any rights I may have or acquire in suchProprietary Information and recognize that all Proprietary Information shall bethe sole property of the Company and its assigns.  I have been informed and acknowledge that the unauthorized takingof the Company’s trade secrets may subject me to civil and/or criminal penalties.

**1.2      Proprietary Information.**  The term “**Proprietary Information**”shall mean any and all confidential and/or proprietary knowledge, data orinformation of the Company.  By way ofillustration but not limitation, “**Proprietary Information**” includes (a) tradesecrets, inventions, mask works, ideas, processes, formulas, source and objectcodes, data, programs, other works of authorship, know-how, improvements,discoveries, developments, designs and techniques (hereinafter collectivelyreferred to as “**Inventions**”); and (b) information regarding plans forresearch, development, new products, marketing and selling, business plans,budgets and unpublished financial statements, licenses, prices and costs,suppliers and customers; and (c) information regarding the skills andcompensation of other employees of the Company. Notwithstanding the foregoing,it is understood that, subject to the restrictions set forth in Sections 5or 6 herein, at all such times, I am free to use information which is generallyknown in the trade or industry, which is not gained as result of a breach ofthis Agreement, and my own, skill, knowledge, know-how and experience towhatever extent and in whichever way I wish.

**1.3      Third Party Information.**  I understand, in addition, that the Companyhas received and in the future will receive from third parties confidential orproprietary information (“**Third Party Information**”) subject to a dutyon the Company’s part to maintain the confidentiality of such information andto use it only for certain limited purposes. During the term of my employment and thereafter, I will hold Third PartyInformation in the strictest confidence and will not disclose to anyone (otherthan Company personnel who need to know such information in connection with theirwork for the Company) or use, except in connection with my work for theCompany, Third Party Information unless expressly authorized by an officer ofthe Company in writing.

**1.4      No Improper Use of Information of PriorEmployers and Others.** During my employment by the Company I will not improperly use ordisclose any confidential information or trade secrets, if any, of any formeremployer or any other person to whom I have an obligation of confidentiality,and I will not bring onto the premises of the Company any unpublished documentsor any property belonging to any former employer or any other person to whom Ihave an obligation of confidentiality unless consented to in writing by thatformer employer or person.  It isunderstood that the foregoing restriction does not apply to CUseeMe Networks(the Company’s predecessor-in-interest). I will use in the performance of my duties only information which isgenerally known and used by persons with training and experience comparable tomy own, which is common knowledge in the industry or otherwise legally in thepublic domain, or which is otherwise provided or developed by the Company orits predecessor-in-interest.

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**2.             Assignmentof Inventions.**

**2.1      Proprietary Rights.**  The term “**Proprietary Rights**” shallmean all trade secret, patent, copyright, mask work and other intellectualproperty rights or “moral rights” throughout the world.  “Moral rights” refers to any rights to claimauthorship of an Invention or to object to or prevent the modification of anyInvention, or to withdraw from circulation or control the publication ordistribution of any Invention, and any similar right, existing under judicialor statutory law of any country in the world, or under any treaty, regardlessof whether or not such right is denominated or generally referred to as a“moral right.”

**2.2      Prior Inventions.**  Inventions, if any, patented or unpatented,which I made prior to the commencement of my employment with the Company areexcluded from the scope of this Agreement. To preclude any possible uncertainty, I have set forth on *Exhibit A*(Previous Inventions) attached hereto a complete list of allInventions that I have, alone or jointly with others, conceived, developed orreduced to practice or caused to be conceived, developed or reduced to practiceprior to the commencement of my employment with the Company, that I consider tobe my property or the property of third parties and that I wish to haveexcluded from the scope of this Agreement (collectively referred to as “**PriorInventions**”).  If disclosureof any such Prior Invention would cause me to violate any prior confidentialityagreement, I understand that I am not to list such Prior Inventions in *Exhibit A*but am only to disclose a cursory name for each such invention, a listing ofthe party(ies) to whom it belongs and the fact that full disclosure as to suchinventions has not been made for that reason. A space is provided on *Exhibit A*for such purpose.  If no such disclosureis attached, I represent that there are no Prior Inventions.  If, in the course of my employment with theCompany, I incorporate a Prior Invention into a Company product, process ormachine, the Company is hereby granted and shall have a nonexclusive, royalty-free,irrevocable, perpetual, worldwide license (with rights to sublicense throughmultiple tiers of sublicensees) to make, have made, modify, use and sell suchPrior Invention.  Notwithstanding theforegoing, I agree that I will not incorporate, or permit to be incorporated,Prior Inventions in any Company Inventions without the Company’s prior writtenconsent.

**2.3      Assignment of Inventions.**  Subject to Sections 2.4, and 2.6, I herebyassign and agree to assign in the future (when any such Inventions orProprietary Rights are first reduced to practice or first fixed in a tangiblemedium, as applicable) to the Company all my right, title and interest in andto any and all Inventions (and all Proprietary Rights with respect thereto)whether or not patentable or registrable under copyright or similar statutes,made or conceived or reduced to practice or learned by me, either alone orjointly with others, during the period of my employment with the Company.  Inventions assigned to the Company, or to athird party as directed by the Company pursuant to this Section 2, arehereinafter referred to as “**Company Inventions**.”

**2.4      Unassigned Inventions.**  I recognize that this Agreement will not bedeemed to require assignment of any invention that was developed entirely on myown time without using the Company’s equipment, supplies, facilities, or tradesecrets and neither related to the Company’s actual or anticipated business,research or development, nor resulted from work performed by me for theCompany.

**2.5      Obligation to Keep Company Informed.**  During the period of my employment and forsix (6) months after termination of my employment with the Company, I willpromptly disclose to the Company fully and in writing all Inventions authored,conceived or reduced to practice by me, either alone or jointly withothers.  In addition, I will promptlydisclose to the Company all patent applications filed by me or on my behalfwithin a year after termination of employment. The Company will keep in confidence and will not use for any purpose ordisclose to third parties without my consent any confidential informationdisclosed in writing to the Company pursuant to this Agreement.

**2.6      Government or Third Party.**  I also agree to assign all my right, titleand interest in and to any particular Company Invention to a third party,including without limitation the United States, as directed by the Company.

**2.7      Works for Hire.**  I acknowledge that all original works ofauthorship which are made by me (solely or jointly with others) within thescope of my employment and which are protectable by copyright are “works madefor hire,” pursuant to 

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United States Copyright Act (17 U.S.C.,Section 101).

**2.8      Enforcement of Proprietary Rights.**  I will assist the Company in every properway to obtain, and from time to time enforce, United States and foreignProprietary Rights relating to Company Inventions in any and allcountries.  To that end I will execute,verify and deliver such documents and perform such other acts (includingappearances as a witness) as the Company may reasonably request for use inapplying for, obtaining, perfecting, evidencing, sustaining and enforcing suchProprietary Rights and the assignment thereof. In addition, I will execute, verify and deliver assignments of suchProprietary Rights to the Company or its designee.  My obligation to assist the Company with respect to ProprietaryRights relating to such Company Inventions in any and all countries shallcontinue beyond the termination of my employment, but the Company shallcompensate me at a reasonable rate after my termination for the time actuallyspent by me at the Company’s request on such assistance.

In the event the Company is unable for anyreason, after reasonable effort, to secure my signature on any document neededin connection with the actions specified in the preceding paragraph, I herebyirrevocably designate and appoint the Company and its duly authorized officersand agents as my agent and attorney in fact, which appointment is coupled withan interest, to act for and in my behalf to execute, verify and file any suchdocuments and to do all other lawfully permitted acts to further the purposesof the preceding paragraph with the same legal force and effect as if executedby me.  I hereby waive and quitclaim tothe Company any and all claims, of any nature whatsoever, which I now or mayhereafter have for infringement of any Proprietary Rights assigned hereunder tothe Company.

**3.                        Records. **Iagree to keep and maintain adequate and current records (in the form of notes,sketches, drawings and in any other form that may be required by the Company)of all Proprietary Information developed by me and all Inventions made by meduring the period of my employment at the Company, which records shall beavailable to and remain the sole property of the Company at all times.

**4.             Dutyof Loyalty During Employment.**  I understand that my employment with theCompany requires my full attention and effort. I agree that during the period of my employment by the Company I willnot, without the Company’s express written consent, engage in any employment orbusiness activity other than for the Company, including but not limited toemployment or business activity which is competitive with, or would otherwiseconflict with, my employment by the Company.

**5.             NoSolicitation of Employees, Consultants, Contractors or Customers.**I agree that for the period of my employment by the Company and for one (1)year after the date my employment by the Company ends for any reason, includingbut not limited to voluntary termination by me or involuntary termination bythe Company, I will not, either directly or through others, (i) solicit orattempt to solicit any employee of the Company to end his or her relationshipwith the Company; and (ii) solicit any consultant, contractor, or customer ofthe Company, with whom I had contact or whose identity I learned as a result ofmy employment with the Company to diminish or materially alter his, her or itsrelationship with the Company.

                The parties agree that for purposes of this Agreement, a customer isany person or entity to which the Company has provided goods or services at anytime during the period commencing six (6) months prior to my employment withthe Company and ending on the date my employment with the Company ends.

**6.             Non-CompeteProvision.** I agree that for the period of my employment with the Company, and forthe period of one (1) year after the later of (1) the date my employment endsfor any reason, including but not limited to voluntary termination by me orinvoluntary termination by the Company; or (2) the date a court of competentjurisdiction enters an order enforcing this provision, I will not provideservices, similar to those I provided to the Company, to any person or entityin competition (as defined below) with the Company within****any state, province, or similar political unit inwhich the Company has or solicits employees, consultants, contractors, orcustomers; or provides or solicits products or services.  The parties acknowledge that the Companyprovides or solicits products and services, and has or solicits employees,consultants, contractors and customers, through the Internet and wirelesstechnology, and that the scope of this provision is therefore co-extensive withthe scope of the Company’s business through the Internet and wirelesstechnology.  The parties agree that thegeographic scope of the noncompete is reasonable in light of the geographicallybroad scope of doing business through 

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the Internet and wirelesstechnology.  I acknowledge that thisnon-compete provision is limited to the types of activities and services Iprovided in my employment with the Company.

At the present time, theCompany engages in the business****of providing broad band video networking for theInternet.  The Company’s products enableend-to-end video in a wide range of room and desktop environments.  The Company designs, manufactures andsupports a complete video networking product family that includes Internetaccess devices, adapters, gateways and video storage servers and thereforeentities and individuals which provide similar products or services are definedas in competition with the Company. The parties understand that the scope andnature of my activities and services, and the Company’s business, products orservices, may change as the Company develops. The parties agree that the scopeof this provision will change to cover any changes in my activities orservices, as well as any changes in the Company’s business, products orservices, during my employment.

**7.             NoConflicting Agreement or Obligation.**  I represent that my performance of all theterms of this Agreement and as an employee of the Company does not and will notbreach any agreement or obligation of any kind made prior to my employment bythe Company, including agreements or obligations I may have with prioremployers or entities for which I have provided services.  I have not entered into, and I agree I willnot enter into, any agreement or obligation either written or oral in conflictherewith.

**8.             Returnof Company Documents.**  When I leave the employ of the Company, I will deliver to theCompany any and all drawings, notes, memoranda, specifications, devices,formulas, and documents, together with all copies thereof, and any othermaterial containing or disclosing any Company Inventions, Third PartyInformation or Proprietary Information of the Company.  I further agree that any property situatedon the Company’s premises and owned by the Company, including disks and otherstorage media, filing cabinets or other work areas, is subject to inspection byCompany personnel at any time with or without notice.  Prior to leaving, I will cooperate with the Company in completingand signing the Company’s termination statement.

**9.             Legaland Equitable Remedies.** I recognize that in thecourse of employment with the Company, I will have access to ProprietaryInformation, to Third Party Information, and to employees, consultants,contractors, clients, and customers of the Company.  I also recognize that the services I will be employed to provideare personal and unique.  I understandthat because of this the Company may sustain irreparable injury if I violatethis Agreement. In order to limit or prevent such irreparable injury, theCompany shall have the right to enforce this Agreement and any of itsprovisions by injunction, specific performance or other equitable relief,without bond and without prejudice to any other rights and remedies that theCompany may have for a breach of this Agreement.

**10.          Notices.**  Any notices required or permitted hereundershall be given to the appropriate party at the address specified below or atsuch other address as the party shall specify in writing.  Such notice shall be deemed given uponpersonal delivery to the appropriate address or if sent by certified orregistered mail, three (3) days after the date of mailing.

**11.          Notificationof New Employer.**  In the event that I leave the employ of the Company, I authorizethe Company to provide notice of my rights and obligations under this Agreementto my subsequent employer and to any other entity or person to whom I provideservices.

**12.          GeneralProvisions.**

**12.1    Governing Law; Consent to PersonalJurisdiction.** This Agreement will be governed by and construed according to the lawsof New Hampshire, as such laws are applied to agreements entered into and to beperformed entirely within New Hampshire between New Hampshire residents.  I hereby expressly consent to the personaljurisdiction of the state and federal courts for _____________________ County,New Hampshire in any lawsuit filed there against me by Company arising from orrelated to this Agreement.

**12.2    Severability.**  In case any one or more of the provisions,subsections, or sentences contained in this Agreement shall, for any reason, beheld to be invalid, illegal or unenforceable in any respect, such invalidity,illegality or unenforceability shall not affect the other provisions of thisAgreement, and this Agreement shall be construed as if such invalid, illegal orunenforceable provision had never been contained herein.  Moreover, if any one or 

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more of the provisions contained in thisAgreement shall for any reason be held to be excessively broad as to duration,geographical scope, activity or subject, it shall be construed by limiting andreducing it, so as to be enforceable to the extent compatible with the applicablelaw as it shall then appear.

**12.3    Successors and Assigns.**  This Agreement will be binding upon myheirs, executors, administrators and other legal representatives and will befor the benefit of the Company, its successors, and its assigns.

**12.4    Survival.**  The provisions of this Agreement shallsurvive the termination of my employment and the assignment of this Agreementby the Company to any successor in interest or other assignee.

**12.5    Employment At-Will.**  I agree and understand that I am employedat-will, and that nothing in this Agreement shall change this at-will status orconfer any right with respect to continuation of employment by the Company, norshall it interfere in any way with my right or the Company’s right to terminatemy employment at any time, with or without cause.

**12.6    Waiver.**  No waiver by the Company of any breach ofthis Agreement shall be a waiver of any preceding or succeeding breach.  No waiver by the Company of any right underthis Agreement shall be construed as a waiver of any other right.  The Company shall not be required to givenotice to enforce strict adherence to all terms of this Agreement.

**12.7    Entire Agreement.**  The obligations pursuant to Sections 1 and 2of this Agreement shall apply to any time during which I was previouslyemployed, or am in the future employed, by the Company as a consultant if noother agreement governs nondisclosure and assignment of inventions during suchperiod.  This Agreement is the final,complete and exclusive agreement of the parties with respect to the subjectmatter hereof and supersedes and merges all prior discussions between us andany prior agreement between you and the Company or its predecessor-in-interestwith respect to the subject matter hereof. No modification of or amendment to thisAgreement, nor any waiver of any rights under this Agreement, will be effectiveunless in writing and signed by the party to be charged.  Any subsequent change or changes in myduties, salary or compensation will not affect the validity or scope of thisAgreement.  This Agreement shall bedeemed effective as of the first day of my employment with the Company,namely:  ________, 2001.

**                I have read this agreement carefully and understand its terms.  I have completely filled out Exhibit Ato this Agreement.**
| Dated:             |   |   |
|--------------------|--------|--------|
|               |   |
|               |
| **(Signature)**    |
|               |   |
|               |
| **(Printed Name)** |

** **

**Accepted and Agreed To:**

**First Virtual Communications, Inc.**
| By:       |   |
|-----------|--------|
|      |   |   |
| Title:    |   |
|      |   |
|      |
| (Address) |
|      |   |   |
|      |
|      |
| Dated     |   |

 

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**Exhibit A**

**Previous Inventions**

 

**TO:                  First Virtual Communications, Inc.**
| **FROM:** |   |
|-----------|--------|
|      |   |
| **DATE:** |   |

** **

**SUBJECT:      Previous Inventions**

**1.            **Except aslisted in Section 2 below, the following is a complete list of all inventionsor improvements relevant to the subject matter of my employment by **First Virtual Communications, Inc.** (the “**Company**”)that have been made or conceived or first reduced to practice by me alone orjointly with others prior to my engagement by the Company:

             o         No inventions or improvements.

             o         See below:
|   |   |   |
|--------|--------|--------|
|   |   |   |   |
|   |   |   |
|   |   |   |   |
|   |   |   |

 

o         Additional sheets attached.

**2.            **Due to aprior confidentiality agreement, I cannot complete the disclosure underSection 1 above with respect to inventions or improvements generallylisted below, the proprietary rights and duty of confidentiality with respectto which I owe to the following party(ies):
|   | **Invention or Improvement** |   | **Party(ies)** |   | **Relationship** |
|--------|------------------------------|--------|----------------|--------|------------------|
|   |                         |   |           |   |             |
| **1.** |                         |   |           |   |             |
|   |                         |   |           |   |             |
| **2.** |                         |   |           |   |             |
|   |                         |   |           |   |             |
| **3.** |                         |   |           |   |             |

 

o         Additional sheets attached.

 

10

 

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