**Exhibit 10.5**

 

**RELEASE AND WAIVER OF CLAIMS**

 

**I**,**JAMES GRIFFIN**, hereby furnish **FIRST VIRTUALCOMMUNICATIONS, INC.** (the “Company”), with the following release andwaiver (“Release and Waiver”) in consideration of the following severancebenefits, as provided in the Letter regarding Additional Employment Terms (the“Letter”) between me and the Company dated September 28, 2000: (i) severancepayments in the form of continuation of my base salary, less standarddeductions and withholdings, for a period of six months following my last dayof employment; and (ii) in the event I elect continued health insurancecoverage under COBRA, the Company will reimburse me for the same portion of myCOBRA health insurance premium that it paid during my employment up until the earlierof either (a) six months following my last day of employment or (b) thedate on which I become eligible to receive medical benefits from anothercompany or business entity (“Severance Benefits”).  I understand and agree that I am not entitled to any bonuspayment as part of the Severance Benefits because there is no “Target Bonus ineffect on the date of termination,” as provided in the Letter.  However, as further consideration for thisRelease and Waiver, the Company has agreed to pay me an additional sum equal totwenty one thousand, two hundred fifty dollars and no cents ($21,250.00),subject to standard deductions and withholdings. This will be paid out in equalinstallments through the severance period, beginning the next regular payrollfollowing the Effective Date of this Release and Waiver along with thescheduled severance payment described above.

 

In exchange forthe Severance Benefits provided to me by the Company that I am not otherwiseentitled to receive, I hereby generally and completely release the Company andits directors, officers, employees, shareholders, partners, agents, attorneys,predecessors, successors, parent and subsidiary entities, insurers, Affiliates,and assigns from any and all claims, liabilities and obligations, both knownand unknown, that arise out of or are in any way related to events, acts,conduct, or omissions occurring prior to my signing this Release andWaiver.  This general release includes,but is not limited to: (1) all claims arising out of or in any way related tomy employment with the Company or the termination of that employment; (2) allclaims related to my compensation or benefits from the Company, includingsalary, bonuses, commissions, vacation pay, expense reimbursements, severancepay, fringe benefits, stock, stock options, or any other ownership interests inthe Company; (3) all claims for breach of contract, wrongful termination,and breach of the implied covenant of good faith and fair dealing; (4) alltort claims, including claims for fraud, defamation, emotional distress, anddischarge in violation of public policy; and (5) all federal, state, and localstatutory claims, including claims for discrimination, harassment, retaliation,attorneys’ fees, or other claims arising under the federal Civil Rights Act of1964 (as amended), the federal Americans with Disabilities Act of 1990, thefederal Age Discrimination in Employment Act of 1967 (as amended) (“ADEA”), andthe California Fair Employment and Housing Act (as amended).

 

I also acknowledgethat I have read and understand Section 1542 of the California Civil Code whichreads as follows:  “**A general release does not extend toclaims which the creditor does not know or suspect to exist in his favor at thetime of executing the release, which if known by him must have materiallyaffected his settlement with the debtor.**”****I 

 

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hereby expressly waive and relinquish all rights and benefits underthat section and any law of any jurisdiction of similar effect with respect toany claims I may have against the Company.

 

I acknowledgethat, among other rights, I am waiving and releasing any rights I may haveunder ADEA, that this Release and Waiver is knowing and voluntary, and that theconsideration given for this Release and Waiver is in addition to anything ofvalue to which I was already entitled as an executive of the Company.  I further acknowledge that I have beenadvised, as required by the Older Workers Benefit Protection Act, that:  (a) the Release and Waiver granted hereindoes not relate to claims which may arise after this Release and Waiver isexecuted; (b) I have the right to consult with an attorney prior to executingthis Release and Waiver (although I may choose voluntarily not to do so); andif I am over 40 years of age upon execution of this Release and Waiver: (c) Ihave twenty-one (21) days from the date of termination of my employment withthe Company in which to consider this Release and Waiver (although I may choosevoluntarily to execute this Release and Waiver earlier); (d) I have seven (7)days following the execution of this Release and Waiver to revoke my consent tothis Release and Waiver; and (e) this Release and Waiver shall not be effectiveuntil the seven (7) day revocation period has expired (“Effective Date”).

 

I acknowledge my continuing obligations under myProprietary Information and Inventions Agreement with the Company, a copy ofwhich is attached hereto as Exhibit A. Pursuant to the Proprietary Information and Inventions Agreement Iunderstand that among other things, I must not use or disclose any confidentialor proprietary information of the Company and I must immediately return allCompany property and documents (including all embodiments of proprietaryinformation) and all copies thereof in my possession or control.Notwithstanding this provision, I will be permitted to keep the notebookpersonal computer that was provided for my use by the Company.

 

This Release and Waiver constitutes the complete, final and exclusiveembodiment of the entire agreement between the Company and me with regard tothe subject matter hereof.  I am notrelying on any promise or representation by the Company that is not expresslystated in this Release and Waiver.  ThisRelease and Waiver may only be modified by a writing signed by both me and aduly authorized officer of the Company.

 
| Date: March 12, 2002 | By:    | /s/ James Griffin |
|----------------------|--------|-------------------|
|                 |   | **JAMES GRIFFIN** |
|                      |        |                   |  |

 

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