**Exhibit10.9**

** **

**AMENDEDAND RESTATED SECURED PROMISSORY NOTE**

 
| $150,000.00 |   | May 14, 2002             |
|-------------|--------|--------------------------|
|        |   | Santa Clara,  California |

 

**RECITAL**

**This Amended and Restated SecuredPromissory Note**dated as of May 14, 2002 (“***Note***”), is entered into by and between **First Virtual Communications, Inc.**,****a Delaware corporation (the “***Lender***”), and **Killko Caballero,** an employee of theLender (the “***Borrower***”).

 

The Lender and the Borrower entered into a promissorynote, dated August 14, 2001, in the original principal amount of TwoHundred Fifty Thousand and No/100 Dollars ($250,000.00) (the “***Original Note***”).  Pursuant to the terms of the Original Note,Borrower paid One Hundred Thousand and No/100 Dollars ($100,000.00) of theprincipal of the Original Note in connection with the sale of certain realproperty owned by Borrower.  The Lenderand the Borrower desire to amend and to restate the Original Note to reflectthis payment by Borrower, in accordance with the terms set forth below.

 

**AGREEMENT**

**1.             ForValue Received**, the Borrower hereby unconditionally promises to pay to the order ofLender, in lawful money of the United States of America and in immediatelyavailable funds, the principal amount of One Hundred Fifty Thousand and No/100Dollars ($150,000.00), interest-free (the ***“Loan”***), due and payable on the dates and in the mannerset forth below.

**2.             Security. **This Secured Promissory Note (the “***Note***”) is secured bythe “Pledged Collateral” identified and described as security therefor in theStock Pledge Agreement (the “***Stock Pledge Agreement***”), dated August 14, 2001,executed by Borrower in favor of Lender.

**3.             PrincipalRepayment.**

**(a)           Maturity Date. **The entire outstanding principal balance of the Loanshall be due and payable immediately in full on the Maturity Date (as definedbelow), which for purposes of this Note, shall be the earliest to occur of:

**(i)           **August 14, 2006;

**(ii)          **Ninety (90) days after either the resignation byBorrower of its employment with Lender, or the termination of Borrower’semployment for Cause (as defined below);

 

----

 

**(iii)        **Immediately upon the insolvency of Borrower,including, but not limited to, a bankruptcy or insolvency proceeding havingbeen instituted by or against Borrower, or a receiver being appointed for theProperty (defined below), or if Borrower makes an assignment for the benefit ofcreditors (collectively, the ***“Maturity Date”***).

**(b)           Cause.**  For purposesof this Note, “*Cause*” shall mean (i) gross negligence or willful misconductin connection with the performance of Borrower’s duties to Lender which in thewritten determination of a majority of the Board of Directors of Lender (the “***Board”***) has not beencured within thirty (30) days following receipt by Borrower of written noticefrom the Board identifying such acts of gross negligence or willful misconduct;(ii) commission of a felony which in the written determination of amajority of the Board has caused material injury to Lender’s business, orintentionally fraudulent or other acts against the Lender, CUseeMe Networks,Inc., a Delaware Corporation (***“CUseeMe”***), or their affiliates, employees, agents orcustomers which demonstrates Borrower’s untrustworthiness or lack of integrity;(iii) dishonesty relating to Lender’s business and intended to result inpersonal enrichment of Borrower or his family at the expense of the Lender;(iv) material breach by Borrower of that certain Employment andNon-Competition Agreement dated March 22, 2001 (the ***“Employment Agreement”***) or of any agreementby and between Borrower and Lender, which material breach has not been curedwithin thirty (30) days following receipt by Borrower of written notice fromthe Board identifying such willful material breach; or (v) Borrowerengaging or in any manner participating in any activity which is directlycompetitive with or intentionally injurious to Lender or CUseeMe or theiraffiliates or which violates any material provision of Section 7 of theEmployment Agreement.

**4.             Payments**. Any payment due hereunder shall be paid to Lender at the address setforth in Section 7 below, or at such other place as Lender may designate.  Any and all amounts payable hereunder willbe due and payable without set-off, deduction, or counter-claim.

**5.             Prepayment.** Borrower may prepay the unpaid principal of this Note in whole or inpart, without penalty, at any time.

**6.             Defaultand Remedies**.

**(a)           Default.** Each of the following events shall be deemed an “***Event of Default***” hereunder:

**(i)           **Borrower fails to pay timely any of the principalamount due under this Note on the date the same becomes due and payable;

**(ii)          **The breach by Borrower of any other covenant oragreement under this Note;

**(iii)        **The default by Borrower of his obligations under theStock Pledge Agreement or any other instrument evidencing or securing thisNote;

1

----

 

**(iv)         **The death of Borrower, but only if Borrower’s personalrepresentative fails to pay all outstanding obligations under this Note withinninety (90) days thereof; or

**(v)           **The appointment of a receiver for any part of theProperty of, or an assignment for the benefit of creditors by, or thecommencement of any proceedings under any bankruptcy or insolvency laws by oragainst Borrower.

**(b)           Remedies.** Upon the occurrence of an Event of Default hereunder, Lender may, withnotice to Borrower, declare the entire principal amount of this Note and anyamounts due thereon due and payable within ninety (90) days of such Event ofDefault, and exercise any and all of the remedies provided under the StockPledge Agreement or at law or in equity.

**7.             Notice.**  All notices or other communications required or given hereundershall be in writing and shall be deemed effectively given when presentedpersonally or on the date of receipt (or refusal of delivery) if sent by overnightcourier service or U.S. Mail (certified or registered, postage prepaid, returnreceipt requested) to the parties at the addresses given below or such otheraddresses as the parties may hereafter designate in writing.  The date shown on the courier’s confirmationof delivery or return receipt shall be conclusive as to the date of receipt.
|   | **Borrower:** |                                | **Killko  Caballero**                   |
|--------|---------------|-------------------------------------|-----------------------------------------|
|   |          | 22451 Citation  Drive               |
|   |          | Los Gatos,  CA  95033          |
|   |          |                                |
|   | **Lender:**   |                                | **First  Virtual Communications, Inc.** |
|   |          | 3393 Octavius  Drive                |
|   |          | Santa Clara,  CA  95054        |
|   |          | Attn:  Chief Financial Officer |

 

 

**8.             Termination of Original Note**. Borrower and Lender hereby agree that the Original Note is terminatedand replaced, in its entirety, by this Note.

**9.             Waiver.** Borrower waives diligence, presentment, protest and demand and alsonotice of protest, demand, dishonor, acceleration, intent to accelerate, andnonpayment of this Note, and shall pay all costs of collection when incurred,including, without limitation, reasonable attorneys’ fees, costs and otherexpenses.  The right to plead any andall statutes of limitations as a defense to any demands hereunder is herebywaived to the full extent permitted by law.

**10.          Non-Transferable.** The right of Borrower to request and receive the Loan hereunder, as wellas the other benefits under this Note, shall not be assignable or otherwisetransferable by Borrower.

 

2

----

 

**11.          Miscellaneous.**

**(a)           Costs. **Borrowershall pay all costs, including, without limitation, reasonable attorneys’ feesand expenses incurred by Lender in collecting the sums due hereunder or inconnection with the release of any security for this Note.

**(b)           Modification. **This Note may be modified only by a written agreementexecuted by Borrower and Lender.

**(c)           Successors and Assigns.** The terms of this Note shall inure to the benefit of and bind Borrowerand Lender and their respective heirs, legal representatives and successors andassigns.

**(d)           Time. **Timeis of the essence with respect to all matters set forth in this Note.

**(e)           Destroyed Note. **If this Note is destroyed, lost or stolen, Borrowerwill deliver a new note to Lender on the same terms and conditions as this Notewith a notation of the unpaid principal in substitution of the prior Note.  Lender shall furnish to Borrower reasonableevidence that the Note was destroyed, lost or stolen and any security orindemnity that may be reasonably required by Borrower in connection with thereplacement of this Note.

**(f)            Severability. **If any provision of this Note shall be held to beinvalid or unenforceable, such determination shall not affect the remainingprovisions of this Note.

**(g)           Joint and Several Liability. **If this Note is now, or hereinafter shall be, signedby more than one party or person, it shall be the joint and several obligationof such parties or persons and shall be binding upon such parties and upontheir respective successors and assigns.

**(h)           Attorney’s Fees. **In the event of any litigation concerning this Note,the Prevailing Party shall be entitled to a reasonable sum for attorneys’ fees,costs, and litigation expenses, whether or not such action is prosecuted tojudgment.  “***Prevailing Party***” shall mean, withoutlimitation, a party who agrees to dismiss an action upon payment by the otherparty of sums allegedly due or performance of the covenants allegedly breached,or who obtains substantially the relief sought by that party.  In the event that Lender is the PrevailingParty, Lender shall also be entitled to reasonable costs associated with the collectionof the Loan.

**12.          GoverningLaw.**  This Note shall be governed by, and construedand enforced in accordance with, the laws of the State of California, excludingconflict of laws principles that would cause the application of laws of anyother jurisdiction.

 

3

----

**In Witness Whereof,** Borrower has executed this Amended andRestated Secured Promissory Note as of the date first above written.
|                    |                                                                       | **BORROWER**:         |
|-------------------------|----------------------------------------------------------------------------|-----------------------|
|                    |                                                                       |                  |
|                    |                                                                       | /s/ Killko  Caballero |
|                    |                                                                       | **Killko  Caballero** |
|                    |                                                                       |                  |
| Accepted and Agreed to: |                                                                       |                  |
|                    |                                                                       |                  |
| **LENDER**:             |                                                                       |                  |
|                    |                                                                       |                  |
| By:                     | /s/ Timothy A. Rogers                                                      |                  |   |
| Name:                   | Timothy A. Rogers                                                          |                  |   |
| Title:                  | Chief Financial  Officer,  Senior Vice President of Finance  and Treasurer |                  |   |

 

 

4

----

 

**STOCK PLEDGE AGREEMENT**

**THIS STOCK PLEDGE AGREEMENT**(the “***Pledge Agreement***”), effective as of August14, 2001, is made by**KILLKO CABALLERO,**an individual, with a residence at 22451Citation Drive, Los Gatos, California 95033 (“***Pledgor***”), in favor of**FIRST VIRTUALCOMMUNICATIONS, INC., INC.,**a Delaware corporation, with itsprincipal place of business at 3393 Octavius Drive, Santa Clara,California  95054 (“***Pledgee***”).

**RECITAL**

**WHEREAS,** Pledgor has concurrently herewithexecuted that certain Secured Promissory Note (the “***Note***”), dated of even date herewith, in favorof Pledgee in the amount of Two Hundred Fifty Thousand and No/100 Dollars($250,000.00); and

**WHEREAS,** Pledgee is willing to accept the Notefrom Pledgor, but only upon the condition, among others, that Pledgor shallhave executed and delivered to Pledgee this Pledge Agreement and the PledgedCollateral (as defined below);

**NOW, THEREFORE,** in consideration of the foregoingrecitals and for other good and valuable consideration, the receipt andadequacy of which are hereby acknowledged, and intending to be legally bound,Pledgor hereby agrees as follows:

**AGREEMENT**

**1.            **As security for the full, prompt and complete paymentand performance when due (whether by stated maturity, by acceleration orotherwise) of all indebtedness of Pledgor to Pledgee created under the Note,together with, without limitation, the prompt payment of all expenses,including, without limitation, reasonable attorneys’ fees and legal expenses,incidental to the collection of the foregoing and the enforcement or protectionof Pledgee’s lien in and to the collateral pledged hereunder (all suchindebtedness being the “***Liabilities***”), Pledgor hereby pledges to Pledgee, andgrants to Pledgee, a first priority security interest in all of the following(collectively, the “***Pledged Collateral***”):

**(a)          **Two Hundred Fifty Thousand (250,000) shares of CommonStock of Pledgee owned by Pledgor (the “***Pledged Shares***”), and all dividends, cash, instrumentsand other property or proceeds from time to time received, receivable orotherwise distributed in respect of or in exchange for any or all of thePledged Shares; and

**(b)          **all voting trust certificates held by Pledgorevidencing the right to vote any Pledged Shares subject to any voting trust,

Pledgor agrees to deliverto Pledgee the stock certificates representing said Pledged Shares along withan executed but otherwise blank Assignment Separate From Certificate in theform attached hereto as Exhibit A.

 

5

----

 

The term “indebtedness”is used herein in its most comprehensive sense and includes any and alladvances, debts, obligations and liabilities heretofore, now or hereafter made,incurred or created, whether voluntary, or involuntary, and whether due or notdue, absolute or contingent, liquidated or unliquidated, determined orundetermined, and whether recovery upon such indebtedness may be or hereafterbecomes unenforceable.

**2.            **Pledgor hereby represents and warrants to Pledgee asfollows:

**(a)          **Pledgor is, at the time of delivery of the PledgedShares to Pledgee hereunder, and at all times which this Pledge Agreement is ineffect shall be, the sole holder of record and the sole beneficial owner of thePledged Collateral, free and clear of any lien thereon or affecting titlethereto, except for the lien created by this Pledge Agreement.

**(b)          **None of the Pledged Shares have been transferred inviolation of securities registration, securities disclosure or similar laws ofany jurisdiction to which such transfer may be subject with respect to whichsuch transfer could have a material adverse effect.

**(c)          **No consent, approval, authorization or other order ofany person and no consent or authorization of any governmental authority orregulatory body is required to be made or obtained by Pledgor either (i) forthe pledge by Pledgor of the Pledged Collateral pursuant to this PledgeAgreement or for the execution, delivery, or performance of this PledgeAgreement by Pledgor; or (ii) for the exercise by Pledgee of the voting orother rights provided for in this Pledge Agreement or the remedies in respectof the Pledged Collateral pursuant to this Pledge Agreement, except as may berequired in connection with such disposition by laws affecting thc offering andsale of securities generally.

**(d)          **The pledge, grant of a security interest in, anddelivery of the Pledged Collateral pursuant to this Pledge Agreement, willcreate a valid first priority lien on and in the collateral pledged by Pledgor,and the proceeds thereof, securing the payment of the Liabilities.

**(e)          **This Pledge Agreement has been duly executed anddelivered by Pledgor and constitutes a legal, valid, and binding obligation ofPledgor enforceable in accordance with its terms, except as enforceability maybe limited by bankruptcy, insolvency, or other similar laws affecting the rightsof creditors generally or by the application of general equity principles.

**(f)           **Pledgor covenants, warrants, and represents to Pledgeethat all representations and warranties contained in this Pledge Agreementshall be true at the time of Pledgor’s execution of this Pledge Agreement, andshall continue to be true until the Liabilities have been paid or otherwisesatisfied in full.

**3.            **Upon prior notice to Pledgor, Pledgee in its name orin the name of its nominee or of Pledgor may, but shall not be obligatedto:  (a) collect by legal proceedings orotherwise all dividends (except cash dividends other than liquidatingdividends), interest, principal payments and other sums now or hereafterpayable upon or on account of said Pledged Collateral; (b) enter into anyextension, reorganization, deposit, merger or consolidation agreement, or anyagreement in any way relating to or affecting the Pledged Collateral, and inconnection therewith may 

 

6

----

 

deposit or surrendercontrol of such Pledged Collateral thereunder, accept other property inexchange for such Pledged Collateral and do and perform such acts and things asit may deem proper, and any money or property received in exchange for suchPledged Collateral shall be applied to the indebtedness or thereafter held byit pursuant to the provisions hereof; (c) insure, process and preserve thePledged Collateral; (d) cause the Pledged Collateral to be transferred to itsname or to the name of its nominee; and (e) exercise as to such PledgedCollateral all the rights, powers and remedies of an owner, except that so longas no “Event of Default” (as defined in the Note), exists under the Note and nodefault exists hereunder Pledgee shall not exercise its rights under subsections(d) and (e) or this paragraph 3 and Pledgor shall retain all voting rights asto the Pledged Shares.

**4.            **Pledgor agrees to pay prior to delinquency all taxes,charges, liens and assessments against the Pledged Collateral, and upon thefailure of Pledgor to do so, Pledgee at its option may pay any of them andshall be the sole judge of the legality or validity thereof and the amountnecessary to discharge the same.

**5.            **Pledgor agrees that Pledgor:

**(a)          **may sell, transfer or otherwise dispose of, or grantan option or warrant with respect to, all or a portion of the PledgedCollateral so long as the proceeds therefrom are used first to pay anyoutstanding Liabilities.  If any PledgedCollateral, or any part thereof, is sold, transferred or otherwise disposed ofas allowed in this Section 5, the security interest of Pledgee shall continuein the Pledged Collateral notwithstanding such sale, transfer or otherdisposition, and the Pledgor will deliver any proceeds thereof to the Pledgeeto be held as Pledged Collateral hereunder;

**(b)          **will not create or permit to exist any lien orencumbrance upon or with respect to any of the Pledged Collateral;

**(c)          **shall, at Pledgor’s own expense, promptly execute,acknowledge, and deliver all such instruments and take all such actions asPledgee from time to time may reasonably request in order to ensure to Pledgeethe benefits of the lien in and to the Pledged Collateral intended to becreated by this Pledge Agreement; and

**(d)          **shall maintain, preserve and defend the title to thePledged Collateral and the lien of Pledgee thereon against the claim of anyother person.

**6.            **At the option of Pledgee and without necessity ofdemand or notice, all or any part of the indebtedness of Pledgor shall becomedue and payable irrespective of any agreed maturity, within ninety (90) days ofthe happening of any of the following events: (a) failure to keep or performany of the terms or provisions of this Pledge Agreement; (b) the occurrence ofan “Event of Default” under the Note; or (c) the levy of any attachment,execution or other process against the Pledged Collateral.

**7.            **All advances, charges, costs and expenses, includingreasonable attorneys’ fees, incurred or paid by Pledgee in connection with an“Event of Default” under the Note or the levy 

 

7

----

 

of any attachment,execution or other process against the Pledged Collateral shall become a partof the indebtedness secured hereunder and shall be paid to Pledgee by theundersigned within ninety (90) days of receipt of Pledgee’s request therefor.

**8.            **In the event of the nonpayment of any indebtednesswithin ninety (90) days of the due date thereof, whether by acceleration orotherwise, or within ninety (90) days of the happening of any of the eventsspecified in Section 6 above, Pledgee may then, or at any time thereafter, atits election, apply, set off, collect or sell in one or more sales, or takesuch steps as may be necessary to liquidate and reduce to cash in the hands ofPledgee in whole or in part, with or without any previous demands or demand ofperformance or notice or advertisement, the whole or any part of the PledgedCollateral in such order as Pledgee may elect, and any such sale may be madeeither at public or private sale at its place of business or elsewhere, or atany broker’s board or securities exchange, either for cash or upon credit orfor future delivery; provided, however, that if such disposition is at privatesale, then the purchase price of the Pledged Collateral shall be equal to thepublic market price then in effect, or, if at the time of sale no public marketfor the Pledged Collateral exists, then, in recognition of the fact that thesale of the Pledged Collateral would have to be registered under the SecuritiesAct of 1933 and that the expenses of such registration are commerciallyunreasonable for the type and amount of collateral pledged hereunder, Pledgeeand Pledgor hereby agree that such private sale shall be at a purchase pricemutually agreed to by Pledgee and Pledgor or, if the parties cannot agree upona purchase price, then at a purchase price established by a majority of threeindependent appraisers knowledgeable of the value of such collateral, one namedby Pledgor within ten (10) days after written request by the Pledgee to do so,one named by Pledgee within such ten (10) day period, and the third named bythe two appraisers so selected, with the appraisal to be rendered by such bodywithin thirty (30) days after the appointment of the third appraiser.  The cost of such appraisal, including allappraisers’ fees, shall be charged against the proceeds of sale as an expenseof such sale.  Pledgee may be thepurchaser of any or all Pledged Collateral so sold and hold the same thereafterin its own right free from any claim of Pledgor or right of redemption.  Demands of performance, notices of sale,advertisements and presence of property at sale are hereby waived, and Pledgeeis hereby authorized to sell hereunder any evidence of debt pledged to it.  Any sale hereunder may be conducted by anyofficer or agent of Pledgee.

**9.            **The proceeds of the sale of any of the PledgedCollateral and all sums received or collected by Pledgee from or on account ofsuch Pledged Collateral shall be applied by Pledgee to the payment of expensesincurred or paid by Pledgee in connection with any sale, transfer or deliveryof the Pledged Collateral, to the payment of any other costs, charges,attorneys’ fees or expenses mentioned herein, and to the payment of theindebtedness or any part hereof, all in such order and manner as Pledgee in itsdiscretion may determine.  Pledgee shallthen pay any balance to Pledgor.

**10.         **Upon the transfer of all or any part of theindebtedness Pledgee may transfer all or any part of the Pledged Collateral andshall be fully discharged thereafter from all liability and responsibility withrespect to such Pledged Collateral so transferred, and the transferee shall bevested with all the rights and powers of Pledgee hereunder with respect to suchPledged 

 

8

----

 

Collateral sotransferred; but with respect to any Pledged Collateral not so transferredPledgee shall retain all rights and powers hereby given.

**11.         **Until all indebtedness shall have been paid in fullthe power of sale and all other rights, powers and remedies granted to Pledgeehereunder shall continue to exist and may be exercised by Pledgee at any timeand from time to time irrespective of the fact that the indebtedness or anypart thereof may have become barred by any statute of limitations, or that thepersonal liability of Pledgor may have ceased.

**12.         **Pledgee may at any time deliver the Pledged Collateralor any part thereof to Pledgor and the receipt thereof by Pledgor shall be acomplete and full acquittance for the Pledged Collateral so delivered, andPledgee shall thereafter be discharged from any liability or responsibilitytherefor.

**13.         **The rights, powers and remedies given to Pledgee bythis Pledge Agreement shall be in addition to all rights, powers and remediesgiven to Pledgee by virtue of any statute or rule of law.  Any forbearance, failure or delay by Pledgeein exercising any right, power or remedy hereunder shall not be deemed to be awaiver of such right, power or remedy, and any single or partial exercise ofany right, power or remedy hereunder shall not preclude the further exercisethereof, and every right, power and remedy of Pledgee shall continue in fullforce and effect until such right, power or remedy is specifically waived by aninstrument in writing executed by Pledgee.

**14.         **If any provision of this Pledge Agreement is held tobe unenforceable for any reason, it shall be adjusted, if possible, rather thanvoided in order to achieve the intent of the parties to the extentpossible.  In any event, all otherprovisions of this Pledge Agreement shall be deemed valid and enforceable tothe full extent possible.

**15.         **This Pledge Agreement shall be governed by, andconstrued in accordance with, the laws of the State of California as applied tocontracts made and performed entirely within the State of California byresidents of such State.

**16.         **All notices or other communications required or givenhereunder shall be in writing and shall be deemed effectively given whenpresented personally or on the date of receipt (or refusal of delivery) if sentby overnight courier service or U.S. Mail (certified or registered, postageprepaid, return receipt requested) to the parties at the addresses given belowor such other addresses as the parties may hereafter designate in writing.  The date shown on the courier’s confirmationof delivery or return receipt shall be conclusive as to the date of receipt.
| **Borrower:** | **KILLKO  CABALLERO**     |   |   |
|---------------|---------------------------|--------|--------|
|          | 22451  Citation Drive     |   |   |
|          | Los Gatos, CA  95033 |   |   |

 

 

9

----

 
| **Lender:** | **FIRST  VIRTUAL COMMUNICATIONS, INC.** |   |   |
|-------------|-----------------------------------------|--------|--------|
|        | 3393 Octavius  Drive                    |   |   |
|        | Santa Clara,  CA  95054            |   |   |
|        | Attn:  Chief Financial Officer     |   |   |

 

**17.         ***Exhibit A*is attachedhereto and incorporated herein by this reference.

**IN WITNESS WHEREOF,** Pledgor has executed this PledgeAgreement effective as of the date and year first above written.
|   |   |   |   |                 |   |   |
|--------|--------|--------|--------|----------------------|--------|--------|
|   |   |   |   | **PLEDGOR**:         |   |   |
|   |   |   |   |                 |   |   |
|   |   |   |   | /s/ Kilko Caballero  |   |   |
|   |   |   |   | **KILLKO CABALLERO** |   |   |

 

10

----

 

**Exhibit A**

 

**ASSIGNMENTSEPARATE FROM CERTIFICATE**

 

 

**                KILLKO CABALLERO**hereby sells, assigns and transfersunto                                                      atotal of                           (       ) shares ofthe                    stock of **FIRST VIRTUAL COMMUNICATIONS, INC.,**standingin the undersigned’s name on the books of said corporation represented byCertificateNos.              delivered herewith and does hereby irrevocably constitute and appoint                            to transfer said stock on the books of said corporation with full power ofsubstitution.

 
| Dated: |   |   |                 |
|--------|--------|--------|----------------------|
|   |   |   |                 |
|   |   |   | **KILLKO CABALLERO** |

 

11

----