**EXHIBIT10.3**

 

January 2, 2002

 

Randy Acres

163 Altura Vista

Los Gatos, CA 95030

 

Dear Randy:

 

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.             RESIGNATION. **The Company acceptsyour resignation as Vice President, Finance and Chief Financial Officer of theCompany as of January 2, 2002 (the “Separation Date”).

 

**2.             ACCRUEDSALARY AND VACATION. **Youagree and acknowledge that the Company has paid you all accrued salary, and allaccrued and unused vacation benefits earned through the Separation Date, ifany, subject to standard payroll deductions, withholding taxes and otherobligations.  You are entitled to thispayment regardless of whether or not you sign this Agreement.

 

**3.             EXPENSEREIMBURSEMENT**.  Within ten (10) business days of theEffective Date, you agree that you will submit your final documented expensereimbursement statement reflecting all business expenses you incurred prior toand including the Separation Date, if any, for which you seek reimbursement.  The Company shall reimburse your expensespursuant to Company policy and regular business practice.

 

**4.             SEVERANCE. **Although the Company hasno policy or procedure for providing severance benefits, in exchange for thepromises and covenants set forth herein, the Company agrees to make severancepayments to you in the form of continuation of your base salary in effect onthe Separation Date for a period of twelve (12) weeks following the EffectiveDate of this Agreement.  These paymentswill be made on the Company’s ordinary payroll dates, and will be subject tostandard payroll deductions and withholdings. In addition the Company agreesthat you may have your existing IBM ThinkPad computer and Nokia mobiletelephone.

 

**5.             INSURANCEBENEFITS. **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 afterMarch 31, 2002.  Later, you may beable to convert to an individual policy through the provider of the Company’shealth insurance, if you wish.  You willbe provided with a separate notice of your COBRA rights.

 

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**6.             DEBT  RE-PAYMENT SCHEDULE.** Pursuant to two Secured Promissory Notes datedMay 31, 2000 and November 10, 2000 (the “Promissory Notes”), the Company hasloaned you the total sum of $300,000 in connection with your purchase of thereal property located at 163 Altura Vista, Los Gatos, California (the“Property”).  The Promissory Notes are securedby that property.  Accordingly, uponyour execution of this Agreement, you acknowledge and re-affirm your obligationto re-pay $300,000 and the fact that this loan is secured by the Property.  In exchange for the consideration describedin this agreement you agree that paragraph 2 of the Promissory Notes is herebyamended to provide for the following re-payment terms, and that you will re-paythe note according to the following schedule: payment of all sums due under thecapital Promissory capital notes on or before June 30, 2002.  All other terms of the Promissory Notesshall remain in full force and effect. In the event you sell the Property, the entire outstanding balance shallbe due and payable immediately.

 

**7.             OTHERCOMPENSATION AND BENEFITS.**  Except as expressly provided herein, you acknowledge and agreethat you are 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.             TRANSITIONSERVICES.**  Inexchange for the consideration provided herein, you agree that for a period oftwo weeks, through close of business January 16, 2002, you will be on call andavailable at the Company’s reasonable request to provide transition services inthe form of status reports, information, and other reasonable servicesregarding pending projects and issues.

 

**9.             COMPANYPROPERTY. **Uponthe Separation Date, you agree to return to the Company all Company documents(and all copies thereof) and other Company property in your possession or yourcontrol, 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 notlimited to, cellular phones, computers, credit cards, entry cards, keys and anyother materials 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.

 

**10.          PROPRIETARYINFORMATION OBLIGATIONS. **Youacknowledge your continuing obligations under your Proprietary Information andInventions Agreement, a copy of which is attached hereto as Exhibit A.

 

**11.          NON-DISPARAGEMENT. **You agree that you willnot at any time disparage the Company, or its officers, directors, employees,shareholders and agents, in any manner likely to be harmful to them or theirbusiness, business reputation or personal reputation; provided that you shallrespond accurately and fully to any questions, inquiry or request forinformation when required by legal process.

 

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**12.          CONFIDENTIALITYAND PUBLICITY. **Theprovisions of this Agreement shall be held in strictest confidence by you andthe Company and shall not be publicized or disclosed in any manner whatsoever;provided, however, that: (a) you may disclose this Agreement, in confidence, toyour immediate family; (b) the parties may disclose this Agreement inconfidence to their respective attorneys, accountants, auditors, tax preparers,and financial advisors; (c) the Company may disclose this Agreement asnecessary to fulfill standard or legally required corporate reporting ordisclosure requirements; and (d) the parties may disclose this Agreementinsofar as such disclosure may be necessary to enforce its terms or asotherwise required by law.

 

**13.          RELEASEOF CLAIMS. **Inexchange for the consideration provided to you by this Agreement that you arenot otherwise entitled to receive, you hereby generally and completely releasethe Company and its 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 known and unknown, that arise out of or are in any way related to events,acts, conduct, or omissions occurring prior to your signing thisAgreement.  This general releaseincludes, but is not limited to: (1) all claims arising out of or in any wayrelated to your employment with the Company or the termination of thatemployment; (2) all claims related to your compensation or benefits from theCompany, including salary, bonuses, commissions, vacation pay, expensereimbursements, severance pay, fringe benefits, stock, stock options, or anyother ownership interests in the Company; (3) all claims for breach ofcontract, wrongful termination, and breach of the implied covenant of goodfaith and fair dealing; (4) all tort claims, including claims for fraud,defamation, emotional distress, and discharge in violation of public policy;and (5) all federal, state, and local statutory claims, including but notlimited 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).

 

**14.          SECTION1542 WAIVER. **Ingiving this release, which includes claims which may be unknown to you atpresent, you hereby acknowledge that you have read and understand Section 1542of the Civil Code of the State of California which reads as follows:

** **

**A general release does not extend to claims which thecreditor does not know or suspect to exist in his favor at the time ofexecuting the release, which if known by him must have materially affected hissettlement 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.          NOADMISSIONS. **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.

 

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**16.          ENTIREAGREEMENT. **ThisAgreement, including Exhibit A, constitutes the complete, final and exclusiveembodiment of the entire Agreement between you and the Company with regard tothe subject matter hereof.  It isentered into without reliance on any promise or representation, written ororal, other than those expressly contained herein.  It may not be modified except in a writing signed by you and aduly authorized officer of the Company. Each party has carefully read this Agreement, has been afforded theopportunity to be advised of its meaning and consequences by his or itsrespective attorneys, and signed the same of his or its free will.

 

**17.          SUCCESSORSAND ASSIGNS.** This Agreement shall bind the heirs, personal representatives,successors, assigns, executors, and administrators of each party, and inure tothe benefit of each party, its agents, directors, officers, employees,servants, heirs, successors and assigns.

 

**18.          APPLICABLELAW.**  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.**  In theevent 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 entitled to receive hisor its damages, court costs, and all out-of-pocket expenses, includingattorneys’ fees.  Such recovery shallinclude court costs, out-of-pocket expenses, and attorneys’ fees on appeal, ifany.

 

**20.          SEVERABILITY. **If a court of competentjurisdiction determines that any term or provision of this Agreement is invalidor unenforceable, in whole or in part, then the remaining terms and provisionshereof shall be unimpaired.  Such courtwill have the authority to modify or replace the invalid or unenforceable termor provision with a valid and enforceable term or provision that mostaccurately represents the parties’ intention with respect to the invalid orunenforceable term or provision.

 

**21.          INDEMNIFICATION.**  Each party will indemnify and save harmlesseach other party hereto from any loss incurred directly or indirectly by reasonof the falsity or inaccuracy of any representation made herein.

 

**22.          AUTHORIZATION.**  Each party warrants and represents thatthere are no liens or claims of lien or assignments in law or equity orotherwise of or against any of the claims or causes of action released hereinand, further, that you are fully entitled and duly authorized to give yourcomplete and final general release and discharge.

 

**23.          COUNTERPARTS.**  This Agreement may be executed in twocounterparts, each of which shall be deemed an original, all of which togethershall constitute one and the same instrument.

 

**24.          SECTIONHEADINGS.**  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.

 

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[Intentionally LeftBlank]

 

Please confirm your assent to the foregoing terms and conditions of ourAgreement by signing and returning a copy of this letter to me on or beforeJanuary 8, 2002.

 

Sincerely,

 

**FIRST VIRTUAL COMMUNICATIONS, INC.**

 

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

 

Attachments:

Exhibit A — Proprietary Information 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: January 2, 2002 | /s/ Randy Acres |   |
|------------------------|-----------------|--------|
|                   | **RANDY ACRES** |

 

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**EXHIBIT A**

**PROPRIETARY INFORMATION ANDINVENTIONS AGREEMENT**

 

**FIRST VIRTUAL COMMUNICATIONS, INC.**

 

**EMPLOYEEPROPRIETARY INFORMATION,**

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

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

**1.             Nondisclosure.**

**1.1      Recognitionof 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 criminalpenalties.

**1.2      ProprietaryInformation.**  The term“**ProprietaryInformation**” shall mean any and all confidential and/or proprietaryknowledge, data or information of the Company. By way of illustration but not limitation, “**Proprietary Information**”includes (a) trade secrets, inventions, mask works, ideas, processes,formulas, source and object codes, data, programs, other works of authorship,know-how, improvements, discoveries, developments, designs and techniques(hereinafter collectively referred to as “**Inventions**”); and (b) informationregarding plans for research, development, new products, marketing and selling,business plans, budgets and unpublished financial statements, licenses, pricesand costs, suppliers and customers; and (c) information regarding the skillsand compensation of other employees of the Company. Notwithstanding theforegoing, it is understood that, subject to the restrictions set forth inSections 5 or 6 herein, at all such times, I am free to use informationwhich is generally known in the trade or industry, which is not gained asresult of a breach of this Agreement, and my own, skill, knowledge, know-howand experience to whatever extent and in whichever way I wish.

**1.3      ThirdParty Information.**  Iunderstand, in addition, that the Company has received and in the future willreceive from third parties confidential or proprietary information (“**Third PartyInformation**”) subject to a duty on the Company’s part to maintainthe confidentiality of such information and to use it only for certain limitedpurposes.  During the term of myemployment and thereafter, I will hold Third Party Information in the strictestconfidence and will not disclose to anyone (other than Company personnel whoneed to know such information in connection with their work for the Company) oruse, except in connection with my work for the Company, Third Party Informationunless expressly authorized by an officer of the Company in writing.

**1.4      NoImproper Use of Information of Prior Employers and Others.**  During my employment by the Company I willnot improperly use or disclose any confidential information or trade secrets,if any, of any former employer or any other person to whom I have an obligationof confidentiality, and I will not bring onto the premises of the Company anyunpublished documents or any property belonging to any former employer or anyother person to whom I have an obligation of confidentiality unless consentedto in writing by that former employer or person.  It is understood that the foregoing restriction does not apply toCUseeMe Networks (the Company’s predecessor-in-interest).  I will use in the performance of my dutiesonly information which is generally known and used by persons with training andexperience comparable to my own, which is common knowledge in the industry orotherwise legally in the public domain, or which is otherwise provided ordeveloped by the Company or its predecessor-in-interest.

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**2.             Assignment of Inventions.**

**2.1      ProprietaryRights.**  The term “**ProprietaryRights**” shall mean all trade secret, patent, copyright, mask workand other intellectual property rights or “moral rights” throughout theworld.  “Moral rights” refers to anyrights to claim authorship of an Invention or to object to or prevent themodification of any Invention, or to withdraw from circulation or control thepublication or distribution of any Invention, and any similar right, existingunder judicial or statutory law of any country in the world, or under anytreaty, regardless of whether or not such right is denominated or generallyreferred to as a “moral right.”

**2.2      PriorInventions.** Inventions, if any, patented or unpatented, which I made prior to thecommencement of my employment with the Company are excluded from the scope ofthis Agreement.  To preclude anypossible uncertainty, I have set forth on *Exhibit A*(Previous Inventions)attached hereto a complete list of all Inventions that I have, alone or jointlywith others, conceived, developed or reduced to practice or caused to beconceived, developed or reduced to practice prior to the commencement of myemployment with the Company, that I consider to be my property or the propertyof third parties and that I wish to have excluded from the scope of thisAgreement (collectively referred to as “**Prior Inventions**”).  If disclosure of any such Prior Inventionwould cause me to violate any prior confidentiality agreement, I understandthat I am not to list such Prior Inventions in *Exhibit A* but am onlyto disclose a cursory name for each such invention, a listing of the party(ies)to whom it belongs and the fact that full disclosure as to such inventions hasnot been made for that reason. A space is provided on *Exhibit A* for suchpurpose.  If no such disclosure isattached, 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 tosublicense through multiple tiers of sublicensees) to make, have made, modify,use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, orpermit to be incorporated, Prior Inventions in any Company Inventions withoutthe Company’s prior written consent.

**2.3      Assignmentof Inventions.** Subject to Sections 2.4, and 2.6, I hereby assign and agree to assign inthe future (when any such Inventions or Proprietary Rights are first reduced topractice or first fixed in a tangible medium, as applicable) to the Company allmy right, title and interest in and to any and all Inventions (and allProprietary Rights with respect thereto) whether or not patentable orregistrable under copyright or similar statutes, made or conceived or reducedto practice or learned by me, either alone or jointly with others, during theperiod of my employment with the Company. Inventions assigned to the Company, or to a third party as directed bythe Company pursuant to this Section 2, are hereinafter referred to as “**CompanyInventions**.”

**2.4      UnassignedInventions.**  Irecognize that this Agreement will not be deemed to require assignment of anyinvention that was developed entirely on my own time without using theCompany’s equipment, supplies, facilities, or trade secrets and neither relatedto the Company’s actual or anticipated business, research or development, norresulted from work performed by me for the Company.

**2.5      Obligationto Keep Company Informed.** During the period of my employment and for six (6) months aftertermination of my employment with the Company, I will promptly disclose to theCompany fully and in writing all Inventions authored, conceived or reduced topractice by me, either alone or jointly with others.  In addition, I will promptly disclose to the Company all patentapplications filed by me or on my behalf within a year after termination ofemployment.  The Company will keep inconfidence and will not use for any purpose or disclose to third partieswithout my consent any confidential information disclosed in writing to theCompany pursuant to this Agreement.

**2.6      Governmentor Third Party.**  Ialso agree to assign all my right, title and interest in and to any particularCompany Invention to a third party, including without limitation the UnitedStates, as directed by the Company.

**2.7      Worksfor Hire.**  Iacknowledge that all original works of authorship which are made by me (solelyor jointly with others) within the scope of my employment and which areprotectable by copyright are “works made for hire,” pursuant to 

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

**2.8      Enforcementof Proprietary Rights.** I will assist the Company in every proper way to obtain, and from timeto time enforce, United States and foreign Proprietary Rights relating toCompany Inventions in any and all countries. To that end I will execute, verify and deliver such documents andperform such other acts (including appearances as a witness) as the Company mayreasonably request for use in applying for, obtaining, perfecting, evidencing,sustaining and enforcing such Proprietary Rights and the assignmentthereof.  In addition, I will execute,verify and deliver assignments of such Proprietary Rights to the Company or itsdesignee.  My obligation to assist theCompany with respect to Proprietary Rights relating to such Company Inventionsin any and all countries shall continue beyond the termination of my employment,but the Company shall compensate me at a reasonable rate after my terminationfor the time actually spent by me at the Company’s request on such assistance.

In the event theCompany is unable for any reason, after reasonable effort, to secure mysignature on any document needed in connection with the actions specified inthe preceding paragraph, I hereby irrevocably designate and appoint the Companyand its duly authorized officers and agents as my agent and attorney in fact,which appointment is coupled with an interest, to act for and in my behalf toexecute, verify and file any such documents and to do all other lawfullypermitted acts to further the purposes of the preceding paragraph with the samelegal force and effect as if executed by me. I hereby waive and quitclaim to the Company any and all claims, of anynature whatsoever, which I now or may hereafter have for infringement of anyProprietary Rights assigned hereunder to the Company.

**3.                        Records. **I agree to keep and maintain adequate andcurrent records (in the form of notes, sketches, drawings and in any other formthat may be required by the Company) of all Proprietary Information developedby me and all Inventions made by me during the period of my employment at theCompany, which records shall be available to and remain the sole property ofthe Company at all times.

**4.             Duty of 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.             No Solicitation of Employees, Consultants,Contractors or Customers.** I agree that for the periodof my employment by the Company and for one (1) year after the date myemployment by the Company ends for any reason, including but not limited tovoluntary termination by me or involuntary termination by the Company, I willnot, either directly or through others, (i) solicit or attempt to solicitany employee of the Company to end his or her relationship with the Company;and (ii) solicit any consultant, contractor, or customer of the Company, withwhom I had contact or whose identity I learned as a result of my employmentwith the Company to diminish or materially alter his, her or its relationshipwith the Company.

                The parties agree that forpurposes of this Agreement, a customer is any person or entity to which theCompany has provided goods or services at any time during the period commencingsix (6) months prior to my employment with the Company and ending on the datemy employment with the Company ends.

**6.             Non-Compete Provision.**  I agree that for the period of my employmentwith the Company, and for the period of one (1) year after the later of (1) thedate my employment ends for any reason, including but not limited to voluntarytermination by me or involuntary termination by the Company; or (2) the date acourt of competent jurisdiction enters an order enforcing this provision, Iwill not provide services, similar to those I provided to the Company, to anyperson or entity in competition (as defined below) with the Company within****any state,province, or similar political unit in which the Company has or solicitsemployees, consultants, contractors, or customers; or provides or solicitsproducts or services.  The partiesacknowledge that the Company provides or solicits products and services, andhas or solicits employees, consultants, contractors and customers, through theInternet and wireless technology, and that the scope of this provision istherefore co-extensive with the scope of the Company’s business through theInternet and wireless technology.  Theparties agree that the geographic scope of the noncompete is reasonable inlight of the geographically broad scope of doing business through 

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the Internet and wireless technology. I acknowledge that this non-compete provision is limited to the types ofactivities and services I provided in my employment with the Company.

Atthe present time, the Company engages in the business****of providingbroad band video networking for the Internet. The Company’s products enable end-to-end video in a wide range of roomand desktop environments.  The Companydesigns, manufactures and supports a complete video networking product familythat includes Internet access devices, adapters, gateways and video storageservers and therefore entities and individuals which provide similar productsor services are defined as in competition with the Company. The partiesunderstand that the scope and nature of my activities and services, and theCompany’s business, products or services, may change as the Company develops.The parties agree that the scope of this provision will change to cover anychanges in my activities or services, as well as any changes in the Company’sbusiness, products or services, during my employment.

**7.             No Conflicting 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.             Return of Company Documents.**  When I leave the employ of the Company, Iwill deliver to the Company any and all drawings, notes, memoranda,specifications, devices, formulas, and documents, together with all copiesthereof, and any other material containing or disclosing any CompanyInventions, Third Party Information or Proprietary Information of theCompany.  I further agree that anyproperty situated on the Company’s premises and owned by the Company, includingdisks and other storage media, filing cabinets or other work areas, is subjectto inspection by Company personnel at any time with or without notice.  Prior to leaving, I will cooperate with theCompany in completing and signing the Company’s termination statement.

**9.             Legal and Equitable Remedies.**I recognize that in the course of employment with the Company, I will haveaccess to Proprietary Information, to Third Party Information, and toemployees, consultants, contractors, clients, and customers of theCompany.  I also recognize that theservices I will be employed to provide are personal and unique.  I understand that because of this theCompany may sustain irreparable injury if I violate this Agreement. In order tolimit or prevent such irreparable injury, the Company shall have the right toenforce this Agreement and any of its provisions by injunction, specificperformance or other equitable relief, without bond and without prejudice toany other rights and remedies that the Company may have for a breach of thisAgreement.

**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.          Notification of New Employer.**  In the event that I leave the employ of theCompany, I authorize the Company to provide notice of my rights and obligationsunder this Agreement to my subsequent employer and to any other entity orperson to whom I provide services.

**12.          General Provisions.**

**12.1    GoverningLaw; Consent to Personal Jurisdiction.**  This Agreement will be governed by andconstrued according to the laws of New Hampshire, as such laws are applied toagreements entered into and to be performed entirely within New Hampshirebetween New Hampshire residents.  Ihereby expressly consent to the personal jurisdiction of the state and federalcourts for _____________________ County, New Hampshire in any lawsuit filedthere against me by Company arising from or related 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 this Agreement,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 theprovisions contained in this Agreement shall for any reason be held to beexcessively broad as to duration, geographical scope, activity or subject, itshall be construed by limiting and reducing it, so as to be enforceable to theextent compatible with the applicable law as it shall then appear.

**12.3    Successorsand Assigns.**  ThisAgreement will be binding upon my heirs, executors, administrators and otherlegal representatives and will be for the benefit of the Company, itssuccessors, 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    EmploymentAt-Will.**  I agree andunderstand that I am employed at-will, and that nothing in this Agreement shallchange this at-will status or confer any right with respect to continuation ofemployment by the Company, nor shall it interfere in any way with my right orthe Company’s right to terminate my employment at any time, with or withoutcause.

**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    EntireAgreement.**  Theobligations pursuant to Sections 1 and 2 of this Agreement shall apply to anytime during which I was previously employed, or am in the future employed, bythe Company as a consultant if no other agreement governs nondisclosure andassignment of inventions during such period. This Agreement is the final, complete and exclusive agreement of theparties with respect to the subject matter hereof and supersedes and merges allprior discussions between us and any prior agreement between you and theCompany or its predecessor-in-interest with respect to the subject matterhereof. No modification of or amendment to this Agreement, nor any waiver ofany rights under this Agreement, will be effective unless in writing and signedby the party to be charged.  Anysubsequent change or changes in my duties, salary or compensation will notaffect the validity or scope of this Agreement.  This Agreement shall be deemed effective as of the first day ofmy employment with the Company, namely: ________, 2001.

**                I have read this agreementcarefully and understand its terms.  Ihave completely filled out Exhibit A to this Agreement.**
| Dated:             |   |   |
|--------------------|--------|--------|
|               |   |
|               |
| **(Signature)**    |
|               |   |
|               |
| **(Printed Name)** |

** **

**Accepted andAgreed To:**

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

 

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**Exhibit A**

**PreviousInventions**

 

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

** **

**SUBJECT:      Previous Inventions**

**1.            **Except as listed in Section 2 below, thefollowing is a complete list of all inventions or improvements relevant to thesubject matter of my employment by **First Virtual Communications,Inc.** (the “**Company**”) that have been made or conceivedor first reduced to practice by me alone or jointly with others prior to myengagement by the Company:

             o         No inventions or improvements.

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

 

o         Additional sheets attached.

**2.            **Due to a prior confidentiality agreement,I cannot complete the disclosure under Section 1 above with respect toinventions or improvements generally listed below, the proprietary rights andduty of confidentiality with respect to which I owe to the followingparty(ies):
|   | **Invention or Improvement** |   | **Party(ies)** |   | **Relationship** |
|--------|------------------------------|--------|----------------|--------|------------------|
|   |                         |   |           |   |             |
| **1.** |                         |   |           |   |             |
|   |                         |   |           |   |             |
| **2.** |                         |   |           |   |             |
|   |                         |   |           |   |             |
| **3.** |                         |   |           |   |             |

 

o         Additional sheets attached.

 

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