Agreement Regarding Termination of Executive Retention Agreement and Offer Letter Among CUseeMe Networks, Inc., First Virtual Communications, Inc., and Jeff Krampf

Summary

This agreement is between CUseeMe Networks, Inc., First Virtual Communications, Inc., and Jeff Krampf. It terminates Mr. Krampf’s prior executive agreements in connection with a merger, in exchange for new stock options and participation in a change of control plan. If Mr. Krampf is terminated without cause within 12 months after the merger, he is entitled to certain benefits. The agreement also clarifies his at-will employment status and outlines severance and benefits if he is terminated without cause.

EX-10.45 7 a2044985zex-10_45.txt EXHIBIT 10.45 EXHIBIT 10.45 AGREEMENT WHEREAS, CUseeMe Networks, Inc., a Delaware corporation (the "Company") and Jeff Krampf (the "Executive") are parties to that certain Executive Retention Agreement, dated as of December 1, 2000 (the "Executive Retention Agreement") and that certain offer letter, dated July 14, 1998 (the "Offer Letter"); WHEREAS, the Company is a party to that certain Agreement and Plan of Merger and Reorganization, dated as of March 22, 2001 (the "Merger Agreement"), between the Company, First Virtual Communications, Inc., a Delaware corporation ("FVC"), and FVC Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of FVC; WHEREAS, as an inducement to FVC to enter into the Merger Agreement and to consummate the transactions contemplated thereby, the Executive agrees to terminate the Executive Retention Agreement and the Offer Letter effective immediately prior to the consummation of the merger contemplated by the Merger Agreement; WHEREAS, in consideration for the Executive's termination of the Executive Retention Agreement and the Offer Letter, the Company will grant to the Executive options to purchase 150,000 shares of common stock, par value $0.01, of the Company ("Company Common Stock") pursuant to the Company's 1996 Incentive and Nonqualified Stock Option Plan; and WHEREAS, the Executive has been granted and as of the date hereof holds options to purchase Company Common Stock (the "Existing Options") which are subject to certain vesting provisions as set forth in the option plans and option agreements governing the terms of such Existing Options. NOW, THEREFORE, intending to be legally bound, the parties agree as follows: 1. The parties agree that each of the Executive Retention Agreement and the Offer Letter shall terminate (without any liability or obligation to the parties thereof) and shall be of no further force or effect, effective as of immediately prior to the Effective Time (as defined in the Merger Agreement) and this Agreement (along with the exhibit attached hereto) shall govern Executive's relationship with the Company and FVC; PROVIDED HOWEVER, that in the event Executive's employment is terminated by FVC without Cause (as defined in the Executive Retention Agreement) within 12 months after the date of the Effective Time, then Executive shall be entitled to the benefits afforded by Sections 4.1 (with respect solely to the Existing Options) and 4.2 of the Executive Retention Agreement, subject in all respects to the terms and conditions of such Sections 4.1 and 4.2. 2. The parties agree that, notwithstanding anything to the contrary contained in the Executive Retention Agreement or the Offer Letter, upon termination of each of the Executive Retention Agreement and the Offer Letter, the Company shall not have any payment or other obligations to the Executive, including, without limitation, payment obligations for severance, salary, bonus, employee benefits or similar payments. 3. The parties agree that, notwithstanding anything to the contrary contained in the Executive Retention Agreement or the Offer Letter, upon termination of each of the Executive Retention Agreement and the Offer Letter, except as set forth in paragraph 1 above, the vesting and exercisability of the Existing Options will not accelerate as a result of the Merger (as defined in the Merger Agreement) or the transactions contemplated thereby and will remain subject to their current vesting provisions as otherwise provided in the stock option plan of the Company under which such options were issued and in the stock option agreements by which such stock options are evidenced. 4. As partial consideration for Executive's agreement to terminate the Executive Retention Agreement and the Offer Letter, the Company shall, immediately prior to the Effective Time and simultaneously with the termination of the Executive Retention Agreement and the Offer Letter, grant to the Executive an option to purchase an aggregate of 150,000 shares of Company Common Stock pursuant to the Company's 1996 Incentive and Nonqualified Stock Option Plan or, if outside such plan, then on terms and conditions substantially similar to such plan. The exercise price of such option shall be equal to the fair market value of one share of Company Common Stock as quoted on The Nasdaq Stock Market on the date of execution of the Merger Agreement (or if such date is not a trading day, then the trading day immediately preceding the date of execution of the Merger Agreement). 5. As partial consideration for the Executive's agreement to terminate the Executive Retention Agreement and the Offer Letter, FVC shall enroll the Executive as a participant in FVC's Executive Officers Change of Control Plan (the "Change of Control Plan"), with such enrollment to become effective as of immediately after the Effective Time. 6. The Executive and FVC hereby agree to enter into the agreement attached hereto as Exhibit A at or prior to the Effective Time, with such agreement becoming effective as of immediately after the Effective Time. 2. Date: March 22, 2001 CUSEEME NETWORKS, INC. By: /s/ Killko Caballero --------------------- Name: ------------------- Title: ------------------ FIRST VIRTUAL COMMUNICATIONS, INC. By: /s/ Ralph Ungermann --------------------- Name: Ralph Ungermann ------------------- Title: ------------------ /s/ Jeff Krampf ------------------------- JEFF KRAMPF [COMPANY LETTERHEAD] April 11, 2001 Jeff Krampf 26 Bay Ridge Dr., Apt. B Nashua, NH 03062 RE: ADDITIONAL EMPLOYMENT TERMS Dear Jeff: This letter will clarify the terms of your employment with FIRST VIRTUAL COMMUNICATIONS, Inc. (the "Company") as Vice President, Engineering, effective as of the Effective Time, as defined in that certain Agreement and Plan of Merger and Reorganization, dated as of March 22, 2001, between the Company, CUseeMe Networks, Inc. and FVC Acquisition Corp., a wholly owned subsidiary of the Company. The Company may terminate your employment at any time and for any or no reason, with or without Cause (as defined herein) or advance notice by giving written notice of such termination. Similarly, you may terminate your employment with the Company at any time at your election, in your sole discretion, for any or no reason upon two (2) weeks notice to the Company during which time you shall provide reasonable transition assistance to the Company. The Company reserves the right to ask you to expedite your resignation date and to leave prior to the end of the two-week notice period. The at-will nature of your employment relationship may not be modified except by a written agreement between you and the Chief Executive Officer of the Company. Notwithstanding the above and subject also to paragraph 1 of the Agreement dated March 22, 2001 between Jeff Krampf, CUSeeMe Networks, Inc. and the Company (the "Agreement"), if the Company terminates your employment without Cause, then upon your furnishing to the Company an executed release and waiver of claims (a form of which is attached hereto as EXHIBIT A), you shall be entitled to receive: (i) severance payments in the form of continuation of your base salary in effect at the time of your termination, subject to standard payroll deductions and withholdings, for a period of six (6) months; (ii) bonus continuation payments totaling your pro-rata share of the Target Bonus in effect on the date of termination, paid on a monthly basis for six (6) months after the date of termination; and (iii) your medical benefits paid for by the Company, assuming that you are eligible for COBRA upon termination, until the earlier of either (a) six (6) months after the date of termination, or (b) the date that you become eligible to receive medical benefits with another company or business entity. If your employment is terminated for Cause, or you voluntarily terminate your employment from the Company, all compensation and benefits will cease immediately and you will receive no additional payments from the Company other than your accrued base salary and accrued and unused vacation benefits earned through the date of your termination. For purposes of this letter agreement, "Cause" shall mean (i) gross negligence or willful misconduct by you, including, but not limited to, dishonesty which materially and adversely reflects upon your ability to perform your duties for the Company, (ii) your conviction of, or the entry of a pleading of guilty or nolo contendere by you to, any crime involving moral turpitude or any felony, (iii) fraud, embezzlement or theft against the Company, (iv) a material breach by you of any material provision of any employment contract, assignment of inventions, confidentiality and/or nondisclosure agreement between you and the Company, or (v) your willful and habitual failure to attend to your duties as assigned by the officer of the Company to whom you report if such non-performance is not cured by you within thirty (30) days after you receive written notice from the Company. In the event that you are entitled to the benefits under the Company's Executive Officer's Change of Control Plan, you will not be entitled to any of the benefits or payments under this letter agreement. This letter agreement (including Exhibit A attached hereto), the Agreement, the Change of Control Plan and the Proprietary Information and Inventions Agreement between you and the Company form the complete and exclusive statement of the terms of your employment with the Company and supersedes any other agreements or promises made to you by anyone, whether oral or written. Please sign and date this letter agreement, and return it to me on or before April 11, 2001 if you wish to accept employment with the Company under the terms described above. We look forward to a productive and enjoyable work relationship. Sincerely, /s/ Ralph Ungermann - ------------------------------------------ Ralph Ungermann Chief Executive Officer and Chairman of the Board of Directors Accepted: /s/ Jeff B. Krampf - ------------------------------------------ Jeff Krampf April 11, 2001 - ------------------------------------------ Date Attachment: Exhibit A: Waiver and Release EXHIBIT A FORM OF RELEASE AND WAIVER OF CLAIMS In consideration of the payments and other benefits set forth in Section __ of the Employment Agreement dated ___________, to which this form is attached, I, JEFF KRAMPF, hereby furnish FIRST VIRTUAL COMMUNICATIONS, INC. (the "Company"), with the following release and waiver ("Release and Waiver"). I hereby release, and forever discharge the Company, its officers, directors, agents, employees, stockholders, successors, assigns affiliates and Benefit Plans, of and from any and all claims, liabilities, demands, causes of action, costs, expenses, attorneys' fees, damages, indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising at any time prior to and including my employment Termination Date with respect to any claims relating to my employment and the termination of my employment, including but not limited to, claims pursuant to any federal, state or local law relating to employment, including, but not limited to, discrimination claims, claims under the California Fair Employment and Housing Act, and the Federal Age Discrimination in Employment Act of 1967, as amended ("ADEA"), or claims for wrongful termination, breach of the covenant of good faith, contract claims, tort claims, and wage or benefit claims, including but not limited to, claims for salary, bonuses, commissions, stock, stock options, vacation pay, fringe benefits, severance pay or any form of compensation. The only claims excepted from this Release are the following claims: a) any claims I may have for benefits under the workers' compensation and unemployment insurance laws; b) my legal right to continue medical coverage under COBRA; c) my right to vested benefits under the Company `s 401(k) retirement plan; and d) my right to vested stock in the Company. I also acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." I hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to any claims I may have against the Company. I acknowledge that, among other rights, I am waiving and releasing any rights I may have under ADEA, that this Release and Waiver is knowing and voluntary, and that the consideration given for this Release and Waiver is in addition to anything of value to which I was already entitled as an executive of the Company. I further acknowledge that I have been advised, as required by the Older Workers Benefit Protection Act, that: (a) the Release and Waiver granted herein does not relate to claims which may arise after this Release and Waiver is executed; (b) I have the right to consult with an attorney prior to executing this Release and Waiver (although I may choose voluntarily not to do so); and if I am over 40 years of age upon execution of this Release and Waiver: (c) I have twenty-one (21) days from the date of termination of my employment with the Company in which to consider this Release and Waiver (although I may choose voluntarily 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 to this Release and Waiver; and (e) this Release and Waiver shall not be effective until the seven (7) day revocation period has expired. Date: By: ----------------------- ------------------------------ JEFF KRAMPF