EMPLOYMENT AGREEMENT

 

                                                                    EXHIBIT 10.9

                             EMPLOYMENT AGREEMENT

     EMPLOYMENT AGREEMENT (this "Agreement") dated the 10th day of October,
1995, by and between White Pine Software, Inc., a Delaware corporation having
its principal place of business at 40 Simon Street, Suite 201, Nashua, New
Hampshire 03060-3043 (the "Employer"), and Killko Caballero, an individual
residing at Cupertino, California, 10350 San Fernando Ave. (the "Employee").

                             W I T N E S S E T H :

     WHEREAS, the Employer is engaged in the business of creating, developing,
selling, supplying, marketing, promoting and distributing computer software and
related goods, accessories, equipment and furnishings to customers located both
within and outside of the State of New Hampshire; and

     WHEREAS, the Employee possesses the experience necessary to fulfill the
responsibilities as Senior Vice President of Product Development and Chief
Technical Officer of the Employer; and

     WHEREAS, the Employer and the Employee's current employer, About Software
Corporation, a California corporation ("ASC"), have entered into an acquisition
agreement related to the acquisition of ASC and its French parent corporation by
the Employer (the "Acquisition Agreement" and the "Acquisition", respectively),
and which provides for the employment of the Employee by the Employer; and

     WHEREAS, the Employer desires to employ the Employee, and the Employee
desires to be employed by the Employer, all in accordance with the terms and
provisions of this Agreement.

     NOW, THEREFORE, in consideration of the covenants and promises hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Employer and the Employee
represent, covenant and agree as follows:

     1.  Employment.  The Employer hereby employs the Employee to serve as
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Senior Vice President of Product Development and Chief Technical Officer of the
Employer in accordance with the terms and provisions of this Agreement, and the
Employee hereby accepts such employment with the Employer.

     2.  Term.  The term of this Agreement shall commence on the Effective Date
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and shall continue for a period of two (2) years thereafter unless or until this
Agreement is sooner terminated as hereinafter provided.

     3.  Compensation.  As compensation for all services rendered by the
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Employee to the Employer pursuant to this Agreement, the Employer shall pay to
the Employee the following amounts during the term of this Agreement:

     (a) Base Compensation.  The Employer shall pay to the Employee base
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compensation at the rate set forth on Schedule A attached hereto and herein
                                      ----------                           
incorporated by reference (the "Base Compensation").  The Base Compensation
shall be payable in semi-monthly installments.  The Base Compensation shall be
reviewed by the Board of Directors of the Employer annually and changes in the
Base Compensation, if any, shall be evidenced by the updating and initialing of
                                                                               
Schedule A by both parties hereto.
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     (b) Incentive Bonus.  In addition to the Base Compensation, the Employee
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shall be eligible to receive an annual fiscal year incentive bonus with a
maximum annual amount as set forth on Schedule A attached hereto (the "Incentive
                                      ----------                                
Bonus").  In the first year of the term of this Agreement, one-half of the
amount of the Incentive Bonus is guaranteed to be paid to the Employee.  Payment
of the Incentive Bonus at the end of a fiscal year of the Employer will be based
upon accomplishment of goals provided to the Employee by the President of the
Employer from time to time.

     4.  Vacation and Employee Benefits.  The Employee shall be entitled to an
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annual paid vacation determined in accordance with the Employer's vacation
policy as applicable to all of its employees generally.  In computing the
Employee's vacation benefit, the Employee's tenure of employment with ASC will
be considered as employment with the Employer.

     The Employee shall be entitled to carryover the number of vacation days
which he actually accrued as an employee of ASC as of the date of the closing of
the Acquisition, provided, however, that such number of vacation days shall be
reduced in the same proportion that his salary has been increased as an employee
of the Employer as compared with his salary as an employee of ASC.  The intent
of this reduction in accrued vacation time is to provide the Employee with the
same economic value of his accrued vacation time after the Acquisition as it was
before the Acquisition.

     The Employee shall be entitled to receive and participate in such employee
benefits including, but not limited to, health, vision, dental and retirement
plans, as the Employer shall from time to time determine to provide to its
employees generally.

     5.  Description of Duties.  During the term of this Agreement, the Employee
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shall be the Senior Vice President of Product Development and Chief Technical
Officer of the Employer and shall perform the duties described on Schedule B
                                                                  ----------
attached hereto and herein incorporated by reference.

                                      -2-

     6.  General Services.  During the term of this Agreement, the Employee
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shall:

     (a) Observe the Employer's policies and standards of conduct, as well as
customary standards of business conduct, including any standards prescribed by
law or regulation;

                  [Remainder of page intentionally left blank]

                                      -3-

     (b) Perform his duties hereunder in a manner that preserves and protects
the Employer's business reputation; and

     (c) Do all things and render such services as may be necessary or
beneficial in carrying out any of the foregoing.

     7.  Non-Disclosure of Proprietary or Confidential Information and
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Confidential Communications.  The Employee recognizes and acknowledges that the
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names, addresses and purchasing history of the Employer's customers, the names
and other pertinent data concerning the persons responsible for purchasing for
such customers, the particular needs and application of such customers for
computer hardware and software programs, the names and addresses of the
Employer's suppliers, the Employer's purchasing history with its suppliers, the
names and other pertinent data concerning the persons employed by the Employer's
suppliers who are responsible for supplying the Employer with products and
services, the Employer's proprietary computer software programs, trade secrets
and any other confidential and proprietary information concerning the business
or affairs of the Employer (including marketing and business plans and
strategies, pricing lists and policies, and cost information) (hereinafter
collectively referred to as the "Confidential Information") constitute a
valuable, proprietary, special and unique asset of the Employer's business.  The
Employee further recognizes and acknowledges that any communications, whether
written, oral or otherwise, that the Employer or any of the Employer's employees
has with the Employer's existing or prospective customers and clients are
extremely confidential (hereinafter the "Confidential Communications").  The
term "Confidential Information" shall exclude any information that has been made
public through no fault of the Employee.

     The Employee shall not, for any reason whatsoever, during or after the
termination of his employment with the Employer, use, disclose or allow access
to, for his own benefit or for that of another, the Confidential Information or
the Confidential Communications (or any part thereof) to any person, firm,
corporation, association or other entity for any reason or for any purpose
whatsoever.

     In the event of a breach or threatened breach by the Employee of the
provisions of this Section, the Employer shall be entitled to an injunction
restraining the Employee from so using, disclosing or allowing access to, in
whole or in part, the Confidential Information and the Confidential
Communications or from rendering any services to any person, firm, corporation,
association or other entity to whom the Confidential Information or the
Confidential Communications, in whole or in part, have been disclosed or are
threatened to be disclosed.  Nothing herein shall be construed as prohibiting
the Employer from pursuing any other remedies available to the Employer for such
breach or threatened breach, including, but not limited to, the recovery of
damages and reasonable attorneys' fees from the Employee.

     Upon termination of this Agreement by either party for any reason, the
Employee shall return to the Employer any of the Confidential Information,
Confidential Communications, charts, company literature, reports, Employer
credit cards or other proprietary materials of the Employer then in the
Employee's possession and all other

                                      -4-

materials of the Employer which the President of the Employer requests the
Employee to so return.

     This Section shall in all respects survive any termination of this
Agreement and shall remain in full force and effect thereafter.  In the event
that any provision of this Section 7 shall conflict with any term or condition
of any other confidentiality agreement between the Employer and the Employee,
then the more restrictive provision shall be deemed to apply in order to
accomplish the purposes of this Section 7 and such other agreements; that being
to protect the Employer's Confidential Information and Confidential
Communications.

     8.  Covenant Not to Compete; Non-solicitation of Employees and Customers.
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The Employee agrees that while employed by the Employer and for a continuous
period of one (1) year following the date of the termination of his employment
with the Employer for any reason whatsoever (the "Restricted Period"), he shall
not (without the express prior written consent of the Board of Directors of the
Employer), directly or indirectly, compete with the Employer.  In construing the
foregoing prohibition, the Employee shall be deemed to be competing with the
Employer if he shall become self-employed in, or accept employment with, consult
with, render services to or become associated with, own, manage, operate, join,
control, or participate in the ownership, management, operation, or control of,
or be connected in any material manner with, or directly or indirectly enter
into the employment of, or make a substantial investment in, any corporation,
partnership, proprietorship or other type of business organization or entity
which engages in, any business involving the sale, distribution, development or
research concerning computer software which directly and materially competes
with the computer software of the Employer or any other software product lines
in or with which the Employer is then currently involved.

     The Employee further agrees that, during his employment with the Employer
and during the Restricted Period, he shall not solicit any of the Employer's
employees, existing customers or prospective customers (of which the Employee is
then currently aware) on behalf of himself, any corporation, partnership,
proprietorship or any other type of business organization or entity which
engages in any business involving the sale, distribution, development or
research concerning computer software in breach of this Agreement, whether
retail or wholesale.

     This Section shall in all respects survive any termination of this
Agreement and shall remain in full force and effect thereafter.

     9.  Restricted Activities.  During the term of this Agreement, the Employee
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shall not engage in any business activities or ventures outside of the business
activities of the Employer without the express prior written consent of the
Employer's Board of Directors.

   10.   Termination.
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   (a) Termination Without Cause.  Notwithstanding anything herein to the
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contrary, this Agreement may be terminated by either the Employer or the
Employee, at any time, without cause; provided, however that the party desirous
of terminating this Agreement shall

                                      -5-

give the other party at least thirty (30) days' prior written notice of such
termination.  In either event, the Employer retains the right to designate the
Employee's final day of employment hereunder.  The date specified in any notice
of termination as the Employee's final day of employment shall be referred to
herein as the "Termination Date."

         (i) In the event of the Employee's voluntary termination, then the
    Employee shall, at the request of the President of the Employer, continue as
    an employee of the Employer for an additional thirty (30) day period after
    the Termination Date for the purpose of assisting the Employer in locating
    and training a suitable replacement for the Employee.  During such
    additional period, the Employee shall be entitled to full compensation and
    benefits and the Employee shall continue to be bound by all of the terms
    contained herein.

         (ii) In the event of the Employee's voluntary termination without a
    request to continue employment pursuant to paragraph (i) above, then the
    Employee shall be entitled to no compensation or other benefits of any kind
    whatsoever for any period after the Termination Date as set forth in the
    notice of termination given by the Employee to the Employer.

         (iii)  In the event that the Employer terminates this Agreement without
    cause pursuant to this subsection (a) during the first year of the term of
    this Agreement, then the Employee shall be entitled to receive a pro rata
    entitlement to any Incentive Bonus earned through the Termination Date and
    the Base Compensation for a period of six (6) months from the Termination
    Date (the "Post Termination Period"), or until the Employee becomes employed
    elsewhere, whichever occurs first; provided, however, that if the Employee
    becomes employed elsewhere at a base compensation rate lower than his Base
    Compensation rate at the Termination Date, then the Employer shall pay the
    Employee the difference between his Base Compensation rate as of the
    Termination Date and the base compensation rate of his new employment during
    the applicable Post Termination Period.  The Employer also agrees to make
    available to the Employee, at the Employee's sole cost and expense, such
    benefits as may be then provided to the Employee by the Employer.

         (iv) In the event that the Employer terminates this Agreement without
    cause pursuant to this subsection (a) during the second year of the term of
    this Agreement, then the Employee shall be entitled to receive a pro rata
    entitlement to any Incentive Bonus earned through the Termination Date and
    the Base Compensation for a period of six (6) months from the Termination
    Date (the "Post Termination Period"), or until the Employee becomes employed
    elsewhere, whichever occurs first; provided, however, that if the Employee
    becomes employed elsewhere at a base compensation rate lower than his Base
    Compensation rate at the Termination Date, then the Employer shall pay the
    Employee the difference between his Base Compensation rate as of the
    Termination Date and the base compensation rate of his new employment during
    the applicable Post Termination Period.  The Employer also agrees to make
    available to the Employee, at the Employee's sole cost and expense, such
    benefits as may be then provided to the Employee by the Employer.

                                      -6-

         (v) In the event that the Employee is entitled to some amount of
    Incentive Bonus and Base Compensation pursuant to paragraph (iv) above, and
    in the further event that the Employee is unable to secure employment in the
    United States within ninety (90) days after the Termination Date, which
    inability results in his deportation from the United States by the United
    States Immigration and Naturalization Service, then the Employer shall pay
    to the Employee the sum of $10,000 in order to assist the Employee's
    relocation to France.

         (vi) In the event that the Employer terminates this Agreement without
    cause pursuant to this subsection (a) at any time after the second year of
    the term of this Agreement, then the Employee shall be entitled to no
    compensation, other benefits or bonus of any kind whatsoever for any period
    after the Termination Date as set forth in the notice of termination given
    by the Employer to the Employee.

    (b) Termination With Cause.  The Employer may terminate this Agreement
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immediately for cause by giving written notice to the Employee.  Termination for
cause shall include any willful breach of his duties by the Employee in the
course of his employment hereunder, or in case of his habitual neglect of his
duties or his continued incapacity to perform his duties hereunder.  In the
event that this Agreement is terminated pursuant to this subsection (b), the
Employee shall be entitled to no compensation, other benefits or bonus of any
kind whatsoever for any period after the Termination Date set forth in the
notice given by the Employer to the Employee.

    (c) No Right to Continuing Employment.  The Employee agrees that nothing
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contained in this Agreement shall be construed to give the Employee a right to
continuing employment beyond the Termination Date.

   11.   No Assignment.  The Employee acknowledges that the services to be
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rendered by him pursuant to this Agreement are unique.  Accordingly, the
Employee shall not assign any of his rights or delegate any of his duties or
obligations under this Agreement.

   12.   Severability.  Subject only to the reformation of time, geographical
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and occupational limitations as set forth in Section 13 hereof, all of the terms
and provisions contained in this Agreement are severable and, in the event that
any of them shall be deemed unenforceable or invalid by a court of competent
jurisdiction, then this Agreement shall be interpreted as if such unenforceable
or invalid term or provision were not contained herein.

   13.   Reformation of Time, Geographical and Occupational Limitations.  In the
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event that any provision in this Agreement is held to be unenforceable by a
court of competent jurisdiction because it exceeds the maximum time,
geographical or occupational limitations permitted by applicable law, then such
provision(s) shall be and hereby are reformed to the maximum time, geographical
and occupational limitations as may be permitted by applicable law.

   14.   Specific Performance.  Both parties recognize that the services to be
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rendered under this Agreement by the Employee are special, unique and of an
extraordinary character,

                                      -7-

and that in the event of a breach by the Employee of the terms or conditions of
this Agreement to be performed by him, the Employer shall be entitled, if it so
elects, to institute and prosecute proceedings in any court of competent
jurisdiction, either at law or in equity, to obtain damages for any breach of
this Agreement or to enforce the specific performance thereof by the Employee,
or to enjoin the Employee from engaging in such activity, but nothing contained
herein shall be construed to prevent such other remedy in the courts, in case of
any breach of this Agreement by the Employee, as the Employer may elect to
invoke.

   15.   New Hampshire Law; Choice of Forum. This Agreement shall be governed,
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construed and interpreted by, and in accordance with, the laws of the State of
New Hampshire.  Any actions concerning enforcement of this Agreement or in any
way relating to the subject matter of this Agreement shall be litigated only in
New Hampshire state or federal courts of proper jurisdiction and venue.  Each
party hereto expressly agrees to submit to such jurisdiction and venue for the
purposes of this Agreement.  Notwithstanding the foregoing, the Employer may
seek to enforce the Employee's covenants described in Sections 7, 8 and 9 hereof
in any jurisdiction and venue in which the Employee then resides, breaches or
threatens to breach such covenants.

   16.   Entire Agreement.  This Agreement constitutes the entire agreement of
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the parties hereto, and replaces all prior agreements, promises, representations
and understandings between the Employer and the Employee whatsoever concerning
the limited subject matter hereof.  There are no other agreements, conditions or
representations, oral or written, express or implied, which form the basis for
this Agreement.

   17.   Modification.  No waiver or modification of this Agreement or of any
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covenant, condition, or limitation contained herein shall be valid unless in a
writing of subsequent date hereto and duly executed by the party to be charged
therewith and no evidence of any waiver or modification shall be offered or
received in evidence in any proceeding, arbitration, or litigation between the
parties hereto arising out of or affecting this Agreement, or the rights or
obligations of the parties hereunder, unless such waiver or modification is in
writing, duly executed as aforesaid.  The parties further agree that the
provisions of this Section may not be waived except as herein set forth.

   18.   Section Headings.  The section headings contained in this Agreement are
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for convenience only, and shall in no manner be construed as part of this
Agreement.

   19.   Waiver of Breach.  The waiver by either party of a breach or violation
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of any provision of this Agreement shall not operate as, or be construed to be,
a waiver of any subsequent breach thereof.

   20.   Notices.  Any and all notices required or permitted to be given under
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this Agreement shall be sufficient if furnished in writing, sent by certified or
registered mail, return receipt requested to the party's address set forth in
the Prologue of this Agreement, or to such other address as such party may
specify in writing.

                                      -8-

    IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year hereinbefore first written.

                             WHITE PINE SOFTWARE, INC.
                             (the "Employer")

/s/Kathleen Standish           By:  /s/Howard Berke
- -----------------------             --------------------------------------------
Witness                              Howard Berke, President
                                     Duly Authorized

[Illegible signature]               /s/Killko Caballero
- -----------------------             -------------------------------------------
Witness                             Killko Caballero
                                    (the "Employee")

                                      -9-

                                   SCHEDULE A
                                   ----------

                                  Compensation
                                  ------------

Annual Rate Fiscal Year-end of Base Incentive Agreed to Agreed to Compensation Bonus by Employee by Employer - ---------------- --------------- ----------- ----------- $90,000 $20,000 X X
-10- SCHEDULE B ---------- Duties ------ Usual and customary duties correspondent to the Employee's position as Senior Vice President of Product Development and Chief Technical Officer of the Employer. /s/ -11- WHITE PINE SOFTWARE, INC. - EMPLOYMENT AGT - KILLKO CABALLERO -12-

Basic Info X:

Name: EMPLOYMENT AGREEMENT
Type: Employment Agreement
Date: Aug. 2, 1996
Company: CUSEEME NETWORKS INC
State: Delaware

Other info:

Date:

  • 10th day of October , 1995

Organization:

  • White Pine Software , Inc.
  • About Software Corporation
  • Employer 's Confidential Information and Confidential Communications
  • Employer 's Board of Directors
  • Termination Without Cause
  • United States Immigration and Naturalization Service
  • Termination With Cause
  • New Hampshire Law ; Choice of Forum
  • the State of New Hampshire
  • Senior Vice President of Product Development

Location:

  • Delaware
  • Nashua
  • Cupertino
  • San Fernando
  • California
  • United States
  • France
  • New Hampshire

Money:

  • $ 10,000
  • $ 90,000 $ 20,000

Person:

  • Howard Berke
  • Killko Caballero