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EXHIBIT 10.19
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
effective as of January 22, 1999, by and between Khoa D. Nguyen (the
"Executive") and VideoServer, Inc., a Delaware corporation (the "Company").
WHEREAS, the Executive is and has been employed by the Company and is currently
the Company's President and Chief Executive Officer; and
WHEREAS, the Company and the Executive desire to enter into this Agreement to
provide additional financial security and benefits to the Executive and to
encourage the Executive to continue his employment with the Company;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. DUTIES AND SCOPE OF EMPLOYMENT.
1.1 POSITION. The Company shall employ the Executive in the position of
President and Chief Executive Officer, as such position has been defined in
terms of responsibilities and compensation as of the effective date of this
Agreement; provided, however, that the Board shall have the right, at any time
prior to the occurrence of a Change of Control, to revise such responsibilities
and compensation as the Board in its discretion may deem necessary or
appropriate, subject to the other provisions of this Agreement. The Executive
shall comply with and be bound by the Company's operating policies, procedures
and practices from time to time in effect during his employment. During the term
of the Executive's employment with the Company, the Executive shall continue to
devote his full time, skill and attention to his duties and responsibilities,
and shall perform them faithfully, diligently and competently, and the Executive
shall use his best efforts to further the business of the Company and its
affiliated entities. The foregoing shall not prevent the Executive from a
reasonable amount of service on the boards of directors of any entities, subject
to the terms of any noncompetition obligations he may have to the Company from
time to time, nor from engaging in academic, religious, charitable or other
community or non-profit activities that do not impair his ability to fulfill his
duties and responsibilities under this Agreement.
1.2. BASE COMPENSATION. The Company shall pay the Executive as compensation
for his services a base salary at the annualized rate to be established by the
Board of Directors. Such salary shall be paid periodically in accordance with
normal Company payroll practices. The annualized compensation specified in this
Section 1.2, as such compensation may be increased or (subject to the other
provisions of this Agreement) decreased by the Board or the Compensation
Committee of the Board, is referred to in this Agreement as "Base Compensation."
1.3 ANNUAL INCENTIVE. Beginning with the Company's current fiscal year and
for each fiscal year thereafter during the term of this Agreement, the Executive
shall be eligible to receive additional cash compensation under the Company's
annual incentive plan (the "Annual Incentive Bonus") based upon specific
financial and/or other targets approved by the compensation committee of the
Board. The Annual Incentive payable hereunder shall be payable in accordance
with the Company's normal practices and policies.
1.4 EXECUTIVE BENEFITS. The Executive shall be eligible to participate in the
employee benefit plans and executive compensation programs maintained by the
Company applicable to other key executives of the Company, including (without
limitation) retirement plans, savings or profit-sharing plans, stock option,
incentive or other bonus plans, life, disability, health, accident and other
insurance programs, paid vacations, and similar plans or programs, subject in
each case to the generally applicable terms and conditions of the applicable
plan or program in question and to the sole determination of the Board or any
committee administering such plan or program.
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1.5 EMPLOYMENT RELATIONSHIP. Except as provided in Section 1.6 and 4.1(b) ,
the Executive's employment is and shall continue to be at-will, as defined under
applicable law, and may be terminated by either party at any time and for any
reason. If the Executive's employment terminates for any reason, the Executive
shall not be entitled to any payments, benefits, damages, awards or compensation
other than (i) payment of amounts earned or accrued as of the date of
termination of employment, (ii) as provided by this Agreement or required by
law, or (iii) as may otherwise be available in accordance with the Company's
established employee plans and policies (including any deferred compensation
plans) at the time of termination.
1.6 TERMINATION NOTICE. The Company may not Terminate (as defined below in
Section 5) the Executive unless (a) it does so for Cause (as defined below in
Section 5) or (b) the Company has delivered to the Executive a written notice of
such Termination (the "Termination Notice") at least twelve (12) months in
advance of the effective date thereof. The duties of the Executive, if any,
during the period from the date of delivery of a Termination Notice until the
termination of his employment shall be as determined by the Board of Directors.
2. TERMINATION OF EMPLOYMENT WITHOUT CAUSE OR CHANGE IN STATUS -- SEVERANCE
BENEFITS.
2.1 SALARY. Except as provided in Section 3, during the period ("Severance
Period") from (a) the earlier of (i) the date of delivery by the Company of a
Termination Notice or (ii) the date of a Change in Status (as defined below in
Section 5 of the Executive until (b) the earlier of (i) the date twelve months
after such event, or (ii) the date the Executive commences substantially
full-time employment with another company or organization the Company shall pay
to the Executive in equal monthly installments a salary (the "Severance Period
Salary") that is equal, on an annualized basis, to the aggregate of (1) the
highest annual salary in effect with respect to the Executive during the
twelve-month period immediately preceding the date of the Termination Notice,
and (2) the Executive's current targeted Annual Incentive Bonus (provided that
if no Annual Incentive Bonus is then in effect with regard to the Executive,
then the highest Annual Incentive Bonus or other aggregate bonus(es) actually
paid to the Executive in any of the three preceding fiscal years of the
Company).
2.2 STOCK OPTIONS AND BENEFITS.
(a) During the Severance Period all Options and Restricted Stock Awards
held by the Executive under the Company's Stock Option Plans (as defined below
in Section 5) shall continue to vest, and the Executive shall continue to be
provided with Company's employee medical insurance as is in effect during such
Period. Following the Severance Period, the Executive shall be entitled to
receive extended medical coverage at the group rate under COBRA by paying the
applicable premium until he secures comparable coverage from another source or
for eighteen months, whichever is less.
(b) During the Severance Period, the Executive (i) shall be covered
under the Company's long term disability and life insurance coverage only to the
extent otherwise allowed under the terms of such coverage (ii) shall not be
entitled to participate in the Company's 401(k) Plan and iii) shall not accrue
any further vacation time.
2.3 RELEASE. All payments due to the Executive under this Agreement shall be
conditioned upon and are in consideration of (a) the execution by the Executive
of a full Release in a form reasonably prescribed by the Company ("Release"),
releasing the Company and its officers, directors, employees and advisors from
any and all liability to and including the date of the Termination Notice or
Change in Status, save only for claims for breach of this Agreement and (b) the
Executive not committing any act of Misconduct (as defined below in Section 5)
during the Severance Period.
3. TERMINATION FOR CAUSE, DEATH OR DISABILITY OR VOLUNTARY RESIGNATION.
If the Executive voluntarily resigns from the Company (other than following a
Change in Status), or if the Company terminates the Executive's employment for
Cause or because of the Executive's Death or
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Disability, then the Executive shall not be entitled to receive severance or
other benefits except for (a) payment of amounts earned or accrued as of the
date of termination of employment, (b) as required by law, or (c) those (if any)
as may then be established under the Company's then existing severance and
benefits plans and policies (including any deferred compensation plans)at the
time of such resignation or termination.
4. CHANGE OF CONTROL.
4.1 SEVERANCE PAYMENTS; BENEFITS.
(a) If the Company Terminates the Executive other than for Cause either
in anticipation of or as required to accomplish a Change of Control or within
twenty-four months after a Change of Control, the Executive shall be entitled to
receive a severance payment equal to the sum of (i) two times the Executive's
Base Compensation for the Company's fiscal year then in effect or if greater,
two times the Executive's Base Compensation for the Company's fiscal year
immediately preceding the year in which the Termination occurs, plus (ii) two
times the Executive's Annual Target Incentive for the fiscal year then in effect
(or, if no Target Incentive is in effect for such year, then the highest Annual
Incentive Bonus or other aggregate bonus(es) actually paid to the Executive in
any of the three (3) preceding fiscal years); provided, however, that a signed
Release must be received by the Company from the Executive prior to and as a
condition of receiving a severance payment. Any severance payments to which the
Executive is entitled pursuant to this Section 4.1 shall be paid to the
Executive (or to the Executive's estate or beneficiary in the event of the
Executive's death) in a lump sum within fifteen (15) days of the Executive's
Termination Date. The payments provided by this section shall be in lieu of any
payments to which the Executive would otherwise be entitled under Section 2.1.
(b) Notwithstanding anything in the previous paragraph or elsewhere in
this Agreement, if the Company Terminates the Executive other than for Cause
either in anticipation of or as required to accomplish a Change of Control or
within twenty-four months after a Change of Control, the Company shall provide
the Executive with notice of such Termination, and the Termination shall not be
effective until the end of the Notice Period. The Notice Period shall extend
until the later of (A) sixty days after the expiration of any period that the
Executive must hold shares in the Company in order (i) to avoid liability under
Section 16(b) of the Securities Exchange Act of 1934, as amended or (ii) to
comply, at the Company's reasonable request or the Executive's reasonable
initiative, with any other legal or accounting regulations or requirements, or
(B) six months. Provided, however, that in calculating the payments to be made
to the Executive pursuant to Section 4.1(a) above, any compensation paid to the
Executive with respect to his employment during the Notice Period shall be
deducted from the payments due under Section 4.1(a).
(c) Following a Termination described in Section 4.1(a) or 4.1(b), the
Executive shall be entitled to health and welfare benefits and coverage only to
the extent that such benefits or coverage are available to employees after they
cease to be employees of the Company. For example, but not by way of limitation,
the Executive shall be entitle to receive extended medical coverage at the group
rate under COBRA by paying the applicable premium until he secures comparable
coverage from anther source or for eighteen months, whichever is less.
4.2 OPTION ACCELERATION. Effective upon a Change in Control (as defined below
in Section 5) of the Company, all Options and Restricted Stock Awards granted to
the Executive and then outstanding under any Stock Option Plan (as defined below
in Section 5) of the Company shall become exercisable and vested in full, and
all restrictions thereon shall lapse, notwithstanding any vesting schedule or
other provisions to the contrary in the agreements evidencing such options; and
the Company and the Executive hereby agree that such Option agreements and
Restricted Stock Awards are hereby and will be deemed amended to give effect to
this provision.
4.3 TAXES.
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(a) The Company shall, within 30 days after each date on which the
Executive becomes entitled to receive (whether or not then due) a Contingent
Compensation Payment (as defined below) relating to a Change of Control,
determine and notify the Executive (with reasonable detail regarding the basis
for its determination) (i) which of the payments or benefits due to the
Executive (under this Agreement or otherwise) following such Change of Control
constitute Contingent Compensation Payments, (ii) the amount, if any, of the
excise tax (the "Excise Tax") payable pursuant to Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code") by the Executive with respect to
such Contingent Compensation Payment and (iii) the amount of Gross-Up Payment
(as defined below) due to the Executive with respect to such Contingent
Compensation Payment. Within 30 days after delivery of such notice to the
Executive, the Executive shall deliver a response to the Company (the "Executive
Response") stating either (A) that he agrees with the Company's determination
pursuant to the preceding sentence or (B) that he disagrees with such
determination, in which case he shall indicate which payment and/or benefits
should be characterized as a Contingent Compensation Payment, the amount of the
Excise Tax with respect to such Contingent Compensation Payment and the amount
of the Gross-Up Payment due to the Executive with respect to such Contingent
Compensation Payment. In the event that the Executive fails to deliver an
Executive Response on or before the required date, the Company's initial
determination shall be final. If the Company and the Executive cannot agree on
the proper determination of the foregoing characterizations, amounts or
payments, then the parties shall submit the matter to binding arbitration to be
heard by a single arbitrator, who shall be a Certified Public Accountant and who
shall be agreeable to both parties. Within 90 days after the due date of each
Contingent Compensation Payment to the Executive, the Company shall pay to the
Executive, in cash, the Gross-Up Payment with respect to such Contingent
Compensation Payment, in the amount determined pursuant to this Section 4.3(a).
(b) For purposes of this Section 4.3, the following terms shall have
the following respective meanings:
(i) "Contingent Compensation Payment" shall mean any payment
(or benefit) in the nature of compensation that is made or supplied
(under this Agreement or otherwise) to a "disqualified individual" (as
defined in Section 280G(c) of the Code) and that is contingent (within
the meaning of Section 280G(b)(2)(A)(i) of the Code) on a Change of
Control of the Company.
(ii) "Gross-Up Payment" shall mean an amount equal to the sum
of (i) the amount of the Excise Tax payable with respect to a
Contingent Compensation Payment and (ii) the amount necessary to pay
all additional taxes imposed on (or economically borne by) the
Executive (including the Excise Taxes, state and federal income taxes
and all applicable withholding taxes) attributable to the receipt of
such Gross-Up Payment. For purposes of the preceding sentence, all
taxes attributable to the receipt of the Gross-Up Payment shall be
computed assuming the application of the maximum tax rates provided by
law.
4.4 EXERCISE OF STOCK OPTIONS; PAYMENT OF REQUIRED TAXES. Following a Change
of Control, the Executive may take any or all of the following actions;
Provided, however, that the Executive shall not take any such action if the
Company reasonably requests that he not do so, in order for the company to
comply with or receive favorable treatment under legal or accounting
requirements:
(a) pay any portion of the exercise price of any Options and/or satisfy
any tax withholding with respect to either the exercise of Options or the
vesting of Restricted Stock Awards by:
(i) delivering to the Company outstanding shares of common
stock of the Company, valued at the closing price of a share of such
stock on the last trading day preceding the date of delivery (the
"Market Price") and/or
(ii) authorizing the Company to withhold from issuance
pursuant to the exercise of any such Option or vesting of Restricted
Stock a number of shares of common stock otherwise issuable that, when
multiplied by the Market Price of the common stock, is equal to the
aggregate
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exercise price being paid and/or tax being withheld (and such
withheld shares shall no longer be issuable under the applicable Option
or Restricted Stock Award); and
(b) require the Company to extend to the Executive a loan to cover the
exercise price of any or all of his Options, in which case the Company shall
receive 1) a security interest in the shares issued upon exercise of such
Options and 2) full recourse to the maker, to secure payment of such loan. The
loan shall bear interest at an agreed-upon market rate, and shall be due and
payable in full no later than thirty days after the latest date that the
Executive must hold such shares in order (i) to avoid liability under Section
16(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") or
(ii) to comply, at the Company's reasonable request, with any other legal or
accounting regulations or requirements.
5. DEFINITION OF TERMS.
5.1 TERMINATE/TERMINATION. "Terminate," "Terminates," and "Termination" shall
mean either (a) the termination of the Executive's employment with the Company
or (b) a Change in Status of the Executive, as defined below.
5.2 CHANGE IN STATUS. A "Change in Status" of the Executive shall mean the
occurrence, without the Executive's written consent, of any of the following
circumstances (unless such circumstances constitute an isolated, insubstantial
and inadvertent action not taken in bad faith and are promptly and fully
remedied by the Company after receipt of notice thereof by the Executive): (a)
any diminution or change in a manner adverse to the Executive of (i) his title,
office or position with the Company, (ii) his salary, bonus, or other benefits,
or (iii) his duties, responsibilities or employment condition, (b) any breach of
this Agreement, including without limitation the failure by the Company to pay
to the Executive any portion of his compensation, (c) the Company's requiring
the Executive to be based at any office or location more than 35 miles from the
company's current main office or the Company's requiring the Executive to travel
on Company business to a substantially greater extent than required immediately
before the date of this Agreement, or (d) any purported termination by the
Company of the Executive's employment otherwise than as expressly permitted by
this Agreement.
5.3 CAUSE. "Cause" shall mean (a) any act of personal dishonesty taken by the
Executive in connection with his responsibilities as an employee and intended to
result in substantial personal enrichment of the Executive, (b) conviction of a
felony that is injurious to the Company, (c) a willful act by the Executive
which constitutes gross misconduct and which is injurious to the Company, and
(d) continued violations by the Executive of the Executive's obligations under
Section 1 of this Agreement that are demonstrably willful and deliberate on the
Executive's part (and not resulting from any condition that constitutes, or with
the passage of time would constitute, a Disability (as defined below)) after
there has been delivered to the Executive a written demand for performance from
the Company which describes the basis for the Company's belief that the
Executive has not substantially performed his duties, in each case as determined
by the Company's Board of Directors.
5.4 CHANGE OF CONTROL. "Change of Control" shall mean the occurrence of any
of the following events:
(a) Any transaction or series of transactions, as a result of which any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act
and the rules and regulations thereunder) (other than (i) the Company, (ii) a
person that directly or indirectly controls the Company on the date of this
Agreement, (iii) a person that is controlled by or is under common control with
the Company or (iv) any one or more employee benefit plans or related trusts
established for the benefit of the employees of the Company or any affiliate of
the Company) becomes a "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total voting power represented by the
Company's then outstanding voting securities; or
(b) A change in the composition of the Board of Directors of the
Company occurring within a two-year period, as a result of which fewer than a
majority of the directors are Incumbent Directors. "Incumbent Directors" shall
mean directors who either (i) are directors of the Company as of the date
hereof, or (ii) are elected, or nominated for election, to the Board of
Directors of the Company with the affirmative votes of
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at least a majority of the Incumbent Directors at the time of such election or
nomination (but shall not include an individual not otherwise an Incumbent
Director whose election or nomination is in connection with an actual or
threatened proxy contest relating to the election of directors to the
Company); or
(c) A merger or consolidation of the Company with any other corporation
or entity, other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least fifty percent (50%) of the total
voting power represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
the approval by the stockholders of the Company of an agreement for the sale or
disposition by the Company of all or substantially all the company's assets.
5.5 DISABILITY. "Disability" shall mean that the Executive has been unable to
substantially perform his duties under this Agreement as the result of his
incapacity due to physical or mental illness, and such inability, at least 26
weeks after its commencement, is determined to be total and permanent by a
physician selected by the Company or its insurers and acceptable to the
Executive or the Executive's legal representative (such Agreement as to
acceptability not to be unreasonably withheld). Nothing contained herein shall
preclude the Company from appointing or employing any other person to carry out
the duties and responsibilities of the Executive, nor shall any such appointment
or employment give rise to a Change of Status, in the event of the occurrence of
a physical or mental illness or injury likely in the reasonable judgement of the
Company to result eventually in a determination of Disability.
5.6 STOCK OPTION PLAN. A "Stock Option Plan" of the Company shall mean any
stock option or equity compensation plan of the Company in effect at any time,
including without limitation the VideoServer Inc. Amended and Restated 1991
Stock Incentive Plan. The terms "Option" and "Restricted Stock Award" shall have
the meanings ascribed to them in any such Stock Option Plan.
5.7 MISCONDUCT. "Misconduct" shall mean material conduct on the part of the
Executive that is inimical, contrary or harmful to the interests of the Company,
including, but not limited to: (i) conduct related to the Executive's employment
for which criminal or civil penalties against the Executive may be sought, (ii)
willful violation of the Company's written policies, (iii) unauthorized
disclosure of confidential information or trade secrets of the Company, (iv)
engaging (directly or indirectly) in any business activity that is directly
competitive with the Company's business as of the date the Executive's
employment terminated; or (v) disparagement, defamation or slander of the
Company.
6. SUCCESSORS.
6.1 COMPANY'S SUCCESSORS. The Company shall cause any successor to the
Company (whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation or otherwise) to all or substantially all of the
Company's business and assets to assume the obligations under this Agreement and
agree expressly to perform the obligations under this Agreement in the same
manner and to the same extent as the Company would be required to perform such
obligations in the absence of a succession. For all purposes under this
Agreement, the term "Company" shall include any such successor.
6.2 EXECUTIVE'S SUCCESSORS. The terms of this Agreement and all rights of the
Executive hereunder shall inure to the benefit of, and be enforceable by, the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, devisees and legatees.
7. NOTICE.
7.1 GENERAL. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or two business days after being mailed by U.S. registered
or certified mail, return receipt requested and postage prepaid. In the case of
the Executive, mailed notices shall be addressed to him at the home address
which he most recently communicated to the Company in writing. In the case of
the Company, mailed notices shall be addressed to its corporate headquarters,
and all notices shall be directed to the attention of its Secretary.
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7.2 NOTICE OF TERMINATION OR CHANGE IN STATUS. Any Termination by the Company
or any claim by the Executive of a Change in Status shall be communicated by a
notice to the other party hereto given in accordance with Section 7.1 of this
Agreement. Such notice shall indicate the specific provision in this Agreement
relied upon, shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for Termination or Change of Status under the
provision so indicated, and shall specify the Date on which the Executive shall
be Terminated or on which the Change of Status occurred. The failure by either
party to include in the notice any fact or circumstance which contributes to a
showing of Cause or Change in Status shall not waive any right of the party
hereunder or preclude the party from asserting such fact or circumstance in
enforcing its rights hereunder.
8. MISCELLANEOUS PROVISIONS.
8.1 INDEMNIFICATION. Notwithstanding any change in the Company's
certificate of incorporation or bylaws, the Company shall indemnify the
Executive and hold him harmless, at a minimum in accordance with the provisions
in effect as of the date of this Agreement in the Company's certificate of
incorporation and bylaws, against any losses, claims, damages, liabilities,
costs, expenses (including advancing from time to time his attorney's fees and
expenses in advance of the final disposition of any claim, suit, proceeding or
investigation ), judgments, fines and amounts paid in settlement in connection
with any threatened or actual claim, action, suit, proceeding or investigation ,
whether civil, criminal or administrative, in which the Executive is, or is
threatened to be, made a party by reason of being or having been a director or
office of the Company or serving or having served at the request of the Company
as a director, trustee, officer, employee or agent of another corporation or of
a partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan, whether the basis of such proceeding is
alleged action or failure to act in an official capacity as a director, trustee,
officer employee or agent.
8.2 NO DUTY TO MITIGATE. The Executive shall not be required to
mitigate the amount of any payment contemplated by this Agreement (whether by
seeking new employment or in any other manner), nor shall any such payment be
reduced by any earnings that the Executive may receive from any other source,
other than as provided specifically in Section 2.1.
8.3 WAIVER. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing
and signed by the Executive and by an authorized officer of the Company (other
than the Executive). No waiver by either party of any breach of, or of
compliance with, any condition or provision of this Agreement by the other party
shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
8.4 WHOLE AGREEMENT. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not expressly
set forth in this Agreement have been made or entered into by either party with
respect to the subject matter hereof. The foregoing notwithstanding, this
Agreement is unrelated to, and shall have no effect upon any deferred
compensation agreement or program in effect regarding the Executive.
8.5 CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the Commonwealth
of Massachusetts without giving effect to its conflicts of laws principles.
8.6 SEVERABILITY. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or enforceability
of any other provision hereof, which shall remain in full force and effect.
8.7 NO ASSIGNMENT OF BENEFITS. The rights of any person to payments or
benefits under this Agreement shall not be made subject to option or assignment,
either by voluntary or involuntary assignment or by operation of law, including
(without limitation) bankruptcy, garnishment, attachment or other creditor's
process, and any action in violation of this Section 8.7 shall be void.
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8.8 EMPLOYMENT TAXES. All payments made pursuant to this Agreement will
be subject to withholding of applicable income and employment taxes.
8.9 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together will constitute
one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by its duly authorized officer, as of the day and year first
above written.
VideoServer, Inc. Khoa D. Nguyen
By Stephen J. Nill Khoa D. Nguyen
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Title Vice President and CFO
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