Employment Agreement - MessageMedia Inc. and Randy Bachmeyer
August 9, 1999
Randy Bachmeyer
Dear Randy:
MessageMedia, Inc. ("MessageMedia" or the "Company") is pleased to offer you the
position of Director of Software Engineering on the terms and conditions stated
in this letter upon closing of the acquisition with Revnet Systems, Inc.
("Revnet"). Of course, MessageMedia may change your position and duties from
time to time as it deems necessary. If you accept this offer, we would like for
you to begin work with MessageMedia as soon as possible. You will report
directly to Stuart Obermann, VP of Commercial Software Products.
Your initial rate of compensation will be $145,000 per year, less payroll
deductions and all required withholdings, paid on the Company's regular pay
periods. You will be eligible for all fringe benefits presently offered and
offered in the future to MessageMedia employees and senior executives who are
similarly situated. Details about such benefits are available for your review.
MessageMedia may modify your compensation and benefits, as it deems necessary.
In addition to your base salary, you will be eligible to earn an annual
performance bonus with a target of 30% of your base salary less applicable
taxes, based upon performance targets to be defined by the CEO and will be paid
on a calendar basis.
You will be entitled to four weeks of paid vacation during your first year of
service which shall begin accruing monthly upon commencement of employment. You
will be eligible to use your accrued vacation after your first thirty (30) days
of employment in accordance with the Company's policies.
Should you accept this offer, your employment with MessageMedia will not be for
a specified term and may be terminated with or without cause and with or without
notice by you or by the Company at any time, for any reason or no reason. Any
contrary representations or agreements which may have been made to you are
superseded by this offer. The "at will" nature of your employment described in
this offer letter shall constitute the entire agreement between you and
MessageMedia concerning the nature and duration of your employment. Though your
job duties, title, compensation and benefits may change over time and you may be
subject to incremental discipline that doesn't include a termination, none of
these events changes our agreement that you are an "at will" employee. The "at
will" nature of your employment with MessageMedia can only be changed in a
writing signed by you and the President of the Company.
Notwithstanding the at-will nature of your employment, if the Company terminates
your employment without "cause" at any time, or your responsibilities and pay
are greatly reduced, then upon your furnishing to the Company an executed waiver
and release form (a form of which is attached as Appendix D), your unvested
options that were assumed by the Company in
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connection with the Company's acquisition of Revnet will be accelerated. If you
resign or your employment is terminated for "cause", all compensation and
benefits will cease immediately upon your last day of employment and you will
receive no severance benefits. Vesting of your options will stop immediately and
you will have our standard ninety days to exercise those options. For purposes
of this letter agreement, the definition of "cause" shall be limited to the
occurrence of any of the following events: (i) your engaging or in any manner
participating in an activity which is intentionally and materially injurious to
the Company; (ii) your commission of any fraud or embezzlement against the
Company; (iii) your conviction of any crime involving dishonesty or moral
turpitude; (iv) conduct by you which in good faith and reasonable determination
of the Board demonstrates gross unfitness to serve; or (v) your incurable
material breach of any element of the Company's Proprietary Information and
Inventions Agreement, including without limitation, your theft or other
misappropriation of the Company's proprietary information.
During your employment with the Company and for nine (9) months thereafter, you
agree that you will not engage in competition with the Company, either directly
or indirectly, in any manner or capacity, as an advisor, principal, agent,
partner, officer, director, employee, member of any association or otherwise, in
any phase of the business of developing, manufacturing and marketing of products
which are in the same field of use or which otherwise compete in a material way
with the products or proposed products of MessageMedia at the time of
termination. While employed by the Company and for nine (9) months thereafter,
you also agree that in order to protect the Company's confidential and
proprietary information from unauthorized use, that you will not, either
directly or through others, solicit or attempt to solicit any employee,
consultant or independent contractor of the Company to terminate his or her
relationship with the Company in order to become an employee, consultant or
independent contractor to or for any other person or business entity.
One of the conditions of your employment with MessageMedia is the maintenance of
the confidentiality of MessageMedia's proprietary and confidential information.
Upon commencement of employment, you will be required to execute the Company's
Proprietary Information and Inventions Agreement, attached hereto as Appendix A,
the Company's Voice-Mail Policy Statement, attached hereto as Appendix B, and
the E-Mail Policy Statement, attached hereto as Appendix C.
In your work for the Company, you will be expected not to use or disclose any
confidential information, including trade secrets, of any former employer or
other person to whom you have an obligation of confidentiality. You agree that
you will not bring onto Company premises any unpublished documents or property
belonging to any former employer or other person to whom you have an obligation
of confidentiality. In the performance of your duties for the Company, you will
be expected to use only that information which is generally known and used by
persons with training and experience comparable to your own, which is common
knowledge in the industry or otherwise legally in the public domain, or which is
otherwise provided or developed by the Company.
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As an employee of MessageMedia, you will be required to comply with all Company
policies and procedures. In particular, you will be required to familiarize
yourself with, and to comply with, MessageMedia's policy prohibiting harassment
and discrimination, and the policy concerning drugs and alcohol. As required by
law, this offer is subject to satisfactory proof of your right to work in the
United States.
We are looking forward to having you join MessageMedia, Inc. If you wish to
accept this offer, please sign below and return the fully executed letter to us.
You should keep one copy of this letter for your own records.
Very truly yours,
MESSAGEMEDIA, INC.
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Larry Jones Date
President & Chief Executive Officer
ACCEPTANCE:
I have read, understand, and accept the foregoing terms and conditions of
employment. I further understand my job duties, title, compensation and benefits
may change over time without a written modification of this agreement. Further
the "at will" term of my employment (i.e., my right and MessageMedia's right to
terminate our employment relationship at any time, with or without cause) is a
term of employment which cannot be altered or modified. I understand and agree
that any contrary representations or agreements which may have been made to me
are superseded by this offer and my acceptance of the same.
As further consideration for the offer of employment with MessageMedia that is
contained in this offer letter and accepted by me, I agree to be bound by the
following policies and procedures:
1. Appendix A - Proprietary Information and Inventions Agreement.
2. Appendix B - Voice-Mail Policy Statement.
3. Appendix C - E-Mail Policy Statement.
4. Appendix D - Waiver and Release
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Randy Bachmeyer Date
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APPENDIX A
Proprietary Information and Inventions Agreement
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EXHIBIT B
MESSAGEMEDIA, INC.
CONFLICT OF INTEREST GUIDELINES
It is the policy of MESSAGEMEDIA, INC. (the "Company") to conduct its
affairs in strict compliance with the letter and spirit of the law and to adhere
to the highest principles of business ethics. Accordingly, all officers,
employees and independent contractors must avoid activities which are in
conflict, or give the appearance of being in conflict, with these principles and
with the interests of the Company. The following sets forth examples of
potentially compromising situations which must be avoided but is not all
inclusive of the types of conduct which may be considered a violation of this
policy. Any violations of this policy must be reported to the President.
1. Revealing confidential information to outsiders or misusing
confidential information. Unauthorized divulging of information is a violation
of this policy whether or not for personal gain and whether or not harm to the
Company is intended. (The Proprietary Information and Inventions Agreement
elaborates on this principle and is a binding agreement.)
2. Accepting or offering substantial gifts, excessive entertainment,
favors or payments which may be deemed to constitute undue influence or
otherwise be improper or embarrassing to the Company.
3. Initiating or approving personnel actions affecting reward or
punishment of employees or applicants where there is a family relationship or is
or appears to be a personal or social involvement.
4. Initiating or approving any form of personal or social harassment of
employees.
5. Investing or holding outside directorship in suppliers, customers,
or competing companies, including financial speculations, where such investment
or directorship might influence in any manner a decision or course of action of
the Company.
6. Borrowing from or lending to other employees, customers or
suppliers.
7. Improperly using or disclosing to the Company any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity with whom obligations of confidentiality exist.
8. Unlawfully discussing prices, costs, customers, sales or markets
with competing companies or their employees.
9. Making any unlawful agreement with distributors with respect to
prices.
10. Improperly using or authorizing the use of any inventions which are
the subject of valid patent claims of any other person or entity.
Each officer, employee and independent contractor must take appropriate
action to ensure compliance with these guidelines and to bring problem areas to
the attention of higher management for review. Violations of this Conflict of
Interest Policy may result in discharge without warning.
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APPENDIX B
MESSAGEMEDIA, INC.
VOICE-MAIL POLICY STATEMENT
1. The Company may maintain as part of its technology platform a voice-mail
system. This system is provided to assist in the conduct of business within the
Company.
2. Voice-mail and the data stored on it are and remain at all times the
property of the Company. As such, all voice-mail messages created, sent, and
received are and remain the property of the Company.
3. The Company reserves the right to retrieve and listen to any message
composed, sent, or received. Please note that even when a message is deleted, it
is still possible to recreate the message; therefore, ultimate privacy of
messages cannot be guaranteed to anyone.
4. Although voice-mail may accommodate the use of passwords for security,
the reliability of such for maintaining confidentiality cannot be guaranteed.
You must assume that any and all messages may be listened to by someone other
than the intended or designated recipient. Moreover, all passwords must be made
available to the Company. The reason for this is simple. Your voice-mail may
need to be accessed by the Company when you are absent.
5. Notwithstanding the Company's right to retrieve any voice-mail message,
all messages sent by voice-mail are considered to be confidential, and as such
are to be accessed only by the addressed recipient or by direction of the
addressed recipient. Any exception to this policy must be approved by the
Executive Committee.
6. Employees learning of any misuse of the voice-mail system or violations
of this policy shall notify General Counsel or Director of Human Resources.
7. Voice-mail messages may not contain material that may reasonably be
considered offensive or disruptive to any employee. Offensive content would
include, but not be limited to, sexual comments, racial slurs, gender-specific
comments, or any comments that might offend someone on account of his or her
age, sex, sexual orientation, religious or political beliefs, national origin,
race or disability.
8. Any employee who violates this policy shall be subject to disciplinary
action, up to and including termination.
Appendix B
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APPENDIX C
MESSAGEMEDIA, INC.
E-MAIL POLICY STATEMENT
1. The Company maintains as part of its technology platform an e-mail system.
This system is provided to assist in the conduct of business both inside and
outside of the Company.
2. All computers and the data stored on them are and remain at all times the
property of the Company. As such, all e-mail messages composed, sent, and
received are and remain the property of the Company.
3. The Company reserves the right to retrieve and read any message composed,
sent, or received. Please note that even when a message is erased, it is still
possible to recreate the message; therefore, ultimate privacy of messages cannot
be guaranteed to anyone.
4. The Company reserves the right to retain any electronic message on the
system.
5. Although e-mail may accommodate the use of passwords for security, the
reliability of such for maintaining confidentiality cannot be guaranteed. You
must assume that any and all messages may be read by someone other than the
intended or designated recipient. Moreover, all passwords must be made available
to the Company. The reason for this is simple. Your e-mail may need to be
accessed by the Company when you are absent.
6. Notwithstanding the Company's right to retrieve and read any e-mail message,
all messages sent by e-mail are considered to be confidential, and as such are
to be read only by the addressed recipient or at the direction of the addressed
recipient. Any exception to this policy must be approved by the Executive
Committee.
7. Employees learning of any misuse of the e-mail system or violations of this
policy shall notify General Counsel or Director of Human Resources.
8. E-mail messages may not contain material that may reasonably be considered
offensive or disruptive to any employee. Offensive content would include, but
not be limited to, sexual comments or images, racial slurs, gender-specific
comments, or any comments that might offend someone on account of his or her
age, sex, sexual orientation, religious or political beliefs, national origin,
race or disability.
9. Any employee who violates this policy shall be subject to disciplinary
action, up to and including termination.
Appendix C
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APPENDIX D
MESSAGEMEDIA, INC.
WAIVER AND RELEASE OF CLAIMS
In exchange for the severance payments provided for in my offer letter agreement
(the "Agreement"), to which this form is attached, I hereby furnish
MESSAGEMEDIA, INC. (the "Company") with the following release and waiver.
I hereby release, and forever discharge the Company, its officers, directors,
agents, employees, stockholders, successors, assigns and affiliates, 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, 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.
I acknowledge that, among other rights, I am waiving and releasing any rights I
may have under ADEA, that this waiver and release is knowing and voluntary, and
that the consideration given for this waiver and release is in addition to
anything of value to which I was already entitled as an employee of the Company.
I further acknowledge that I have been advised, as required by the Older Workers
Benefit Protection Act, that: (a) the waiver and release granted herein does not
relate to claims which may arise after this agreement is executed; (b) I have
the right to consult with an attorney prior to executing this agreement
(although I may choose voluntarily not to do so); (c) I have twenty-one (21)
days from the date I receive this agreement, in which to consider this agreement
(although I may choose voluntarily to execute this agreement earlier); (d) I
have seven (7) days following the execution of this agreement to revoke my
consent to the agreement; and (e) this agreement shall not be effective until
the seven (7) day revocation period has expired.
Date: By:
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RANDY BACHMEYER
Appendix D
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