Employment Agreement - MessageMedia Inc. and Sue Morse
June 18, 1999
Sue Morse
Dear Sue:
MessageMedia, Inc. ("MessageMedia" or the "Company") is pleased to offer you
employment on the terms and conditions stated in this letter. MessageMedia is
offering you the position of VP of Human Resources. 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 you to begin work with MessageMedia on July 1,
1999.
Your initial rate of compensation will be $135,000 per year, less payroll
deductions and all required withholdings. You will be eligible for all fringe
benefits presently offered MessageMedia employees and offered in the future.
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 50% of your base salary, less payroll
deductions and all required withholdings, based upon performance targets to be
defined by the CEO and will be paid on a calendar basis. The Company further
agrees that you will be guaranteed a minimum bonus of $67,500 for the period
July 1st to December 30th 1999.
Subject to approval by the Compensation Committee of the Board of Directors you
will be eligible to receive an option to purchase 125,000 shares of the
Company's Common Stock (the "Option"), with an exercise price per share equal to
the closing fair market value of the Company's Common Stock on the date of this
letter ("Vesting Commencement Date). This Option will be issued in accordance
with the terms and conditions of the 1995 Stock Option Plan.
The Option shall vest in accordance with the Company's standard form of option
agreement under the 1995 Stock Option Plan, as amended, which provides that 25%
of the shares subject to the option shall vest and become exercisable on the
first anniversary of the Vesting Commencement Date, and an additional 1/48th of
the shares subject to the option at the end of each one-month period thereafter
shall vest and become exercisable provided in each case that the optionee
remains an employee and/or consultant of the Company.
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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, and in accordance with the provisions of the Employee Handbook
thereafter.
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 change our agreement that you are an "at will" employee. The "at
will" term of your employment with MessageMedia can only be changed in a writing
signed by you and the President of the Company.
One of the conditions of your employment with MessageMedia is the maintenance of
the confidentiality of MessageMedia's proprietary and confidential information.
You will be required to execute the Company's Confidential Information and
Inventions Assignment 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.
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. Violations of
these policies may lead to immediate termination of employment. As required by
law, this offer is subject to satisfactory proof of your right to work in the
United States.
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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 - Confidential Information and Inventions Assignment Agreement.
2. Appendix B - Voice-Mail Policy Statement.
3. Appendix C - E-Mail Policy Statement.
4. Employee Manual, a copy of which has been provided to me.
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Sue Morse Date
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APPENDIX A
MESSAGEMEDIA, INC.
CONFIDENTIAL INFORMATION AND INVENTIONS
ASSIGNMENT AGREEMENT
As a condition of my employment with MESSAGEMEDIA, INC., its subsidiaries,
affiliates, successors or assigns (together the "Company,") and in consideration
of my employment with the Company and my receipt of the compensation now and
hereafter paid to me by Company, I agree to the following:
1. CONFIDENTIAL INFORMATION
(a) COMPANY INFORMATION. At all times during the term of my employment
and thereafter, I will hold in strictest confidence, and will not use, except
for the benefit of the Company, nor disclose to any person, firm or corporation
without written authorization of the Board of Directors of the Company, any
Confidential Information of the Company. I understand that "Confidential
Information" means any Company proprietary information, technical data, trade
secrets or know-how, including, but not limited to, research, product plans,
products, services, customer lists and customers (including but not limited to,
customers of the Company on whom I called or with whom I became acquainted
during the term of my employment), markets, software, developments, inventions,
processes, formulas, technology, designs, drawings, engineering, hardware
configuration information, marketing, finances or other business information
disclosed to me by the Company either directly or indirectly in writing, orally
or by drawings or observation of parts or equipment. I further understand that
Confidential Information does not include any of the foregoing items which has
become publicly known and made generally available through no wrongful act of
mine or of others who were under confidentiality obligations as to the item or
items involved.
(b) FORMER EMPLOYER INFORMATION. I will not, during my employment with
the Company, improperly use or disclose any proprietary information or trade
secrets of any former or concurrent employer.
(c) THIRD PARTY INFORMATION. I recognize that the Company has received
and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
Appendix A-1
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2. INVENTIONS.
(a) INVENTIONS RETAINED AND LICENSED. I have attached hereto as
Exhibit A the List of Prior Inventions and Original Works of Authorship,
describing all inventions, original works of authorship, developments,
improvements, and trade secrets which were made by me prior to my employment
with the Company (collectively referred to as "Prior Inventions"), which belong
to me, which relate to the Company's proposed business, products or research and
development, and which are not assigned to the Company hereunder; or, if no such
list is attached, I represent that there are no such Prior Inventions. If in the
course of my employment with the Company, I incorporate into a Company product,
process or machine a Prior Invention owned by me or in which I have an interest,
the Company is hereby granted and shall have a nonexclusive, royalty-free,
irrevocable, perpetual, worldwide license, including the right to grant
sublicenses, to make, have made, modify, use and sell such Prior Invention as
part of or in connection with such product, process or machine.
(b) ASSIGNMENT OF INVENTIONS. I agree that I will make full written
disclosure to the Company, and hereby assign to the Company, all my right,
title, and interest in all inventions ("Inventions"), whether or not patentable
or registrable under copyright or similar laws, which I may individually or
jointly conceive or develop or reduce to practice, during the period of time I
am in the employ of the Company, except as provided in Section 2 (d) below. I
further acknowledge that all original works of authorship which are made by me
(solely or jointly with others) within the scope of and during the period of my
employment with the Company and which are protectible by copyright are "works
made for hire," as that term is defined in the United States Copyright Act.
(c) PATENT AND COPYRIGHT REGISTRATION. I agree to assist the Company,
or its designee, at the Company's expense, in every proper way to secure the
Company's rights in the Inventions and any copyrights, patents, or other
intellectual property rights relating thereto in any and all countries. I
further agree that my duties to assist the company in this regard shall continue
after the termination of this Agreement. If the Company is unable because of my
mental or physical incapacity or for any other reason to secure my signature to
apply for or to pursue any application for any United States or foreign patents
or copyright registrations covering Inventions or original works of authorship
assigned to the Company as above, then I hereby irrevocably designate and
appoint the Company and its duly authorized officers and agents as my agent and
attorney in fact, to act for and in my behalf and stead to execute and file any
such applications and to do all other lawfully permitted acts to further the
prosecution and issuance of letters patent or copyright registrations thereon
with the same legal force and effect as if executed by me.
(d) EXCEPTION TO ASSIGNMENTS. I understand that the provisions of this
Agreement requiring assignment of Inventions to the Company do not apply to any
Invention which qualifies fully under the provisions of California Labor Code
Section 2870. (A copy of California Labor Code Section 2870, Employment
Agreements; Assignment of Rights is attached hereto as Exhibit B.) I will advise
the Company promptly in writing of any Inventions that I believe meet the
criteria in California Labor Code Section 2870 and not otherwise disclosed on
Exhibit A.
Appendix A-2
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(e) REPRESENTATION AS TO INVENTIONS DURING EMPLOYMENT. I understand
that while performing work for the Company wherein I develop Inventions, I am
not authorized to steal, borrow or use what I know to be the property of any
other individual or entity without license or permission of the author or owner.
I hereby represent that any work I represent as authored or invented by me is
such, and will not pass off any other person's work as my own for any purpose. I
understand that doing so can result in immediate termination of my employment.
3. CONFLICTING EMPLOYMENT. I agree that, during the term of my employment
with the Company, I will not accept any other employment, occupation, consulting
or other business activity directly related to the business in which the Company
is now involved or becomes involved during the term of my employment, nor will I
engage in any other activities that conflict with my obligations to the Company,
except with the written consent of the Company.
4. RETURNING COMPANY DOCUMENTS. I agree that, at the time of leaving the
employ of the Company, I will deliver to the Company (and will not keep in my
possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other documents or
property, or reproductions of any aforementioned items developed by me pursuant
to my employment with the Company or otherwise belonging to the Company, its
successors or assigns.
5. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of
the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
6. SOLICITATION OF EMPLOYEES. I agree that for a period of twelve (12)
months immediately following the termination of my relationship with the Company
for any reason, whether with or without cause, I shall not either directly or
indirectly solicit, induce, recruit or encourage any of the Company's employees
to leave their employment, or take away such employees, or attempt to solicit,
induce, recruit, encourage or take away employees of the Company, either for
myself or for any other person or entity.
7. CONFLICT OF INTEREST GUIDELINES. I agree to diligently adhere to the
Conflict of Interest Guidelines attached as Exhibit C hereto.
8. REPRESENTATIONS. I agree to execute any proper oath or verify any proper
document required to carry out the terms of this Agreement. I represent that my
performance of all the terms of this Agreement will not breach any agreement to
keep in confidence proprietary information acquired by me in confidence or in
trust prior to my employment by the Company. I have not entered into, and I
agree I will not enter into, any oral or written agreement in conflict herewith.
Appendix A-3
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9. ARBITRATION. In the event of any dispute, controversy or claim arising
out of, connected with, or relating to this letter, or the breach, validity, or
enforceability of any provision of this letter, such dispute, controversy or
claim shall be resolved by final and binding arbitration by a panel of three (3)
arbitrators in accordance with and subject to the Rules of Judicial Arbitration
and Mediation Services, Inc. ("JAMS") then in effect. Following notice of a
Party's election to require arbitration, each Party will within thirty (30)
days, select one arbitrator from the JAMS list of commercial arbitrators, and
those two arbitrators will within thirty (30) days thereafter, select a third
arbitrator. If the two arbitrators are unable to agree on a third arbitrator
within thirty (30) days, JAMS will within thirty (30) days thereafter, select
such third arbitrator. In the event any Party fails to select an arbitrator
within the requisite period, JAMS is hereby given the right to select the
arbitrator on behalf of such Party. Arbitration shall take place at a location
within California chosen by the arbitrators. All expenses associated with
obtaining and utilizing the services of the JAMS and the arbitrators, shall be
shared equally by the Parties. JAMS and the arbitrators shall be made aware of
this provision and shall agree to request payment separately from each of the
Parties for said services, including all expenses directly related to the
arbitration, other than the expense of witnesses, which shall be borne by the
Party producing such witnesses.
Notwithstanding the foregoing, each Party shall bear its own respective
costs of preparing for and participating in the arbitration, including, without
limitation, attorneys' fees, expert and/or witness fees, and the Party's costs
of complying with discovery requests. Discovery as permitted by the Federal
Rules of Civil Procedure then in effect will be allowed in connection with
arbitration to the extent consistent with the purpose of arbitration and as
allowed by the arbitrators. Judgment upon the award rendered in any arbitration
may be entered in any court of competent jurisdiction, or application be made to
such court for a judicial acceptance of the award and an enforcement, as the law
of the state having jurisdiction may require or allow. The fact that arbitration
is or may be allowed will not impair the exercise of any termination rights
under this letter."
10. GENERAL PROVISIONS.
(a) GOVERNING LAW: CONSENT TO PERSONAL JURISDICTION. This Agreement
will be governed by the laws of the State of California. I hereby expressly
consent to the personal jurisdiction of the state and federal courts located in
California for any lawsuit filed there against me by the Company arising from or
relating to this Agreement.
(b) ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
and understanding between the Company and me relating to the subject matter
herein and merges all prior discussions between us. No modification of or
amendment to this Agreement, nor any waiver of any rights under this agreement,
will be effective unless in writing signed by the party to be charged. Any
subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
Appendix A-4
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(c) SEVERABILITY. If one or more of the provisions in this Agreement
are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) SUCCESSORS AND ASSIGNS. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
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Date Signature
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Print Name
Appendix A-5
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EXHIBIT A
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
-------------------------- ---------------- -----------------------------------------
TITLE DATE IDENTIFYING NUMBER OR BRIEF DESCRIPTION
-------------------------- ---------------- -----------------------------------------
-------------------------- ---------------- -----------------------------------------
-------------------------- ---------------- -----------------------------------------
-------------------------- ---------------- -----------------------------------------
-------------------------- ---------------- -----------------------------------------
-------------------------- ---------------- -----------------------------------------
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No inventions or improvements
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Additional Sheets Attached
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Date Signature
---------------------------------
Print Name
Exhibit A
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EXHIBIT B
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
Exhibit B
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EXHIBIT C
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 Confidential Information and Inventions Assignment 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.
Appendix B
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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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