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Exhibit
99.1
EXECUTIVE EMPLOYMENT
AGREEMENT
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September 17, 2007 (the “Effective
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PARTIES:
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Rainmaker Systems, Inc.
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900 E. Hamilton Ave.
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Campbell, CA 95086
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Attention: Phil Johnson
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(the “Company”)
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Telephone: (408) 626-2601
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(the “Company”)
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and
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Moe Bawa
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(“Executive”)
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RECITALS:
A. The Company desires to
employ Executive in the role set forth herein below and Executive
desires to be employed by the Company.
AGREEMENT:
In consideration of the
foregoing recitals (which are incorporated herein), and for other
good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
1. Employment;
Duties. The Company shall employ Executive, and Executive
accepts such employment under the terms and conditions set forth in
this Agreement. Executive’s duties shall be consistent with
those of a Vice President & GM, as defined from time to
time by the Chief Executive Officer of the Company.
2. Full-Time Best
Efforts.
(a) Time and
Effort. Executive shall devote Executive’s full
professional time and attention to the performance of
Executive’s obligations under this Agreement, and shall at
all times faithfully, industriously, and to the best of
Executive’s ability, experience, and talent perform all of
Executive’s obligations hereunder. So long as this Agreement
is in effect, Executive shall not be employed or engaged by any
other person or firm other than the Company unless otherwise
authorized in writing by the Chief Executive Officer of the
Company. Notwithstanding the foregoing, Executive, upon receiving
written permission from the Company’s CEO, shall be permitted
to serve on the boards of non-competitive companies
provided that these endeavors do not
impede Executive’s job performance, and Executive shall be
entitled to retain all compensation paid to him in connection with
such endeavors.
(b) Performance
Standards; Underperformance. Within 180 days after the
Effective Date, the Chief Executive Officer of the Company, shall
establish performance expectations and standards, which
(i) shall be reasonably acceptable to Executive, (ii) may
change from time to time as the needs of the Company change, and
(iii) shall serve as a basis to evaluate Executive’s
performance from time to time. Within six months following the
Effective Date, and at least annually thereafter, the CEO and the
Executive shall meet in order for the CEO to provide a formal
evaluation of Executive’s performance.
“Underperformance” shall mean Executive’s failure
to meet some or all of the then-current performance expectations
and standards, and can be the basis for a change in job
description, salary, and benefits, or termination of
Executive’s employment under this Agreement if such
Underperformance is not cured within 60 days’ following
the date on which notice of the elements of such Underperformance
has been given to Executive by the Company.
3. Term. The
term of this Agreement shall begin on the Effective Date and shall
end on the second anniversary of the Effective Date (the
“Initial Term”) unless terminated prior to that date as
provided herein.
4. Compensation and
Benefits. The Company shall pay compensation to Executive
consisting of an annual base salary, any applicable discretionary
bonuses and other benefits as described in this Agreement. In
addition to the financial compensation and benefits set forth
below, Executive shall be reimbursed in accordance with subsection
(d) below for any approved business-related expenses and shall
receive vacation, sick leave, and other time off as is customary
and usual for executives of Executive’s status in the
Company.
(a) Base Salary; Unpaid
Wages. Executive’s annual base salary as of the
Effective Date is $170,000. Executive’s base salary shall be
reviewed annually in conjunction with Executive’s annual
performance review and may be adjusted as appropriate in light of
Executive’s performance. Executive’s annual base salary
shall be paid in accordance with the standard payroll practices of
the Company.
(b) Benefits.
Executive shall be entitled to participate in such life insurance,
disability, medical, dental, stock options, stock grants, and
retirement plans and other programs as may be made generally
available from time to time by the Company for the benefit of
executives of Executive’s level or its employees generally
(the “Benefits”).
(c)
Bonuses/Commissions. Executive shall be eligible to
receive an aggregate annual bonus of $80,000, payable quarterly,
based on the achievement of certain performance goals.
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(d) Expense
Reimbursement. The Company shall reimburse Executive for
all reasonable and necessary out-of-pocket expenses properly
incurred in the performance of this Agreement, but only to the
extent that Executive submits to the Company an itemized account of
such expenses. Reimbursement for such expenses shall occur promptly
after their approval and receipt by the Company of such documentary
evidence of such expenses as the Company may reasonably
require.
(e) Relocation
Reimbursement. The company will reimburse you, or pay for
normal moving expense from Seattle, WA to Austin, Texas, based on
actual expense. In addition, the company will provide for temporary
housing for a two month period.
5. Restricted Share
Award. Subject to the approval of the Board of Directors,
Executive shall be granted 30,000 restricted shares of common stock
(the “Restricted Stock”) The Restricted Stock shall
vest annually over the 4 year vesting term. Board approval and
pricing of the restricted shares shall occur at the next regularly
scheduled monthly meeting of the options pricing committee of the
Board of Directors.
6. Documents and
Materials. Except in the performance of Executive’s
duties in the ordinary course of business for which Executive is
employed by the Company, Executive shall not make or cause to be
made any copies, or other reproductions or recordings or any
abstracts or summaries of any reports, studies, memoranda,
correspondence, manuals, records, plans or other written, printed,
computerized or otherwise recorded materials of any kind belonging
to or in the possession of the Company or any of its Affiliates
(defined below). Immediately upon the termination of
Executive’s employment with the Company or at any time upon
the request of the Company, Executive shall surrender all such
material to the Company and execute a document acknowledging that
Executive has complied with the provisions of this
Agreement.
7. Trade Secrets and
Other Confidential Information. Executive shall not at any
time, whether during or after the term of this Agreement, use for
Executive’s own benefit or purposes or for the benefit or
purposes of any other person or entity, or disclose (except in the
performance of Executive’s duties in the ordinary course of
business for which Executive is employed by the Company) in any
manner to any person or entity, any trade secrets, information,
data, know how or knowledge (including that relating to service
techniques, purchasing and sales organization and methods, client
lists, market development and expansion plans, personnel training
and development programs and client and supplier relationships) or
any other Discoveries (defined below) belonging to or relating to
the affairs of the Company or any of its Affiliates or to the
clients of the Company or any of its Affiliates; provided, however,
that this Section shall not apply to any trade secret, information,
data, know how, knowledge, or Discovery that is or becomes
generally available to the public through no fault or action of
Executive.
8. Customers and
Vendors . Executive acknowledges that the lists of
the Company’s and its Affiliates’ customers and vendors
as they may exist from time to
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time constitute a valuable and unique
asset of the Company, and Executive shall not, during or after the
term of Executive’s employment, disclose such lists or any
part thereof to any person or entity for any reason whatsoever, nor
shall Executive use such customer or vendor lists for
Executive’s own benefit or purposes or for the benefit or
purposes of any business with whom Executive may become
associated.
9. Discoveries.
Any and all inventions, discoveries, improvements, designs,
methods, systems, developments, know how, ideas, suggestions,
devices, trade secrets and processes (collectively,
“Discoveries”), whether patentable or not, which are
discovered, disclosed to or otherwise obtained by Executive during
Executive’s employment with the Company are confidential,
proprietary information and are the sole and absolute property of
the Company. Executive shall disclose promptly to the Company all
Discoveries and shall assist the Company in making any application
in the United States and in foreign jurisdictions for patents of
any kind with respect thereto.
10. Works for
Hire. All works and writings of a professional nature that
are produced by Executive during Executive’s employment with
the Company that relate to the Company’s business or that are
produced during regular working hours with the Company or with the
use of the Company’s resources constitute works made for hire
and are the sole and absolute property of the Company. Executive
grants the Company the exclusive right to copyright all such works
made for hire in the United States and in foreign jurisdictions.
Whenever requested to do so by the Company, Executive shall execute
any and all applications, assignments, or other instruments that
the Company may deem necessary to protect the Company’s
interest therein for the works made for hire.
11.
Non-Competition.
(a) Corporate
Relationship. Executive acknowledges (i) that
Executive’s employment as a member of the Company’s
executive management team creates a relationship of confidence and
trust between Executive and the Company with respect to
confidential and proprietary information applicable to the business
of the Company, its Affiliates and its clients, and (ii) the
highly competitive nature of the business of the Company.
Accordingly, the Company and Executive agree that the restrictions
contained in this Section are reasonable and necessary for the
protection of the immediate interests of the Company and that any
violation of these restrictions would cause substantial injury to
the Company.
(b) Competitive
Business Defined. The term “Competitive
Business” means any business which is similar to or
competitive with the business of the Company with respect to which
Executive has had direct responsibility and which is located in the
same regions or markets as the business of the Company.
(c) Existing Client
Defined. The term “Existing Client” means a
client for whom the Company or any of its Affiliates is performing
services or marketing products as of the date of the termination of
Executive’s employment with the Company or for whom the
Company or any of its Affiliates performed services or marketed
products within the two-year period immediately preceding the
termination of Executive’s employment with the
Company.
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(d) Non-Competition and
Non-Solicitation. During Executive’s employment with
the Company and for one year following Executive’s
termination, Executive shall not:
i. own, manage, operate,
control, have any financial interest in, or lend Executive’s
name to any person or entity engaged in, a Competitive Business or
assist others in the ownership, management, operation or control of
any Competitive Business; or
ii. solicit directly or
indirectly on behalf of Executive or any Competitive Business, the
customer business account of any Existing Client, or solicit for
hire any employees, independent contractors who are engaged
full-time by the Company, or temporary employees of the
Company.
(e) Specific
Enforcement. The foregoing covenants shall be specifically
enforceable; provided, however, that the covenants herein shall not
be construed to prohibit ownership of not more than five percent
(5%) of the equity of any publicly held entity that is a
Competitive Business, so long as the Executive is not otherwise
engaged with such entity in any of the other activities specified
in the foregoing clauses.
(f)
Severability. If any cou
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