exv10w18



 






EXHIBIT 10.18


January 27, 2004



Don Detampel

369 Steele Street

Denver, CO 80206


Dear Don:


     Raindance Communications, Inc. (“Company”) is very pleased to offer you
employment as our Chief Executive Officer. This letter (“Agreement”) states
the complete terms and conditions of your offer. If you agree to these terms
and conditions, please initial the bottom of each page and sign at the end of
this letter in the spaces indicated.


     1.     Employment. You shall serve the Company in the capacity of President
and Chief Executive Officer. You will commence employment with the Company on
a part time basis on January 28, 2004 (“Employment Start Date”). Effective
February 2, 2004, you will become a full time employee of the Company.


     2.     At-Will Employment. Except as expressly provided herein, it is
understood and agreed by the Company and you that this Agreement does not
contain any promise or representation concerning the duration of your
employment with the Company. You specifically acknowledge that your employment
with the Company is at-will and may be altered or terminated by either you or
the Company at any time, with or without cause and/or with or without notice.
The nature, terms or conditions of your employment with the Company cannot be
changed by any oral representation, custom, habit or practice, or any other
writing. In the event of conflict between this disclaimer and any other
statement, oral or written, present or future, concerning terms and conditions
of employment, the at-will relationship confirmed by this disclaimer shall
control. This at-will status cannot be altered except in writing signed by you
and approved by the Board of Directors of the Company (the “Board of
Directors”).


     3.     Duties. As of February 2, 2004, you shall render exclusive, full-time
services to the Company as its Chief Executive Officer. You shall also
continue to be a voting member of the Company’s Board of Directors and you
shall retain such position in accordance with the provisions of the Company’s
charter documents. You understand and agree that in the event that you are no
longer acting as Chief Executive Officer, regardless of reason, you voluntarily
agree to take all steps necessary to resign your position as a member of the
Board of Directors, unless otherwise requested by the Company to remain on the
Board of Directors. You shall report to the Board of Directors. You shall
perform services under this Agreement primarily at the Colorado office of the
Company, and from time to time at such other locations as is necessary to
perform the duties of Chief Executive Officer under this Agreement. During
your employment with the Company you shall devote your best efforts and your
full business time, skill and attention to the performance of your duties on
behalf of the Company, except with respect to the duties you perform as a
member of the boards of directors of no more than two outside companies
pre-approved by the Board of Directors on which boards you may serve provided
that your service on these boards does not adversely affect your ability to
fulfill your responsibilities as Chief Executive Officer of the Company. As
of your Employment Start Date, the Board of Directors has approved your
membership on the Inflow and Masergy boards of directors.


     4.     Policies and Procedures. You agree that you are subject to and will
comply with the policies and procedures of the Company, as such policies and
procedures may be modified, added to or eliminated from time to time at the
sole discretion of the Company, except to the extent any such policy or
procedure specifically conflicts with the express terms of this Agreement. You
further agree and acknowledge that any written or oral policies and procedures
of the Company do not constitute contracts between the Company and you.


     5.     Base Salary. For all services rendered and to be rendered hereunder,
the Company agrees to pay to you, and you agree to accept a salary of $290,000
per annum (“Base Salary”) which will be paid bi-weekly in accordance with
normal Company payroll practices and shall be subject to such deductions or
withholdings as the Company is required to make pursuant to law, or by further
agreement with you. Your Base Salary shall be subject to annual review and
adjustment by the Compensation Committee of the Board of Directors.


 






 


     6.     Stock Options. Subject to approval by the Board of Directors, the
Company shall grant you one or more options (each an “Option,” and collectively
the “Option(s)”) to purchase an aggregate of Two Million (2,000,000) shares of
the Company’s common stock. The shares subject to the Option(s) shall have an
exercise price equal to the fair market value of the stock at the close of
business on the day prior to your Employment Start Date. The shares subject to
the Option(s) shall vest pursuant to a four-year vesting schedule, which shall
provide that 25% (12/48) of the shares subject to the Option(s) shall become
vested after you have completed 12 months of continuous service with the
Company, and one forty-eighth (1/48th) of the shares subject to the Option(s)
shall vest for each month of service thereafter. To the maximum extent
possible, the Option(s) shall be incentive stock options as such term is
defined in Section 422 of the Internal Revenue Code of 1986, as amended. To
the extent that any portions of the Option(s) do not qualify as incentive stock
options under Section 422 of the Code, those portions of the Option(s) shall be
treated as nonstatutory stock options. The Option(s) shall be subject to the
terms and conditions of the Company’s 2000 Equity Incentive Plan (the “Plan”),
the Company’s form stock option agreement and stock option grant notice.


     7.     Restricted Stock Grant. Subject to approval by the Board of Directors,
on your Employment Start Date, the Company shall grant you a 275,000 share
Restricted Stock Award pursuant to the Company’s Plan. The shares subject to
the Restricted Stock Award shall vest pursuant to the following schedule: a)
50,000 shares shall vest in full on the Employment Start Date; b) 100,000
shares shall vest in full after you have completed 24 months of continuous
service with the Company; and c) 125,000 shares shall vest in full after you
have completed 37 months of continuous service with the Company. You shall, at
your discretion, either elect to pay the Company or instruct the Company to
withhold shares equal to the amount required to satisfy the Company’s
withholding obligations pursuant to applicable federal and state laws. For
purposes of determining the number of shares to be withheld, if any, the
Company’s common stock shall be valued using the average of the high and low
sales price of the Company’s common stock as reported on NASDAQ for the last
trading day prior to the applicable vesting date.


     8.     Variable Incentive Bonus. You shall be eligible to receive an annual
performance bonus of up to 100% of your Base Salary (“Bonus”), payable 60% in
cash, less standard payroll deductions and withholdings, and 40% in the
Company’s common stock, based upon your achievements of certain milestones and
performance objectives established by you and the Company (“Variable Incentive
Bonus Plan”). The financial and other objectives shall be determined by mutual
agreement between you and the Board of Directors (or the Compensation Committee
of the Board of Directors) within forty-five (45) days of your Employment Start
Date and within the first thirty (30) days of each Company fiscal year
thereafter. The Board of Directors (or the Compensation Committee of the Board
of Directors), shall determine, in its sole discretion, the actual bonus amount
payable to you, if any, based upon achievement of such objectives at the end of
each fiscal year. The number of shares of Company common stock that you shall
be entitled to receive, if any, shall be determined by dividing the cash
equivalent of 40% of the Bonus by the average of the high and low sales price
of the Company’s common stock as reported on NASDAQ on the last trading day of
the Company’s fiscal year in which the Bonus is being determined. (By way of
example only, if you earned a $100,000 Bonus in FY 2004, 40% of the Bonus or
$40,000 would be paid in Company common stock. If the average of the high and
low sales price for the last trading day of FY 2004 was $4.00 per share, you
would receive 10,000 shares of Company common stock). You must be employed by
the Company at the time of the determination of the Bonus, if any, in order to
be eligible for receipt of the Bonus. As long as you remain continuously
employed by the Company, you agree to hold all shares of the Company’s common
stock you receive through the Variable Incentive Bonus Plan, if any, for a
period of twenty-four (24) months following the date of the award of the
related shares, provided, however, the Compensation Committee of the Board of
Directors will review reasonable requests made by you for earlier sale of such
shares for bona fide reasons.


     9.     Potential Additional Stock Options. On each anniversary of your
Employment Start Date, the Compensation Committee of the Board of Directors
shall review your performance relative to the specified objectives referred to
in paragraph 8 above as well as other relevant factors and, at its sole
discretion, may recommend to the Board an award to you of additional option
grants. The targeted number of option shares to be covered by these
anticipated further stock option grants shall be 200,000 options per year for
the calendar years 2005 through 2008. Any additional option grants shall be
awarded pursuant to the Plan and be subject to all terms and conditions of the
Plan, including applicable vesting provisions, the Company’s form stock option
agreement and stock option grant notice.


     10.     Other Benefits. While employed by the Company as provided herein:


          (a) Your Benefits. You shall be entitled to all benefits to which other
executive officers of the Company are entitled, on terms comparable thereto,
including, without limitation, participation in pension and profit sharing




 






 





plans, 401(k) plan, group insurance policies and plans, medical, health,
vision, and disability insurance policies and plans, and the like, which may be
maintained by the Company for the benefit of its executives. The Company
reserves the right to alter and amend the benefits received by you from time to
time at the Company’s discretion.


          (b) Expense Reimbursement. You shall receive, against presentation of
proper receipts and vouchers, reimbursement for direct and reasonable
out-of-pocket expenses incurred by you in connection with the performance of
your duties hereunder, according to the policies of the Company.



          (c) Personal Time Off. You shall be entitled to four weeks personal time
off per year (including paid vacation and sick leave) subject to the terms of
the Company’s applicable policy.



          (d) Directors and Officers Insurance. You shall be entitled to coverage
and participation in the Company’s Directors and Officers Insurance policy.



     11.     Confidential Information, Rights and Duties.


          (a) Proprietary Information. You will be required as a condition of
employment to sign and abide by the Company’s Proprietary Information and
Inventions Agreement (the “Proprietary Information Agreement”), in the form
attached hereto as Exhibit A.



          (b) Exclusive Property. You agree that all Company-related business
procured by you, and all Company-related business opportunities and plans made
known to you while employed by the Company, are and shall remain the permanent
and exclusive property of the Company.



     12.     Termination. You and the Company each acknowledge that either party
has the right to terminate your employment with the Company at any time for any
reason whatsoever, with or with out cause or advance notice pursuant to the
following:


          (a) Termination by Death or Disability. Subject to applicable state or
federal law, in the event you shall die during the period of your employment
hereunder or become permanently disabled, as evidenced by notice to the Company
and your inability to carry out your job responsibilities for a continuous
period of more than three months, your employment and the Company’s obligation
to make payments hereunder shall terminate on the date of your death, or the
date upon which, in the sole determination of the Board of Directors, you have
become permanently disabled, except the Company shall pay you (or your estate)
any salary earned but unpaid prior to such termination, any benefits accrued
prior to such termination, all accrued but unused personal time, and any
business expenses referred to in paragraph 10(b) that were incurred but not
reimbursed as of the date of such termination. Vesting of all shares subject to
the options granted pursuant to Paragraph 6 (Stock Options) and Paragraph 9
(Potential Additional Stock Options) shall cease on the date of such
termination.



          (b) Voluntary Resignation. In the event you voluntarily terminate your
employment with the Company without Good Reason (as defined below), the
Company’s obligation to make payments hereunder shall cease upon such
termination, except the Company shall pay you any salary earned but unpaid
prior to such termination, any benefits accrued prior to such termination, all
accrued but unused personal time, and any business expenses referred to in
paragraph 10(b) that were incurred but not reimbursed as of the date of such
termination. Vesting of all shares subject to the options granted pursuant to
Paragraph 6 (Stock Options) and Paragraph 9 (Potential Additional Stock
Options) shall cease on the date of such termination.



          (c) Termination for Cause. In the event you are terminated by the Company
for Cause (as defined below), the Company’s obligation to make payments
hereunder shall cease upon the date of receipt by you of written notice of such
termination, except the Company shall pay you any salary earned but unpaid
prior to such termination, all accrued but unused personal time, and any
business expenses referred to in paragraph 10(b) that were incurred but not
reimbursed as of the date of such termination. Vesting of all shares subject
to the options granted pursuant to Paragraph 6 (Stock Options) and Paragraph 9
(Potential Additional Stock Options) shall cease on the date of termination.
For purposes of this Agreement, “Cause” shall mean any of the following: (i)
indictment or conviction of any felony or any crime involving dishonesty or
moral turpitude; (ii) dishonesty which is not the result of an inadvertent or
innocent mistake by you with respect to the




 






 





Company; (iii) your continued willful violation of your obligations to the
Company after there has been delivered to you a written demand for performance
from the Board of Directors which describes the basis for the Board of
Directors’ belief that you have not substantially satisfied your obligations to
the Company; (iv) your continued violation or breach of any material written
Company policy, agreement with the Company, or any statutory or fiduciary duty
to the Company, after there has been delivered to you a written notification of
such violation or breach; or (v) damaging or misappropriating or attempting to
damage or misappropriate any property, including any confidential or
proprietary information, of the Company.


          (d) Termination by the Company without Cause or by You with Good Reason.
The Company will have the right to terminate your employment with the Company
at any time without Cause. In the event you are terminated without Cause (as
defined herein) or in the event that you resign with Good Reason (as defined in
paragraph 13(b) below), and upon the execution of a release by you in the form
attached hereto as Exhibit B (“Release”), and upon written acknowledgment of
your continuing obligations under paragraph 14 hereof and the Proprietary
Information Agreement, you shall be entitled to receive the following severance
payments: (1) if you are terminated without Cause or you resign for Good Reason
within the first twelve months of your full time employment with the Company
(on or before February 1, 2005) you shall receive for each month of full time
service rendered to the Company the equivalent of one month of your Base Salary
as in effect immediately prior to the termination, to paid on the same basis
and at the same time as previously paid; (2) or if you are terminated without
Cause or you resign for Good Reason after the first anniversary of your full
time employment with the Company (on or after February 2, 2005) you shall
receive the equivalent of twelve (12) months of your Base Salary as in effect
immediately prior to the termination date, paid on the same basis and at the
same time as previously paid. In addition, the Company will continue vesting
of the shares subject to the options granted pursuant to Paragraph 6 (Stock
Options) and Paragraph 9 (Potential Additional Stock Options) so that you shall
receive additional vesting equal to the number of months of severance under
either (1) or (2) above (up to a maximum of the equivalent of an additional
twelve (12) months of vesting). All other terms and conditions set forth in
the Option(s) or the Plan shall remain in full force and effect. (The salary
continuation and additional vesting are collectively referred to as “Severance
Benefits”).



          (e) 280(G) Parachute Payments. Anything in this Agreement to the contrary
notwithstanding, if any payment or benefit you would receive from the Company
pursuant to this Agreement (“Payment”) would (i) constitute a “parachute
payment” within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the “Code”), and (ii) but for this sentence, be subject to
the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then
such Payment shall be equal to the Reduced Amount (as defined below). For the
avoidance of doubt, a Payment shall not be considered a parachute payment for
purposes of this paragraph if such Payment is approved by the shareholders of
the Company in accordance with the procedures set forth in Section
280G(b)(5)(A)(ii) and (B) of the Code and the regulations thereunder, and at
the time of such shareholder approval, no stock of the Company is readily
tradeable on an established securities market or otherwise (within the meaning
of Section 280G(b)(5)(A)(ii)(I) of the Code) (“280G Shareholder Approval”).
The “Reduced Amount” shall be either (i) the largest portion of the Payment
that would result in no portion of the Payment being subject to the Excise Tax,
or (ii) the Payment or a portion thereof after payment of the applicable Excise
Tax, whichever amount after taking into account all applicable federal, state
and local employment taxes, income taxes, and the Excise Tax (all computed at
the highest applicable marginal rate), results in your receipt, on an after-tax
basis, of the greatest amount of the Payment to you. If a reduction in
payments or benefits constituting “parachute payments” is necessary so that the
Payment equals the Reduced Amount, reduction shall occur in the following order
unless you elect in writing a different order (provided, however, that such
election shall be subject to Company approval if made on or after the date on
which the event that triggers the Payment occurs): reduction of cash payments;
cancellation of accelerated vesting of stock awards or options; reduction of
employee benefits. In the event that acceleration of vesting of stock award or
options compensation is to be reduced, such acceleration of vesting shall be
cancelled in the reverse order of the date of grant of the your stock awards
unless you elect in writing a different order for cancellation.



          The accounting firm engaged by the Company for general audit purposes as
of the day prior to the effective date of the Payment Event shall perform the
foregoing calculations. If the accounting firm so engaged by the Company is
serving as accountant or auditor for the individual, entity or group effecting
the Payment Event, the Board shall have the discretion to appoint a nationally
recognized accounting firm to make the determinations required hereunder. The
Company shall bear all expenses with respect to the determinations by such
accounting firm required to be made hereunder.



          The accounting firm engaged to make the determinations hereunder shall
provide its calculations, together with detailed supporting documentation, to
the Company and you within fifteen (15) calendar days after the date on which
your right to a Payment is triggered (if requested at that time by the Company
or you) or such other time as requested by the Company or you. If the
accounting firm determines that no Excise Tax is payable with respect to a
Payment, either before or




 






 





after the application of the Reduced Amount, it shall furnish the Company
and you with an opinion reasonably acceptable to you that no Excise Tax will be
imposed with respect to such Payment. The Company shall be entitled to rely
upon the accounting firm’s determinations, which shall be final and binding.


     13.     Change In Control.


          (a) Change in Control shall have the same definition as found in the
Plan.



          (b) Good Reason shall mean that after notification of the Company by you
of your intention to resign for Good Reason and a reasonable opportunity for
the Company to cure any such alleged defect, the Company persists in any of the
following: (i) a significant reduction in your duties, position, or
responsibilities in effect immediately prior to such reduction, provided,
however, that a reduction in duties, position or responsibilities solely by
virtue of either: (x) the Company being acquired and made part of a larger
entity (as, for example, when the Chief Executive Officer of the Company
remains as such following a Change in Control but is not made the Chief
Executive Officer of the acquiring corporation), or (y) the Company appointing
a separate President that reports to you as Chief Executive Officer, shall not
constitute “Good Reason;”(ii) the Company materially reduces your base salary
relative to the salary in effect immediately prior to such reduction; (iii)
there is a material reduction by the Company in the kind or level of benefits
to which you are entitled immediately prior to such reduction with the result
that your overall benefits package is significantly reduced; (iv) without your
express written consent, your relocation to a facility or a location more than
fifty (50) miles from your then current location; or (v) the Company is in
material breach of this Agreement.



          (c) Change in Control Benefits. If within the twelve (12) months
immediately following a Change in Control: (1) you are involuntarily terminated
by the Company (or its successor entity) other than for Cause; or (2) you
voluntarily terminate your employment with the Company (or its successor
entity) for Good Reason (either constituting a “Change of Control
Termination”), and in each case, upon the execution of a Release and written
acknowledgment of your continuing obligations under paragraph 14 hereof and the
Proprietary Information Agreement, you shall receive the equivalent of twelve
(12) months of your Base Salary as in effect immediately prior to the Change of
Control Termination, paid on the same basis and at the same time as previously
paid. In addition, upon a Change of Control Termination, and provided you have
executed a Release and written acknowledgement of your continuing obligations
under paragraph 14 hereof and the Proprietary Information Agreement, you shall
be entitled to additional vesting of the shares subject to the options granted
pursuant to Paragraph 6 (Stock Options) and Paragraph 9 (Potential Additional
Stock Options) as follows: (i) if the Change of Control occurs within the
first eighteen (18) months of your Employment Start Date, the Company will
continue vesting of the shares subject to the options granted pursuant to
Paragraph 6 (Stock Options) and Paragraph 9 (Potential Additional Stock
Options), so that you shall receive for each month of full time service
rendered to the Company the equivalent of one additional month of vesting (up
to a maximum of eighteen (18) additional months of vesting, inclusive of any
cliff vesting that may result); or (ii) if the Change of Control occurs after
the first eighteen (18) months of your Employment Start Date, all shares
subject to the options granted pursuant to Paragraph 6 (Stock Options) and
Paragraph 9 (Potential Additional Stock Options) will immediately vest in full.
Finally, upon a Change of Control Termination, you shall be entitled to
exercise all vested options for a period of one year following the effective
date of such Change of Control Termination. All other terms and conditions set
forth in the options or the Plan shall remain in full force and effect.



     14.     Noncompetition and Nonsolicitation. You acknowledge that you will be
a member of executive and management personnel at the Company. You further
acknowledge that during your employment at the Company, you will be privy to
extremely sensitive, confidential and valuable commercial information, which
constitutes trade secrets belonging to the Company, the disclosure of which
information and secrets would greatly harm the Company.


          (a) Definitions.



               (i) Conflicting Product or Service. As used in this Agreement a
“Conflicting Product or Service” means any business in which the Company is
actively engaged on the date of termination or any business in which during the
twelve (12) months immediately preceding the date of termination the Company
actively contemplated engaging (as evidenced by inclusion in a written business
plan or proposal).



          (ii) Conflicting Organization. As used in this Agreement, a “Conflicting
Organization” means any person or organization that is engaged in or is about
to become engaged in the design, research, development, production, marketing,
distribution, leasing, licensing, selling, or servicing of a Conflicting
Product or Service.




 






 





          (b) Covenant Not to Compete. As a reasonable measure to protect the
Company from the harm of such disclosure and use of its information and trade
secrets against it, you agree to the following as part of this Agreement:
During your employment with the Company and for a period of twelve (12) months
following the separation of your employment with the Company, for any reason,
you agree that you shall not, individually or together with others, directly or
indirectly, whether as an owner, consultant, partner, joint venturer,
stockholder, broker, agent, financial agent, principal, trustee, licensor or in
any other capacity whatsoever: (i) own, manage, operate, join, control, finance
or participate in the ownership, management, operation, control or financing
of, or be connected as an officer, director, partner, principal, agent,
representative, consultant, licensor, licensee or otherwise with, any business
or enterprise which is a Conflicting Organization; or (ii) sell or assist in
the design, development, manufacture, licensing, sale, marketing or support of
any Conflicting Product or Service, or engage in any other manner, in any
Conflicting Organization. Notwithstanding the foregoing, the parties agree
that your acceptance of employment with an organization that derives not more
than 5% of its revenue from a Conflicting Product or Service shall not be
considered a violation of this paragraph provided that you are not employed in
an executive capacity within the business unit, division, group or otherwise
that has responsibility over the development, production, marketing or sale of
such Conflicting Product or Service. (By way of example only, you may accept
employment with Microsoft so long as in your position you would not have any
executive responsibility for the development, production, marketing or sale of
any conferencing products such as the former Placeware products and services).
The parties also agree that owning less than 1% of the outstanding voting stock
of a publicly traded company shall not constitute a violation of this
paragraph. You further agree and acknowledge that because of the nature and
type of business that the Company engages in, the geographic scope of the
covenant not to compete shall include all counties, cities, and states of the
United States and any other Country, territory or region in which the Company
conducts business or in which the Company actively contemplated conducting
business in (as evidenced by inclusion in a written business plan or proposal)
at the time of termination and that such a geographic scope is reasonable.
Nothing in this paragraph should be construed to narrow the obligations of you
imposed by any other provision herein, any other agreement, law or other
source.



          (c) Nonsolicitation Covenant. As a reasonable measure to protect the
Company from the harm of such disclosure and use of its information and trade
secrets against it, the parties agree to the following as part of this
Agreement: you acknowledge and agree that information regarding employees of
the Company is Confidential Information, including without limitation, the
names of the Company Employees; information regarding the skills and knowledge
of Employees of the Company; information regarding any past, present, or
intended compensation, benefits, policies and incentives for Employees of the
Company; and information regarding the management and reporting structure of
the Company. During the period of your employment by the Company and for a
period of twelve (12) months following the separation, resignation, or
termination of your employment with the Company for any reason, you agree that
you will not, individually or with others, directly or indirectly (including
without limitation, individually or through any business, venture,
proprietorship, partnership, or corporation in which they control or own more
than a five (5) percent interest, through any agents, through any contractors,
through recruiters, by their successors, by their employees, or by their
assigns) hire, solicit, or induce any employee of the Company to leave the
Company. You further agree that during the period you are employed by the
Company and for a period of twelve (12) months following the separation,
resignation, or termination of your employment with the Company for any reason,
you will not, either directly or indirectly, solicit or attempt to solicit any
customer, partner, reseller, client, supplier, investor, vendor, consultant or
independent contractor of the Company to terminate, reduce or negatively alter
his, her or its relationship with the Company. The geographic scope of the
covenants in this paragraph 14 shall include any city, county, or state of the
United States and any such other city, territory, country, or jurisdiction in
which the Company does business or in which the Company actively contemplated
conducting business in (as evidenced by inclusion in a written business plan or
proposal) at the time of termination. Nothing in this paragraph 14 should be
construed to narrow the obligations of you imposed by any other provision
herein, any other agreement, law or other source.



          (d) Reasonable. You agree and acknowledge that the time limitation and
the geographic scope on the restrictions in this paragraph and its subparts are
reasonable. You also acknowledge and agree that the limitation in this
paragraph and its subparts is reasonably necessary for the protection of the
Company, that through this Agreement you shall receive adequate consideration
for any loss of opportunity associated with the provisions herein, and that
these provisions provide a reasonable way of protecting the Company’s business
value which was imparted to you. In the event that any term, word, clause,
phrase, provision, restriction, or section of this paragraph of this Agreement
is more restrictive than permitted by the law of the jurisdiction in which the
Company seeks enforcement thereof, the provisions of this Agreement shall be
limited only to the extent that a judicial determination finds the same to be
unreasonable or otherwise unenforceable. Moreover, notwithstanding any
judicial determination that any term, word, clause, phrase, provision,
restriction, or section of




 






 





this Agreement is not specifically enforceable, the parties intend that
the Company shall nonetheless be entitled to recover monetary damages as a
result of any breach hereof.


          (e) Legal and Equitable Remedies. In view of the nature of the rights in
goodwill, your relations, trade secrets, and business reputation and prospects
of the Company to be protected under this paragraph, you understand and agree
that the Company could not be reasonably or adequately compensated in damages
in an action at law for your breach of your obligations (whether individually
or together) hereunder. Accordingly, you specifically agree that the Company
may be entitled to temporary and permanent injunctive relief, specific
performance, and other equitable relief to enforce the provisions of this
Agreement and that such relief may be granted without bond. You acknowledge
and agree that the provisions in this paragraph and its subparts are essential
and material to this Agreement, and that upon breach of this paragraph by you,
the Company is entitled to withhold providing payments or consideration, to
equitable relief, to prevent continued breach, to recover damages and to seek
any other remedies available to the Company. This provision with respect to
injunctive relief shall not, however, diminish the right of the Company to
claim and recover damages or other remedies in addition to equitable relief.



     15 Miscellaneous.


          (a) Taxes. You agree to be responsible for the payment of any taxes due
on any and all compensation, stock option, or benefit provided by the Company
pursuant to this Agreement. You agree to indemnify the Company and hold the
Company harmless from any and all claims or penalties asserted against the
Company for any failure to pay taxes due on any compensation, stock option, or
benefit provided by the Company pursuant to this Agreement. You expressly
acknowledge that the Company has not made, nor herein makes, any representation
about the tax consequences of any consideration provided by the Company to you
pursuant to this Agreement.



          (b) Modification/Waiver. This Agreement may not be amended, modified,
superseded, canceled, renewed or expanded, or any terms or covenants hereof
waived, except by a writing executed by each of the parties hereto or, in the
case of a waiver, by the party waiving compliance. Failure of any party at any
time or times to require performance of any provision hereof shall in no manner
affect your or its right at a later time to enforce the same. No waiver by a
party of a breach of any term or covenant contained in this Agreement, whether
by conduct or otherwise, in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of agreement contained in the
Agreement.



          (c) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of any successor or assignee of the business of the
Company. This Agreement shall not be assignable by you.



          (d) Notices. All notices given hereunder shall be given by certified
mail, addressed, or delivered by hand, to the other party at your or its
address as set forth herein, or at any other address hereafter furnished by
notice given in like manner. You promptly shall notify Company of any change
in your address. Each notice shall be dated the date of its mailing or
delivery and shall be deemed given, delivered or completed on such date.



          (e) Governing Law; Personal Jurisdiction and Venue. This Agreement and
all disputes relating to this Agreement shall be governed in all respects by
the laws of the State of Colorado as such laws are applied to agreements
between Colorado residents entered into and performed entirely in Colorado.
The parties acknowledge that this Agreement constitutes the minimum contacts to
establish personal jurisdiction in Colorado and agree to Colorado court’s
exercise of personal jurisdiction.



          (f) Entire Agreement. This Agreement together with the Exhibits A and B
attached hereto (as well as any stock option agreements related to your
options) sets forth the entire agreement and understanding of the parties
hereto with regard to your employment by the Company and supersede any and all
prior agreements, arrangements and understandings, written or oral, pertaining
to the subject matter hereof. No representation, promise or inducement
relating to the subject matter hereof has been made to a party that is not
embodied in these Agreements, and no party shall be bound by or liable for any
alleged representation, promise or inducement not so set forth.



     (g)  Agents. You and the Company represent and warrant to each other that
neither has incurred any liability for any employment agency or finders fees or
commissions, or the like, in connection with the employment contemplated
herein. You hereby agree to indemnify and hold the Company harmless from and
against and in respect of any


 






 


claim for employment agency or finders fees or commissions or the like
relating to the employment contemplated by this Agreement except for any
finders fees or commissions or the like due by the Company to Spencer Stuart
who was retained by the Company to assist in the Chief Executive Officer
search.


          (h) Representation and Warranty of the Company. The Company represents
and warrants that it has made no misrepresentation or untrue statement of a
material fact to you about the Company and has not omitted to disclose any
material fact to you, the omission of which would render misleading any
statements made to you about the Company.



If you wish to accept this offer of employment, please sign and date this
letter and return it to me along with the release of current employment
contract described above.


Sincerely,



Raindance Communications, Inc.



	 	 	 
	By:	 	


	Title:	 	





I have read, understand and agree to the foregoing terms.




	 	 	 
	
     Don
Detampel	 	

     Date