EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered
into as of the 2nd day of February, 2000 (the "Commencement Date") by and
between NETCREATIONS, INC., a New York corporation (the "Company"), and Xxx
Xxxxx (hereinafter called the "Executive").
R E C I T A L S
A. The Executive desires to be employed as the Chief
Information Officer of the Company.
B. The Company desires to employ the Executive as the Chief
Information Officer of the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth herein, the parties agree as follows:
1. EMPLOYMENT.
1.1 EMPLOYMENT. The Company hereby agrees to employ
the Executive and the Executive hereby agrees to serve the Company on the terms
and conditions set forth herein.
1.2 DUTIES OF EXECUTIVE. During the Term of
Employment under this Agreement, the Executive shall serve as the Chief
Information Officer of the Company, shall diligently perform all services as may
be assigned to the Executive by the Chief Executive Officer, the President, and
the Chief Operating Officer of the Company and by the Board of Directors (the
"Board") of the Company, and shall exercise such power and authority as may from
time to time be delegated to the Executive by the Board. Without limiting the
generality of the foregoing, the Executive duties shall include, among other
things, the following:
o Provide day-to-day management of the systems staff and ensure the team is
prepared to support a rapidly-growing business which has multiple
markets/channels. Must achieve a high degree of short-term reliability and
build a plan for the continued operation of mission-critical systems in the
event of a major outage or "acts of God."
o Determine what it would take to build a first-class team of professionals who
can plan and implement simultaneous initiatives in a company which is
experiencing explosive growth.
o Utilize project management skills to plan and implement several major systems
projects which will affect the efficiency of all business functions.
o Negotiate major contracts regarding software licenses, telecommunications
hardware and other outside services.
o Implement an architecture and infrastructure which can retrieve/distribute
all critical information from varied sources.
o Ensure the transaction platform is data secure and can handle a wide variety
of systems.
o Manage a back office that is scalable.
o Establish credibility throughout the organization and set the example as a
proactive senior manager who earns respect by demonstrating a sound
understanding of the business goals and objectives.
o Ensure the executive management team and "clients" are thoroughly informed.
Provide the necessary direction regarding the requirements for integrated
executive information and its effective utilization.
Participate in the product development process for the technical design and
implementation of all NetCreations products and services.
The Executive acknowledges and agrees that the Company may assign some of the
foregoing specific duties to other persons as the Company's management team
expands, and that such assignments of duties to other persons will not be viewed
by the Executive as constituting a diminution in the Executive's office, title,
and duties and responsibilities hereunder as long as the Executive's reporting
obligations and supervisory role in respect to those functions are not
materially changed. The Executive shall devote the Executive's full time and
attention to the business and affairs of the Company, render such services to
the best of the Executive's ability, and use the Executive's best efforts to
promote the interests of the Company. It shall not be a violation of this
Agreement for the Executive to (i) serve on corporate, civic or charitable
boards or committees, (ii) deliver lectures, fulfill speaking engagements or
teach at educational institutions, or (iii) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities to the Company in accordance with this Agreement.
The Executive's duties will require the Executive's regular presence during
normal working hours on business days Monday through Friday at the Company's
principal executive offices, currently located at 000 Xxxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx, but the Executive's duties will also involve some business travel.
Notwithstanding anything to the contrary contained herein, the Executive need
not devote more than 5 hours per week to the Executive's duties pursuant to this
Agreement from February 2, 2000 through March 1, 2000, but shall perform such
duties on a full time basis commencing March 2, 2000; provided, that in no event
shall the Executive otherwise breach the terms and conditions of this Agreement
during the period from February 2, 2000 through March 1, 2000.
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2. TERM.
2.1 INITIAL TERM. The initial Term of Employment
under this Agreement, and the employment of the Executive hereunder, shall
commence on the (the "Commencement Date") and shall expire at the close of
business on February 1, 2003, unless sooner terminated in accordance with
Section 5 hereof (the "Initial Term").
2.2 RENEWAL TERMS. At the end of the Initial Term,
the Term of Employment automatically shall renew for successive one year terms
(subject to earlier termination as provided in Section 5 hereof), unless the
Company or the Executive delivers written notice to the other at least 90 days
prior to the last day of the Initial Term or any such applicable renewal period
(in either case, the "Expiration Date") of its or the Executive's election not
to renew the Term of Employment. For purposes of this Agreement, if the Term of
Employment expires as a result of the Company delivering written notice to the
Executive stating its intention not to renew the Term of the Employment pursuant
to this Section 2.2, the Executive shall be treated as if the Executive was
terminated by the Company without Cause, in accordance with Section 5.4 hereof,
upon the Expiration Date. In addition, if the Term of Employment expires as a
result of the Executive delivering written notice to the Company stating the
Executive's intention not to renew the Term of Agreement pursuant to this
Section 2.2, the Executive shall be treated as if the Executive had terminated
the Executive's employment with the Company without Good Reason, in accordance
with Section 5.5(b) hereof, upon the Expiration Date.
2.3 TERM OF EMPLOYMENT. The period during which the
Executive shall be employed by the Company pursuant to the terms of this
Agreement is sometimes referred to in this Agreement as the "Term of
Employment."
3. COMPENSATION.
3.1 BASE SALARY. The Executive shall receive a base
salary at the annual rate (prorated for any applicable period of less than one
year) of Two Hundred Thousand Dollars ($200,000) (the "Base Salary") during the
Term of Employment, with such Base Salary payable in installments consistent
with the Company's normal payroll schedule, subject to applicable withholding
and other taxes. The Base Salary shall be reviewed, at least annually, for merit
increases and may, by action and in the discretion of the Board, be increased
(but not decreased) at any time or from time to time. Notwithstanding the
foregoing, during the period from February 2, 2000 through March 1, 2000, the
Executive shall only be paid at a rate of $100 per day worked.
3.2 BONUSES. During the term of this Agreement, the
Executive shall be eligible to receive performance and annual incentive awards
(the "Bonuses") of up to a maximum potential limit of One Hundred Fifty Thousand
Dollars ($150,000) per annum as described below. Bonuses shall be reviewed, at
least annually, for merit increases and, by action and in the discretion of the
Board, the limit on the potential size of Bonuses can be increased, but not
decreased, at any time or from time to time.
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Each period for which Bonuses are payable is sometimes
hereinafter referred to as a Bonus Period. Unless otherwise specified by the
Board, the Bonus Period shall be the designated fiscal year or fiscal quarter of
the Company. The amount of the Bonuses that may be awarded for any period, if
any, shall be determined prior to the commencement of the relevant Bonus Period
by the Board, in its sole and absolute discretion. However, any bonus plan for
the Executive shall be predicated on the establishment of quarterly goals,
referred to as Key Initiatives, to be mutually developed and signed-off on
between the Executive and the Company's Board/Representative of the Company
prior to and/or adjusted during a quarter. Key Initiatives will comprise, among
other things, revenues and pretax income goals. For purposes of this Agreement,
the term "Representative of the Company"" means the Company's Chief Executive
Officer. All Bonuses shall be payable to the Executive quarterly in cash and/or
to the extent determined by the Board and agreed upon by the Executive, with
common stock ("Common Stock") of the Company by no later than ten (10) business
days after the Company has completed its financial statements, approved by the
Company's Chief Financial Officer and its Chief Executive Officer, for the
preceding fiscal period. Bonuses shall be subject to proration for periods of
less than one quarter. Any bonuses payable pursuant to this Section 3.2 are
sometimes hereinafter referred to as "Incentive Compensation."
4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
4.1 REIMBURSEMENT OF EXPENSES. Upon the submission of
proper substantiation by the Executive, and subject to such rules and guidelines
as the Company may from time to time adopt, the Company shall reimburse the
Executive for all reasonable expenses actually paid or incurred by the Executive
during the Term of Employment in the course of and pursuant to the business of
the Company.
The Executive shall account to the Company in writing
for all expenses for which reimbursement is sought and shall supply to the
Company copies of all relevant invoices, receipts or other evidence reasonably
requested by the Company.
4.2 COMPENSATION/BENEFIT PROGRAMS. During the term of
Employment, the Executive shall be entitled to participate in all medical,
dental, hospitalization, accidental death and dismemberment, disability, travel
and life insurance plans applicable to the Company's senior executives
generally, and any and all other plans as are presently and hereinafter offered
by the Company generally to its executives, including savings, pension,
profit-sharing and deferred compensation plans, subject to the general
eligibility and participation provisions set forth in such plans. The Company
will use its best commercial efforts to obtain an administrative exception to
permit the Executive to participate in the Company's 401K Plan effective
February 2, 2000.
4.3 TRANSPORTATION ALLOWANCE. The Executive will not
be entitled to reimbursement for his expenses in commuting to and from the
Company's offices.
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4.4 STOCK OPTIONS.
a. During the Term of Employment, the Executive shall
be eligible to be granted options (the "Stock Options") to purchase the Common
Stock of the Company under (and therefore subject to) all terms and conditions
of the Company's Stock Option Plan. The number of Stock Options and terms and
conditions of the Stock Options shall be determined by the Committee appointed
pursuant to the Stock Option Plan, or by the Board of Directors of the Company,
in its discretion and pursuant to the Stock Option Plan.
b. Reasonably promptly following the date of this
Agreement, the Company shall grant to the Executive Stock Options, intended to
be incentive stock options under Section 422 of the Internal Revenue Code of
1986, as amended, to purchase the number of shares of the Company's Common Stock
which will constitute 200,000 shares of the Company's outstanding Common Stock.
All of the Stock Options referred to in this paragraph (b) shall have certain
characteristics:
(i) the Stock Options shall vest as follows
for so long as the Executive is continuously employed by the Company as its
Chief Information Officer: 16.667 of the Stock Options shall vest on August 2,
2000, and the balance of the Stock Options shall vest thereafter in 8.334%
increments on each quarterly anniversary of that date until the entire 200,000
options have vested, in each case subject to continued employment by the
Company;
(ii) subject to clause (vii) below, the
Stock Options shall be exercisable from and after the date upon which the Stock
Options vest through the close of business on February 1, 2005 at an initial
exercise price of $33.50 per share;
(iii) the Stock Options shall be on such
other terms and conditions as may be set forth in the instrument granting the
Stock Options, including without limitation the provisions concerning
termination of unvested Stock Options;
(iv) the option agreement shall provide that
the shares of common stock underlying those Stock Options shall be registered in
the first registration statement on Form S-8 or other form of registration
statement filed by the Company with the Securities Exchange Commission for the
purpose of registering options or other securities issued to executives or other
employees of the Company in their respective capacities as executive or
employees of (rather than shareholders of or investors in) the Company; (v) the
option agreement shall include certain anti-dilution provisions customary in
options granted by the Company;
(vi) the Stock Options may not be
hypothecated or pledged, and may not be sold, transferred or otherwise disposed
of (except by exercise in accordance with the terms of the option agreement)
other than through transfer by will or the laws of descent and distribution, and
during the lifetime of the Executive the Stock Options shall be exercisable only
by the Executive; and
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(vii) the Stock Options shall not be
exercisable at any time unless the Executive has executed a written instrument,
reasonably satisfactory to the Executive and to the Company evidencing (a) the
Executive's investment intent and customary investment representations to
substantiate compliance with applicable securities laws, and (b) the Executive's
agreement that the sale, transfer, or other disposition of the shares shall be
subject to applicable securities law restrictions and applicable restrictions
under this Agreement and the option agreement, and that the certificates
evidencing the shares shall be legended to reflect the same.
4.5 VACATION BENEFITS. The Executive shall be
entitled to four (4) weeks of vacation time each calendar year during the term
of this Agreement, to be taken at such times as the Executive and the Company
shall mutually determine and provided that no vacation time shall interfere with
the duties required to be rendered by the Executive hereunder. Notwithstanding
the foregoing, in view of the Company's current circumstances the Executive will
not (i) take more than one week of vacation time in any 30-day period unless
otherwise mutually agreed with the Chief Executive Officer of the Company.
4.6 OTHER BENEFITS. The Executive shall receive such
additional benefits, if any, as the Board of the Company shall from time to time
determine.
5. TERMINATION.
5.1 TERMINATION FOR CAUSE. The Company shall at all
times have the right, upon written notice (which shall describe in general terms
the basis for dismissal per this Section) to the Executive, to terminate the
Term of Employment, for Cause. For purposes of this Agreement, the term "Cause"
shall mean (i) an action or omission of the Executive which constitutes a
willful and material breach of, or failure or refusal (other than by reason of
the Executive's disability) to perform the Executive's duties under, this
Agreement which is not cured within fifteen (15) days after receipt by the
Executive of written notice of same if such action or omission is capable of
being so cured, (ii) habitual insobriety or use of controlled substances (other
than under the supervision of a licensed physician); (iii) habitual absenteeism;
(iv) fraud, non-disclosed self-dealing, embezzlement or misappropriation of
funds or property or breach of trust in connection with the Executive's services
hereunder, (v) conviction of a felony or conviction of any other crime or
misdemeanor involving moral turpitude; or (vi) gross negligence in connection
with the performance of the Executive's duties hereunder, which is not cured, to
the extent that the same is curable, within fifteen (15) days after receipt by
the Executive of written notice of same. Upon any termination pursuant to this
Section 5.1, the Company shall pay to the Executive the Executive's Base Salary
to the date of termination. The Company shall have no further liability
hereunder (other than for reimbursement for reasonable business expenses
incurred prior to the date of termination, subject, however, to the provisions
of Section 4.1).
5.2 DISABILITY. The Company shall at all times have
the right, upon written notice to the Executive, to terminate the Term of
Employment, if the Executive shall as the result of mental or physical
incapacity, illness or disability, become unable to perform the Executive's
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obligations hereunder for a total of 180 days in any 12-month period. The
Company shall rely upon a certification performed by the Company's disability
insurer or by a physician jointly chosen by the Executive's doctor and the
Company's doctor to determine whether the Executive continues to be disabled
provided that if the Executive does not submit to examination by a licensed
medical doctor for such purpose (if requested by the Company) then the Company
may terminate the Executive's employment if the Executive shall become entitled
to benefits under the Company's disability plan as then in effect. Upon any
termination pursuant to this Section 5.2, the Company shall (i) pay to the
Executive any unpaid Base Salary through the effective date of termination
specified in such notice, (ii) pay to the Executive the Executive's accrued but
unpaid Incentive Compensation, if any, for any Bonus Period ending on or before
the date of termination of the Executive's employment with the Company, (iii)
continue to pay the Executive through the date which is six (6) months after the
termination but no later than the Expiration Date) (the "Continuation Period"),
an amount equal to the Base Salary the Executive was receiving at the time of
the Executive's Disability, such amount to be paid in the manner and at such
times as the Base Salary otherwise would have been payable to the Executive, and
(iv) continue to pay the Executive Incentive Compensation and continue to
provide the Executive with the benefits the Executive was receiving under
Section 4.2 hereof (the "Benefits") through the Continuation Period (to the
extent permitted under the terms of applicable insurance and other benefit
programs of the Company then in affect and covering the Executive, and provided
further that the Company shall not take any affirmative action from the time of
giving notice of termination to the Executive through the end of the
Continuation Period which would cause the relevant insurance and other benefits
available to the Executive to be reduced or eliminated) following the
termination of the Executive's employment with the Company, in the manner and at
such times as the compensation or Benefits otherwise would have been payable or
provided to the Executive, provided that the amounts payable to the Executive
pursuant to the foregoing clauses (i) through (iv) shall be reduced by the
amount actually paid to the Executive pursuant to the disability insurance
referred to in Section 4.2 hereof. The Company shall have no further liability
hereunder (other than for reimbursement for reasonable business expenses
incurred prior to the date of termination, subject, however to the provisions of
Section 4.1).
5.3 DEATH. Upon the death of the Executive during the
Term of Employment, the Company shall (i) pay to the estate of the deceased
Executive any unpaid Base Salary through the Executive's date of death, (ii) pay
to the estate of the deceased Executive the Executive's accrued but unpaid
Incentive Compensation, if any, for any Bonus Period ending on or before the
Executive's date of death, (iii) continue to pay to the estate of the deceased
Executive the Base Salary the Executive was receiving prior to the Executive's
death under Section 3.1 hereof through the Continuation Period following the
Executive's death, in the manner and at such times as the Base Salary otherwise
would have been payable to the Executive, and (iv) continue to pay to the estate
of the deceased Executive Incentive Compensation through the Continuation Period
following the termination of the Executive's employment with the Company, in the
manner and at such times as the compensation would have been payable or provided
to the Executive. The Company shall have no further liability hereunder (other
than for reimbursement for reasonable business expenses incurred prior to the
date of the Executive's death, subject, however to the provisions of Section
4.1).
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5.4 TERMINATION WITHOUT CAUSE. At any time the
Company shall have the right to terminate the Executive's employment hereunder
without Cause by written notice to the Executive. Upon any termination pursuant
to this Section 5.4, the Company shall (i) pay to the Executive any unpaid Base
Salary through the effective date of termination specified in such notice, (ii)
pay to the Executive the accrued but unpaid Incentive Compensation, if any, for
any Bonus Period ending on or before the date of the termination of the
Executive's employment with the Company, and a prorated portion of the Bonus
earned, if any, for the quarterly Bonus Period, if any, in which the termination
occurs, (iii) continue to pay the Executive's Base Salary and Incentive
Compensation through the Continuation Period, in the manner and at such time as
the Base Salary and Incentive Compensation otherwise would have been payable to
the Executive, and (iv) continue to provide the Executive with the Benefits the
Executive was receiving under Section 4.2 hereof (to the extent permitted under
the terms of applicable insurance and other benefit programs of the Company then
in affect and covering the Executive, and provided further that the Company
shall not take any affirmative action from the time of giving notice of
termination to the Executive through the end of the Continuation Period which
would cause the relevant insurance and other benefits available to the Executive
to be reduced or eliminated) during the Continuation Period, in the manner and
at such times as the Benefits otherwise would have been payable or provided to
the Executive. The Company shall have no further liability hereunder (other than
for reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however, to the provisions of Section 4.1).
5.5 TERMINATION BY EXECUTIVE.
a. The Executive shall at all times have the
right, upon ninety (90) days written notice to the Company, to terminate the
Term of Employment.
b. Upon termination of the Term of
Employment pursuant to this Section 5.5 (that is not a termination under Section
5.6) by the Executive without Good Reason, the Company shall pay to the
Executive any unpaid Base Salary and accrued Incentive Compensation through the
effective date of termination specified in such notice. The Company shall have
no further liability hereunder (other than for reimbursement for reasonable
business expenses incurred prior to the date of termination, subject, however,
to the provisions of Section 4.1).
c. Upon termination of the Term of
Employment pursuant to this Section 5.5 (that is not a termination under Section
5.6) by the Executive for Good Reason, the Company shall pay to the Executive
the same amounts that would have been payable by the Company to the Executive
under Section 5.4 of this Agreement if the Term of Employment had been
terminated by the Company without Cause. The Company shall have no further
liability hereunder (other than for reimbursement for reasonable business
expenses incurred prior to the date of termination, subject, however, to the
provisions of Section 4.1).
d. For purposes of this Agreement, "Good
Reason" shall mean any of the following:
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(i) the assignment to the Executive
of any material duties inconsistent in any material respect with the Executive's
duties as defined hereunder or any other action by the Company which results in
a material diminution in the Executive's position, authority, duties or
responsibilities from those contemplated by Section 1.2 of this Agreement, which
is not remedied by the Company within fifteen (15) days after receipt of written
notice from the Executive of the same, excluding for this purpose any isolated,
insubstantial and inadvertent action not taken in bad faith;
(ii) any material failure by the
Company to comply with any of the provisions of Article 3 of this Agreement
which is not remedied by the Company within fifteen (15) days after receipt of
written notice thereof given by the Executive, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(iii) the Company's requiring the
Executive to be based at any office or location more than 60 miles outside of
New York City, NY, except for business trips reasonably required in the
performance of the Executive's responsibilities; or
(iv) any purported termination by
the Company of the Executive's employment otherwise than pursuant to Sections
5.1 - 5.4 of this Agreement.
5.6 CHANGE IN CONTROL OF THE COMPANY.
a. Unless otherwise provided in this
Agreement, in the event that a Change in Control (as defined in paragraph (b) of
this Section 5.6) in the Company shall occur during the Term of Employment, and
prior to the first anniversary of the date of the Change in Control, either (x)
the Term of Employment is terminated by the Company without Cause, pursuant to
Section 5.4 hereof or (y) the Executive terminates the Term of Employment for
Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the
Executive any unpaid Base Salary through the effective date of termination, (2)
pay to the Executive the Incentive Compensation, if any, not yet paid to the
Executive for any Bonus Period prior to such termination, at such time as the
Incentive Compensation otherwise would have been payable to the Executive, and
(3) pay to the Executive in a lump sum payment an amount equal to the amount of
the Executive's Base Salary for the six (6) months preceding such termination.
If, during the Term of Employment, any Change in Control should occur and, prior
to the first anniversary of the date of the Change in Control, either (x) the
Term of Employment is terminated by the Company without Cause, pursuant to
Section 5.4 hereof or (y) the Executive terminates the Term of Employment for
Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock
Options shall be vested and become immediately exercisable. In addition, if a
Change in Control transaction shall occur in which the Company is not the
surviving entity and the acquiror does not agree to assume the obligations
represented by the Stock Option rights of the Executive on or prior to the
closing of the Change in Control transaction on such terms and conditions as
shall be reasonably satisfactory to the Company, then the Executive's unvested
Stock Options shall be vested and become immediately exercisable immediately
prior to the consummation of the closing of such Change in Control transaction
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so as to permit the Executive to dispose of the shares of common stock
underlying such Stock Options in that Change in Control transaction on
substantially the same terms and conditions as are applicable to shareholders of
the Company generally. If any of the Executive's Stock Options shall vest
according to the applicable vesting schedule, the options which shall have
vested after any such Change in Control shall continue to be exercisable for a
period of three months from the date of any termination of the Executive's
employment by the Company following such Change in Control. The Company shall
have no further liability hereunder (other than for reimbursement for reasonable
business expenses incurred prior to the date of termination, subject, however,
to the provisions of Section 4.1).
b. For purposes of this Agreement, the term
"Change in Control" shall mean:
(i) Approval by the shareholders of
the Company of (x) a reorganization, merger, consolidation or other form of
corporate transaction or series of transactions, in each case, with respect to
which persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation or other transaction do not, immediately
thereafter, own more than 50% of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, in substantially the
same proportions as their ownership immediately prior to such reorganization,
merger, consolidation or other transaction, or (y) a liquidation or dissolution
of the Company or (z) the sale of all or substantially all of the assets of the
Company (unless such reorganization, merger, consolidation or other corporate
transaction, liquidation, dissolution or sale is subsequently abandoned);
(ii) Individuals who, as of the
Commencement Date of this Agreement, constitute the Board (the "Incumbent
Board") cease for any reason to constitute at least a majority of the Board,
provided that any person becoming a director subsequent to the Commencement Date
of this Agreement whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the Directors of the
Company, as such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Securities Exchange Act) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent Board; or
(iii) the acquisition by any
person, entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act, of more than 30% of either the then outstanding
shares of the Company's Common Stock or the combined voting power of the
Company's then outstanding voting securities entitled to vote generally in the
election of directors (hereinafter referred to as the ownership of a
"Controlling Interest") excluding, for this purpose, any acquisitions by (1) the
Company, (2) any person, entity or "group" that as of the Commencement Date of
this Agreement owns beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act) of a Controlling Interest, (3)
Xxxxxxxx Xxxxxxx and/or Xxxx Xxxxx Xxxxxxxxxxxxx or their respective affiliates,
or (4) any employee benefit plan of the Company.
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c. Notwithstanding the foregoing, the term
"Change in Control" shall NOT include any transaction, event or circumstance as
a result of which or after which Xxxxxxxx Xxxxxxx, Xxxx Xxxxx Xxxxxxxxxxxxx, and
their respective affiliates continue to own, in the aggregate, the largest
percentage of shares of the Company owned by any shareholder of the Company.
5.7 RESIGNATION. Upon any termination of employment
pursuant to this Article 5, the Executive shall be deemed to have resigned as an
officer, and if the Executive was then serving as a director of the Company, as
a director, and if required by the Board, the Executive hereby agrees to
immediately execute a resignation letter to the Board.
5.8 SURVIVAL. The provisions of this Article 5 shall
survive the termination of this Agreement, as applicable.
6. RESTRICTIVE COVENANTS.
6.1 NON-COMPETITION. At all times while the Executive
is employed by the Company and for a one (1) year period after the termination
of the Executive's employment with the Company for any reason (other than (a)
termination by the Company without Cause or (b) termination by the Executive for
Good Reason (as defined in Section 5.5(d) hereof) or (c) termination by the
Company prior to the first anniversary of a Change in Control other than for
Cause), the Executive shall not, directly or indirectly, engage in or have any
interest in any sole proprietorship, partnership, corporation or business or any
other person or entity (whether as an employee, officer, director, partner,
agent, security holder, creditor, consultant or otherwise) that directly engages
in competition with the Company (for this purpose, any business unit or division
that provides e-mail marketing services to third parties for compensation and
derives more than five percent (5%) of the division's or unit's revenues from
those activities shall be deemed to be in competition with the Company);
provided that such provision shall not apply to the Executive's ownership of
Common Stock of the Company or the acquisition by the Executive, solely as an
investment, of securities of any issuer that is registered under Section 12(b)
or 12(g) of the Securities Exchange Act of 1934, as amended, and that are listed
or admitted for trading on any United States national securities exchange or
that are quoted on the Nasdaq, or any similar system or automated dissemination
of quotations of securities prices in common use, so long as the Executive does
not control, acquire a controlling interest in or become a member of a group
which exercises direct or indirect control or, more than one percent (1%) of any
class of capital stock of such corporation.
6.2 NONDISCLOSURE. The Executive shall not during the
Executive's employment under this Agreement or after the termination of such
employment divulge, communicate, use to the detriment of the Company or for the
benefit of any other person or persons, or misuse in any way, any Confidential
Information (as hereinafter defined) pertaining to the business of the Company.
Any Confidential Information or data now or hereafter acquired by the Executive
with respect to the business of the Company (which shall include, but not be
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limited to, information concerning the Company's financial condition, prospects,
technology, customers, suppliers, sources of leads and methods of doing
business) shall be deemed a valuable, special and unique asset of the Company
that is received by the Executive in confidence and as a fiduciary, and
Executive shall remain a fiduciary to the Company with respect to all of such
information. For purposes of this Agreement, "Confidential Information" means
information disclosed to the Executive or known by the Executive as a
consequence of or through the Executive's employment by the Company (including
information conceived, originated, discovered or developed by the Executive)
prior to or after the date hereof (up to the date of termination of the
Executive's employment pursuant to this Agreement), and whose existence or
significance or utility in respect of the Company or its business is not
generally known. Notwithstanding the foregoing, nothing herein shall be deemed
to restrict the Executive from disclosing Confidential Information to the extent
required by law or in the valid performance of the Executive's duties.
6.3 NONSOLICITATION OF EMPLOYEES AND CLIENTS. At all
times while the Executive is employed by the Company and for a one (1) year
period after the termination of the Executive's employment with the Company for
any reason, the Executive shall not, directly or indirectly, for the Executive
or for any other person, firm, corporation, partnership, association or other
entity (a) employ or attempt to employ or enter into any contractual arrangement
with any employee or former employee of the Company, until a period of at least
six (6) months has elapsed from the date of termination of the employment of
such person with the Company, and/or (b) call on or solicit any of the actual or
targeted prospective clients of the Company on behalf of any person or entity in
connection with any business competitive with the business of the Company, while
the Executive is employed by the company, or in connection with any email direct
marketing business for a one-year period after the termination of the
executive's employment, nor shall the Executive make known the names and
addresses of such clients or any information relating in any manner to the
Company's trade or business relationships with such customers, other than in
connection with the performance of the Executive's duties under this Agreement.
6.4 OWNERSHIP OF DEVELOPMENTS. All copyrights,
patents, trade secrets, or other intellectual property rights associated with
any ideas, concepts, techniques, inventions, processes, or works of authorship
developed or created by the Executive during the course of performing work for
the Company or its clients (collectively, the "Work Product") shall belong
exclusively to the Company and shall, to the extent possible, be considered a
work made by the Executive for hire for the Company within the meaning of Title
17 of the United States Code. To the extent the Work Product may not be
considered work made by the Executive for hire for the Company, the Executive
agrees to assign, and automatically assigns at the time of creation of the Work
Product, without any requirement of further consideration, any right, title, or
interest the Executive may have in such Work Product. Upon the request of the
Company, the Executive shall take such further actions, including execution and
delivery of instruments of conveyance, as may be appropriate to give full and
proper effect to such assignment.
6.5 BOOKS AND RECORDS. All books, records, and
accounts relating in any manner to the customers or clients of the Company,
whether prepared by the Executive or otherwise coming into the Executive's
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possession, shall be the exclusive property of the Company and shall be returned
immediately to the Company on termination of the Executive's employment
hereunder or on the Company's request at any time, upon which the Executive
shall not retain any copies of the same in any media whatsoever.
6.6 DEFINITION OF COMPANY. Solely for purposes of
this Article 6, the term "Company" also shall include any existing or future
subsidiaries of the Company that are operating during the time periods described
herein and any other entities that directly or indirectly, through one or more
intermediaries, control, are controlled by or are under common control with the
Company during the periods described herein.
6.7 ACKNOWLEDGMENT BY EXECUTIVE. The Executive
acknowledges and confirms that (a) the restrictive covenants contained in this
Article 6 are reasonable and necessary to protect the legitimate business
interests of the Company, and (b) the restrictions contained in this Article 6
(including without limitation the length of the term of the provisions of this
Article 6) are not overbroad, overlong, or unfair and are not the result of
overreaching, duress or coercion of any kind. The Executive further acknowledges
and confirms that the Executive's full, uninhibited and faithful observance of
each of the covenants contained in this Article 6 will not cause the Executive
any undue hardship, financial or otherwise, and that enforcement of each of the
covenants contained herein will not impair the Executive's ability to obtain
employment commensurate with the Executive's abilities and on terms fully
acceptable to the Executive or otherwise to obtain income required for the
comfortable support of the Executive and the Executive's family and the
satisfaction of the needs of the Executive's creditors. The Executive
acknowledges and confirms that the Executive's special knowledge of the business
of the Company is such as would cause the Company serious injury or loss if the
Executive were to use such ability and knowledge to the benefit of a competitor
or were to compete with the Company in violation of the terms of this Article 6.
The Executive further acknowledges that the restrictions contained in this
Article 6 are intended to be, and shall be, for the benefit of and shall be
enforceable by, the Company and its successors and assigns, including, without
limitation, any successor to the Company, whether by merger, consolidation, sale
of stock, sale of assets or otherwise.
6.8 REFORMATION BY COURT. In the event that a court
of competent jurisdiction shall determine that any provision of this Article 6
is invalid or more restrictive than permitted under the governing law of such
jurisdiction, then only as to enforcement of this Article 6 within the
jurisdiction of such court, such provision shall be interpreted and enforced as
if it provided for the maximum restriction permitted under such governing law.
6.9 EXTENSION OF TIME. If the Executive shall be in
violation of any provision of this Article 6, then each time limitation set
forth in this Article 6 shall be extended for a period of time equal to the
period of time during which such violation or violations occur. If the Company
seeks injunctive relief from such violation in any court, then the covenants set
forth in this Article 6 shall be extended for a period of time equal to the
pendency of such proceeding including all appeals by the Executive.
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6.10 SURVIVAL. The provisions of this Article 6 shall
survive the termination of this Agreement, as applicable.
7. INJUNCTION. It is recognized and hereby acknowledged by the
parties hereto that a breach by the Executive of any of the covenants contained
in Article 6 of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Executive recognizes and hereby acknowledges that the Company
shall be entitled, without the necessity of proving damages or posting a bond,
to an injunction from any court of competent jurisdiction enjoining and
restraining any violation of any or all of the covenants contained in Article 6
of this Agreement by the Executive or any of the Executive's affiliates,
associates, partners or agents, either directly or indirectly, and that such
right to injunction shall be cumulative and in addition to whatever other
remedies the Company may possess. If the Company should fail to obtain any
injunction when the Company seeks an injunction pursuant to this Section (other
than due to the fact that the parties reach a settlement or the Executive ceases
the activities complained of by the Company without need of an injunction), then
the Company shall reimburse the Executive for the Executive's reasonable
attorney's fees and expenses pertaining to the proceedings to seek the
injunction.
8. MEDIATION. In the event a dispute arises out of or relates
to this Agreement, or the breach thereof, and if the dispute cannot be settled
through negotiation, the parties hereby agree first to attempt in good faith to
settle the dispute by mediation administered by the American Arbitration
Association under its Employment Mediation Rules before resorting to arbitration
as set forth in Section 8 below. Notwithstanding the foregoing, (i) the Company
has the right to seek an injunction under Section 7 hereof, and (ii) either
party may seek an injunction or entry of judgment on an arbitration award under
Section 9 of this Agreement. The cost and expenses of mediators (but not the
fees and expenses of any counsel or other professional representing any party
other than the Company) shall be borne by the Company. If any dispute is settled
by mediation pursuant to this Section and the Company fails to achieve any
decision in its favor, then the Company shall reimburse the Executive for the
Executive's reasonable attorneys' fees and expenses pertaining to the mediation
proceedings.
9. ARBITRATION. In the event that mediation pursuant to
Section 8 of this Agreement has failed after thirty (30) days or the parties to
this Agreement both agree not to mediate, any dispute or controversy arising
under or in connection with this Agreement shall be settled exclusively by
arbitration in New York County, New York, in accordance with the Rules of the
American Arbitration Association then in effect with respect to arbitration of
commercial matters (except to the extent that the procedures outlined below
differ from such rules). Within ten (10) days after written notice by either
party has been given that a dispute exists and that arbitration is required,
each party must select an arbitrator and those two arbitrators shall promptly,
but in no event later than ten (10) days after their selection, select a third
arbitrator. The parties agree to act as expeditiously as possible to select
arbitrators and conclude the dispute. The selected arbitrators must render their
decision in writing. The cost and expenses of the arbitrators (but not the fees
and expenses of any counsel or other professional representing any party other
than the Company) shall be borne by the Company. Judgment may be entered on the
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arbitrators' award in any court having jurisdiction. Pursuit of an injunction
shall not impair arbitration on all remaining issues. If any dispute is settled
by arbitration pursuant to this Section and the Company fails to achieve any
decision in its favor, then the Company shall reimburse the Executive for the
Executive's reasonable attorneys' fees and expenses pertaining to the
arbitration proceedings.
10. ASSIGNMENT. Neither party shall have the right to assign
or delegate their rights or obligations hereunder, or any portion thereof, to
any other person, except that the rights of the Company may be assigned by the
Company to any person or entity acquiring a substantial portion of the Company's
assets or to any successor of the Company.
11. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and, upon its effectiveness, shall supersede all prior agreements,
understandings and arrangements, both oral and written, between the Executive
and the Company (or any of its affiliates) with respect to such subject matter.
This Agreement may not be modified in any way unless by a written instrument
signed by both the Company and the Executive.
13. NOTICES: All notices required or permitted to be given
hereunder shall be in writing and shall be personally delivered by courier, sent
by registered or certified mail, return receipt requested or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally
delivered, sent by facsimile or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given upon the earlier of receipt by the addressee, as evidenced
by the return receipt thereof, or three (3) days after deposit in the U.S. mail.
Notice shall be sent (i) if to the Company, addressed to NetCreations, Inc., 000
Xxxx Xxxxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, attention: Chief Executive
Officer, with a copy to Xxxxxxxxx Traurig, Met Life Building, 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxxx, Esq.; and
(ii) if to the Executive, to the Executive's address as reflected on the payroll
records of the Company, or to such other address as either party hereto may from
time to time give notice of to the other.
14. BENEFITS; BINDING EFFECT. This Agreement shall be for the
benefit of and binding upon the parties hereto and their respective heirs,
personal representatives, legal representatives, and successors, including,
without limitation, any successor to the Company, whether by merger,
consolidation, sale of stock, sale of assets or otherwise.
15. SEVERABILITY. The invalidity of any one or more of the
words, phrases, sentences, clauses or sections contained in this Agreement shall
not affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
15
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted. If such invalidity is caused by length of time or size of
area, or both, the otherwise invalid provision will be considered to be reduced
to a period or area which would cure such invalidity.
16. WAIVERS. The waiver by either party hereto of a breach or
violation of any term or provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or violation.
17. DAMAGES. Subject to compliance with Sections 7, 8 and 9 of
this Agreement, to the extent applicable, nothing contained herein shall be
construed to prevent the Company or the Executive from seeking and recovering
from the other damages sustained by either or both of them as a result of its or
the Executive's breach of any term or provision of this Agreement. In the event
that either party hereto brings suit for the collection of any damages resulting
from, or the injunction of any action constituting, a breach of any of the terms
or provisions of this Agreement, then the party found to be at fault shall pay
all reasonable court costs and attorneys' fees of the other.
18. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
19. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied
in this Agreement is intended, or shall be construed, to confer upon or give any
person any rights or remedies under or by reason of this Agreement, other than
the Company, the parties hereto and their respective heirs, personal
representatives, legal representatives, and successors, including, without
limitation, any successor to the Company, whether by merger, consolidation, sale
of stock, sale of assets or otherwise.
20. INDEMNIFICATION.
a. The Company shall indemnify and hold
harmless the Executive to the fullest extent permitted by law from and against
any and all claims, damages, expenses (including reasonable attorneys' fees),
judgments, penalties, fines, settlements, and all other liabilities incurred or
paid by the Executive in connection with the investigation, defense,
prosecution, settlement or appeal of any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and to which the Executive was or is a party or is threatened to
be made a party by reason of the fact that the Executive is or was an officer,
employee or agent of the Company, or by reason of anything done or not done by
the Executive in any such capacity or capacities, provided that the Executive
acted in good faith, in a manner that was not grossly negligent and did not
constitute willful misconduct and in a manner the Executive reasonably believed
to be in or not opposed to the best interests of the Company, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe the
Executive's conduct was unlawful. The Company also shall pay any and all
reasonable expenses (including attorney's fees) incurred by the Executive as a
result of the Executive being called as a witness in connection with any matter
involving the Company and/or any of its officers or directors (other than an
action or suit by the Company against the Executive).
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b. The Company shall pay any reasonable
expenses (including attorneys' fees), judgments, penalties, fines, settlements,
and other liabilities incurred by the Executive in investigating, defending,
settling or appealing any action, suit or proceeding described in this Section
20 (other than an action or proceeding by the Company against the Executive) in
advance of the final disposition of such action, suit or proceeding. The Company
shall promptly pay the amount of such expenses to the Executive, but in no event
later than ten (10) days following the Executive's delivery to the Company of a
written request for an advance pursuant to this Section 20, together with a
reasonable accounting of such expenses.
c. The Executive hereby undertakes and
agrees to repay to the Company any advances made pursuant to this Section 20 if
and to the extent that it shall ultimately be agreed by the parties or
determined by a court that the Executive is not entitled to be indemnified by
the Company for such amounts.
d. The Company shall make the advances
contemplated by this Section 20 regardless of the Executive's financial ability
to make repayment, and regardless of whether indemnification of the Indemnitee
by the Company will ultimately be required. Any advances and undertakings to
repay pursuant to this Section 20 shall be unsecured and interest-free.
e. The provisions of this Section 20 shall
survive the termination of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY:
NETCREATIONS, INC.
By:___________________________________
EXECUTIVE:
By:___________________________________
Xxx Xxxxx, individually
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