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 Xxxxxxx
Xxxxxxxx (hereinafter called the "Executive").
R E C I T A L S
A. The Executive desires to be employed as the Senior Vice President,
Marketing of the Company.
B. The Company desires to employ the Executive as the Senior Vice
President, Marketing 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 Senior Vice President, Marketing 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:
Developing and managing programs defining and implementing the
Company's strategic marketing objectives.
Creating and managing the Company's brand identity to increase the
level of awareness of the Company and its products/services among leading Web
sites, the direct marketing industry, and investors.
Creating dynamic advertising and public relations programs that
increase the Company's visibility among its core customer groups.
Participating as a member of the Company's senior management team in
developing and implementing marketing strategies.
Such general business development activities as the Chief Executive
Officer, the President and the Chief Operating Officer may assign from time to
time.
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
responsibilities and the business functions of the Company reporting to the
Executive remain substantially consistent with the Executive's duties and title
as expressed at the inception of this Agreement. 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 civic or
charitable boards or committees with the prior approval of the Company, which
shall not be unreasonably withheld, (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 12, 2000, but
shall perform such duties on a full time basis commencing March 13, 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 12, 2000.
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 midnight New York City time 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
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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
$140,000 (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 12, 2000, the Executive shall only be paid at a
rate of $583.00 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 $60,000 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.
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 or President. 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."
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Notwithstanding anything to the contrary contained herein, the initial Key
Initiatives will be established by the Company's President within thirty (30)
days of the date of this Agreement.
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 including, without limitation, the Executive's reasonable cellular
telephone charges.
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 shall pay or
reimburse the Executive for any and all reasonable expenses the Executive incurs
to maintain health care continuation coverage under Section 4980B of the U.S.
Internal Revenue Code of 1986, as amended ("COBRA") for the Executive, the
Executive's spouse, and the Executive's dependents under any and all health care
plans of the Executive's prior employer through May 2, 2000 or such earlier date
as the Executive shall be covered by the Company's then existing health care
plans.
4.3 TRANSPORTATION ALLOWANCE. The Executive will not be entitled to
reimbursement for his expenses in commuting to and from the Company's offices.
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
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will constitute 150,000 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 Senior Vice President,
Marketing: 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 150,000 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
(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
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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
and earned but unpaid Incentive Compensation 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 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
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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
effect 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).
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
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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 through the effective date of termination specified in such notice and
shall 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. 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:
(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
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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 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 and not lapsed in
accordance with their terms before or 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).
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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.
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
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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 two (2) 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 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
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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 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.
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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.
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 may 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
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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
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.
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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, with a copy to such other person as the Executive may
indicate from time to time by written notice to 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 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
15
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).
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
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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:___________________________________
Name:
Title:
EXECUTIVE:
By:___________________________________
Xxxxxxx Xxxxxxxx, individually
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