EMPLOYMENT AGREEMENT
This
Employment
Agreement (the “Agreement”) is entered into as of the 30th
day of
June, 2008, by and between, interCLICK, Inc., a company organized under the
laws
of the State of Delaware (the “Company”), and Xxxxx
Xxxxxxx (the
“Executive”).
In
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Executive, intending to be legally bound, hereby
agree as follows:
1. Employment
and Duties.
The
Company hereby agrees to employ Executive as its Chief Financial Officer (the
“CFO”), and Executive hereby accepts such employment, on the terms and
conditions set forth herein. During the Employment Period (as defined below),
Executive shall serve as CFO and shall report to the Board of Directors of
the
Company (the “Board”). Executive shall have those powers and duties customarily
associated with the position of CFO of entities comparable to the Company and
such other powers and duties as may be prescribed by the Board. Executive’s
primary commitment shall be to the performance of his duties for the Company,
however, Executive is not precluded from participating in activities and
functions separate and apart from, and which are not inconsistent with, his
function as CFO of the Company.
2. Term.
Executive’s employment by the Company shall commence as of the date of this
Agreement and shall continue until June 30, 2010 unless such employment is
terminated in accordance with Section 4 below (the “Employment
Period”).
3. Compensation,
Benefits and Equity Awards.
(a) Base
Salary.
During
the Employment Period, Executive shall receive an annual base salary of
$200,000. On an annual basis, the Board will review Executive’s performance and
determine, in its sole discretion, whether an increase to Executive’s base
salary is appropriate. Executive’s base salary shall be paid in accordance with
the Company’s regular payroll practices, including any and all usual and
customary withholdings.
(b) Bonus.
In
addition to a base salary, Executive shall be eligible to receive an annual
bonus (pro-rated for partial calendar years during the Employment Period) upon
the achievement of pre-established performance goals tied to Company revenues
and earnings, as to be determined by the Board (the “Bonus”). Depending upon
achievement of the performance goals established by the Board, Executive’s Bonus
for each calendar year during the Employment Period shall be 50% of Executive’s
base salary earned during such year. The Bonus is to be paid 50% in cash and
50%
in Company stock. Any Bonus earned during a calendar year shall be paid at
such
time as the Company customarily pays annual bonuses.
(c) Expenses.
The
Company shall reimburse Executive for all reasonable business expenses upon
the
presentation of itemized statements of such expenses in accordance with Company
policies and procedures as may be in effect from time to time, provided however,
that Executive shall be reimbursed no later than thirty (30) days after
presentation of any reasonable expense to the Company.
(d) Vacation.
During
the Employment Period, Executive shall be entitled to at least three (3) weeks
of paid vacation per calendar year to be used and accrued in accordance with
the
Company’s policies as may be in effect from time to time. In addition to
vacation, Executive shall be entitled to the number of sick days, personal
days
and national holidays per year as to which other Executives of the Company
may
be entitled.
(e) Other
Benefit Plans.
During
the Employment Period, Executive shall be entitled to participate in such
employee benefit plans and insurance programs offered by the Company, or which
may be in effect from time to time, in accordance with any eligibility
requirements for participation therein. Such benefits will include medical,
dental and vision coverage similar to premium plans offered by United HealthCare
or Blue Cross Blue Shield. The Company agrees to pay 75% of Executive’s premium
payments for such coverage.
(f) Equity
Award.
No
later than August 1, 2008, the Executive shall receive options to purchase
405,000 shares of the Company’s common stock which shall be subject to the terms
and conditions of the Company’s 2007 Incentive Stock and Award Plan.
4. Termination.
Executive’s employment by the Company shall terminate under the following
circumstances:
(a) Death.
If
Executive dies, Executive’s employment shall be terminated effective as of the
end of the calendar month during which Executive died.
(b) Disability.
In the
event Executive, by reason of physical or mental incapacity, shall be
substantially unable to perform his duties hereunder for a period of three
(3)
consecutive months, or for a cumulative period of six (6) months within any
twelve (12) month period (such incapacity deemed to be “Disability”), the
Company shall have an option, at any time thereafter, to terminate Executive’s
employment hereunder as a result of such Disability. Such termination will
be
effective ten (10) days after the Board gives written notice of such termination
to Executive, unless Executive shall have returned to the full performance
of
his duties prior to the effective date of the notice. Upon such termination,
Executive shall be entitled to any benefits as to which he and his dependents
are entitled by law, and except as otherwise expressly provided herein, all
obligations of the Company hereunder shall cease upon the effectiveness of
such
termination other than payment of salary earned through the date of Disability,
provided that such termination shall not affect or impair any rights Executive
may have under any policy of long term disability insurance or benefits then
maintained on his behalf by the Company. Executive’s base salary shall continue
to be paid during any period of incapacity prior to and including the date
on
which Executive’s employment is terminated for Disability.
(c) Cause.
The
Company shall have the right to terminate Executive's employment for “Cause.”
For purposes of this Agreement, “Cause” shall mean:
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(i) the
willful or continued failure by Executive to substantially perform his duties,
including, but not limited to, acts of fraud, willful misconduct, gross
negligence or other act of dishonesty;
(ii) a
material violation or material breach of this Agreement which is not cured
within 10 days written notice to Executive;
(iii) misappropriation
of funds, properties or assets of the Company by Executive or any action which
has a materially adverse effect on the Company or its business;
(iv) the
conviction of, or plea of guilty or no contest to, a felony or any other crime
involving moral turpitude, fraud, theft, embezzlement or dishonesty; or
(v) abuse
of
drugs or alcohol which impairs Executive’s ability to perform his duties as CFO.
(d) Good
Reason.
Executive may terminate his employment for “Good Reason.” For purposes of this
Agreement, “Good Reason” shall mean: (i) a material diminution of Executive’s
authority or duties with the Company (other than as a result of Executive’s
incapacity or disability); (ii) a reduction in Executive’s base salary; or (iii)
if Executive must relocate his principal office more than one hundred (100)
miles from any office that the Company is then maintaining for Executive as
Executive’s principal office. Prior to Executive terminating his employment with
the Company for “Good Reason,” Executive must provide written notice to the
Company that such “Good Reason” exists and setting forth, in detail, the grounds
Executive believes constitutes such “Good Reason” (a “Good Reason Notice”). If
the Company does not cure the grounds upon which Executive believes “Good
Reason” exists within thirty (30) days after being provided with notice by
Executive, then Executive’s employment shall be deemed terminated.
(e) Without
Cause.
The
Company shall have the right to terminate Executive’s employment hereunder at
any time without cause by providing Executive with written notice of such
termination, which termination shall take effect ten (10) days after the date
such notice is provided or, at the sole discretion of the Company, at any time
prior to the expiration of such ten (10) day period.
(f) Voluntary
Resignation.
Executive shall have the right to terminate his employment hereunder by
providing the Company with a written notice of resignation. Such notice must
be
provided sixty (60) days prior to the date upon which Executive wishes such
resignation to be effective. Upon receipt of such resignation, the Company
shall
have the option to accelerate the resignation to a date prior to the expiration
of the sixty (60) day period.
5. Payments
Due Upon Termination.
In the
event Executive’s employment is terminated pursuant to Section 4(d) or 4(e)
above, then the Company shall continue pay to Executive his base salary as
in
effect on the date of termination for a period of six (6) months and the Company
shall reimburse Executive for the costs of obtaining comparable medical benefits
for six (6) months, unless Executive obtains other employment which provides
for
comparable medical benefits as Executive received while employed by the Company.
In the event Executive’s employment is terminated for any other reason, then
Executive shall be entitled to receive his base salary though the effective
date
of termination and the Company shall reimburse Executive for any reasonable
expenses previously incurred for which Executive had not been reimbursed prior
to the termination of employment. Executive acknowledges and agrees that prior
to receiving any payments which may be due under this Section, and as a material
condition thereof, Executive shall, if requested by the Company, sign and agree
to be bound by a general release of claims against the Company related to
Executive’s employment (and termination of employment) with the Company in such
form as the Company may deem appropriate. Upon Executive’s termination of
employment for any reason, upon the request of the Board, he shall resign any
memberships or positions that he then holds with the Company.
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6. Restrictive
Covenants.
(a) Acknowledgments.
Executive acknowledges that: (i) as a result of Executive’s employment by the
Company, Executive has obtained and will obtain Confidential Information (as
defined below); (ii) the Confidential Information has been developed and created
by the Company at substantial expense and the Confidential Information
constitutes valuable proprietary assets; (iii) the Company will suffer
substantial damage and irreparable harm which will be difficult to compute
if,
during the Employment Period and thereafter, Executive should enter a
Competitive Business (as defined below) in violation of the provisions of this
Agreement; (iv) the nature of the Company’s business is such that it could be
conducted anywhere in the world and that it is not limited to a geographic
scope
or region; (v) the Company will suffer substantial damage which will be
difficult to compute if, during the term of employment or thereafter, Executive
should solicit or interfere with the Company’s employees, clients or customers
or should divulge Confidential Information relating to the business of the
Company and its affiliates; (vi) the provisions of this Agreement are reasonable
and necessary for the protection of the business of the Company; (vi) the
Company would not have hired or continued to employ Executive unless he agreed
to be bound by the terms hereof; and (vii) the provisions of this Agreement
will
not preclude Executive from other gainful employment. “Competitive Business,” as
used in this Agreement, shall mean any business which directly competes with
any
aspect of the Company’s business. “Confidential Information,” as used in this
Agreement, shall mean any and all confidential and/or proprietary knowledge,
data, or information of the Company, including, without limitation, any: (A)
trade secrets, drawings, inventions, methodologies, ideas, processes, formulas,
source and object codes, data, programs, software source documents, works of
authorship, know-how, improvements, discoveries, developments, designs and
techniques, and all other work product of the Company, whether or not patentable
or registrable under trademark, copyright, patent or similar laws; (B)
information regarding plans for research, development, new service offerings
and/or products, marketing, advertising and selling, distribution, business
plans, business forecasts, budgets and unpublished financial statements,
licenses, prices and costs, suppliers, customer lists, customers or distribution
arrangements; (C) any information regarding the skills and compensation of
employees, suppliers, agents, and/or independent contractors of the Company;
(D)
concepts and ideas relating to the development and distribution of content
in
any medium or to the current, future and proposed products or services of the
Company; or (E) any other information, data or the like that is labeled
confidential or orally disclosed to Executive as confidential.
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(b) Confidentiality.
In
consideration of the benefits provided for in this Agreement, Executive agrees
not to, at any time, either during the Employment Period or thereafter, divulge,
use, publish or in any other manner reveal, directly or indirectly, to any
person, firm, corporation or any other form of business organization or
arrangement and keep in the strictest confidence any Confidential Information,
except (i) as may be necessary to the performance of Executive’s duties
hereunder, (ii) with the Company’s express written consent, (iii) to the extent
that any such information is in or becomes in the public domain other than
as a
result of Executive’s breach of any of obligations hereunder, or (iv) where
required to be disclosed by court order, subpoena or other government process
and, in such event, Executive shall cooperate with the Company in attempting
to
keep such information confidential. Upon the request of the Company, Executive
agrees to promptly deliver to the Company the originals and all copies, in
whatever medium, all such Confidential Information.
(c) Non-Compete.
In
consideration of the benefits provided for in this Agreement, Executive
covenants and agrees that during the Employment Period and for a period of
six
(6) months following the termination of his employment for whatever reason,
or
from the date of entry by a court of competent jurisdiction of a final judgment
enforcing this covenant, whichever is last to occur (the “Restricted Period”),
he will not, for himself, or in conjunction with any other person, firm,
partnership, corporation or other form of business organization or arrangement
(whether as a shareholder, partner, member, principal, agent, lender, director,
officer, manager, trustee, representative, employee or consultant), directly
or
indirectly, be employed by, provide services to, in any way be affiliated,
associated or have any interest in, or give advice or consultation to any
Competitive Business.
(d) Non-Solicitation
of Employees.
In
consideration of the benefits provided for in this Agreement, Executive
covenants and agrees that during the Restricted Period, Executive shall not,
without the prior written permission of the Company, directly or indirectly
solicit, employ or retain, or cause any other person or entity to solicit,
employ or retain, any person who is employed by or who is providing services
to
the Company at the time of Executive’s termination of employment or who was
providing such services to the Company within the twelve (12) month period
prior
to Executive’s termination of employment.
(e) Non-Solicitation
of Clients and Customers.
In
consideration of the benefits provided for in this Agreement, Executive
covenants and agrees that during the Restricted Period, he will not, for
himself, or in conjunction with any other person, firm, partnership, corporation
or other form of business organization or arrangement (whether as a shareholder,
partner, member, lender, principal, agent, director, officer, manager, trustee,
representative, employee or consultant), directly or indirectly: (i) solicit
or
accept any business that is directly related to the business of the Company,
from any person or entity who, at the time of, or at any time during the twelve
(12) months preceding Executive’s termination, was an existing or prospective
customer or client of the Company; (ii) request or cause any of the Company’s
customers to cancel or terminate any business relationship with the Company;
or
(iii) request or cause any employee of the Company to breach or threaten to
breach any terms of said employee’s agreements with the Company or to terminate
his or his employment with the Company.
5
(f) Post-Employment
Property.
The
parties agree that any work of authorship, invention, design, discovery,
development, technique, improvement, source code, hardware, device, data,
apparatus, practice, process, method or other work product whatever (whether
patentable or subject to copyright, or not, and hereinafter collectively called
“discovery”) related to training or marketing methods and techniques that
Executive, either solely or in collaboration with others, has made or may make,
discover, invent, develop, perfect, or reduce to practice during the term of
his
employment, whether or not during regular business hours and created, conceived
or prepared on the Company’s premises or otherwise shall be the sole and
complete property of the Company. More particularly, and without limiting the
foregoing, Executive agrees that all of the foregoing and any (i) inventions
(whether patentable or not, and without regard to whether any patent therefor
is
ever sought), (ii) marks, names, or logos (whether or not registrable as trade
or service marks, and without regard to whether registration therefor is ever
sought), (iii) works of authorship (without regard to whether any claim of
copyright therein is ever registered), and (iv) trade secrets, ideas, and
concepts ((i) - (iv) collectively, “Intellectual Property Products”) created,
conceived, or prepared on the Company’s premises or otherwise, whether or not
during normal business hours, shall perpetually and throughout the world be
the
exclusive property of the Company, as shall all tangible media (including,
but
not limited to, papers, computer media of all types, and models) in which such
Intellectual Property Products shall be recorded or otherwise fixed. Executive
further agrees promptly to disclose in writing and deliver to the Company all
Intellectual Property Products created during his engagement by the Company,
whether or not during normal business hours. Executive agrees that all works
of
authorship created by Executive during his engagement by the Company shall
be
works made for hire of which the Company is the author and owner of copyright.
To the extent that any competent decision-making authority should ever determine
that any work of authorship created by Executive during his engagement by the
Company is not a work made for hire, Executive hereby assigns all right, title
and interest in the copyright therein, in perpetuity and throughout the world,
to the Company. To the extent that this Agreement does not otherwise serve
to
grant or otherwise vest in the Company all rights in any Intellectual Property
Product created by Executive during his engagement by the Company, Executive
hereby assigns all right, title and interest therein, in perpetuity and
throughout the world, to the Company. Executive agrees to execute, immediately
upon the Company’s reasonable request and without charge, any further
assignments, applications, conveyances or other instruments, at any time after
execution of this Agreement, whether or not Executive is engaged by the Company
at the time such request is made, in order to permit the Company, or its
assigns, to protect, perfect, register, record, maintain, or enhance their
rights in any Intellectual Property Product; provided, that, the Company shall
bear the cost of any such assignments, applications or consequences. Upon
termination of Executive’s employment by the Company for any reason whatsoever,
and at any earlier time the Company so requests, Executive will immediately
deliver to the custody of the person designated by the Company all originals
and
copies of any documents and other property of the Company in Executive’s
possession, under Executive’s control or to which he may have
access.
(g) Non-Disparagement.
Both
parties acknowledge and agree not to defame or publicly criticize the services,
business, integrity, veracity or personal or professional reputation of the
other, in either a professional or personal manner, at any time during or
following the Employment Period. With respect to the Company, this shall include
any officers, directors, partners, executives, employees, representatives or
agents of the Company, or of the Merged Entity.
6
(h) Enforcement.
Executive acknowledges that any breach of the foregoing covenants and
restrictions in this Section, would cause irreparable injury to the Company
for
which there is no adequate remedy at law. In addition to all of the rights
and
remedies as to which the Company may be entitled, the Company shall also be
entitled to obtain a temporary restraining order and/or a preliminary or
permanent injunction which would prevent Executive from violating or attempting
to violate any such provisions. In seeking such an order, any requirement to
post a bond or other undertaking shall be waived. In any action brought to
enforce these restrictive covenants, the Company shall be entitled to an award
of all reasonable costs and fees incurred in bringing such an action, including
reasonable attorney’s fees. In addition, the Company shall have the right to
cease making any payments or provide any benefits to Executive under this
Agreement in the event he breaches or threatens to breach any of the provisions
hereof.
(i) Blue
Pencil.
If, at
any time, the provisions of this Section 6 shall be determined to be invalid
or
unenforceable under any applicable law, by reason of being vague or unreasonable
as to area, duration or scope of activity, this Agreement shall be considered
divisible and shall become and be immediately amended to only such area,
duration and scope of activity as shall be determined to be reasonable and
enforceable by the court or other tribunal having jurisdiction over the matter
and Executive and the Company agree that this Agreement, as so amended, shall
be
valid and binding as though any invalid or unenforceable provision had not
been
included herein.
7. Executive’s
Representations.
Executive hereby represents and warrants to the Company that: (i) his execution
and performance of duties under this Agreement does not and shall not conflict
with, breach, violate or cause a default under any contract, agreement,
arrangement, understanding, order, judgment or decree as to which Executive
is a
party or by which he is bound; (ii) Executive is not a party to or bound by
any
employment agreement, non-compete agreement, confidentiality agreement or any
similar agreement or arrangement with any other person or entity which effects
or impacts his ability to be employed by the Company pursuant to the terms
of
this Agreement; and (iii) upon the execution and delivery of this Agreement
by
the Company, this Agreement shall constitute a valid and binding obligation
of
Executive, enforceable in accordance with its terms. In addition, Executive
acknowledges that the Company has relied on such representations and warranties
in employing Executive, that he has not entered into, and will not enter into,
any agreement, either oral or written, in conflict with this Agreement. If
it is
determined that Executive is in breach or has breached any of the
representations set forth herein, the Company shall have the right to
immediately terminate the Executive’s employment with the company and that such
termination shall be deemed a termination with Cause. Executive hereby
acknowledges and represents that he has consulted with independent legal counsel
regarding his rights and obligations under this Agreement and that he fully
understands the terms and conditions contained herein.
8. Successors.
The
rights and benefits of Executive hereunder shall not be assignable, whether
by
voluntary or involuntary assignment or transfer by Executive. This Agreement
shall be binding upon, and inure to the benefit of, the successors and assigns
of the Company, and the heirs, executors and administrators of the Executive,
and shall be assignable by the Company to any entity acquiring substantially
all
of the assets of the Company, whether by merger, consolidation, sale of assets
or similar transactions.
7
9. Notice.
For the
purposes of this Agreement, notices, demands and all other communications
provided for in this Agreement shall be in writing and shall be delivered (i)
personally, (ii) by first class mail, certified, return receipt requested,
postage prepaid, (iii) by overnight courier, with acknowledged receipt, or
(iv)
by facsimile transmission followed by delivery by first class mail or by
overnight courier, in the manner provided for in this Section, and properly
addressed as follows:
|
If
to the Company, to:
|
Xxxxxxx
Xxxxxxx
000
Xxxx Xxxxxx Xxxxx
Xxxxx
000-000
Xxx
Xxxx, Xxx Xxxx 00000
|
|
With
a copy to:
|
Xxxxxx
X. Xxxxxx or Xxxxxxx X. Xxxxxxxxxx
Xxxxxx
and Xxxxx, LLP
000
Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, Xxx Xxxx 00000
Fax:
000-000-0000
|
|
If
to Executive to:
|
Xxxxx
Xxxxxxx
00
Xxxx Xxxx, #0X
Xxx
Xxxx, Xxx Xxxx 00000
|
or
to
such other address as the Company or Executive may later indicate in
writing.
10. Governing
Law and Dispute Resolution.
This
Agreement is governed by, and is to be construed and enforced in accordance
with, the laws of the State of New York, without regard to principles of
conflicts of laws. If, under such law, any portion of this Agreement is at
any
time deemed to be in conflict with any applicable statute, rule, regulation
or
ordinance, such portion shall be deemed to be modified or altered to conform
thereto or, if that is not possible, to be omitted from this Agreement, and
the
invalidity of any such portion shall not affect the force, effect and validity
of the remaining portion hereof. Each party expressly agrees, consents and
submits to the personal jurisdiction and venue of the American Arbitration
Association (“AAA”) in New York County, New York for adjudication of any and all
disputes arising from or related to this Agreement. Such arbitration shall
be
conducted in a confidential manner and shall be identified to the AAA as a
confidential proceeding. Each party waives any and all rights, under law or
in
equity, to object or contest the jurisdiction and venue of said tribunal.
8
11. Amendment.
No
provisions of this Agreement may be amended, modified, or waived unless such
amendment or modification is agreed to in writing signed by Executive and by
a
duly authorized officer of the Company. No waiver by either party hereto at
any
time of any breach by the other party hereto of any condition or provision
of
this Agreement to be performed by such other party shall be deemed a waiver
of
similar or dissimilar provisions or conditions at the same or at any prior
or
subsequent time.
12. Entire
Agreement.
This
Agreement sets forth the entire agreement of the parties hereto in respect
of
the subject matter contained herein and supersedes any and all prior agreements,
promises, covenants, arrangements, understandings, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of any party hereto. Any prior agreement by the parties hereto
with respect to the subject matter of this Agreement is hereby terminated and
canceled as of the date hereof.
13. Severability.
The
covenants of this Agreement shall be construed as covenants independent of
one
another and as obligations distinct from any other agreement between the
parties. Should any provision herein be held to be void or unenforceable, the
remaining provisions shall remain in full force and effect, to be read and
construed as if the void or unenforceable provisions were originally
deleted.
14. Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed to
be
an original but all of which together will constitute one and the same
instrument.
IN
WITNESS HEREOF,
the
parties hereby enter into this Agreement and affix their signatures as of the
date first above written.
By:
/s/
Xxxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxxx
Chief
Executive Officer
/s/
Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxx
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