Exhibit 10.14
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as
of June 29, 2002 between L90, Inc., a Delaware corporation (the "Company"),
and Xxxxxxx X. Xxxx (the "Employee").
R E C I T A L
The Company desires to employ the Employee, and the Employee desires
to be so employed by the Company, on the terms and subject to the conditions set
forth in this Agreement.
The Company is party to that certain Agreement and Plan of Merger
dated June 29, 2002 (the "Merger Agreement") by and among Company, DoubleClick
Inc., and the other parties thereto, pursuant to which Company is acquiring (the
"Acquisition") the media business of DoubleClick Inc.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
promises set forth in this Agreement, the Company and the Employee hereby agree
as follows:
Notwithstanding anything to the contrary contained herein, each of
Wise and the Company agree that this Agreement shall become effective only upon
the consummation of the Acquisition pursuant to the Merger Agreement (the
"Effective Date"). Each of Wise and the Company further agree that this
Agreement shall automatically terminate and be of no force or effect upon the
termination of the Merger Agreement.
1. Employment.
(a) Subject to the terms and conditions contained herein, the Company
hereby agrees to employ the Employee, and the Employee accepts such
employment, from the Effective Date until the date such employment
is terminated pursuant to Section 4 of this Agreement. During the
Employee's employment under this Agreement, the Employee shall
perform such duties for the Company consistent with his position as
Executive Vice President of MaxWorldwide as may from time to time be
assigned to the Employee by the Chief Executive Officer of the
Company and Employee shall report to the Chief Executive Officer of
the Company. The Employee shall have the title of Executive Vice
President of MaxWorldwide and such other title or titles, if any, as
from time to time may be assigned to the Employee by the Chief
Executive Officer.
(b) The Employee will devote substantially all his business time,
energy, attention and skill to the services of the Company and its
affiliates and to the promotion of their interests. So long as the
Employee is employed by the Company, the Employee shall not, without
the written consent of the Company:
(i) other than permitted in clauses (ii) or (iii) below,
engage in any other activity for compensation, profit or
other pecuniary advantage, whether received during or after
the term of this Agreement;
(ii) render or perform services of a business, professional,
or commercial nature other than to or for the Company,
either alone or as an employee, consultant, director,
officer, or partner of another business entity, whether or
not for compensation, and whether or not such activity,
occupation or endeavor is similar to, competitive with, or
adverse to the business or welfare of the Company; or
(iii) invest in or become a shareholder of another
corporation or other entity; provided, that the Employee's
investment solely as a shareholder in another corporation
shall not be prohibited hereby so long as such investment is
not in excess of one percent (1%) of any class of shares
that are traded on a national securities exchange.
(c) Promptly following the date hereof, the Employee shall execute an
Employee Proprietary Information, Trade Secret and Confidentiality
Agreement (the "Confidentiality Agreement"), an Xxxxxxx Xxxxxxx
Policy and an Employee Handbook, provided that any covenant not to
compete shall terminate on a date that is less than six (6) months
following the Employee's termination.
2. Location of Employment. The Employee's principal place of employment
shall be at the executive offices of the Company located in New York City, New
York, or, as may be requested by the Chief Executive Officer, at any other
office of the Company or any of its affiliates currently or hereinafter located
in the metropolitan New York City area (including Westchester County and
Connecticut); provided, that at the direction of the Chief Executive Officer,
the Employee may from time to time be reasonably required to travel to various
domestic and foreign locations.
3. Compensation.
(a) In exchange for performance of the Employee's obligations and duties
under this Agreement, the Company shall pay the Employee a base
salary
at an annual rate of $200,000.00, payable in accordance with the
Company's standard payroll practices. In any payment period in which
the Employee shall be employed for less than the entire number of
days in such payment period, the salary payable under Section 3(a)
shall be prorated on the basis of the number of days during which
the Employee was actually employed divided by the number of days in
such payment period.
(b) The Employee shall receive a one-time signing bonus equal to
$25,000.00, payable to the Employee within three (3) days of the
date hereof. The Employee shall also be eligible to receive a
discretionary annual bonus. The Employee's target bonus for the year
ending the first anniversary of Employee's employment with Company
will be $75,000.00. Such bonus shall be based upon individual and
Company performance. As soon as practicable, the Chief Executive
Officer shall review the criteria for such bonus with Employee.
(c) The base salary described in subsection (a) hereof and the bonus
described in subsection (b) hereof are gross amounts, and the
Company shall be required to withhold from such amounts deductions
with respect to Federal, state and local taxes, FICA, unemployment
compensation taxes and similar taxes, assessments or withholding
requirements.
(d) Upon approval by the Compensation Committee of the Board of
Directors, the Company shall grant the Employee a stock option
pursuant to the Company's stock option plan to purchase 250,000
shares of the Company's common stock with an exercise price equal to
the fair market value on the date of grant. Each such option shall
vest in one-third (1/3) increments on the first, second and third
anniversaries of the date of grant, so long as the Employee then
remains a full-time employee of the Company. Each such option shall
be an incentive stock option to the extent permitted by law, with
the balance being granted as a non-qualified stock option. Each such
option shall be subject to all terms of the Company's stock option
plan and the option agreements between the Employee and the Company
evidencing such option.
(e) The Employee shall be entitled to 10 business days vacation for each
full year of employment under this Agreement, which vacation time
will accrue in accordance with the vacation policy of the Company.
(f) The Employee shall be entitled to participate in all benefit plans
(including deferred compensation plans and any medical, dental or
life insurance plans) which shall be available from time to time to
the domestic management employees of the Company generally, except
to the extent such participation in any plan would, in the opinion
of the Chief Executive
Officer, alter the intended tax treatment of such plan; provided,
however, that the Employee shall have no right under this Agreement,
except as set forth in Section 3(d) hereof, to participate in any
stock option, stock purchase or other plan relating to shares of
capital stock of the Company or its affiliates, which participation,
if any, shall be governed by separate agreement. The Employee
acknowledges and agrees that the Chief Executive Officer may in its
discretion terminate at any time or modify from time to time any
such benefit plans.
(g) Other than as expressly set forth in this Section 3, the Employee
shall not receive any other compensation or benefits except to the
extent determined by the Chief Executive Officer.
4. Termination.
(a) The employment of the Employee under this Agreement may be
terminated by the Company upon giving the Employee notice if the
Employee has been unable to discharge his essential job duties by
reason of illness or injury for either (A) a period of two
consecutive months or (B) twelve weeks in any twelve-month period.
(b) The employment of the Employee under this Agreement shall terminate
on the date of the Employee's death.
(c) The employment of the Employee under this Agreement may be
terminated by the Company for cause. The Company may terminate the
Employee for cause only after a Cause Event (as hereinafter defined)
has occurred. As used herein, a "Cause Event" shall mean the
----------- following circumstances: (i) failure by the Employee to
cure (within 7 days of written notice by the Company to the
Employee) his repeated refusal or failure to perform any duties
assigned to the Employee by the Chief Executive Officer as are
appropriate to be performed by Executive Vice President of
MaxWorldwide and are commensurate with such title and position, (ii)
committed a breach of the terms of this Agreement or any other legal
obligation to the Company that remains uncured for more than 7 days
following written notice by the Company to the Employee, (iii)
failed to perform any of the Employee's obligations under the
Confidentiality Agreement, (iv) demonstrated gross negligence or
willful misconduct in the execution of the Employee's assigned
duties, (v) been convicted of or pleaded nolo contendere to (a) a
felony or (b) any other serious crime involving fraud, dishonesty,
theft, misappropriation or embezzlement or which, in the reasonable
business judgment of the Board, results in a material adverse effect
on the Company,, (vi) continual use of illegal drugs or of alcohol
where such use of alcohol interferes with the performance of
Employee's duties under this Agreement, (vii) engaged in
business practices which, in the opinion of the Board of Directors
of the Company, reflect adversely on the Company (including, without
limitation, unethical business practices), (viii) misappropriated
assets of the Company or (ix) been repeatedly absent from work
during normal business hours for reasons other than disability or
vacation.
(d) The employment of the Employee under this Agreement shall terminate
upon receipt by the Chief Executive Officer of a written notice of
resignation signed by the Employee or, if no notice is given, on the
date on which the Employee voluntarily terminates his employment
relationship with the Company.
(e) In addition to the circumstances described in subsections (a), (b),
(c) and (d) above, the Company may terminate the Employee's
employment for any reason or no reason and with or without cause or
prior notice. The Employee understands that, subject to subsections
(g)(iii) and (g)(iv) below, he is an at-will employee and may be
terminated by the Company without cause or prior notice pursuant to
this subsection (e) notwithstanding any other provision contained in
this Agreement. This at-will relationship will remain in effect
during the term of this Agreement and so long thereafter provided
that the Employee remains employed by the Company, unless such
at-will employment relationship is modified by a specific, express
written agreement signed by the Company.
(f) If the Company materially breaches this Agreement and such breach
remains uncured by the Company after a period of 7 days following
written notice of such breach by the Employee to the Company, the
Employee may terminate his employment under this Agreement upon
delivery by the Employee to the Board within 3 days following the
end of such 7 day cure period of a written notice of termination
signed by the Employee stating that Employee is terminating his
employment hereunder.
(g) If the Employee's employment is terminated pursuant to this Section
4 or for any other reason, the Employee shall not be entitled to any
compensation or benefits from the Company, under Section 3 of this
Agreement or otherwise, except for the following:
(i) base salary and vacation pay accrued, and reasonable
business expenses incurred, under Section 3 of this
Agreement through the date of such termination;
(ii) such benefits, if any, as may be required to be
provided by the Company under the Comprehensive Omnibus
Budget Reconciliation Act (COBRA) or as required by under
the terms of any death, insurance or retirement plan,
program or agreement
provided by the Company and to which the Employee is a party
or in which the Employee is a participant, including, but
not limited to, any short-term or long-term disability plan
or program, if applicable;
(iii) if the Employee's employment is terminated without
cause pursuant to subsection (e) above or by the Employee
pursuant to subsection (f) above, the Company shall continue
to pay to the Employee the base salary described in Section
3(a) for a period of six (6) months following such date of
termination of employment and Employee shall receive an
additional amount equal to 50% of the total bonus amounts
paid to Employee by Company or DoubleClick Inc. during the
12 months immediately preceding such date of termination of
employment.
5. Employee's Representations.
(a) The Employee represents that he has full authority to enter into
this Agreement and that he is free to enter into this Agreement and
not under any contractual restraint which would prohibit the
Employee from satisfactorily performing his duties to the Company
under this Agreement.
(b) The Employee acknowledges that he is free to seek advice from
independent counsel with respect to this Agreement. The Employee has
either obtained such advice or, after carefully reviewing this
Agreement, has decided to forego such advice. The Employee is not
relying on any representation or advice from the Company or any of
its officers, directors, attorneys or other representatives
regarding this Agreement, its content or effect.
6. Arbitration. Any controversy or claim arising out of or relating to
this Agreement or any breach hereof or the Employee's employment by the Company
or termination thereof, shall be settled by arbitration by one arbitrator in
accordance with the rules of the American Arbitration Association, and judgment
upon such award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The arbitration shall be held in the City of New York or
such other place as may be agreed upon at the time by the parties to the
arbitration.
7. Equitable Relief. The Employee acknowledges that the Company is
relying for its protection upon the existence and validity of the provisions of
this Agreement, that the services to be rendered by the Employee are of a
special, unique and extraordinary character, and that irreparable injury will
result to the Company from any violation or continuing violation of the
provisions of this Agreement for which damages may not be an adequate remedy.
Accordingly, the Employee hereby agrees that in addition to the remedies
available to the Company by law or under this Agreement, the
Company shall be entitled to obtain such equitable relief as may be permitted by
law in a court of competent jurisdiction including, without limitation,
injunctive relief from any violation or continuing violation by the Employee of
any term or provision of this Agreement.
8. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal substantive laws (without regard to
choice of law principles) of the State of New York.
9. Entire Agreement. This Agreement constitutes the whole agreement of
the parties hereto in reference to any employment of the Employee by the Company
and in reference to any of the matters or things herein provided for or
hereinabove discussed or mentioned in reference to such employment; all prior
agreements, promises, representations and understandings relative thereto being
herein merged.
10. Assignability.
(a) In the event the Company shall merge or consolidate with any other
corporation, partnership or business entity, or all or substantially
all of the Company's business or assets shall be transferred in any
manner to any other corporation, partnership or business entity,
then such successor to the Company shall thereupon succeed to, and
be subject to, all rights, interests, duties and obligations of, and
shall thereafter be deemed for all purposes hereof to be, the
"Company" under this Agreement.
(b) This Agreement is personal in nature and the Employee shall not,
without the written consent of the Company, assign or transfer this
Agreement or any rights or obligations hereunder.
(c) Except as set forth in subsection (a) above, nothing expressed or
implied in this Agreement is intended or shall be construed to
confer upon or give to any person, other than the parties to this
Agreement, any right, remedy or claim under or by reason of this
Agreement or of any term, covenant or condition of this Agreement.
11. Amendments; Waivers. This Agreement may be amended, modified,
superseded, canceled, renewed or extended and the terms or covenants of this
Agreement may be waived only by a written instrument executed by the parties to
this Agreement or, in the case of a waiver, by the party waiving compliance. Any
such written instrument must be approved by the Board to be effective as against
the Company. The failure of any party at any time or times to require
performance of any provision of this Agreement shall in no manner affect the
right at a later time to enforce the same. No waiver by any party of the breach
of any term or provision contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such breach, or a waiver of the breach
of any other term or covenant contained in this Agreement.
12. Notice. All notices, requests or consents required or permitted
under this Agreement shall be made in writing and shall be given to the other
party by personal delivery, overnight air courier (with receipt signature) or
facsimile transmission (with "answerback" confirmation of transmission), if to
the Company, sent to such party's addresses or telecopy number as are set forth
below such party's signature to this Agreement, and if to the Employee, to his
address as set forth in the records of the Company, or such other addresses or
telecopy numbers of which the parties have given notice pursuant to this Section
12. Each such notice, request or consent shall be deemed effective upon the date
of actual receipt, receipt signature or confirmation of transmission, as
applicable.
13. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
14. Survival. The representations and agreements of the Employee set
forth in Sections 5, 6 and 7 of this Agreement shall survive the expiration or
termination of this Agreement (irrespective of the reason for such expiration of
termination).
15. Attorney's Fees. If any party to this Agreement seeks to enforce his
or its rights under this Agreement, the prevailing party shall be entitled to
recover reasonable fees, costs and expenses incurred in connection therewith
including, without limitation, the fees, costs and expenses of attorneys,
accountants and experts, whether or not litigation is instituted, and including
such fees, costs and expenses of appeals.
[Signature Page Follows]
[Signature Page to Employment Agreement]
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Employment Agreement as of the date first above written.
L90, INC.,
a Delaware corporation
By /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
General Counsel, VP
Address for Notices:
0000 Xxxxxxx Xxxxxx
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board
Telecopy: (000) 000-0000
EMPLOYEE:
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
