AGREEMENT
This
AGREEMENT (“Agreement”) is made
and entered into this 4 day of August, 2010, by and between interCLICK,
Inc., a Delaware corporation (the “Company”), Xxxxxxx
Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxx Xxxx and Xxxxx Xxxxx (collectively the
“Executives”).
WHEREFORE,
in consideration of the foregoing and of the mutual agreements and covenants set
forth herein, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. Return of
Bonus. In consideration for the Company’s paying to the
Executive the amount set forth next to the Executive’s name on Schedule 1.1
attached hereto (the “Bonus”),in the event
the Company has not achieved the Milestones (as hereinafter defined) for the
full fiscal year ended December 31, 2010; or (ii)if as a result of any
restatement of the consolidated financial results for the fiscal year ended
December 31, 2010 of the Company prior to the expiration of twenty-four (24)
months following the date of filing of the December 31, 2010 Annual Report on
Form 10-K (the “Form
10-K”) for the Company with the Securities and Exchange Commission the
Milestones, following such restatement, are not then met, the Executive
covenants and agrees that within ninety (90) days of receipt of a written demand
from the Company the Executive shall repay to the Company the full amount of the
Bonus.
2. Definitions. For
purposes hereof: “Milestone” shall mean consolidated annual Revenue and
EBITDA goals of the Company as consented to by the Board of Directors
and reflected in the Board minutes dated March 30, 2010; “Revenue” shall mean
the amount reported in the Form 10-K; and EBITDA shall have the meaning ascribed
to such term in the Company’s annual earnings release for 2010.
3. Miscellaneous.
(a) Assignment. This
Agreement may not be assigned by either party without the prior written consent
of the other.
(b) Entire
Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof. This Agreement
shall supersede all prior communications, representations and agreements with
respect to the subject matter hereof, either oral or written, between the
parties.
(c) Amendments and
Waivers. This Agreement may not be modified or amended except
by a written instrument signed by both parties. Any party hereto may,
only by an instrument in writing, waive compliance by the other party hereto
with any term or provision of this Agreement on the part of such other party
hereto to be performed or complied with.
(d) Governing
Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement shall be governed by and
construed in accordance with the internal laws of the State of New York without
reference to conflicts of laws.
(e) Execution in
Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same
agreement. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all the parties reflected hereon as signatories.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered on the date first written above.
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By:
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Name:
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Title:
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Xxxxxxx
Xxxxxxx
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Xxxxxxx
Xxxx
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Xxxxxx
Xxxx
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Xxxxx
Xxxxx
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2
Schedule
1.1
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Name
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Pro-Rata
Bonus %
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Payment
Subject to
Clawback
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Xxxxxxx,
Xxxxxxx
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50 | % | $ | 88,750 | ||||
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Xxxx,
Xxxxxxx
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50 | % | $ | 75,000 | ||||
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Xxxx,
Xxxxxx
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50 | % | $ | 68,063 | ||||
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Xxxxx,
Xxxxx
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50 | % | $ | 56,250 | ||||
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Total
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$ | 288,063 | ||||||
3
