Exhibit 10.12
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
Amended and Restated Employment
Agreement (the
“Agreement”) made as of March 14, 2006, by and between
24/7 Real Media, Inc. , a Delaware corporation, with its
principal place of business at 132 W.31 st Street, 9
th Floor, New York, New York 10001 (the
“Company”), and David J. Moore
(“Executive”).
W I T N E S S E T
H:
WHEREAS , the Company and Executive are parties to an
Employment Agreement (the “Prior Agreement”), pursuant
to which the Company employed Executive as its Chief Executive
Officer, and Executive agreed to serve in such capacity;
and
WHEREAS , the Company and Executive now desire to amend
and restate the Prior Agreement in its entirety.
NOW, THEREFORE
, in consideration of the premises
and of the mutual covenants and agreements herein contained and for
other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Company and Executive agree as
follows:
1.
EMPLOYMENT .
(a)
The Company hereby agrees to employ Executive, and Executive agrees
to be employed by the Company, on the terms and conditions herein
contained as its Chief Executive Officer. Executive shall report
directly to the Company’s Board of Directors (the
“Board”) and shall have such duties, authority and
responsibilities commensurate with Executive’s position for
similarly sized companies in the industry.
(b)
Executive shall devote all of his business time, energy, skill and
efforts to the performance of his duties hereunder and shall
faithfully and diligently serve the Company. The foregoing shall
not prevent Executive from participating in not-for-profit
activities or from managing his passive personal investments or
from providing incidental assistance to family members on matters
of family business or, subject to the approval of the Company, from
serving on the boards of directors of other entities, provided that
these activities do not materially interfere with Executive’s
obligations hereunder.
(c)
Upon the request of the Board, Executive shall also serve as a
director or officer of subsidiaries in positions commensurate with
his position with the Company without additional compensation. If
any compensation is paid Executive by such subsidiaries, they shall
be a credit against amounts due hereunder.
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2.
TERM OF EMPLOYMENT .
(a)
Except for earlier termination as provided in Section 7 hereof or
as extended in this Section 2, Executive’s employment under
this Agreement (the “Employment Term”) shall commence
on the date hereof (the “Commencement Date”) and
continue until terminated by either party pursuant to Section 7
hereof.
(b)
Notwithstanding anything else herein, the provisions of Sections 8
and 9 hereof shall survive and remain in effect notwithstanding the
termination of the Employment Term or a breach by the Company or
Executive of this Agreement or any of its terms.
3.
COMPENSATION .
(a)
As compensation for his services under this Agreement, the Company
shall pay Executive the base salary (the “Base Salary”)
and the target bonuses (the “Target Bonuses”) set forth
on Exhibit A. Payment of the Base Salary shall be made in equal
installments twice a month. Payment of the Target Bonuses shall be
as specified on Exhibit A.
(b)
The Base Salary and Target Bonuses set forth on Exhibit A shall be
deemed to be amended and restated by any final determination
regarding Executive’s compensation that is set forth in the
official minutes of the Compensation Committee of the
Board.
4.
BENEFITS AND FRINGES .
(a)
During the Employment Term, Executive shall be entitled to such
benefits and fringes, if any, as are generally provided from time
to time by the Company to its executive officers, including
pension, retirement, savings, welfare (including life and health
insurance) and other employee benefit plans and
arrangements.
(b)
Except as otherwise specifically provided herein, the Executive
shall be responsible for the tax consequences of all benefits and
fringes.
5.
EXPENSES . The Company shall reimburse Executive in
accordance with its expense reimbursement policy as in effect from
time to time for all reasonable expenses incurred by Executive in
connection with the performance of his duties under this Agreement
upon the presentation by Executive of an itemized account of such
expenses and appropriate receipts and otherwise in compliance with
such rules relating thereto as the Company may, from time to time,
adopt.
6.
VACATION . During the Employment Term, Executive shall be
entitled to four weeks of paid vacation per calendar
year.
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7.
TERMINATION .
(a)
Executive’s employment under this Agreement and the
Employment Term shall terminate upon any of the following
events:
(i)
Automatically on the date of Executive’s death;
(ii)
Upon written notice given by the Company to Executive if Executive
is unable to substantially perform his material duties hereunder
for one hundred eighty (180) continuous days during any period of
three hundred sixty (360) consecutive days by reason of physical or
mental incapacity;
(iii)
Upon written notice by the Company to Executive for Cause.
“Cause” shall mean (a) Executive being convicted of (or
pleading nolo contendere to) a felony (other than a traffic
violation) or a crime involving fraud, misappropriation, or
embezzlement; (b) refusal of the Executive to attempt to properly
perform his obligations under this Agreement, or follow any
direction of the Board consistent with this Agreement, which in
either case is not remedied within ten (10) business days after
receipt by Executive of written notice from the Company specifying
the details thereof; provided, that, the refusal to follow a
direction shall not be Cause if Executive in good faith reasonably
believes that such direction is not legal, ethical or moral and
promptly notifies the Board in writing of such belief; (c)
Executive’s gross negligence with regard to his duties or
willful misconduct with regard to the business, assets or employees
of the Company that is materially injurious to the financial
condition or business reputation of the Company; or (d) any other
breach by Executive of a material provision of this Agreement that
remains uncured for twenty (20) business days after written notice
thereof is given to Executive or such longer period as may
reasonably be required to remedy the default, provided that
Executive endeavors in good faith to remedy the default;
(iv)
Upon 30 days’ written notice by the Company without
Cause; or
(v)
Upon not less than 30 days’ written notice by the
Executive.
(b)
Upon termination of the Employment Term, Executive shall be
promptly paid any unpaid salary and accrued vacation through his
date of termination and reimbursement for any expenses incurred in
connection with the official business of the Company prior to his
date of termination which he would be otherwise entitled to
reimbursement for in accordance with the Company’s policies
on the reimbursement of business expenses and any benefits or
amounts under any benefit or equity plan in accordance with the
terms of said plan and any fringe benefits due for the period prior
to such termination. In addition, he shall be paid any declared,
but unpaid, bonus.
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(c)
If Executive’s termination is pursuant to subsection (a)(i)
above, Executive’s Beneficiary (as defined in the next
sentence) shall continue to receive payments of Executive’s
Base Salary, at the same time such amounts would have been paid if
Executive was still an employee of the Company for a period of two
(2) years following Executive’s death. For purposes of this
provision, Executive’s Beneficiary shall be Executive’s
spouse; if Executive is not married on his date of death,
Executive’s children, per stirpes; and otherwise,
Executive’s estate.
(d)
If Executive’s termination is pursuant to subsection (a)(ii)
above, Executive shall be entitled to receive an amount equal to
two (2) years’ of Executive’s Base salary, in one lump
sum payment, less any amounts actually received by him pursuant to
long-term disability coverage, if any, provided for by the Company
for the matching pay period. After such two (2) years, Executive
shall only be entitled to any amounts due him under the long-term
disability coverage, if any.
(e)
If Executive’s termination is pursuant to subsection (a)(iv)
above, Executive shall receive:
(i)
for one year following the termination of Executive’s
employment, at the same time as it would have been paid if he were
an employee of the Company, his Base Salary;
(ii)
continued medical and dental coverage for a period of one year
following termination of Executive’s employment;
and,
(iii)
a prorated portion of his Target Bonuses for the year of
termination, reduced by amounts already paid, plus a lump-sum
payment equal to 50% the total Target Bonuses for the full-year in
which termination occurs.
(f)
All amounts payable pursuant to this Section 7 shall be subject to
required withholding. The Company shall have no other obligations
to Executive as a result of his termination.
8.
CONFIDENTIAL INFORMATION AND NON-COMPETITION . Executive has
entered into a Non-Competition and Non-Disclosure and Developments
Agreement, dated March [ ], 2006, which agreement is set
forth on Exhibit B and is made a part hereof as though fully set
forth herein.
9.
INDEMNIFICATION . During the Employment Term and thereafter,
the Company shall defend Executive to the fullest extent permitted
by law against any claims, demands, suits or actions, and indemnify
Executive to the fullest extent permitted by law against any
judgments, fines, amounts paid in settlement and reasonable
expenses (including attorneys’ fees), and advance amounts
necessary to pay the foregoing at the earliest time and to the
fullest extent permitted by law, in connection with any claim,
action or proceeding (whether civil or criminal) against Executive
(other than a claim brought by the Company) as a result of
Executive serving as an officer, director or employee of the
Company or in any capacity at the request of the Company, in or
with regard to any other entity, employee benefit plan or
enterprise. This duty to
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defend and indemnify shall be in addition to,
and not in lieu of, any other defense and indemnification rights.
Executive shall be entitled to pursuant to the Company’s
Certificate of Incorporation or By-laws or otherwise. Following
Executive’s termination of employment, the Company shall
continue to cover Executive under the Company’s directors and
officers insurance for the period during which Executive may be
subject to potential liability for any claim, action or proceeding
(whether civil or criminal) as a result of his service as an
officer or director of the Company or in any capacity at the
request of the Company, at the highest level then maintained for
any then current or former officer or director.
10.
EXECUTIVE REPRESENTATION. Executive represents and warrants that he is not
limited under any contractual or other provision from entering into
this Agreement and performing his obligations hereunder.
11.
ENTIRE AGREEMENT; MODIFICATION . This Agreement constitutes
the full and complete understanding of the parties hereto and will
supersede all prior agreements and understandings, oral or written,
with respect to the subject matter hereof. Each party to this
Agreement acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by either
party, or anyone acting on behalf of either party, which are not
embodied herein and that no other agreement, statement or promise
not contained in this Agreement shall be valid or binding. This
Agreement may not be modified or amended except by an instrument in
writing signed by the party against whom or which enforcement may
be sought.
12.
SEVERABILITY . Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction.
13.
WAIVER OF BREACH . The waiver by any party of a breach of
any provi
