Exhibit 10.13
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 Mark E. Moran
(“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 its Executive Vice
President and General Counsel, 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 Executive Vice
President and General Counsel, or in such other executive
managerial position or positions with the Company or its
subsidiaries or affiliates as shall hereafter be designated by the
Chief Executive Officer (the “CEO”) of the Company.
Executive shall report directly to the CEO or such other person as
the CEO may designate 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 of Directors.
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 CEO 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 CEO 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 nine (9) months
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 nine months’ 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 nine months, 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 four and a half months 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 four and a half months 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 37.5% 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
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Company, in or with regard to any other entity,
employee benefit plan or enterprise. This duty to 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
