{"id":39074,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-doubleclick-inc-abacus-direct-corp-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-doubleclick-inc-abacus-direct-corp-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-doubleclick-inc-abacus-direct-corp-and.html","title":{"rendered":"Employment Agreement &#8211; DoubleClick Inc., Abacus Direct Corp. and Christopher M. Dice"},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\n                  EMPLOYMENT AGREEMENT dated as of November ___, 1999 (the\n'Agreement') by and among DOUBLECLICK INC., a Delaware corporation with\nprincipal offices located at 450 West 33rd Street, New York, New York\n('DoubleClick'), and ABACUS DIRECT CORPORATION, a Delaware corporation (the\n'Corporation'), and CHRISTOPHER M. DICE, having an address at\n________________________________ ('Executive').\n\n                              W I T N E S S E T H:\n\n                  WHEREAS, Executive has been employed by the Corporation as its\nPresident and Chief Operating Officer pursuant to an employment agreement dated\nNovember 2, 1998, as amended (the '1998 Agreement');\n\n                  WHEREAS, the Corporation has entered into an Agreement and\nPlan of Merger and Reorganization dated June 13, 1999 with DoubleClick and\nAtlanta Merger Corp. (the 'Merger Agreement') whereby the Corporation shall\nbecome a wholly owned subsidiary of DoubleClick (the 'Initial Merger');\n\n                  WHEREAS, the Corporation and DoubleClick intend that,\nimmediately following the Initial Merger, the Corporation shall be merged with\nand into DoubleClick (together with the Initial Merger, the 'Merger');\n\n                  WHEREAS, the Executive's continuing services are necessary to\nmaintain the value of the Corporation after the Merger; and\n\n                  WHEREAS, this Agreement shall supersede and replace the 1998\nAgreement.\n\n                  NOW, THEREFORE, in consideration of the mutual covenants and\nagreements hereinafter set forth, and intending to be legally bound hereby,\nDoubleClick, the Corporation and Executive hereby agree as follows:\n\n                  1.  Employment.\n\n                  (a) Subject to the terms and conditions set forth in this\nAgreement, the Corporation offers and the Executive hereby accepts employment,\neffective as of the Effective Time of the Initial Merger (the 'Commencement\nDate'), and DoubleClick offers and the Executive hereby accepts employment,\neffective as of the effective time of the Merger. For purposes of this\nAgreement, the 'Surviving Corporation' shall (i) from the Commencement Date\nuntil the effective time of the Merger, be deemed to be the Corporation and (ii)\nfollowing the effective time of the Merger, shall be deemed to be DoubleClick.\n\n                  (b) The Surviving Corporation hereby employs Executive as\nPresident and Chief Operating Officer reporting directly to Kevin Ryan,\nPresident of DoubleClick, or his successor. Executive shall be responsible for\noverseeing the integration of the Corporation into DoubleClick's business\npursuant to the Merger, and shall have various management responsibilities and\nduties consistent with his executive position and of such nature as are usually\n\n\n\n \n\n\n\nassociated with his office as may be designated from time to time by the Board\nof Directors of the Surviving Corporation (the 'Board').\n\n                  (c) Executive shall faithfully and diligently discharge his\nduties hereunder and use his best efforts to implement the policies established\nby the Board. Executive agrees to devote substantially all of his time and\nattention to the rendering of services hereunder.\n\n                  2.  Compensation.\n\n                  (a) During the Term of Executive's employment hereunder, the\nSurviving Corporation shall cause Executive to receive a base annual salary in\nthe amount of two hundred fifty thousand dollars ($250,000). Such base salary,\nas from time to time increased, is hereafter referred to as the 'Base Salary'.\nThe Base Salary shall be payable in accordance with the present payroll\npractices of the Surviving Corporation. In addition, Executive may receive such\nadditional compensation (in the form of bonuses, etc.) that the Board shall, in\nthe exercise of its good faith and reasonable discretion, determine.\n\n                  (b) In addition to the salary described in Section 2(a) above,\nfor each fiscal or partial fiscal year of the Surviving Corporation during the\nTerm hereof, Executive shall be entitled to receive incentive compensation (as\ndescribed below) to be paid on or before the 90th day following the end of the\nSurviving Corporation's fiscal year (a 'Fiscal Year'). Executive's entitlement\nto incentive compensation for any fiscal year of the Surviving Corporation shall\nbe predicated upon successful accomplishment of annual business related\nperformance goals for the Surviving Corporation established by the Compensation\nCommittee of the Board. The incentive compensation under this subparagraph (b)\nfor any year shall not exceed one hundred percent (100%) of Executive's Base\nSalary. The incentive compensation payable hereunder in respect of any period\nconstituting less than an entire Fiscal Year (a 'Partial Year') shall be (i)\nbased upon the Company's level of performance as of the first day of the month\nin which the Date of Termination (as hereinafter defined) occurred, measured\nagainst and in excess of the Company's budget as of the first day of such month\nand, to the extent earned, (ii) shall be in an amount equal to the incentive\ncompensation which would be so payable if such period constituted the entire\nFiscal Year in which it occurs multiplied by a fraction, the numerator of which\nshall be the number of days in such period and the denominator of which shall be\n365.\n\n                  (c) The parties intend that, on or about the Effective Time,\nDoubleClick shall grant Executive stock options pursuant to its 1997 Stock\nIncentive Plan, as amended, under terms and at a level reasonable in light of\nExecutive's duties and responsibilities and comparable with existing\narrangements with his peer executives at the Corporation and DoubleClick.\n\n                  3.  Benefits, Etc. Executive shall be entitled to receive such\nfringe benefits normally provided by the Surviving Corporation to executives in\nhis position (including disability coverage, vacation, sick leave, medical and\ndental insurance, life insurance, participation in the Surviving Corporation's\n401(k) Plan, incentive compensation plans and other benefits generally available\nto senior executives of the Surviving Corporation at any time during the term of\nthis Agreement).\n\n                                       2\n\n\n\n \n\n\n\n                  4.  Term. Subject to earlier termination as hereinafter\nprovided, the original term of this Agreement shall commence on the Commencement\nDate and shall continue in effect for a one (1) year period ending on the first\nanniversary of the Commencement Date. The parties intend to negotiate in good\nfaith towards an agreement regarding terms and conditions of Executive's\nemployment with the Surviving Corporation continuing after the Term, it being\nanticipated that Executive shall be offered employment terms consistent with the\nSurviving Corporation's policies and practices applicable to its executives.\n\n                  5.  Termination by The Surviving Corporation. The Surviving\nCorporation shall have the right to terminate this Agreement for 'Disability',\n'Cause' or without 'Cause'.\n\n                  (a) Disability. If, as a result of Executive's incapacity due\nto physical or mental illness, Executive shall have been absent from his duties\nwith the Surviving Corporation on a full-time basis for six (6) consecutive\nmonths, and within thirty (30) days after written notice of termination is\ngiven, Executive shall not have returned to the full time performance of\nExecutive's duties, the Surviving Corporation may terminate Executive's\nemployment by reason of his 'Disability.'\n\n                  (b) Cause. Termination by the Surviving Corporation of\nExecutive's employment for 'Cause' shall mean termination as a result of: (i)\nbreach by Executive of any material provision of this Agreement; (ii) gross\nnegligence or willful misconduct of Executive in connection with the performance\nof his duties under this Agreement, or Executive's willful refusal to perform\nany of his material duties or responsibilities required pursuant to this\nAgreement; (iii) Executive's misappropriation for personal use of assets or\nbusiness opportunities of the Surviving Corporation; (iv) Executive's\nembezzlement of the Company's funds or property, or fraud on the part of\nExecutive; or (v) Executive's conviction of any Felony.\n\n                  6.  Termination by Executive. (a) Executive shall be entitled\nto terminate his employment (i) in the event that the Surviving Corporation\nmaterially breaches any of its obligations hereunder and such breach continues\nfor thirty (30) days after the Surviving Corporation receives written notice\nfrom Executive of such breach or (b) if there is a 'change in control' of the\nSurviving Corporation.\n\n                  For purposes of this Agreement, a 'change in control' of the\nSurviving Corporation shall be deemed to have occurred if (a) any 'Person' (as\nsuch term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of\n1934, as amended (the 'Exchange Act')) is or becomes the 'beneficial owner' (as\ndefined in Rule 13d-3 under the Exchange Act), directly or indirectly, of\nsecurities of the Surviving Corporation representing forty percent (40%) or more\nof the combined voting power of the Surviving Corporation's then outstanding\nsecurities; or (b) the Board shall approve a sale of all or substantially all\nthe assets of the Surviving Corporation unless the Executive is a member of the\nBoard of Directors who affirmatively votes in favor of such sale transaction\ngiving rise to the 'change in control'.\n\n                  In the event that Executive becomes entitled to terminate his\nemployment hereunder by reason of the occurrence of a 'change in control' of the\nSurviving Corporation or for any reason other than a 'change in control',\nExecutive shall be entitled to terminate his employment immediately after the\noccurrence of the event giving rise to such right, which right\n\n                                       3\n\n\n\n \n\n\n\nshall continue for a period of four (4) months from the date of such occurrence.\nThe Merger shall be considered a 'change in control' for purposes of this\nparagraph and paragraph 9 only if DoubleClick breaches its obligations under\nSection 2(c) above.\n\n                  7.  Notice of Termination. Any purported termination by the\nSurviving Corporation or by Executive shall be communicated by written Notice of\nTermination to the other party hereto in accordance with Section 13 hereof. For\npurposes of this Agreement, a 'Notice of Termination' shall mean a notice which\nshall indicate the specific termination provision in this Agreement relied upon\nand shall set forth in reasonable detail the facts and circumstances claimed to\nprovide a basis for termination of Executive's employment under the provision so\nindicated.\n\n                  8.  Date of Termination, Etc. 'Date of Termination' shall mean\n(a) if Executive's employment is terminated by the Surviving Corporation for\nCause, the date specified in the Notice of Termination, which date shall be no\nearlier than the date of such Notice; (b) if Executive's employment is\nterminated by the Surviving Corporation for Disability, thirty (30) days after\nNotice of Termination is given (provided that Executive shall not have returned\nto the performance of his duties an a full-time basis during such thirty (30)\nday period); (c) if Executive's employment is terminated by the Surviving\nCorporation without Cause, the date specified in the Notice of Termination,\nwhich date shall be no earlier than the date that such notice is deemed given;\n(d) if Executive's employment is terminated by Executive for any of the reasons\nspecified in Section 6, such date as Executive shall specify in Executive's\nNotice of Termination, which date shall be no less than thirty (30) days after\nsuch Notice of Termination is given. \n\n                  9.  Compensation Upon Termination, During Disability, Death or\nin the Event of a Change in Control.\n\n                  (a) In addition to any benefits to which Executive is entitled\nunder any insurance program or pension or benefit plan then in effect, or any\nstock plan or restricted stock agreement, in lieu of all other payments of\nsalary or other compensation to which Executive would otherwise be entitled\nhereunder, Executive shall be entitled to the following (and, if terminated for\nany reason whatsoever, shall in no event be entitled to receive salary for the\nbalance of the remaining Term):\n\n                          (i) If Executive's employment shall be terminated for\n                          Cause, the Surviving Corporation shall pay his full\n                          Base Salary through the Date of Termination at the\n                          rate in effect at the time Notice of Termination is\n                          given and the Surviving Corporation shall have no\n                          further obligations to Executive under this Agreement\n                          unless it shall be finally determined by a court of\n                          competent jurisdiction that such purported termination\n                          for Cause was not justified or was inappropriate in\n                          the circumstances.\n\n                          (ii) If Executive's employment with the Surviving\n                          Corporation shall be terminated other than in\n                          anticipation of or in connection with a 'change in\n                          control' (A) by the Surviving Corporation without\n                          Cause, (B) by Executive for any of the reasons\n                          specified in clause (a) of the first paragraph of\n\n                                       4\n\n\n\n \n\n\n\n                          Section 6 hereof, or (C) at the expiration of this\n                          Agreement by virtue of it not being renewed, in lieu\n                          of any further salary payments to Executive for\n                          periods subsequent to the Date of Termination\n                          (including any payments relating to any bonus or\n                          incentive compensation), Executive shall be entitled\n                          to receive a severance payment in an amount equal to\n                          twelve (12) months of the Base Salary then in effect\n                          and incentive compensation, if earned, on a pro-rata\n                          basis, which severance shall be paid either in\n                          accordance with the Surviving Corporation's customary\n                          payroll practices or in a lump sum, upon expiration of\n                          such term, as Executive may elect, subject, in either\n                          case, to normal payroll deductions.\n\n                          (iii) If Executive's employment with the Surviving\n                          Corporation shall be terminated by Executive or by the\n                          Surviving Corporation upon or within four (4) months\n                          following a 'change in control' pursuant to clause (b)\n                          of the first paragraph of Section 6 hereof, then\n                          Executive shall be entitled to the benefits provided\n                          below:\n\n                                            (A) the Surviving Corporation shall\n                                            pay Executive his full Base Salary\n                                            through the Date of Termination at\n                                            the rate in effect at the time\n                                            Notice of Termination is given;\n\n                                            (B) In lieu of any further salary\n                                            payments to Executive for periods\n                                            subsequent to the Date of\n                                            Termination (including any payments\n                                            relating to any bonus or incentive\n                                            compensation), the Surviving\n                                            Corporation shall pay, as severance\n                                            pay to Executive, not later than the\n                                            fifth (5th) day following the Date\n                                            of Termination, a lump-sum severance\n                                            payment in an amount equal to the\n                                            sum of (x) twenty-four (24) months\n                                            of the Base Salary then in effect\n                                            and (y) an amount equal to two (2)\n                                            times any incentive compensation\n                                            earned in the most recently\n                                            completed fiscal year of the\n                                            Surviving Corporation.\n\n                  (b) For a twelve (12) month period after such termination,\nother than for Cause, the Surviving Corporation shall arrange to provide\nExecutive and, to the extent practicable, his family with life, disability and\nhealth insurance benefits substantially similar to those which Executive is\nreceiving immediately prior to the Notice of Termination.\n\n                  (c) Anything in this Agreement to the contrary\nnotwithstanding, in the event that any payment and the value of any benefit,\nincluding the vesting of options or restricted stock, received or to be received\nby Executive upon a change in control (collectively, a 'Payment') would result\nin all or a portion of such Payment being subject to excise tax under Section\n4999 of the Internal Revenue Code ('Section 4999') , then Executive's Payment\nshall be either (A) the full Payment or (B) the maximum amount which would\nresult in no portion of the Payment being subject to excise tax under Section\n4999, whichever of the foregoing amounts specified in subparagraphs (A) or (B)\nabove, taking into account the applicable Federal, state, and local employment\ntaxes, income taxes, and the excise tax imposed by Section 4999 (and also\n\n                                       5\n\n\n\n \n\n\n\ntaking into account Executive's particular tax circumstances and filing status),\nresults in the receipt by Executive of the greatest amount notwithstanding that\nall or some portion of such amount may be taxable under Section 4999; provided,\nhowever, that Executive will be entitled to receive the full Payment only if the\nafter tax amounts of the full payment described in subparagraph (A) above exceed\nthe after tax amount resulting from the amount described in subparagraph (B)\nabove by at least ten thousand dollars ($10,000). In the event that the Payment,\nor any portion of the Payment, is reduced pursuant to this Section to the amount\ndescribed in subparagraph (B) above, the present value of the amount to be\nreceived by Executive (for purposes of Section 280G of the Internal Revenue\nCode) must be reduced in such a way that the total amount to be received by\nExecutive (without regard to present value principles) is maximized. All\ncomputations required to be made under this Section shall be made by a\nnationally recognized accounting firm which is the Surviving Corporation's\noutside auditor at the time of such determination (the 'Accounting Firm'). The\nSurviving Corporation shall cause the Accounting Firm to provide detailed\nsupporting calculations of the amounts described herein to the Surviving\nCorporation and Executive as soon as is practicable after an event entitling\nExecutive to a Payment hereunder. The Executive may accept, but shall not be\nbound to accept, the computations made by the Accounting Firm and shall have the\nright to challenge any such computations in litigation or otherwise.\n\n                  10. Intellectual Property Rights. All rights in inventions,\ndesigns and intellectual property (including, without limitation, in patents,\ncopyrights, trade marks, registered designs, design rights and know-how) to\nwhich Executive may become entitled by reason of activities in the course of\nExecutive's employment shall vest automatically in the Surviving Corporation and\nExecutive shall, at the request and expense of the Surviving Corporation,\nprovide the Surviving Corporation with all information, drawings and documents\nrequested by the Surviving Corporation and execute such documents and do such\nthings as may be required by the Surviving Corporation to evidence such vesting.\nThe provisions of this Section 10 shall survive the termination of this\nAgreement.\n\n                  11. Non-Competition and Non-Disclosure. The parties hereto\neach acknowledge and agree that, concurrently with this Agreement, they will\nenter into a Non-competition and Non-disclosure Agreement ('Non-Disclosure\nAgreement') and that such Non-Disclosure Agreement shall remain in full force\nand effect throughout the Term hereof and shall survive the termination of this\nAgreement. A copy of the Non-Disclosure Agreement is attached hereto as Exhibit\nA. Executive acknowledges that the provisions of the Non-Disclosure Agreement\nare fair and reasonable and necessary to protect the good will and interest of\nthe Surviving Corporation and its subsidiaries and shall constitute separate and\nseverable undertakings given for the benefit of each of the Surviving\nCorporation and each subsidiary and may be enforced by the Surviving Corporation\non behalf of any of them.\n\n                  12. Successors; Binding Agreement.\n\n                  (a) The Surviving Corporation will require any successor\n(whether direct or indirect, by purchase, merger, consolidation or otherwise) to\nall or substantially all of the business and\/or assets of the Surviving\nCorporation to expressly assume and agree to perform this Agreement in the\nmanner and to the same extent that the Surviving Corporation would be required\nto perform it if no such succession had taken place. Failure of the Surviving\n\n                                       6\n\n\n\n \n\n\n\nCorporation to obtain such assumption and agreement prior to the effectiveness\nof any such succession shall be a breach of this Agreement, and for purposes of\nimplementing the foregoing, the date on which any such succession becomes\neffective shall be deemed the Date of Termination. As used in this Agreement,\n'the Corporation' shall mean the Corporation as hereinbefore defined and any\nsuccessor to its business and\/or assets, as aforesaid, which assumes and agrees\nto perform this Agreement by operation of law, or otherwise.\n\n                  (b) This Agreement shall inure to the benefit of and be\nenforceable by the Surviving Corporation, its successors and assigns, and by\nExecutive, his personal or legal representatives, executors, administrators,\nsuccessors, heirs, distributees, devisees and legatees. If Executive should die\nall Base Salary and incentive compensation earned by Executive prior to his\ndeath, unless otherwise provided herein, shall be paid in accordance with the\nterms of this Agreement to his devisee, legatee or other designee or, if there\nis no such designee, to Executive's estate.\n\n                  13. Notice. For purposes of this Agreement, notices and all\nother communications provided for in the Agreement shall be in writing and shall\nbe deemed to have been duly given when delivered by hand, telecopied (receipt\nacknowledged) or mailed by United States registered mail, return receipt\nrequested, postage prepaid, addressed to the respective addresses set forth on\nthe first page of this Agreement, provided that all notices to the Surviving\nCorporation shall be directed to the attention of the Board with a copy to the\nSecretary of the Surviving Corporation and to DoubleClick, or to such other\naddress as either party may have furnished to the other in writing in accordance\nherewith, except that notice of change of address shall be effective only upon\nreceipt.\n\n                  14. Miscellaneous. All terms in this Agreement not\nspecifically defined herein shall be defined as in the Merger Agreement. No\nprovision of this Agreement may be modified, waived or discharged unless such\nwaiver, modification or discharge is agreed to, in writing, and signed by\nExecutive and such officer of the Surviving Corporation as may be specifically\ndesignated by the Board. No waiver by either party hereto at any time of any\nbreach by the other party hereto of, or compliance with, any condition or\nprovision of this Agreement to be performed by such other party shall be deemed\na waiver of similar or dissimilar provisions or conditions at the same or at any\nprior or subsequent time. No agreements or representations, oral or otherwise,\nexpress or implied, with respect to the subject matter hereof have been made by\neither party which are not expressly set forth in this Agreement. Each party\nacknowledges that the services to be rendered under this Agreement are unique\nand of extraordinary character, and in the event of a breach by either party of\nany of the terms of this Agreement, the other party shall be entitled, if it so\nelects, to institute and prosecute proceedings in any court of competent\njurisdiction, either at law or in equity, to obtain damages for any breach of\nthe terms and provisions hereunder, to enforce specific performance by the\nbreaching party of its obligations hereunder and to enjoin the breaching party\nfrom acting in violation of this Agreement. Such remedies are in addition to\nthose otherwise available at law or in equity to the Surviving Corporation. The\nvalidity, interpretation, construction and performance of this Agreement shall\nbe governed by the internal laws of the State of New York (other than the choice\nof law principles thereof).\n\n                                       7\n\n\n\n \n\n\n\n                  15. Validity. The invalidity or unenforceability of any\nprovision of this Agreement shall not affect the validity or enforceability of\nany other provision of this Agreement, which shall remain in full force and\neffect.\n\n                  16. Counterparts. This Agreement may be executed in several\ncounterparts, each of which shall be deemed to be an original but all of which\ntogether will constitute one and the same instrument.\n\n                  17. Prior Agreement. Upon the effectiveness of this Agreement,\nall prior agreements, including, but not limited to, the 1998 Agreement, between\nExecutive and the Corporation will be terminated and of no further force and\neffect.\n\n                                       8\n\n\n\n \n\n\n\n         IN WITNESS WHEREOF, the undersigned have executed and delivered this\nEmployment Agreement on the date first above written.\n\n                                DOUBLECLICK INC.\n\n                                By: _____________________________\n                                    Name:\n                                    Title:\n\n                                ABACUS DIRECT CORPORATION\n\n                                By: _____________________________\n                                    Name:\n                                    Title:\n\n                                EXECUTIVE\n\n                                By: _____________________________\n                                    Name: Christopher M. Dice\n\n                                       9\n\n\n\n \n\n\n\n                                    EXHIBIT A\n\n                               ABACAUS CORPORATION\n\n                  NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n\n         This agreement is made this _____ day of November, 1999, by and between\nAbacus Direct Corporation and its parents, subsidiaries and affiliates,\nincluding, but not limited to, DoubleClick Inc. ('DoubleClick') (hereafter\nreferred to collectively as the 'Corporation', and individually as 'entities' of\nthe Corporation); and Christopher M. Dice (hereafter 'Executive').\n\n                                   WITNESSETH:\n\n         WHEREAS, the parties hereto acknowledge that, as between them, the\nProprietary Information (as defined below) is important, material and will\naffect the successful conduct of the business and operations of the Corporation.\n\n         NOW, THEREFORE, in consideration of the premises and of the covenants\nand agreements hereinafter contained, the parties hereto agree as follows:\n\n                                   DEFINITIONS\n\n         1. The term 'Proprietary Information' shall mean (i) trade secrets,\nincluding, but not limited to, all Corporation-owned designs, formulae,\ndrawings, diagrams and client data employed by the Corporation in developing\ndatabases by consolidating unaffiliated direct mail response lists, contributed\nby the list owners, into one or more master files to be used in developing\nsoftware or software algorithms for the purpose of predicting the relative\nperformance of various segments of said types of master files in the direct mail\napplications of its clients and the fulfilling of said segments for its clients;\n(ii) the names of any customers, the Corporation's marketing strategies, the\nnames of its vendors and suppliers, the costs of materials and labor, the prices\nobtained for services sold (including the methods used in price\n\n\n\n \n\n\n\ndetermination, manufacturing and sales costs), lists or other written records\nused in the Corporation's business, compensation paid to employees and\nconsultants and other terms of employment, production operation techniques or\nany other confidential information of, about or pertaining to the business of\nthe Corporation, or any of the Corporation's entities, individually or in any\ncombination, including, but not limited to, information regarding DoubleClick\nnetwork affiliates or advertisers, DART technology or services, and closed loop\nmarketing solutions, and (iii) all Proprietary Information listed in (i) and\n(ii) above as well as any tangible material that embodies such Proprietary\nInformation such as notebooks, drawings, documents, memoranda, reports, files,\nsamples, books, computer programs, correspondence, lists or other written and\ngraphic records that affect or relate to the business of the Corporation, and\n(iv) all Proprietary Information listed in (i), (ii) and (iii) of the\nCorporation's clients or customers obtained by Executive during his association\nwith the Corporation. Said Proprietary Information shall cease to be considered\nproprietary should it become public knowledge or contain only information\navailable in the public domain other than through a breach of this Agreement.\n\n                             COVENANT NOT TO COMPETE\n\n         2. Executive agrees that he will not, during the course of his\nemployment by or service to the Corporation, (including any current or future\nemployment of him by the Corporation) and for a period of one (1) year\ncommencing upon the expiration of his service or employment, individually or on\nbehalf of persons not now parties to this Agreement, or as a partner,\nstockholder, director, officer, principal, agent, employee, or in any other\ncapacity or relationship: (i) engage in any business or employment for, or aid,\nconsult or endeavor to assist any business or legal entity that competes with\n(a) any of the products or services offered by the Corporation or any of the\nCorporation's entities; or (b) any product or service in development by the\nCorporation or any of the Corporation's entities as of the date of this\nAgreement; or (c) any\n\n                                       2\n\n\n\n \n\n\n\nproduct or service launched by the Corporation or any of the Corporation's\nentities within one (1) year after the date of this Agreement; including, but\nnot limited to, any business or legal entity engaged in developing databases by\nconsolidating unaffiliated direct mail response lists, contributed by the list\nowners, into one or more master files to be used in developing software or\nsoftware algorithms for the purpose of predicting the relative performance of\nvarious segments of said types of master files in the direct mail applications\nof its clients and the fulfilling of said segments for its clients, or any\nbusiness or legal entity engaged in providing Internet advertising products,\nservices or solutions, and excluding from said businesses or legal entities list\nmaintenance, list marketing, list brokerage and general direct marketing\nanalysis and consulting. Together the business and operations set forth above\nare hereafter known as the Business of the Corporation. The Corporation and\nExecutive acknowledge the reasonableness of the worldwide geographic area and\nduration of time which are part of said covenant.\n\n                          NON-SOLICITATION OF CUSTOMERS\n\n         3. Unless waived in writing by the Corporation, Executive further\nagrees that he will not, during the course of his service to or employment by\nthe Corporation and for one (1) year thereafter, solicit the trade or patronage\nof any of the customers or known prospective customers of the Corporation, or\nany of its entities, or of anyone who has heretofore traded and dealt with the\nCorporation, or any of its entities, regardless of the location of such\ncustomers or prospective customers, if such trade or patronage relates to the\nProprietary Information or Business of the Corporation as defined above and\nexcluding list maintenance list marketing, list brokerage and general direct\nmarketing analysis and consulting. For the purposes of this paragraph,\n'customers' includes, without limitation, DoubleClick network affiliates and\nadvertisers.\n\n                                       3\n\n\n\n \n\n\n\n             NON-SOLICITATION OF OTHER EMPLOYEES AND\/OR CONSULTANTS\n\n         4. Executive agrees that he will not, during the course of his service\nto the Corporation (including any current or future employment of him by the\nCorporation) and for a period of one (1) year commencing upon the expiration of\nhis service or employment, individually or on behalf of persons not now parties\nto this Agreement, aid or endeavor to solicit or induce any other employee,\nemployees, consultant and\/or consultants of the Corporation, or any of its\nentities, to leave their employment with the Corporation in order to accept a\nposition of any kind with any other person, firm, partnership or corporation.\n\n                             NON-DISCLOSURE\/NON-USE\n\n         5. Executive agrees that he will not, without the written consent of\nthe Chief Executive Officer of DoubleClick, during the course of his service to\nthe Corporation (including any current or future employment of him by the\nCorporation) or thereafter, (i) divulge, disclose or communicate to any person,\nfirm, corporation or other entity, the Proprietary Information or (ii) use any\nof the Proprietary Information.\n\n                                   ASSIGNMENT\n\n         6. Executive acknowledges that certain Business of the Corporation and\nProprietary Information are unique to the Corporation and are of such nature to\ngive the Corporation a distinct competitive advantage. Exeutive therefore agrees\nthat all results of his work specifically for the Corporation shall be the\nexclusive property of the Corporation.\n\n                               BREACH OF COVENANTS\n\n         7. In the event suit is instituted to enforce any provision of this\nAgreement, the prevailing party shall be entitled to costs thereof including\ncourt costs and reasonable attorney's fees. The provisions of paragraphs 1\nthrough 7, inclusive, shall survive the termination of this Agreement except in\nthose cases excepted in the provisions of this Agreement.\n\n                                       4\n\n\n\n \n\n\n\n                       NECESSARY AND REASONABLE COVENANTS\n\n         8. (a) Executive acknowledges and agrees that as a founder and major\nstockholder of Abacus Direct Corporation he has gained and will gain access to\nthe Proprietary Information, including DoubleClick's Proprietary Information,\nand has discovered and will discover opportunities which comprise a set of\nskills and information specifically suited to the operation of an entity engaged\nin the same business as the Corporation, and its entities, including, without\nlimitation, DoubleClick, and that use of such skills and experience for any\nother directly competing entity could destroy or damage the Business of the\nCorporation.\n\n            (b) Executive further acknowledges that his knowledge of the\nProprietary Information would cause him, if he were employed by, an agent for,\nor a consultant to any other entity engaged in the same business as the\nCorporation for the purpose of functioning in the same business as the\nCorporation, to inherently make decisions, form judgments and take actions that\nwould use the Proprietary Information.\n\n            (c) Executive further acknowledges that the market for the\nCorporation's goods and services has no geographic limitations since such goods\nand services may be used throughout the world and that, under such\ncircumstances, it is reasonable, fair and appropriate that the covenant not to\ncompete have no territorial limitations.\n\n            (d) Executive acknowledges that the time period restrictions\ncontained herein are fair, equitable and reasonable periods of time under the\ncircumstances.\n\n                                WAIVER OF BREACH\n\n         9. The waiver by either party of any breach of any provision of this\nAgreement shall not operate or be construed as a waiver of any subsequent breach\nby the other party.\n\n                                       5\n\n\n\n \n\n\n\n                                 BINDING EFFECT\n\n         10. This Agreement is binding upon, and inures to the benefit of, the\nparties hereto and their successors, heirs, legal representatives and assigns,\nbut neither this Agreement nor any rights hereunder may be assigned by either\nparty without the prior written consent of the other party.\n\n                                   AMENDMENTS\n\n         11. No amendment or supplement to this Agreement shall be made except\nin a writing executed by both parties.\n\n                         NO RULE OF STRICT CONSTRUCTION\n\n         12. The language contained herein shall be deemed to be that approved\nby all parties hereto and no rule of strict construction shall be applied\nagainst any party hereto.\n\n                 INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION\n\n         13. The provisions of this Agreement are severable, and should any of\nits provisions, clauses, or portions thereof be deemed invalid and of no force\nand effect, then only that provision, clause, or portion thereof shall fail and\nthe remainder of this Agreement shall be in full force and effect.\n\n                                  GOVERNING LAW\n\n         14. This Agreement shall be governed by the laws of New York (except as\nto choice of law) both as to interpretation and performance.\n\n                                       6\n\n\n\n \n\n\n\n         IN WITNESS WHEREOF, the undersigned have executed this Agreement on the\ndate first above written.\n\n                                DOUBLECLICK INC.\n\n                                By: _________________________________\n                                    Name:\n                                    Title:\n\n                                ABACUS DIRECT CORPORATION\n\n                                By: _________________________________\n                                    Name:\n                                    Title:\n\n                                CHRISTOPHER M. DICE\n\n                                By: _________________________________\n                                    Christopher M. Dice\n\n\n                                       7\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7345],"corporate_contracts_industries":[9503],"corporate_contracts_types":[9539,9544],"class_list":["post-39074","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-doubleclick-inc","corporate_contracts_industries-services__advertising","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39074","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39074"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39074"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39074"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39074"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}