{"id":39303,"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-l90-inc-and-mark-d-roah.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-l90-inc-and-mark-d-roah","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-l90-inc-and-mark-d-roah.html","title":{"rendered":"Employment Agreement &#8211; L90 Inc. and Mark D. Roah"},"content":{"rendered":"<pre>                             EMPLOYMENT AGREEMENT\n\n\n          THIS EMPLOYMENT AGREEMENT (this \"Agreement\") is entered into as of\nSeptember 15, 1999 between L90, Inc., a Delaware corporation (the \"Company\"),\n                                                                   -------   \nand Mark D. Roah (the \"Employee\").\n                       --------   \n\n\n                                 R E C I T A L\n                                 - - - - - - -\n\n          The Company desires to employ the Employee, and the Employee desires\nto be so employed by the Company, on the terms and subject to the conditions set\nforth in this Agreement.\n\n\n                                   AGREEMENT\n                                   ---------\n\n          NOW, THEREFORE, in consideration of the premises and the mutual\npromises set forth in this Agreement, the Company and the Employee hereby agree\nas follows:\n\n          1.   Employment.\n               ---------- \n\n               (a)  Subject to the terms and conditions contained herein, the\nCompany hereby agrees to employ the Employee, and the Employee accepts such\nemployment, from the date hereof until the earlier of (i) the date which is two\nyears from the date hereof, provided that such initial term shall be\nautomatically renewed for successive one-year terms unless either party hereto\notherwise notifies the other in writing within 30 days prior to the end of such\ninitial term or any such successive term, or (ii) the date such employment is\nterminated pursuant to Section 4 of this Agreement. During the Employee's\nemployment under this Agreement, the Employee shall perform such duties for the\nCompany as may from time to time be assigned to the Employee by the Board of\nDirectors of the Company (the \"Board\") or the President of the Company (the\n                               -----\n\"Designated Officer\"). The Employee shall have the title of Vice President of\n ------------------\nTechnology Sales or such other title or titles, if any, as from time to time may\nbe assigned to the Employee by the Board.\n\n               (b)  The Employee will devote his entire business time, energy,\nattention and skill to the services of the Company and its affiliates and to the\npromotion \n\n \nof their interests. So long as the Employee is employed by the Company, the\nEmployee shall not, without the written consent of the Company:\n\n                    (i)    engage in any other activity for compensation, profit\nor other pecuniary advantage, whether received during or after the term of this\nAgreement;\n\n                    (ii)   render or perform services of a business,\nprofessional, or commercial nature other than to or for the Company, either\nalone or as an employee, consultant, director, officer, or partner of another\nbusiness entity, whether or not for compensation, and whether or not such\nactivity, occupation or endeavor is similar to, competitive with, or adverse to\nthe business or welfare of the Company; or\n\n                    (iii)  invest in or become a shareholder of another\ncorporation or other entity; provided, that the Employee's investment solely as\n                             --------  \na shareholder in another corporation shall not be prohibited hereby so long as\nsuch investment is not in excess of one percent (1%) of any class of shares that\nare traded on a national securities exchange.\n\n               (c)  Prior to or concurrently with the execution of this\nAgreement, the Employee has executed an Employee Proprietary Information, Trade\nSecret and Confidentiality Agreement (the \"Confidentiality Agreement\").\n\n          2.   Location of Employment.  The Employee's principal place of\n               ----------------------                                    \nemployment shall be at the principal executive offices of the Company located at\nSanta Monica, California, or the greater Southern California area, or, as may be\nrequested by the Board, at any other office of the Company or any of its\naffiliates currently or hereinafter located in the State of California;\nprovided, that at the direction of the Board or the Designated Officer, the\n--------                                                                   \nEmployee may from time to time be required to travel to various domestic and\nforeign locations.\n\n          3.   Compensation.\n               ------------ \n\n               (a)  In exchange for full performance of the Employee's\nobligations and duties under this Agreement, the Company shall pay the Employee\n(i) a base salary at a monthly rate of $15,000, payable in accordance with the\nCompany's standard payroll practices, and (ii) sales commissions in accordance\nwith the Company's policies in effect from time to time. In any month in which\nthe Employee shall be employed for less than the entire number of days in such\nmonth, the base salary payable under Section 3(a)(i) shall be prorated on the\nbasis of the number of days during which the Employee was actually employed\ndivided by the number of days in such month. The\n\n                                      -2-\n\n \nbase salary provided for in Section 3(a)(i) shall be reviewed not less\nfrequently than annually by the Board, or a committee thereof, and may be\nadjusted in their discretion.\n\n               (b)  The base salary and commission described in subsection (a)\nhereof is a gross amount, and the Company shall be required to withhold from\nsuch amount deductions with respect to Federal, state and local taxes, FICA,\nunemployment compensation taxes and similar taxes, assessments or withholding\nrequirements.\n\n               (c)  During the Employee's employment under this Agreement, the\nEmployee shall also be reimbursed by the Company for reasonable business\nexpenses actually incurred or paid by the Employee, consistent with the policies\nestablished by the Board, in rendering to the Company the services provided for\nin this Agreement, upon presentation of expense statements or such other\nsupporting information as is consistent with the policies of the Company.\n\n               (d)  The Employee shall be entitled to 15 business days vacation\nfor each full year of employment under this Agreement, which vacation time will\naccrue in accordance with the vacation policy of the Company.\n\n               (e)  The Employee shall be entitled to participate in all benefit\nplans (including deferred compensation plans and any medical, dental or life\ninsurance plans) which shall be available from time to time to the domestic\nmanagement employees of the Company generally, except to the extent such\nparticipation in any plan would, in the opinion of the Designated Officer, alter\nthe intended tax treatment of such plan; provided, however, that the Employee\n                                         --------  -------\nshall have no right under this Agreement to participate in any stock option,\nstock purchase or other plan relating to shares of capital stock of the Company\nor its affiliates, which participation, if any, shall be governed by separate\nagreement. The Employee acknowledges and agrees that the Board may in its\ndiscretion terminate at any time or modify from time to time any such benefit\nplans.\n\n               (f)  Other than as expressly set forth in this Section 3, the\nEmployee shall not receive any other compensation or benefits except to the\nextent provided by the Board.\n\n          4.   Termination.\n               ----------- \n\n               (a)  The employment of the Employee under this Agreement may be\nterminated by the Company immediately upon giving the Employee notice if (i) the\nBoard determines that the Employee is unable to discharge his essential job\nduties by reason of illness or injury or (ii) the Employee has been unable to\ndischarge his essential\n\n                                      -3-\n\n \njob duties by reason of illness or injury for either (A) a period of two\nconsecutive months or (B) twelve weeks in any twelve-month period.\n\n               (b)  The employment of the Employee under this Agreement shall\nterminate on the date of the Employee's death.\n\n               (c)  The employment of the Employee under this Agreement may be\nterminated by the Company upon written notice from the Board that, in the\nopinion of the Board, the Employee has (i) refused or failed (after reasonable\nnotice that such refusal or failure would result in termination of the\nEmployee's employment) to perform, to the satisfaction of the Designated Officer\nor the Board, any duties assigned to the Employee by the Designated Officer or\nthe Board, (ii) committed a breach of the terms of this Agreement or any other\nlegal obligation to the Company, (iii) failed to perform any of the Employee's\nobligations under the Confidentiality Agreement, (iv) demonstrated gross\nnegligence or willful misconduct in the execution of the Employee's assigned\nduties, (v) been convicted of or pleaded nolo contendere to a felony or other\n                                         ---- ----------                     \nserious crime, (vi) repeatedly and intemperately used alcohol or drugs, (vii)\nengaged in business practices which, in the opinion of the Board, are unethical\nor reflect adversely on the Company, (viii) misappropriated assets of the\nCompany or (ix) been repeatedly absent from work during normal business hours\nfor reasons other than disability.\n\n               (d)  The employment of the Employee under this Agreement shall\nterminate upon receipt by the Board of a written notice of resignation signed by\nthe Employee or, if no notice is given, on the date on which the Employee\nvoluntarily terminates his employment relationship with the Company.\n\n               (e)  In addition to the circumstances described in subsections\n(a), (b), (c) and (d) above, the Company may terminate the Employee's employment\nfor any reason or no reason and with or without cause or prior notice. The\nEmployee understands that, subject to subsection (f)(iii) below, he is an at-\nwill employee and may be terminated by the Company without cause or prior notice\npursuant to this subsection (e) notwithstanding any other provision contained in\nthis Agreement. This at-will relationship will remain in effect during the term\nof this Agreement and so long thereafter provided that the Employee remains\nemployed by the Company, unless such at-will employment relationship is modified\nby a specific, express written agreement signed by the Company.\n\n               (f)  If the Employee's employment is terminated pursuant to this\nSection 4 or for any other reason, the Employee shall not be entitled to any\n\n                                      -4-\n\n \ncompensation or benefits from the Company, under Section 3 of this Agreement or\notherwise, except for the following:\n\n                    (i)    base salary and vacation pay accrued, and reasonable\nbusiness expenses incurred, under Section 3 of this Agreement through the date\nof such termination;\n\n                    (ii)   such benefits, if any, as may be required to be\nprovided by the Company under the Comprehensive Omnibus Budget Reconciliation\nAct (COBRA); and\n\n                    (iii)  if the Employee's employment is terminated without\ncause pursuant to subsection (e) above, the Company shall continue to pay to the\nEmployee the base salary described in Section 3(a)(i) above until the\ntermination of the initial term or any successive term, as set forth in Section\n1(a)(i) of this Agreement, during which such termination occurs.\n\n          5.   Employee's Representations.\n               -------------------------- \n\n               (a)  The Employee represents that he has full authority to enter\ninto this Agreement and that he is free to enter into this Agreement and not\nunder any contractual restraint which would prohibit the Employee from\nsatisfactorily performing his duties to the Company under this Agreement.\n\n               (b)  The Employee hereby agrees to indemnify and hold harmless\nthe Company, its officers, directors and stockholders from and against any\nlosses, liabilities, damages or costs (including reasonable attorney's fees)\narising out of a breach, or claimed breach, of any of the representations,\nwarranties and covenants of the Employee set forth in this Agreement.\n\n               (c)  The Employee acknowledges that he is free to seek advice\nfrom independent counsel with respect to this Agreement. The Employee has either\nobtained such advice or, after carefully reviewing this Agreement, has decided\nto forego such advice. The Employee is not relying on any representation or\nadvice from the Company or any of its officers, directors, attorneys or other\nrepresentatives regarding this Agreement, its content or effect.\n\n          6.   Arbitration.  Any controversy or claim arising out of or relating\n               -----------                                                      \nto this Agreement or any breach hereof or the Employee's employment by the\nCompany or termination thereof, shall be settled by arbitration by one\narbitrator in accordance with the \n\n                                      -5-\n\n \nrules of the American Arbitration Association, and judgment upon such award\nrendered by the arbitrator may be entered in any court having jurisdiction\nthereof. The arbitration shall be held in the City of Los Angeles or such other\nplace as may be agreed upon at the time by the parties to the arbitration.\n\n          7.   Equitable Relief.  The Employee acknowledges that the Company is\n               ----------------                                                \nrelying for its protection upon the existence and validity of the provisions of\nthis Agreement, that the services to be rendered by the Employee are of a\nspecial, unique and extraordinary character, and that irreparable injury will\nresult to the Company from any violation or continuing violation of the\nprovisions of this Agreement for which damages may not be an adequate remedy.\nAccordingly, the Employee hereby agrees that in addition to the remedies\navailable to the Company by law or under this Agreement, the Company shall be\nentitled to obtain such equitable relief as may be permitted by law in a court\nof competent jurisdiction including, without limitation, injunctive relief from\nany violation or continuing violation by the Employee of any term or provision\nof this Agreement.\n\n          8.   Governing Law.  This Agreement shall be governed by and construed\n               -------------                                                    \nand enforced in accordance with the internal substantive laws (without regard to\nchoice of law principles) of the State of California.\n\n          9.   Entire Agreement.  This Agreement constitutes the whole agreement\n               ----------------                                                 \nof the parties hereto in reference to any employment of the Employee by the\nCompany and in reference to any of the matters or things herein provided for or\nhereinabove discussed or mentioned in reference to such employment; all prior\nagreements, promises, representations and understandings relative thereto being\nherein merged.\n\n          10.  Assignability.\n               ------------- \n\n               (a)  In the event the Company shall merge or consolidate with any\nother corporation, partnership or business entity, or all or substantially all\nof the Company's business or assets shall be transferred in any manner to any\nother corporation, partnership or business entity, then such successor to the\nCompany shall thereupon succeed to, and be subject to, all rights, interests,\nduties and obligations of, and shall thereafter be deemed for all purposes\nhereof to be, the \"Company\" under this Agreement.\n\n               (b)  This Agreement is personal in nature and the Employee shall\nnot, without the written consent of the Company, assign or transfer this\nAgreement or any rights or obligations hereunder.\n\n                                      -6-\n\n \n               (c)  Except as set forth in subsection (a) above, nothing\nexpressed or implied in this Agreement is intended or shall be construed to\nconfer upon or give to any person, other than the parties to this Agreement, any\nright, remedy or claim under or by reason of this Agreement or of any term,\ncovenant or condition of this Agreement.\n\n          11.  Amendments; Waivers.  This Agreement may be amended, modified,\n               -------------------                                           \nsuperseded, canceled, renewed or extended and the terms or covenants of this\nAgreement may be waived only by a written instrument executed by the parties to\nthis Agreement or, in the case of a waiver, by the party waiving compliance.\nAny such written instrument must be approved by the Board to be effective as\nagainst the Company.  The failure of any party at any time or times to require\nperformance of any provision of this Agreement shall in no manner affect the\nright at a later time to enforce the same.  No waiver by any party of the breach\nof any term or provision contained in this Agreement, whether by conduct or\notherwise, in any one or more instances, shall be deemed to be, or construed as,\na further or continuing waiver of any such breach, or a waiver of the breach of\nany other term or covenant contained in this Agreement.\n\n          12.  Notice.  All notices, requests or consents required or permitted\n               ------                                                          \nunder this Agreement shall be made in writing and shall be given to the other\nparty by personal delivery, overnight air courier (with receipt signature) or\nfacsimile transmission (with \"answerback\" confirmation of transmission), if to\nthe Company, sent to such party's addresses or telecopy number as are set forth\nbelow such party's signature to this Agreement, and if to the Employee, to his\naddress as set forth in the records of the Company, or such other addresses or\ntelecopy numbers of which the parties have given notice pursuant to this Section\n12.  Each such notice, request or consent shall be deemed effective upon the\ndate of actual receipt, receipt signature or confirmation of transmission, as\napplicable.\n\n          13.  Severability.  Any provision of this Agreement that is prohibited\n               ------------                                                     \nor unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without\ninvalidating the remaining provisions hereof, and any such prohibition or\nunenforceability in any jurisdiction shall not invalidate or render\nunenforceable such provision in any other jurisdiction.\n\n          14.  Survival.  The representations and agreements of the Employee set\n               --------                                                         \nforth in Sections 5, 6 and 7 of this Agreement shall survive the expiration or\ntermination of this Agreement (irrespective of the reason for such expiration of\ntermination).\n\n          15.  Attorney's Fees.  If any party to this Agreement seeks to enforce\n               ---------------                                                  \nhis or its rights under this Agreement, the prevailing party shall be entitled\nto recover \n\n                                      -7-\n\n \nreasonable fees, costs and expenses incurred in connection therewith including,\nwithout limitation, the fees, costs and expenses of attorneys, accountants and\nexperts, whether or not litigation is instituted, and including such fees, costs\nand expenses of appeals.\n\n                                      -8-\n\n \n          IN WITNESS WHEREOF, the parties to this Agreement have executed this\nEmployment Agreement as of the date first above written.\n\n\n                                       L90, INC.,\n                                       a Delaware corporation\n\n\n\n                                       By \/s\/ John C. Bohan\n                                          --------------------------------------\n                                                  An Authorized Officer\n\n\n                                       Address for Notices:\n \n                                       2020 Santa Monica Boulevard\n                                       Suite 400\n                                       Santa Monica, California  90404\n                                       Attention:  Chairman of the Board\n                                       Telecopy:  (310) 315-1369\n\n\n                                       EMPLOYEE:\n\n\n                                       \/s\/ Mark D. Roah\n                                       -----------------------------------------\n                                       Mark D. Roah\n\n                                      -9-\n\n \n                                   L90, INC.\n\n                              Amendment No. 1 to\n                              ------------------\n                             Employment Agreement\n                             --------------------\n                                        \n     This Amendment No. 1 (the \"Amendment\") is made as of October ___, 1999 to\nthe Employment Agreement (the \"Agreement\") made and entered into on September\n15, 1999, by and between L90, Inc., a Delaware corporation (the \"Company\"), and\nMark D. Roah (the \"Employee\").\n\n                                    Recital\n                                    -------\n\n     WHEREAS, pursuant to the Agreement, the Employee receives a base salary\nequal to $15,000 per year.\n\n     WHEREAS, the parties hereto desire to amend the Agreement to increase the\nEmployee's base salary to $100,000 per year.\n\n                                   Agreement\n                                   ---------\n                                        \n     NOW, THEREFORE, for good and valuable consideration, the receipt of which\nis hereby acknowledged, the Company and the Employee agree as follows:\n\n     1.   Amendment to Agreement.  The first sentence of Section 3(a) of the\n          ----------------------                                            \nAgreement is amended and restated in its entirety as follows:\n\n     \"In exchange for full performance of the Employee's obligations and duties\n     under this Agreement, the Company shall pay the Employee (i) a base salary\n     at a monthly rate of $8,333.33, payable in accordance with the Company's\n     standard payroll practices, and (ii) sales commissions in accordance with\n     the Company's policies in effect from time to time.\"\n\n     2.   General Provisions.\n          ------------------ \n\n          (a)  Governing Law.  This Amendment shall be construed in accordance\n               -------------                                                  \nwith and governed by the laws of the State of California.\n\n          (b)  Full Force and Effect.  Except as amended hereby, the Agreement\n               ---------------------                                          \nshall remain in full force and effect.\n\n          (c)  Counterparts.  This Amendment may be executed in any number of\n               ------------                                                  \ncounterparts, each of which shall be an original, but all of which together\nshall constitute on instrument.\n\n \n          (d)  Captions.  The captions herein are included for convenience of\n               --------                                                      \nreference only and shall be ignored in the construction or interpretation\nhereof.\n\n\n     IN WITNESS WHEREOF, the parties have caused this Amendment to be duly\nexecuted and delivered as of the day and year first written above.\n\n                                       COMPANY:\n\n                                       L90, Inc.\n\n\n                                       By: \/s\/ Lucrezia Bickerton\n                                           -------------------------------------\n                                           Name:   Lucrezia Bickerton\n                                           Title:  Assistant Secretary\n\n                                       EMPLOYEE:\n\n\n                                       By: \/s\/ Mark D. Roah\n                                           -------------------------------------\n                                           Name: Mark D. Roah\n                                           Title:\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8010],"corporate_contracts_industries":[],"corporate_contracts_types":[9539,9544],"class_list":["post-39303","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-l90-inc","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\/39303","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=39303"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39303"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39303"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39303"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}