{"id":39392,"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-netcreations-inc-and-scott-wolf.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-netcreations-inc-and-scott-wolf","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-netcreations-inc-and-scott-wolf.html","title":{"rendered":"Employment Agreement &#8211; NetCreations Inc. and Scott Wolf"},"content":{"rendered":"<pre>\n                              EMPLOYMENT AGREEMENT\n\n                  This Employment Agreement ('Agreement') is made and entered\ninto as of the 6th day of January, 2000 (the 'Commencement Date') by and between\nNETCREATIONS, INC., a New York corporation (the 'Company'), and Scott Wolf\n(hereinafter called the 'Executive').\n\n                                 R E C I T A L S\n\n                  A. The Executive desires to be employed as the Senior Vice\nPresident, Sales &amp; Business Development of the Company.\n\n                  B. The Company desires to employ the Executive as the Senior\nVice President, Sales of the Company.\n\n                                   AGREEMENT\n\n                  NOW, THEREFORE, in consideration of the premises and mutual\ncovenants set forth herein, the parties agree as follows:\n\n                  1. EMPLOYMENT.\n\n                           1.1 EMPLOYMENT. The Company hereby agrees to employ\nthe Executive and the Executive hereby agrees to serve the Company on the terms\nand conditions set forth herein.\n\n                           1.2 DUTIES OF EXECUTIVE. During the Term of\nEmployment under this Agreement, the Executive shall serve as the Senior Vice\nPresident, Sales &amp; Business Development of the Company, shall diligently perform\nall services as may be assigned to the Executive by the Chief Executive Officer,\nthe President, and the Chief Operating Officer of the Company and by the Board\nof Directors (the 'Board') of the Company, and shall exercise such power and\nauthority as may from time to time be delegated to the Executive by the Board.\nWithout limiting the generality of the foregoing, the Executive duties shall\ninclude, among other things, the following:\n\n                           Ensuring that the Company meets and exceeds its\ntargets for revenue through aggressive development of new lists sources,\nimprovement of existing list owner productivity, and sales through all channels\n(direct, brokers, online resellers and others as they develop).\n\n                           Participating as a member of the Company's senior\nmanagement team in new product development and implementation strategies.\n\n                           Such general business development activities as the\nChief Executive Officer, the President and the Chief Operating Officer may\nassign from time to time.\n\n\n\n\nThe Executive acknowledges and agrees that the Company may assign some of the\nforegoing specific duties to other persons as the Company's management team\nexpands, and that such assignments of duties to other persons will not be viewed\nby the Executive as constituting a diminution in the Executive's office, title,\nand duties and responsibilities hereunder as long as the Executive's reporting\nresponsibilities and the business functions of the Company reporting to the\nExecutive remain substantially consistent with the Executive's duties and title\nas expressed at the inception of this Agreement. The Executive shall devote the\nExecutive's full time and attention to the business and affairs of the Company,\nrender such services to the best of the Executive's ability, and use the\nExecutive's best efforts to promote the interests of the Company. It shall not\nbe a violation of this Agreement for the Executive to (i) serve on corporate,\ncivic or charitable boards or committees, (ii) deliver lectures, fulfill\nspeaking engagements or teach at educational institutions, or (iii) manage\npersonal investments, so long as such activities do not significantly interfere\nwith the performance of the Executive's responsibilities to the Company in\naccordance with this Agreement. The Executive's duties will require the\nExecutive's regular presence during normal working hours on business days Monday\nthrough Friday at the Company's principal executive offices, currently located\nat 379 West Broadway, New York, New York, but the Executive's duties will also\ninvolve some business travel.\n\n                  2. TERM.\n\n                           2.1 INITIAL TERM. The initial Term of Employment\nunder this Agreement, and the employment of the Executive hereunder, shall\ncommence on the (the 'Commencement Date') and shall expire at midnight New York\nCity time on January 5, 2003, unless sooner terminated in accordance with\nSection 5 hereof (the 'Initial Term').\n\n                           2.2 RENEWAL TERMS. At the end of the Initial Term,\nthe Term of Employment automatically shall renew for successive one year terms\n(subject to earlier termination as provided in Section 5 hereof), unless the\nCompany or the Executive delivers written notice to the other at least 90 days\nprior to the last day of the Initial Term or any such applicable renewal period\n(in either case, the 'Expiration Date') of its or the Executive's election not\nto renew the Term of Employment. For purposes of this Agreement, if the Term of\nEmployment expires as a result of the Company delivering written notice to the\nExecutive stating its intention not to renew the Term of the Employment pursuant\nto this Section 2.2, the Executive shall be treated as if the Executive was\nterminated by the Company without Cause, in accordance with Section 5.4 hereof,\nupon the Expiration Date. In addition, if the Term of Employment expires as a\nresult of the Executive delivering written notice to the Company stating the\nExecutive's intention not to renew the Term of Agreement pursuant to this\nSection 2.2, the Executive shall be treated as if the Executive had terminated\nthe Executive's employment with the Company without Good Reason, in accordance\nwith Section 5.5(b) hereof, upon the Expiration Date.\n\n                           2.3 TERM OF EMPLOYMENT. The period during which the\nExecutive shall be employed by the Company pursuant to the terms of this\nAgreement is sometimes referred to in this Agreement as the 'Term of\nEmployment.'\n\n\n\n                                       2\n\n\n                  3. COMPENSATION.\n\n                           3.1 BASE SALARY. The Executive shall receive a base\nsalary at the annual rate (prorated for any applicable period of less than one\nyear) of $200,000 (the 'Base Salary') during the Term of Employment, with such\nBase Salary payable in installments consistent with the Company's normal payroll\nschedule, subject to applicable withholding and other taxes. The Base Salary\nshall be reviewed, at least annually, for merit increases and may, by action and\nin the discretion of the Board, be increased (but not decreased) at any time or\nfrom time to time.\n\n                           3.2 BONUSES. During the term of this Agreement, the\nExecutive shall be eligible to receive performance and annual incentive awards\n(the 'Bonuses') of up to a maximum potential limit of $100,000 per annum as\ndescribed below. Bonuses shall be reviewed, at least annually, for merit\nincreases and, by action and in the discretion of the Board, the limit on the\npotential size of Bonuses can be increased, but not decreased, at any time or\nfrom time to time.\n\n                  Each period for which Bonuses are payable is sometimes\nhereinafter referred to as a Bonus Period. Unless otherwise specified by the\nBoard, the Bonus Period shall be the designated fiscal year or fiscal quarter of\nthe Company. The amount of the Bonuses that may be awarded for any period, if\nany, shall be determined prior to the commencement of the relevant Bonus Period\nby the Board, in its sole and absolute discretion, except that during the first\nthree months after the Commencement Date, the Bonuses shall be not less than\n$8,333 per month. However, any bonus plan for the Executive shall be predicated\non the establishment of quarterly goals, referred to as Key Initiatives, to be\nmutually developed and signed-off on between the Executive and the Company's\nBoard\/Representative of the Company prior to and\/or adjusted during a quarter.\nKey Initiatives will comprise, among other things, revenues and pretax income\ngoals. For purposes of this Agreement, the term 'Representative of the Company'\nmeans the Company's Chief Executive Officer. All Bonuses shall be payable to the\nExecutive quarterly in cash and\/or to the extent determined by the Board and\nagreed upon by the Executive, with common stock ('Common Stock') of the Company\nby no later than ten (10) business days after the Company has completed its\nfinancial statements, approved by the Company's Chief Financial Officer and its\nChief Executive Officer, for the preceding fiscal period. Bonuses shall be\nsubject to proration for periods of less than one quarter. Any bonuses payable\npursuant to this Section 3.2 are sometimes hereinafter referred to as 'Incentive\nCompensation.'\n\n                  4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.\n\n                           4.1 REIMBURSEMENT OF EXPENSES. Upon the submission of\nproper substantiation by the Executive, and subject to such rules and guidelines\nas the Company may from time to time adopt, the Company shall reimburse the\nExecutive for all reasonable expenses actually paid or incurred by the Executive\nduring the Term of Employment in the course of and pursuant to the business of\nthe Company including, without limitation, the Executive's reasonable cellular\ntelephone charges.\n\n\n\n                                       3\n\n\n                           The Executive shall account to the Company in writing\nfor all expenses for which reimbursement is sought and shall supply to the\nCompany copies of all relevant invoices, receipts or other evidence reasonably\nrequested by the Company.\n\n                           4.2 COMPENSATION\/BENEFIT PROGRAMS. During the term of\nEmployment, the Executive shall be entitled to participate in all medical,\ndental, hospitalization, accidental death and dismemberment, disability, travel\nand life insurance plans applicable to the Company's senior executives\ngenerally, and any and all other plans as are presently and hereinafter offered\nby the Company generally to its executives, including savings, pension,\nprofit-sharing and deferred compensation plans, subject to the general\neligibility and participation provisions set forth in such plans. The Company\nwill use its best commercial efforts to obtain an administrative exception to\npermit the Executive to participate in the Company's 401K Plan effective January\n1, 2000.\n\n                           4.3 TRANSPORTATION ALLOWANCE. The Executive will not\nbe entitled to reimbursement for his expenses in commuting to and from the\nCompany's offices.\n\n                           4.4 STOCK OPTIONS.\n\n                                    a. During the Term of Employment, the\nExecutive shall be eligible to be granted options (the 'Stock Options') to\npurchase the Common Stock of the Company under (and therefore subject to) all\nterms and conditions of the Company's Stock Option Plan. The number of Stock\nOptions and terms and conditions of the Stock Options shall be determined by the\nCommittee appointed pursuant to the Stock Option Plan, or by the Board of\nDirectors of the Company, in its discretion and pursuant to the Stock Option\nPlan.\n\n                                    b. Upon the execution and delivery of this\nAgreement and approval of the same by the Company's Board of Directors, the\nCompany shall grant to the Executive qualified Stock Options (incentive stock\noptions) to purchase 200,000 shares of the Company's outstanding Common Stock at\nan initial exercise price of $33.25 per share. All of the Stock Options referred\nto in this paragraph (b) shall be subject to the terms and conditions set forth\non the form of stock option instrument attached hereto as Exhibit A.\n\n                                    c. If the Executive has fulfilled (or, as\ndetermined by the Compensation Committee of the Company's Board of Directors, in\nits sole discretion, substantially attained) performance goals to be established\nby the Company's Chief Executive Officer for the period of one year terminating\non the first anniversary of the Commencement Date, and\/or has fulfilled (or, as\ndetermined by the Compensation Committee of the Company's Board of Directors, in\nits sole discretion, substantially attained) performance goals to be established\nby the Company's Chief Executive Officer for the one year period ending on the\nsecond anniversary of the Commencement Date or the one year period ending on the\nthird anniversary of the Commencement Date, on any such anniversary on which the\napplicable performance goals have been so fulfilled or so substantially attained\nadditional Stock Options to purchase 25,000 shares of the Company's Common Stock\nof the Company's outstanding shares of Common Stock, shall be issued to the\nExecutive. These Stock Options are in addition to and not in substitution for\nany other Stock Options granted to the Executive. These additional Stock Options\n\n\n                                       4\n\n\nshall be exercisable at the average closing trading price of the Company's\ncommon stock on the principal exchange or market on which its stock is traded\nfor the five (5) business days ending on the date of issuance, shall be vested\nimmediately upon grant, and shall otherwise be on substantially the same terms\nand conditions as the other Stock Options granted to the Executive pursuant to\nSection 4.4(b). All such performance goals established hereunder shall be set\nforth in writing and delivered to the Executive prior to the one year period to\nwhich they apply except that performance goals for the first year shall be\ndelivered to the Executive as soon as is reasonably practicable and in any event\nby the end of February 2000.\n\n                           4.5 VACATION BENEFITS. The Executive shall be\nentitled to four (4) weeks of vacation time each calendar year during the term\nof this Agreement, to be taken at such times as the Executive and the Company\nshall mutually determine and provided that no vacation time shall interfere with\nthe duties required to be rendered by the Executive hereunder. Notwithstanding\nthe foregoing, in view of the Company's current circumstances the Executive will\nnot (i) take more than one week of vacation time in any 30-day period unless\notherwise mutually agreed with the Chief Executive Officer of the Company.\n\n                           4.6 OTHER BENEFITS. The Executive shall receive such\nadditional benefits, if any, as the Board of the Company shall from time to time\ndetermine.\n\n                  5. TERMINATION.\n\n                           5.1 TERMINATION FOR CAUSE. The Company shall at all\ntimes have the right, upon written notice (which shall describe in general terms\nthe basis for dismissal per this Section) to the Executive, to terminate the\nTerm of Employment, for Cause. For purposes of this Agreement, the term 'Cause'\nshall mean (i) an action or omission of the Executive which constitutes a\nwillful and material breach of, or failure or refusal (other than by reason of\nthe Executive's disability) to perform the Executive's duties under, this\nAgreement which is not cured within fifteen (15) days after receipt by the\nExecutive of written notice of same if such action or omission is capable of\nbeing so cured, (ii) habitual insobriety or use of controlled substances (other\nthan under the supervision of a licensed physician); (iii) habitual absenteeism;\n(iv) fraud, non-disclosed self-dealing, embezzlement or misappropriation of\nfunds or property or breach of trust in connection with the Executive's services\nhereunder, (v) conviction of a felony or conviction of any other crime or\nmisdemeanor involving moral turpitude; or (vi) gross negligence in connection\nwith the performance of the Executive's duties hereunder, which is not cured, to\nthe extent that the same is curable, within fifteen (15) days after receipt by\nthe Executive of written notice of same. Upon any termination pursuant to this\nSection 5.1, the Company shall pay to the Executive the Executive's Base Salary\nand earned but unpaid Incentive Compensation to the date of termination. The\nCompany shall have no further liability hereunder (other than for reimbursement\nfor reasonable business expenses incurred prior to the date of termination,\nsubject, however, to the provisions of Section 4.1).\n\n                           5.2 DISABILITY. The Company shall at all times have\nthe right, upon written notice to the Executive, to terminate the Term of\nEmployment, if the Executive shall as the result of mental or physical\nincapacity, illness or disability, become unable to perform the Executive's\n\n\n                                       5\n\n\nobligations hereunder for a total of 180 days in any 12-month period. The\nCompany shall rely upon a certification performed by the Company's disability\ninsurer or by a physician jointly chosen by the Executive's doctor and the\nCompany's doctor to determine whether the Executive continues to be disabled\nprovided that if the Executive does not submit to examination by a licensed\nmedical doctor for such purpose (if requested by the Company) then the Company\nmay terminate the Executive's employment if the Executive shall become entitled\nto benefits under the Company's disability plan as then in effect. Upon any\ntermination pursuant to this Section 5.2, the Company shall (i) pay to the\nExecutive any unpaid Base Salary through the effective date of termination\nspecified in such notice, (ii) pay to the Executive the Executive's accrued but\nunpaid Incentive Compensation, if any, for any Bonus Period ending on or before\nthe date of termination of the Executive's employment with the Company, (iii)\ncontinue to pay the Executive through the date which is six (6) months after the\ntermination (but no later than the Expiration Date) (the 'Continuation Period'),\nan amount equal to the Base Salary the Executive was receiving at the time of\nthe Executive's Disability, such amount to be paid in the manner and at such\ntimes as the Base Salary otherwise would have been payable to the Executive, and\n(iv) continue to pay the Executive Incentive Compensation and continue to\nprovide the Executive with the benefits the Executive was receiving under\nSection 4.2 hereof (the 'Benefits') through the Continuation Period (to the\nextent permitted under the terms of applicable insurance and other benefit\nprograms of the Company then in effect and covering the Executive, and provided\nfurther that the Company shall not take any affirmative action from the time of\ngiving notice of termination to the Executive through the end of the\nContinuation Period which would cause the relevant insurance and other benefits\navailable to the Executive to be reduced or eliminated) following the\ntermination of the Executive's employment with the Company, in the manner and at\nsuch times as the compensation or Benefits otherwise would have been payable or\nprovided to the Executive, provided that the amounts payable to the Executive\npursuant to the foregoing clauses (i) through (iv) shall be reduced by the\namount actually paid to the Executive pursuant to the disability insurance\nreferred to in Section 4.2 hereof. The Company shall have no further liability\nhereunder (other than for reimbursement for reasonable business expenses\nincurred prior to the date of termination, subject, however to the provisions of\nSection 4.1).\n\n                           5.3 DEATH. Upon the death of the Executive during the\nTerm of Employment, the Company shall (i) pay to the estate of the deceased\nExecutive any unpaid Base Salary through the Executive's date of death, (ii) pay\nto the estate of the deceased Executive the Executive's accrued but unpaid\nIncentive Compensation, if any, for any Bonus Period ending on or before the\nExecutive's date of death, (iii) continue to pay to the estate of the deceased\nExecutive the Base Salary the Executive was receiving prior to the Executive's\ndeath under Section 3.1 hereof through the Continuation Period following the\nExecutive's death, in the manner and at such times as the Base Salary otherwise\nwould have been payable to the Executive, and (iv) continue to pay to the estate\nof the deceased Executive Incentive Compensation through the Continuation Period\nfollowing the termination of the Executive's employment with the Company, in the\nmanner and at such times as the compensation would have been payable or provided\nto the Executive. The Company shall have no further liability hereunder (other\nthan for reimbursement for reasonable business expenses incurred prior to the\ndate of the Executive's death, subject, however to the provisions of Section\n4.1).\n\n\n\n                                       6\n\n\n                           5.4 TERMINATION WITHOUT CAUSE. At any time the\nCompany shall have the right to terminate the Executive's employment hereunder\nwithout Cause by written notice to the Executive. Upon any termination pursuant\nto this Section 5.4, the Company shall (i) pay to the Executive any unpaid Base\nSalary through the effective date of termination specified in such notice, (ii)\npay to the Executive the accrued but unpaid Incentive Compensation, if any, for\nany Bonus Period ending on or before the date of the termination of the\nExecutive's employment with the Company, and a prorated portion of the Bonus\nearned, if any, for the quarterly Bonus Period, if any, in which the termination\noccurs, (iii) continue to pay the Executive's Base Salary and Incentive\nCompensation through the Continuation Period, in the manner and at such time as\nthe Base Salary and Incentive Compensation otherwise would have been payable to\nthe Executive, and (iv) continue to provide the Executive with the Benefits the\nExecutive was receiving under Section 4.2 hereof (to the extent permitted under\nthe terms of applicable insurance and other benefit programs of the Company then\nin affect and covering the Executive, and provided further that the Company\nshall not take any affirmative action from the time of giving notice of\ntermination to the Executive through the end of the Continuation Period which\nwould cause the relevant insurance and other benefits available to the Executive\nto be reduced or eliminated) during the Continuation Period, in the manner and\nat such times as the Benefits otherwise would have been payable or provided to\nthe Executive. The Company shall have no further liability hereunder (other than\nfor reimbursement for reasonable business expenses incurred prior to the date of\ntermination, subject, however, to the provisions of Section 4.1).\n\n                           5.5 TERMINATION BY EXECUTIVE.\n\n                                    a. The Executive shall at all times have the\nright, upon ninety (90) days written notice to the Company, to terminate the\nTerm of Employment.\n\n                                    b. Upon termination of the Term of\nEmployment pursuant to this Section 5.5 (that is not a termination under Section\n5.6) by the Executive without Good Reason, the Company shall pay to the\nExecutive any unpaid Base Salary through the effective date of termination\nspecified in such notice and shall pay to the Executive the accrued but unpaid\nIncentive Compensation, if any, for any Bonus Period ending on or before the\ndate of the termination of the Executive's employment with the Company. The\nCompany shall have no further liability hereunder (other than for reimbursement\nfor reasonable business expenses incurred prior to the date of termination,\nsubject, however, to the provisions of Section 4.1).\n\n                                    c. Upon termination of the Term of\nEmployment pursuant to this Section 5.5 (that is not a termination under Section\n5.6) by the Executive for Good Reason, the Company shall pay to the Executive\nthe same amounts that would have been payable by the Company to the Executive\nunder Section 5.4 of this Agreement if the Term of Employment had been\nterminated by the Company without Cause. The Company shall have no further\nliability hereunder (other than for reimbursement for reasonable business\nexpenses incurred prior to the date of termination, subject, however, to the\nprovisions of Section 4.1).\n\n\n\n                                       7\n\n\n                                    d. For purposes of this Agreement, 'Good\nReason' shall mean any of the following:\n\n                                             (i) the assignment to the Executive\nof any material duties inconsistent in any material respect with the Executive's\nduties as defined hereunder or any other action by the Company which results in\na material diminution in the Executive's position, authority, duties or\nresponsibilities from those contemplated by Section 1.2 of this Agreement, which\nis not remedied by the Company within fifteen (15) days after receipt of written\nnotice from the Executive of the same, excluding for this purpose any isolated,\ninsubstantial and inadvertent action not taken in bad faith;\n\n                                             (ii) any material failure by the\nCompany to comply with any of the provisions of Article 3 of this Agreement\nwhich is not remedied by the Company within fifteen (15) days after receipt of\nwritten notice thereof given by the Executive, other than an isolated,\ninsubstantial and inadvertent failure not occurring in bad faith and which is\nremedied by the Company promptly after receipt of notice thereof given by the\nExecutive;\n\n                                             (iii) the Company's requiring the\nExecutive to be based at any office or location more than 60 miles outside of\nNew York City, NY, except for business trips reasonably required in the\nperformance of the Executive's responsibilities; or\n\n                                             (iv) any purported termination by\nthe Company of the Executive's employment otherwise than pursuant to Sections\n5.1 - 5.4 of this Agreement.\n\n                           5.6 CHANGE IN CONTROL OF THE COMPANY.\n\n                                    a. Unless otherwise provided in this\nAgreement, in the event that a Change in Control (as defined in paragraph (b) of\nthis Section 5.6) in the Company shall occur during the Term of Employment, and\nprior to the first anniversary of the date of the Change in Control, either (x)\nthe Term of Employment is terminated by the Company without Cause, pursuant to\nSection 5.4 hereof or (y) the Executive terminates the Term of Employment for\nGood Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the\nExecutive any unpaid Base Salary through the effective date of termination, (2)\npay to the Executive the Incentive Compensation, if any, not yet paid to the\nExecutive for any Bonus Period prior to such termination, at such time as the\nIncentive Compensation otherwise would have been payable to the Executive, and\n(3) pay to the Executive in a lump sum payment an amount equal to the amount of\nthe Executive's Base Salary for the six (6) months preceding such termination.\nIf, during the Term of Employment, any Change in Control should occur and, prior\nto the first anniversary of the date of the Change in Control, either (x) the\nTerm of Employment is terminated by the Company without Cause, pursuant to\nSection 5.4 hereof or (y) the Executive terminates the Term of Employment for\nGood Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock\nOptions shall be vested and become immediately exercisable. In addition, if a\nChange in Control transaction shall occur in which the Company is not the\nsurviving entity and the acquiror does not agree to assume the obligations\nrepresented by the Stock Option rights of the Executive on or prior to the\nclosing of the Change in Control transaction on such terms and conditions as\n\n\n                                       8\n\n\nshall be reasonably satisfactory to the Company, then the Executive's unvested\nStock Options shall be vested and become immediately exercisable immediately\nprior to the consummation of the closing of such Change in Control transaction\nso as to permit the Executive to dispose of the shares of common stock\nunderlying such Stock Options in that Change in Control transaction on\nsubstantially the same terms and conditions as are applicable to shareholders of\nthe Company generally. If any of the Executive's Stock Options shall vest\naccording to the applicable vesting schedule, the options which shall have\nvested and not lapsed in accordance with their terms before or after any such\nChange in Control shall continue to be exercisable for a period of three months\nfrom the date of any termination of the Executive's employment by the Company\nfollowing such Change in Control. The Company shall have no further liability\nhereunder (other than for reimbursement for reasonable business expenses\nincurred prior to the date of termination, subject, however, to the provisions\nof Section 4.1).\n\n                                    b. For purposes of this Agreement, the term\n'Change in Control' shall mean:\n\n                                             (i) Approval by the shareholders of\nthe Company of (x) a reorganization, merger, consolidation or other form of\ncorporate transaction or series of transactions, in each case, with respect to\nwhich persons who were the shareholders of the Company immediately prior to such\nreorganization, merger or consolidation or other transaction do not, immediately\nthereafter, own more than 50% of the combined voting power entitled to vote\ngenerally in the election of directors of the reorganized, merged or\nconsolidated company's then outstanding voting securities, in substantially the\nsame proportions as their ownership immediately prior to such reorganization,\nmerger, consolidation or other transaction, or (y) a liquidation or dissolution\nof the Company or (z) the sale of all or substantially all of the assets of the\nCompany (unless such reorganization, merger, consolidation or other corporate\ntransaction, liquidation, dissolution or sale is subsequently abandoned);\n\n                                             (ii) Individuals who, as of the\nCommencement Date of this Agreement, constitute the Board (the 'Incumbent\nBoard') cease for any reason to constitute at least a majority of the Board,\nprovided that any person becoming a director subsequent to the Commencement Date\nof this Agreement whose election, or nomination for election by the Company's\nshareholders, was approved by a vote of at least a majority of the directors\nthen comprising the Incumbent Board (other than an election or nomination of an\nindividual whose initial assumption of office is in connection with an actual or\nthreatened election contest relating to the election of the Directors of the\nCompany, as such terms are used in Rule 14a-11 of Regulation 14A promulgated\nunder the Securities Exchange Act) shall be, for purposes of this Agreement,\nconsidered as though such person were a member of the Incumbent Board; or\n\n                                             (iii) the acquisition by any\nperson, entity or 'group', within the meaning of Section 13(d)(3) or 14(d)(2) of\nthe Securities Exchange Act, of more than 30% of either the then outstanding\nshares of the Company's Common Stock or the combined voting power of the\nCompany's then outstanding voting securities entitled to vote generally in the\nelection of directors (hereinafter referred to as the ownership of a\n'Controlling Interest') excluding, for this purpose, any acquisitions by (1) the\n\n\n                                       9\n\n\nCompany, (2) any person, entity or 'group' that as of the Commencement Date of\nthis Agreement owns beneficial ownership (within the meaning of Rule 13d-3\npromulgated under the Securities Exchange Act) of a Controlling Interest, (3)\nRosalind Resnick and\/or Ryan Scott Druckenmiller or their respective affiliates,\nor (4) any employee benefit plan of the Company.\n\n                                    c. Notwithstanding the foregoing, the term\n'Change in Control' shall NOT include any transaction, event or circumstance as\na result of which or after which Rosalind Resnick, Ryan Scott Druckenmiller, and\ntheir respective affiliates continue to own, in the aggregate, the largest\npercentage of shares of the Company owned by any shareholder of the Company.\n\n                           5.7 RESIGNATION. Upon any termination of employment\npursuant to this Article 5, the Executive shall be deemed to have resigned as an\nofficer, and if the Executive was then serving as a director of the Company, as\na director, and if required by the Board, the Executive hereby agrees to\nimmediately execute a resignation letter to the Board.\n\n                           5.8 SURVIVAL. The provisions of this Article 5 shall\nsurvive the termination of this Agreement, as applicable.\n\n                  6. RESTRICTIVE COVENANTS.\n\n                           6.1 NON-COMPETITION. At all times while the Executive\nis employed by the Company and for a two (2) year period after the termination\nof the Executive's employment with the Company for any reason (other than (a)\ntermination by the Company without Cause or (b) termination by the Executive for\nGood Reason (as defined in Section 5.5(d) hereof) or (c) termination by the\nCompany prior to the first anniversary of a Change in Control other than for\nCause), the Executive shall not, directly or indirectly, engage in or have any\ninterest in any sole proprietorship, partnership, corporation or business or any\nother person or entity (whether as an employee, officer, director, partner,\nagent, security holder, creditor, consultant or otherwise) that directly engages\nin competition with the Company (for this purpose, any business unit or division\nthat provides e-mail marketing services to third parties for compensation and\nderives more than five percent (5%) of the division's or unit's revenues from\nthose activities shall be deemed to be in competition with the Company);\nprovided that such provision shall not apply to the Executive's ownership of\nCommon Stock of the Company or the acquisition by the Executive, solely as an\ninvestment, of securities of any issuer that is registered under Section 12(b)\nor 12(g) of the Securities Exchange Act of 1934, as amended, and that are listed\nor admitted for trading on any United States national securities exchange or\nthat are quoted on the Nasdaq, or any similar system or automated dissemination\nof quotations of securities prices in common use, so long as the Executive does\nnot control, acquire a controlling interest in or become a member of a group\nwhich exercises direct or indirect control or, more than one percent (1%) of any\nclass of capital stock of such corporation.\n\n                           6.2 NONDISCLOSURE. The Executive shall not during the\nExecutive's employment under this Agreement or after the termination of such\nemployment divulge, communicate, use to the detriment of the Company or for the\nbenefit of any other person or persons, or misuse in any way, any Confidential\nInformation (as hereinafter defined) pertaining to the business of the Company.\n\n\n                                       10\n\n\nAny Confidential Information or data now or hereafter acquired by the Executive\nwith respect to the business of the Company (which shall include, but not be\nlimited to, information concerning the Company's financial condition, prospects,\ntechnology, customers, suppliers, sources of leads and methods of doing\nbusiness) shall be deemed a valuable, special and unique asset of the Company\nthat is received by the Executive in confidence and as a fiduciary, and\nExecutive shall remain a fiduciary to the Company with respect to all of such\ninformation. For purposes of this Agreement, 'Confidential Information' means\ninformation disclosed to the Executive or known by the Executive as a\nconsequence of or through the Executive's employment by the Company (including\ninformation conceived, originated, discovered or developed by the Executive)\nprior to or after the date hereof (up to the date of termination of the\nExecutive's employment pursuant to this Agreement), and whose existence or\nsignificance or utility in respect of the Company or its business is not\ngenerally known. Notwithstanding the foregoing, nothing herein shall be deemed\nto restrict the Executive from disclosing Confidential Information to the extent\nrequired by law or in the valid performance of the Executive's duties.\n\n                           6.3 NONSOLICITATION OF EMPLOYEES AND CLIENTS. At all\ntimes while the Executive is employed by the Company and for a one (1) year\nperiod after the termination of the Executive's employment with the Company for\nany reason, the Executive shall not, directly or indirectly, for the Executive\nor for any other person, firm, corporation, partnership, association or other\nentity (a) employ or attempt to employ or enter into any contractual arrangement\nwith any employee or former employee of the Company, until a period of at least\nsix (6) months has elapsed from the date of termination of the employment of\nsuch person with the Company, and\/or (b) call on or solicit any of the actual or\ntargeted prospective clients of the Company on behalf of any person or entity in\nconnection with any business competitive with the business of the Company, while\nthe Executive is employed by the company, or in connection with any email direct\nmarketing business for a one-year period after the termination of the\nexecutive's employment, nor shall the Executive make known the names and\naddresses of such clients or any information relating in any manner to the\nCompany's trade or business relationships with such customers, other than in\nconnection with the performance of the Executive's duties under this Agreement.\n\n                           6.4 OWNERSHIP OF DEVELOPMENTS. All copyrights,\npatents, trade secrets, or other intellectual property rights associated with\nany ideas, concepts, techniques, inventions, processes, or works of authorship\ndeveloped or created by the Executive during the course of performing work for\nthe Company or its clients (collectively, the 'Work Product') shall belong\nexclusively to the Company and shall, to the extent possible, be considered a\nwork made by the Executive for hire for the Company within the meaning of Title\n17 of the United States Code. To the extent the Work Product may not be\nconsidered work made by the Executive for hire for the Company, the Executive\nagrees to assign, and automatically assigns at the time of creation of the Work\nProduct, without any requirement of further consideration, any right, title, or\ninterest the Executive may have in such Work Product. Upon the request of the\nCompany, the Executive shall take such further actions, including execution and\ndelivery of instruments of conveyance, as may be appropriate to give full and\nproper effect to such assignment.\n\n\n\n                                       11\n\n\n                           6.5 BOOKS AND RECORDS. All books, records, and\naccounts relating in any manner to the customers or clients of the Company,\nwhether prepared by the Executive or otherwise coming into the Executive's\npossession, shall be the exclusive property of the Company and shall be returned\nimmediately to the Company on termination of the Executive's employment\nhereunder or on the Company's request at any time, upon which the Executive\nshall not retain any copies of the same in any media whatsoever.\n\n                           6.6 DEFINITION OF COMPANY. Solely for purposes of\nthis Article 6, the term 'Company' also shall include any existing or future\nsubsidiaries of the Company that are operating during the time periods described\nherein and any other entities that directly or indirectly, through one or more\nintermediaries, control, are controlled by or are under common control with the\nCompany during the periods described herein.\n\n                           6.7 ACKNOWLEDGMENT BY EXECUTIVE. The Executive\nacknowledges and confirms that (a) the restrictive covenants contained in this\nArticle 6 are reasonable and necessary to protect the legitimate business\ninterests of the Company, and (b) the restrictions contained in this Article 6\n(including without limitation the length of the term of the provisions of this\nArticle 6) are not overbroad, overlong, or unfair and are not the result of\noverreaching, duress or coercion of any kind. The Executive further acknowledges\nand confirms that the Executive's full, uninhibited and faithful observance of\neach of the covenants contained in this Article 6 will not cause the Executive\nany undue hardship, financial or otherwise, and that enforcement of each of the\ncovenants contained herein will not impair the Executive's ability to obtain\nemployment commensurate with the Executive's abilities and on terms fully\nacceptable to the Executive or otherwise to obtain income required for the\ncomfortable support of the Executive and the Executive's family and the\nsatisfaction of the needs of the Executive's creditors. The Executive\nacknowledges and confirms that the Executive's special knowledge of the business\nof the Company is such as would cause the Company serious injury or loss if the\nExecutive were to use such ability and knowledge to the benefit of a competitor\nor were to compete with the Company in violation of the terms of this Article 6.\nThe Executive further acknowledges that the restrictions contained in this\nArticle 6 are intended to be, and shall be, for the benefit of and shall be\nenforceable by, the Company and its successors and assigns, including, without\nlimitation, any successor to the Company, whether by merger, consolidation, sale\nof stock, sale of assets or otherwise.\n\n                           6.8 REFORMATION BY COURT. In the event that a court\nof competent jurisdiction shall determine that any provision of this Article 6\nis invalid or more restrictive than permitted under the governing law of such\njurisdiction, then only as to enforcement of this Article 6 within the\njurisdiction of such court, such provision shall be interpreted and enforced as\nif it provided for the maximum restriction permitted under such governing law.\n\n                           6.9 EXTENSION OF TIME. If the Executive shall be in\nviolation of any provision of this Article 6, then each time limitation set\nforth in this Article 6 shall be extended for a period of time equal to the\nperiod of time during which such violation or violations occur. If the Company\nseeks injunctive relief from such violation in any court, then the covenants set\nforth in this Article 6 shall be extended for a period of time equal to the\npendency of such proceeding including all appeals by the Executive.\n\n\n\n                                       12\n\n\n                           6.10 SURVIVAL. The provisions of this Article 6 shall\nsurvive the termination of this Agreement, as applicable.\n\n                  7. INJUNCTION. It is recognized and hereby acknowledged by the\nparties hereto that a breach by the Executive of any of the covenants contained\nin Article 6 of this Agreement may cause irreparable harm and damage to the\nCompany, the monetary amount of which may be virtually impossible to ascertain.\nAs a result, the Executive recognizes and hereby acknowledges that the Company\nshall be entitled, without the necessity of proving damages or posting a bond,\nto an injunction from any court of competent jurisdiction enjoining and\nrestraining any violation of any or all of the covenants contained in Article 6\nof this Agreement by the Executive or any of the Executive's affiliates,\nassociates, partners or agents, either directly or indirectly, and that such\nright to injunction shall be cumulative and in addition to whatever other\nremedies the Company may possess. If the Company should fail to obtain any\ninjunction when the Company seeks an injunction pursuant to this Section (other\nthan due to the fact that the parties reach a settlement or the Executive ceases\nthe activities complained of by the Company without need of an injunction), then\nthe Company shall reimburse the Executive for the Executive's reasonable\nattorney's fees and expenses pertaining to the proceedings to seek the\ninjunction.\n\n                  8. MEDIATION. In the event a dispute arises out of or relates\nto this Agreement, or the breach thereof, and if the dispute cannot be settled\nthrough negotiation, the parties hereby agree first to attempt in good faith to\nsettle the dispute by mediation administered by the American Arbitration\nAssociation under its Employment Mediation Rules before resorting to arbitration\nas set forth in Section 8 below. Notwithstanding the foregoing, (i) the Company\nhas the right to seek an injunction under Section 7 hereof, and (ii) either\nparty may seek an injunction or entry of judgment on an arbitration award under\nSection 9 of this Agreement. The cost and expenses of mediators (but not the\nfees and expenses of any counsel or other professional representing any party\nother than the Company) shall be borne by the Company. If any dispute is settled\nby mediation pursuant to this Section and the Company fails to achieve any\ndecision in its favor, then the Company shall reimburse the Executive for the\nExecutive's reasonable attorneys' fees and expenses pertaining to the mediation\nproceedings.\n\n                  9. ARBITRATION. In the event that mediation pursuant to\nSection 8 of this Agreement has failed after thirty (30) days or the parties to\nthis Agreement both agree not to mediate, any dispute or controversy arising\nunder or in connection with this Agreement shall be settled exclusively by\narbitration in New York County, New York, in accordance with the Rules of the\nAmerican Arbitration Association then in effect with respect to arbitration of\ncommercial matters (except to the extent that the procedures outlined below\ndiffer from such rules). Within ten (10) days after written notice by either\nparty has been given that a dispute exists and that arbitration is required,\neach party must select an arbitrator and those two arbitrators shall promptly,\nbut in no event later than ten (10) days after their selection, select a third\narbitrator. The parties agree to act as expeditiously as possible to select\narbitrators and conclude the dispute. The selected arbitrators must render their\n\n\n                                       13\n\n\ndecision in writing. The cost and expenses of the arbitrators (but not the fees\nand expenses of any counsel or other professional representing any party other\nthan the Company) shall be borne by the Company. Judgment may be entered on the\narbitrators' award in any court having jurisdiction. Pursuit of an injunction\nshall not impair arbitration on all remaining issues. If any dispute is settled\nby arbitration pursuant to this Section and the Company fails to achieve any\ndecision in its favor, then the Company shall reimburse the Executive for the\nExecutive's reasonable attorneys' fees and expenses pertaining to the\narbitration proceedings.\n\n                  10. ASSIGNMENT. Neither party shall have the right to assign\nor delegate their rights or obligations hereunder, or any portion thereof, to\nany other person, except that the rights of the Company may be assigned by the\nCompany to any person or entity acquiring a substantial portion of the Company's\nassets or to any successor of the Company.\n\n                  11. GOVERNING LAW. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of New York.\n\n                  12. ENTIRE AGREEMENT. This Agreement constitutes the entire\nagreement between the parties hereto with respect to the subject matter hereof\nand, upon its effectiveness, shall supersede all prior agreements,\nunderstandings and arrangements, both oral and written, between the Executive\nand the Company (or any of its affiliates) with respect to such subject matter.\nThis Agreement may not be modified in any way unless by a written instrument\nsigned by both the Company and the Executive.\n\n                  13. NOTICES: All notices required or permitted to be given\nhereunder shall be in writing and shall be personally delivered by courier, sent\nby registered or certified mail, return receipt requested or sent by confirmed\nfacsimile transmission addressed as set forth herein. Notices personally\ndelivered, sent by facsimile or sent by overnight courier shall be deemed given\non the date of delivery and notices mailed in accordance with the foregoing\nshall be deemed given upon the earlier of receipt by the addressee, as evidenced\nby the return receipt thereof, or three (3) days after deposit in the U.S. mail.\nNotice shall be sent (i) if to the Company, addressed to NetCreations, Inc., 379\nWest Broadway, Suite 202, New York, New York 10012, attention: Chief Executive\nOfficer, with a copy to Greenberg Traurig, Met Life Building, 200 Park Avenue,\n15th Floor, New York, New York 10166, Attention: Andrew J. Cosentino, Esq.; and\n(ii) if to the Executive, to the Executive's address as reflected on the payroll\nrecords of the Company, with a copy to Roger J. Breene, Esq., Wolff &amp; Samson, 5\nBecker Farm Road, Roseland, New Jersey 07068, or to such other address as either\nparty hereto may from time to time give notice of to the other.\n\n                  14. BENEFITS; BINDING EFFECT. This Agreement shall be for the\nbenefit of and binding upon the parties hereto and their respective heirs,\npersonal representatives, legal representatives, and successors, including,\nwithout limitation, any successor to the Company, whether by merger,\nconsolidation, sale of stock, sale of assets or otherwise.\n\n\n\n                                       14\n\n\n                  15. SEVERABILITY. The invalidity of any one or more of the\nwords, phrases, sentences, clauses or sections contained in this Agreement shall\nnot affect the enforceability of the remaining portions of this Agreement or any\npart thereof, all of which are inserted conditionally on their being valid in\nlaw, and, in the event that any one or more of the words, phrases, sentences,\nclauses or sections contained in this Agreement shall be declared invalid, this\nAgreement shall be construed as if such invalid word or words, phrase or\nphrases, sentence or sentences, clause or clauses, or section or sections had\nnot been inserted. If such invalidity is caused by length of time or size of\narea, or both, the otherwise invalid provision will be considered to be reduced\nto a period or area which would cure such invalidity.\n\n                  16. WAIVERS. The waiver by either party hereto of a breach or\nviolation of any term or provision of this Agreement shall not operate nor be\nconstrued as a waiver of any subsequent breach or violation.\n\n                  17. DAMAGES. Subject to compliance with Sections 7, 8 and 9 of\nthis Agreement, to the extent applicable, nothing contained herein shall be\nconstrued to prevent the Company or the Executive from seeking and recovering\nfrom the other damages sustained by either or both of them as a result of its or\nthe Executive's breach of any term or provision of this Agreement. In the event\nthat either party hereto brings suit for the collection of any damages resulting\nfrom, or the injunction of any action constituting, a breach of any of the terms\nor provisions of this Agreement, then the party found to be at fault shall pay\nall reasonable court costs and attorneys' fees of the other.\n\n                  18. SECTION HEADINGS. The section headings contained in this\nAgreement are for reference purposes only and shall not affect in any way the\nmeaning or interpretation of this Agreement.\n\n                  19. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied\nin this Agreement is intended, or shall be construed, to confer upon or give any\nperson any rights or remedies under or by reason of this Agreement, other than\nthe Company, the parties hereto and their respective heirs, personal\nrepresentatives, legal representatives, and successors, including, without\nlimitation, any successor to the Company, whether by merger, consolidation, sale\nof stock, sale of assets or otherwise.\n\n                  20. INDEMNIFICATION.\n\n                                    a. The Company shall indemnify and hold\nharmless the Executive to the fullest extent permitted by law from and against\nany and all claims, damages, expenses (including reasonable attorneys' fees),\njudgments, penalties, fines, settlements, and all other liabilities incurred or\npaid by the Executive in connection with the investigation, defense,\nprosecution, settlement or appeal of any threatened, pending or completed\naction, suit or proceeding, whether civil, criminal, administrative or\ninvestigative and to which the Executive was or is a party or is threatened to\nbe made a party by reason of the fact that the Executive is or was an officer,\nemployee or agent of the Company, or by reason of anything done or not done by\nthe Executive in any such capacity or capacities, provided that the Executive\nacted in good faith, in a manner that was not grossly negligent and did not\nconstitute willful misconduct and in a manner the Executive reasonably believed\nto be in or not opposed to the best interests of the Company, and, with respect\nto any criminal action or proceeding, had no reasonable cause to believe the\n\n\n                                       15\n\n\nExecutive's conduct was unlawful. The Company also shall pay any and all\nreasonable expenses (including attorney's fees) incurred by the Executive as a\nresult of the Executive being called as a witness in connection with any matter\ninvolving the Company and\/or any of its officers or directors (other than an\naction or suit by the Company against the Executive).\n\n                                    b. The Company shall pay any reasonable\nexpenses (including attorneys' fees), judgments, penalties, fines, settlements,\nand other liabilities incurred by the Executive in investigating, defending,\nsettling or appealing any action, suit or proceeding described in this Section\n20 (other than an action or proceeding by the Company against the Executive) in\nadvance of the final disposition of such action, suit or proceeding. The Company\nshall promptly pay the amount of such expenses to the Executive, but in no event\nlater than ten (10) days following the Executive's delivery to the Company of a\nwritten request for an advance pursuant to this Section 20, together with a\nreasonable accounting of such expenses.\n\n                                    c. The Executive hereby undertakes and\nagrees to repay to the Company any advances made pursuant to this Section 20 if\nand to the extent that it shall ultimately be agreed by the parties or\ndetermined by a court that the Executive is not entitled to be indemnified by\nthe Company for such amounts.\n\n                                    d. The Company shall make the advances\ncontemplated by this Section 20 regardless of the Executive's financial ability\nto make repayment, and regardless of whether indemnification of the Indemnitee\nby the Company will ultimately be required. Any advances and undertakings to\nrepay pursuant to this Section 20 shall be unsecured and interest-free.\n\n             [THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n\n                                    e. The provisions of this Section 20 shall\nsurvive\n\nthe termination of this Agreement.\n\n\n\n         IN WITNESS WHEREOF, the undersigned have executed this Agreement as of\nthe date first above written.\n\n                                          COMPANY:\n                                          NETCREATIONS, INC.\n                                          By:___________________________________\n                                             Name:\n                                             Title:\n\n                                          EXECUTIVE:\n                                          By:___________________________________\n                                             Scott Wolf, individually\n\n\n\n\n\n                                       16\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8322],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9544],"class_list":["post-39392","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-netcreations-inc","corporate_contracts_industries-technology__software","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\/39392","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=39392"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39392"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39392"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39392"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}