<PAGE>
As filed with the Securities and Exchange Commission on September 16, 1999
Registration No. 333-86459
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
MEDIAPLEX, INC.
(Exact name of Registrant as specified in its charter)
----------------
<TABLE>
<S> <C> <C>
Delaware 7372 94-3295822
(tateSor other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
ncorporationior organization) Classification Code Number) Identification Number)
</TABLE>
131 Steuart Street, Fourth Floor
San Francisco, California 94105-1230
(415) 808-1900
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
----------------
Gregory R. Raifman
Chairman and Chief Executive Officer
Mediaplex, Inc.
131 Steuart Street, Fourth Floor
San Francisco, California 94105-1230
(415) 808-1900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
<TABLE>
<S> <C>
Aaron J. Alter, Esq. Laird H. Simons, III, Esq.
Tamara G. Mattison, Esq. Robert A. Freedman, Esq.
Linda M. Cuny, Esq. R. Gregory Roussel, Esq.
Robert E. Dawson, Esq. Fenwick & West LLP
Wilson Sonsini Goodrich & Rosati Two Palo Alto Square
Professional Corporation Palo Alto, California 94306
650 Page Mill Road (650) 494-0600
Palo Alto, California 94304-1050
(650) 493-9300
</TABLE>
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall hereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to such
Section 8(a), may determine.
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- -------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
The purpose of this Amendment No. 1 is solely to file certain exhibits to the
Registration Statement as set forth below as in Item 16(a) of Part II.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than the
underwriting discount payable by Mediaplex in connection with the sale of
common stock being registered. All amounts are estimates except the SEC
registration fee and the NASD filing fee.
<TABLE>
<S> <C>
SEC registration fee............................................. $ 19,460
NASD filing fee.................................................. 7,500
Nasdaq National Market listing fee............................... 95,000
Printing and engraving costs..................................... 250,000
Legal fees and expenses.......................................... 350,000
Accounting fees and expenses..................................... 275,000
Blue Sky fees and expenses....................................... 5,000
Transfer agent and registrar fees................................ 10,000
Miscellaneous expenses........................................... 38,040
----------
Total.......................................................... $1,050,000
==========
</TABLE>
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits a corporation to
include in its charter documents, and in agreements between the corporation and
its directors and officers, provisions expanding the scope of indemnification
beyond that specifically provided by the current law.
Article IX of the Registrant's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under Delaware law.
Article VI of the Registrant's Amended and Restated Bylaws provides for the
indemnification of officers, directors and third parties acting on behalf of
the Registrant if such persons act in good faith and in a manner reasonably
believed to be in and not opposed to the best interests of the Registrant, and,
with respect to any criminal action or proceeding, the indemnified party had no
reason to believe his or her conduct was unlawful.
The Registrant has entered into indemnification agreements with its directors
and executive officers, in addition to indemnification provided for in the
Registrant's Amended and Restated Bylaws, and intends to enter into
indemnification agreements with any new directors and executive officers in the
future.
The Underwriting Agreement (Exhibit 1.1 hereto) provides for indemnification
by the Underwriters of the Registrant and its executive officers and directors
for certain liabilities, including liabilities arising under the Securities
Act, in connection with matters specifically provided in writing by the
Underwriters for inclusion in the Registration Statement.
Item 15. Recent Sales of Unregistered Securities
During the past three years, the Registrant has issued unregistered
securities to a limited number of entities and persons as described below:
(a) From September 1996 to August 15, 1999, the Registrant issued and
sold common stock to various entities and persons at per share purchase
prices, as follows:
(1) In September and October 1996, the Registrant issued and sold to
Michael Schwartz an aggregate of 2,460,000 shares at a purchase
price of $0.0001 per share, in connection with the Registrant's
founding;
II-1
<PAGE>
(2) In September 1996, the Registrant issued and sold 350,000 shares
and 250,000 shares, to Raifman & Edwards LLP and PointBreak
Ventures, LLC, respectively, at a purchase price of $0.0001 per
share, in payment for past services rendered to the Registrant;
(3) In October 1996 and January 1997, the Registrant issued and sold
1,600,000 shares to Eugene Jarvis, at a purchase price of $0.05
per share;
(4) In December 1996, the Registrant issued and sold an aggregate of
800,000 shares to Kuni Research, at a purchase price of $0.05 per
share;
(5) During 1997, the Registrant issued and sold 220,000 shares and
995,338 shares to various employees and non-employee investors at
a purchase price of $0.05 per share and $0.30 per share,
respectively;
(6) In June 1997, the Registrant issued a convertible promissory note
to Michael Schwartz in payment for past services rendered, which
was converted into 4,643,228 shares at a conversion rate of $0.05
per share in June 1997. In April 1998, the Registrant repurchased
these shares, and issued in exchange a convertible promissory note
to Michael Schwartz. In July 1998, Michael Schwartz transferred
these shares to Raifman & Edwards, LLP. In March 1999, Raifman &
Edwards converted the principal and interest of this note into
4,643,228 shares at a conversion rate of $0.05 per share;
(7) In July 1997, the Registrant issued a convertible promissory note
to Raifman & Edwards, LLP, in payment for past services rendered,
which in March 1999 was converted into 947,009 shares at a
conversion rate of $0.075 per share;
(8) In February 1998, the Registrant issued and sold to employees and
non-employee investors 76,000 shares at a purchase price of $0.50
per share;
(9) In June 1998, the Registrant issued and sold to an employee
232,964 shares at a purchase price of $0.65 per share;
(10) In January and March 1999, the Registrant issued and sold to two
employees 13,333 shares and 10,000 shares, respectively, in
payment for past services rendered; and
(11) In January 1999, the Registrant, as part of a settlement agreement
issued and sold to an employee 200,000 shares for an aggregate
purchase price of $12,420 under our 1997 Stock Plan.
(b) From October 31, 1996 to August 15, 1999, the Registrant issued to
certain of its employees, officers, directors and consultants options to
purchase an aggregate of 8,781,777 shares of common stock of the
Registrant, at exercise prices ranging from $0.05 per share to $3.25 per
share, pursuant to the Registrant's 1997 Stock Plan and 1999 Stock Plan,
and Amended and Restated 1999 Stock Plan.
(c) From October 31, 1996 to August 15, 1999, the Registrant issued an
aggregate of 62,667 shares of common stock of the Registrant upon the
exercise of options at exercise prices ranging from $0.05 to $0.30 per
share.
(d) On January 11, 1999, the Registrant issued to an employee a warrant
to purchase an aggregate of 500,000 shares of common stock at an exercise
price of $0.50 per share.
(e) On January 26, 1999, the Registrant issued and sold an aggregate of
1,206,000 shares of Series A preferred stock to 37 investors at a purchase
price of $1.25 per share or an aggregate purchase price of $1,507,500.
(f) On March 25, 1999, the Registrant issued and sold an aggregate of
1,979,000 shares of common stock valued at $2,600,000 to Ruiquing Jiang in
connection with the Registrant's acquisition of Netranscend Software, Inc.,
of which Mr. Jiang was the sole shareholder.
(g) On June 15, 1999, the Registrant issued and sold an aggregate of
4,500,000 shares of Series B preferred stock to 36 investors at a purchase
price of $2.00 per share, or an aggregate purchase price of $9,000,000.
II-2
<PAGE>
(h) On June 15, 1999, the Registrant issued to two investors warrants to
purchase an aggregate of 275,000 shares of Series B preferred stock at an
exercise price of $2.00 per share.
(i) On June 19, 1999, the Registrant issued to an investor a warrant to
purchase an aggregate of 100,000 shares of common stock at an exercise
price of $0.50 per share.
(j) On August 6, 1999, the Registrant issued and sold an aggregate of
4,000,000 shares of Series C preferred stock to 14 investors at a purchase
price of $3.59 per share, or an aggregate purchase price of $14,360,000.
The issuances described in paragraphs (a) (1) through (10) and (d) through
(j) above were deemed to be exempt from registration under the Securities Act
in reliance on Section 4(2) of the Securities Act as transactions by an issuer
not involving a public offering. The sales of securities described in
paragraphs a(11), (b) and (c) above were deemed to be exempt from the
registration requirements of the Securities Act in reliance on Rule 701
promulgated under Section 3(b) of the Securities Act as transactions by an
issuer pursuant to compensatory benefit plans and contracts relating to
compensation as provided under such Rule 701. The recipients of securities in
each such transaction represented their intention to acquire the securities for
investment only and not with a view to or for sale in connection with any
distribution thereof and appropriate legends were affixed to the share
certificates and other instruments issued in such transactions. The issuance of
warrants to purchase stock described in paragraphs (h) and (i) above did not
require registration under the Securities Act, or an exemption therefrom,
insofar as such grants did not involve a "sale" of securities as such term is
used in Section 2(3) of the Securities Act. All recipients either received
adequate information about the Registrant or had access, through employment or
other relationships, to information about the Registrant.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number
-------
<C> <S>
1.1* Form of Underwriting Agreement.
2.1** Agreement and Plan of Reorganization between Registrant, Netranscend
Software, Inc. and Ruiqing "Barclay" Jiang, dated March 8, 1999.
3.1** Form of the Amended and Restated Certificate of Incorporation of the
Registrant to be in effect after the closing of the offering made
under this Registration Statement.
3.2** Form of the Amended and Restated Bylaws of the Registrant to be in
effect after the closing of the offering made under this Registration
Statement.
4.1** Warrant to purchase 500,000 shares of Common Stock of the Registrant,
dated January 11, 1999, held by Timothy Favia.
4.2** Warrant to purchase 100,000 shares of Common Stock of the Registrant,
dated June 15, 1999, held by Retail Ventures International, Inc.
4.3** Warrant to purchase 150,000 shares of Series B Preferred Stock of the
Registrant, dated June 15, 1999, held by Retail Ventures
International, Inc.
4.4** Warrant to purchase 125,000 shares of Series B Preferred Stock of the
Registrant, dated June 15, 1999, held by Zeron Capital, Inc.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1** Form of Indemnification Agreement between the Registrant and each of
its directors and officers.
10.2** Amended and Restated 1999 Stock Plan and form of agreements
thereunder.
10.3** 1999 Employee Stock Purchase Plan and form of agreements thereunder.
10.4** 1997 Stock Plan and form of agreements thereunder.
10.5** Basic Lease Agreement, First Amendment and Basic Lease Information
thereto, between R&E Holdings, LLC and Persis Corporation and BidCom,
Inc., dated September 24, 1999, February 1, 1997 and July 31, 1998,
respectively.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number
-------
<C> <S>
10.6** Sublease, dated July 9, 1999, with Telocity, Inc.
10.7 Employment Agreement with Gregory R. Raifman, dated February 19, 1999.
10.8 Employment Agreement with Jon L. Edwards, dated February 19, 1999.
10.9 Employment Agreement with Walter Haefeker, dated February 19, 1999.
10.10 Employment Agreement with Ruiqing "Barclay" Jiang, dated March 24,
1999.
10.11** Employment Agreement with Sandra L. Abbott, dated August 6, 1999.
10.12+ Technology Integration and Services Agreement between the Registrant
and DoubleClick, Inc., dated July 22, 1999.
10.13** Investors' Rights Agreement, dated July 30, 1999.
23.1** Consent of PricewaterhouseCoopers LLP, independent accountants.
23.2** Consent of PricewaterhouseCoopers LLP, independent accountants.
23.3* Consent of Counsel (see Exhibit 5.1).
24.1** Power of Attorney (see page II-5).
27.1** Financial Data Schedule.
</TABLE>
- --------
*To be filed by amendment.
**Previously filed.
+Confidential treatment requested.
Item 17. Undertakings
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referenced in Item 14 of
this Registration Statement or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by a
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit 1 to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of Prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San
Francisco, State of California, on the 16 day of September, 1999.
MEDIAPLEX, INC.
*
By:__________________________________
Gregory R. Raifman
Chairman and Chief Executive
Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated below.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<C> <S> <C>
* Chairman and Chief September 16,
____________________________________ Executive Officer 1999
Gregory R. Raifman (Principal Executive
Officer)
/s/ Sandra L. Abbott Senior Vice President, September 16,
____________________________________ Chief Financial Officer 1999
Sandra L. Abbott and Secretary
(Principal Accounting
Officer)
* President and Director September 16,
____________________________________ 1999
Jon L. Edwards
* Director September 16,
____________________________________ 1999
Lawrence D. Lenihan, Jr.
* Director September 16,
____________________________________ 1999
Peter S. Sealey
* Director September 16,
____________________________________ 1999
James DeSorrento
* Director September 16,
____________________________________ 1999
A. Brooke Seawell
/s/ Sandra L. Abbott
*By: _______________________________
Sandra L. Abbott
Attorney-in-fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number
-------
<C> <S>
1.1* Form of Underwriting Agreement.
2.1** Agreement and Plan of Reorganization between Registrant, Netranscend
Software, Inc. and Ruiqing "Barclay" Jiang, dated March 8, 1999.
3.1** Form of the Amended and Restated Certificate of Incorporation of the
Registrant to be in effect after the closing of the offering made
under this Registration Statement.
3.2** Form of the Amended and Restated Bylaws of the Registrant to be in
effect after the closing of the offering made under this Registration
Statement.
4.1** Warrant to purchase 500,000 shares of Common Stock of the Registrant,
dated January 11, 1999, held by Timothy Favia.
4.2** Warrant to purchase 100,000 shares of Common Stock of the Registrant,
dated June 15, 1999, held by Retail Ventures International, Inc.
4.3** Warrant to purchase 150,000 shares of Series B Preferred Stock of the
Registrant, dated June 15, 1999, held by Retail Ventures
International, Inc.
4.4** Warrant to purchase 125,000 shares of Series B Preferred Stock of the
Registrant, dated June 15, 1999, held by Zeron Capital, Inc.
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1** Form of Indemnification Agreement between the Registrant and each of
its directors and officers.
10.2** Amended and Restated 1999 Stock Plan and form of agreements
thereunder.
10.3** 1999 Employee Stock Purchase Plan and form of agreements thereunder.
10.4** 1997 Stock Plan and form of agreements thereunder.
10.5** Basic Lease Agreement, First Amendment and Basic Lease Information
thereto, between R&E Holdings, LLC and Persis Corporation and BidCom,
Inc., dated September 24, 1999, February 1, 1997 and July 31, 1998,
respectively.
10.6** Sublease, dated July 9, 1999, with Telocity, Inc.
10.7 Employment Agreement with Gregory R. Raifman, dated February 19, 1999.
10.8 Employment Agreement with Jon L. Edwards, dated February 19, 1999.
10.9 Employment Agreement with Walter Haefeker, dated February 19, 1999.
10.10 Employment Agreement with Ruiqing "Barclay" Jiang, dated March 24,
1999.
10.11** Employment Agreement with Sandra L. Abbott, dated August 6, 1999.
10.12+ Technology Integration and Services Agreement between the Registrant
and DoubleClick, Inc., dated July 22, 1999.
10.13** Shareholders' Rights Agreement, dated July 30, 1999.
23.1** Consent of PricewaterhouseCoopers LLP, independent accountants.
23.2** Consent of PricewaterhouseCoopers LLP, independent accountants.
23.3* Consent of Counsel (see Exhibit 5.1).
24.1** Power of Attorney (see page II-5).
27.1** Financial Data Schedule.
</TABLE>
- --------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment requested.
<PAGE>
EXHIBIT 10.7
Internet Extra Corporation
131 Steuart Street, Fourth Floor
San Francisco, California 94105
February 19, 1999
Mr. Gregory R. Raifman
360 Mountain Avenue
Piedmont, California 94611
Dear Gregory:
I am very pleased to offer you the position of Chairman & Chief Executive
Officer with Internet Extra Corporation (the "Company") commencing as of the
date hereof. We at the Company are delighted that you have decided to join our
enterprise and help MediaPlex become a success. I would like to take this
opportunity to set out the terms of your employment more fully:
1. Effectiveness. This agreement (this "Agreement") is being entered into
effective as of the date hereof (the "Effective Date").
2. Employment.
(a) Duties. The Company shall employ you, and you shall initially
serve as, the Company's Chairman & Chief Executive Officer, subject at all times
and in all cases and respects to the ultimate control and direction of the board
of directors of the Company. In such capacity, you shall perform all such
services, accept all such responsibilities and discharge all such duties and
responsibilities as are consistent and commensurate with your position and as
may be assigned to or required of you from time to time by the Company. You
shall perform such services, accept such responsibilities and discharge such
duties within the policies and guidelines established from time to time by the
Company, subject at all times and in all cases and respects to the ultimate
control and direction of the Company. The Company shall have the right to review
and revise your services, responsibilities and duties at any time and from time
to time during the Term (as defined below) in any and all respects, provided
--------
that any revised services, responsibilities and duties, taken as a whole,
continue to reflect your knowledge, skill and experience. Such services shall be
primarily performed in the Company's offices in San Francisco, California,
although you may be required to travel to other locations as necessary and
consistent with your position with the Company.
(b) Exclusive Employment. At all times during the Term, you shall
devote all of your business time, attention and energies to the performance,
fulfillment and satisfaction of your duties and responsibilities to the Company
under this Agreement, and shall not undertake or be engaged in any other
activities, whether or not pursued for gain, profit or other pecuniary
advantage, which could impair your ability to perform, fulfill and satisfy your
duties and responsibilities to the Company under this Agreement, in any case
without the prior written consent of the Company which
<PAGE>
consent will not be unreasonably withheld. Notwithstanding the foregoing
provision of this Section, any work that you perform for the companies listed on
Schedule A attached hereto (the "Exempted Companies") or any such Exempted
Company's subsidiaries or affiliates pursuant to any agreement with any Exempted
Company or any of Exempted Company's subsidiaries or affiliates, oral or
written, which is fully disclosed to the Company's Board of Directors, shall not
be deemed a conflict of interest, impropriety or breach of corporate duty with
the Company and any work that you perform for any Exempted Company or any of
Exempted Company's subsidiaries or affiliates from time to time, pursuant to any
agreement, oral or written, which is fully disclosed to the Company's Board of
Directors, whether as employee, officer, director or consultant to any Exempted
Company or any of Exempted Company's subsidiaries or affiliates shall not be
deemed a conflict of interest, impropriety or breach of corporate duty with the
Company.
(c) Affirmation of Fiduciary Responsibilities. At all times during
the Term, you shall perform, satisfy, fulfill and carry out your duties and
responsibilities to the Company under this Agreement with fidelity and loyalty,
in a diligent manner, to the best of your ability, experience and talent, and in
a manner consistent with your fiduciary responsibilities to the Company.
3. Compensation.
(a) Base Salary and Incentive Compensation. Your annual base salary
during the Term shall be paid at the annual rate of $250,000 for the remainder
of calendar year 1999, $275,000 for the calendar year 2000 and $300,000 for the
calendar year 2001 ("Base Salary"), payable in accordance with the Company's
standard payroll practices. Unless otherwise specified herein, the Company shall
make such deductions, withholdings and other payments from all sums payable
pursuant to this Agreement which you request or that are required by law for
taxes and other charges.
(b) Stock Options. You shall receive, as of the Effective Date, an
option (the "New Stock Option") to acquire 1,750,000 shares of Common Stock of
the Company (the "Option Shares"), at an exercise price equal to $0.50 per
share. The New Stock Option shall be immediately exercisable with respect to all
of the Option Shares, and the Company shall have the right to repurchase the
Option Shares at the exercise price in the event your employment is terminated.
The Company's right of repurchase shall expire with respect to one-sixth (1/6th)
of the Option Shares on the six month anniversary of the Vesting Commencement
Date (as set forth in your stock option agreement), and with respect to an
additional 1/36th of the Option Shares on the same day of each month during the
thirty (30) months thereafter or until your employment is earlier terminated.
All other terms governing such options shall be set out in the Company's
standard option agreement and stock option plan.
(c) Benefits Plans. You will be entitled to participate in or receive
benefits under the Company's employee benefit plans and policies in effect from
time to time in which you are eligible to participate, subject to the applicable
terms and conditions of the particular benefit plan. The Company may change,
amend, modify or terminate to the extent legally allowable, any benefit plan
from time to time and without prior notice. To the extent benefits provided by
the Company are affected by seniority (i.e., length of service), you shall be
credited for time you served at the
-2-
<PAGE>
Company, to the fullest extent permitted by law and consistent with the
Company's current benefit plans.
(d) Expenses. You shall be entitled to prompt reimbursement by the
Company for all reasonable ordinary and necessary travel, entertainment, and
other expenses incurred by you during the Term (in accordance with the policies
and procedures established by the Company for its senior executive officers) in
the performance of your duties and responsibilities under this Agreement,
provided, that you shall properly account for such expenses in accordance with
- --------
Company policies and procedures. Any necessary air travel shall be coach class
domestically and business class internationally.
(e) Vacation and Holidays. You shall be entitled to four (4) weeks
paid vacation and Company holidays in accordance with the Company's policies in
effect from time to time for its senior executive officers.
(f) Bonus. You shall be eligible to participate in any management
bonus plan or similar incentive compensation program adopted by the Company on
terms comparable to other senior officers of the Company.
(g) Other Benefits. During the Term the Company shall pay you the
following: (i) a monthly automobile allowance of Five Hundred Dollars ($500.00)
and (ii) free parking at corporate premises for Raifman, or if no such premises
shall exist, then a monthly parking allowance up to a maximum of Two Hundred
Dollars ($200.00).
4. Term; Termination; Severance Payments.
(a) Term. Unless otherwise terminated as hereinafter provided, the
term of your employment under this Agreement (the "Term") shall commence upon
the Effective Date and shall continue until and terminate on the date that is
the three year anniversary of the Effective Date. Upon expiration of the Term,
you shall be an "at-will" employee of the Company, subject to such policies,
benefits and practices and procedures that are then applicable with respect to
an at-will employee of the Company (the "IEC Policies"). Notwithstanding the
foregoing, the Company may terminate your employment with the Company during the
Term for Cause (as defined below).
(b) Cause. As used in this Agreement, "Cause" shall mean (i)
-----
conviction of a felony or a crime involving moral turpitude causing material
harm to the standing and reputation of the Company or (ii) any habitual neglect
or willful misconduct in the performance of Purchaser's duties to the Company
where such habitual negligence or willful misconduct has resulted in substantial
and material damage to the Company or its subsidiaries, in each as determined in
good faith by the Board of Directors of the Company.
(c) Termination and Severance Benefits.
(i) Termination for Cause or Resignation. If your employment is
terminated for Cause or if you resign your employment voluntarily, no other
compensation or
-3-
<PAGE>
payments will be provided to you for any periods following the date when such
termination of employment is effective.
(ii) Termination without Cause; Constructive Termination. If
your employment is terminated by the Company without Cause, or if you are
Constructively Terminated (as defined below), you will be entitled to receive
the severance payments provided for in Section 4(c)(iv) below (if any) upon such
termination. No other compensation or payments will be made pursuant to this
Agreement other than those to which you are entitled through your last day of
active service or under the applicable IEC Policies and benefit plans. For
purposes of this Section 4(c)(ii), the term "Constructively Terminated" shall
mean your voluntary termination, upon 30 days prior written notice to the
Company, following: (A) a material reduction or change in job duties,
responsibilities and requirements inconsistent with your position with the
Company and prior duties, responsibilities and requirements (B) any reductions
of your base compensation; or (C) your refusal to relocate to facility or
location more than 25 miles from the Company's current location.
(iii) Death or Disability.
(A) Your employment shall terminate in the event of your
death.
(B) The Company may terminate your employment for
Disability by giving you 30 days' advance notice in writing. For all purposes
under this Agreement, "Disability" shall mean that you, at the time notice is
given, have been unable to substantially perform your duties under this
Agreement for a period of not less than six (6) consecutive months as the result
of your incapacity due to physical or mental illness. In the event that you
resume the performance of substantially all of your duties hereunder before the
termination of your employment under this subparagraph (B) becomes effective,
the notice of termination shall automatically be deemed to have been revoked.
(C) No compensation or benefits will be paid or provided to
you under this Agreement on account of termination for death or Disability, or
for periods following the date when such a termination of employment is
effective. Your rights under the benefit plans of the Company in the event of
your death or Disability shall be determined under the provisions of those
plans.
(iv) Severance Payments. During the Term, in the event your
employment with the Company is terminated without cause or if you are
Constructively Terminated, the Company's sole obligation to you will be to (a)
pay you a lump sum severance payment ("Severance Payment") in the amount equal
to (I) 2/26 of your effective Base Salary for the year in which you are so
terminated for each complete month worked by you commencing April 1, 1998;
provided, however, the Severance Payment shall, in no case, exceed one year of
- -------- -------
your Base Salary for such year; and (II) any benefits set forth in Section 3(b)
through (g) of this Agreement owing to you prior to the Termination Date and (c)
permit you to participate under the Company's Benefits Plans for up to one year
following your termination with the Company.
-4-
<PAGE>
5. Assignment.
(a) Successors and Assigns. Any of the Company's affiliates may
assume the liabilities and obligations, and succeed to the rights and interests,
of the Company under this Agreement at any time and without limitation. In
addition to the foregoing, any successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise), or to all or substantially all of the Company's business and/or
assets, shall assume the obligations under this Agreement and agree expressly to
perform the obligations under this Agreement in the same manner and to the same
extent as the Company would be required to perform such obligations in the
absence of such succession. For all purposes of and under this Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which executes and delivers the assumption agreement required by this
Section 5, or which otherwise becomes bound by the terms of this Agreement by
operation of law. Any such assumption and/or succession under this Section 5
shall not be deemed to be a termination of your employment hereunder.
(b) The terms of this Agreement and all of your rights hereunder
shall inure to the benefit of, and be enforceable by, your personal or legal
representatives, executors, administrators, successor, heirs, distributees,
devisees or legatees.
6. Covenant Not to Compete.
(a) Definitions. As used in this Agreement, the terms:
(i) "Restricted Business" shall mean any business related to (i)
advertising, marketing, media placement or banner serving, (ii) enterprise
software applications and/or enterprise integration relating to online or
traditional (including, without limitation, television, print, direct mail,
radio or the like) advertising, marketing, media placement or banner serving or
(iii) the transacting of business, or shopping, purchasing, or subscribing to or
registering for services, products, programs or information, or downloading or
obtaining software programs or information; or participating in other similar
types of transactions, in each case which specifically arise from banners served
by the Company.
(ii) "Restricted Territory" shall mean the larger of: (A) all of
the countries of the world or (B) if (A) is found unenforceable, the countries
in which the Company's products are available during the term of the non-compete
obligations specified in this Section 6.
(b) Non-Compete. In consideration of: (i) the several agreements made
by the Company with you in and pursuant to the Reorganization Agreement, (ii)
the issuance by the Company to you of the New Stock Option and (iii) the
consideration payable to you hereunder, you agree that until: (A) the one (1)
year anniversary of the date of your termination of employment with the Company
or (B) in the event that the period set forth in clause (A) is determined to be
unenforceable by a court of competent jurisdiction, the maximum period
allowable, you will not, directly or indirectly, engage in (whether as an
officer, employee, consultant, director, proprietor, partner, consultant or
otherwise), or have any ownership interest in, or participate in the financing,
operation, management or control of, any person, firm,
-5-
<PAGE>
corporation or business that engages in a Restricted Business in a Restricted
Territory. It is agreed that ownership of no more than five percent (5%) of the
outstanding voting stock of a publicly-traded or privately-held corporation
shall not constitute a violation of this section. It is further agreed that the
foregoing consideration is not intended to constitute liquidated damages for a
violation of this section.
(c) Non-Solicit. You agree that until the expiration of the non-
compete obligations specified above in subsection (b), you shall not:
(i) take any action to, or do anything reasonably intended to,
divert business from the Company, or any of its affiliates, or influence or
attempt to influence any retailer, dealer, vendor, supplier, customer or
potential customer of the Company, or any of its affiliates, in each case as
existing on the date of your termination (the "Termination Date"), to cease
doing business with the Company, or any of its affiliates, as the case may be,
or to alter its business relationship with the Company, or any of its
affiliates, in each case as existing on the Termination Date; or
(ii) recruit, attempt to hire, solicit, or assist others in
recruiting or hiring, any person who is an employee of the Company, or any of
its affiliates, in each case as of the Termination Date, or induce or attempt to
induce any such employee to terminate his or her employment with the Company, or
any of its affiliates.
7. REMEDIES. YOU HEREBY RECOGNIZE AND ACKNOWLEDGE THAT A MATERIAL
VIOLATION OF THE TERMS AND PROVISIONS OF THIS SECTION 7 WOULD CAUSE IRREPARABLE
INJURY TO THE COMPANY, OR ONE OR MORE OF ITS AFFILIATES, AS THE CASE MAY BE, FOR
WHICH THE COMPANY, OR ANY OF ITS AFFILIATES, WOULD HAVE NO ADEQUATE REMEDY AT
LAW. ACCORDINGLY, IN THE EVENT THAT YOU SHALL FAIL TO MATERIALLY COMPLY WITH THE
TERMS AND PROVISIONS OF THIS SECTION 7 IN ANY RESPECT, AND YOU HAVE BEEN GIVEN
NOTICE OF SUCH VIOLATION AND AN OPPORTUNITY TO CURE SUCH VIOLATION, THE COMPANY,
OR ANY OF ITS AFFILIATES, SHALL BE ENTITLED TO PRELIMINARY AND OTHER INJUNCTIVE
RELIEF AND TO SPECIFIC PERFORMANCE OF THE TERMS AND PROVISIONS HEREOF. IN
FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, YOU HEREBY WAIVE ANY CLAIM
OR DEFENSE RELATING TO ANY VIOLATION OR BREACH BY YOU OF THE TERMS AND
PROVISIONS OF THIS SECTION 7 THAT THE COMPANY, OR ANY OF ITS AFFILIATES, HAS AN
ADEQUATE REMEDY AT LAW OR THAT MONEY DAMAGES WOULD PROVIDE AN ADEQUATE REMEDY
FOR SUCH VIOLATION OR BREACH.
8. Severability. The parties intend that the covenants contained in the
preceding paragraphs shall be construed as a series of separate covenants, one
for each county, city, state and other political subdivision of each country in
the Restricted Territory. Except for geographic coverage, each separate covenant
shall be deemed identical in terms to the covenant contained in the preceding
paragraphs. If, in any judicial proceeding, a court shall refuse to enforce any
of the separate covenants (or any part thereof) deemed included in said
paragraphs, then such
-6-
<PAGE>
unenforceable covenant (or such part) shall be deemed eliminated from this
Agreement for the purpose of those proceedings to the extent necessary to permit
the remaining separate covenants (or portions thereof) to be enforced by such
court. It is the intent of the parties that the covenants set forth herein be
enforced to the maximum degree permitted by applicable law.
9. Entire Agreement. This Agreement and the Confidential Information and
Invention Assignment Agreement set forth the entire agreement and understanding
of the parties with respect to the subject matter hereof and thereof, and
supersede any other written or oral negotiations, agreements, understandings,
representations or practices concerning such subject matter hereof (including
without limitation any employment agreement or offer letter extended by the
Company at any time). In the event of any conflict between the provisions hereof
and the provisions of the Confidential Information and Invention Assignment
Agreement, the provisions hereof shall control.
10. Notices. Any notice, report or other communication required or
permitted to be given hereunder shall be in writing and shall be deemed given on
the date of delivery if delivered, or five days after mailing, if mailed first-
class mail, postage prepaid, return receipt requested, or delivered to a
nationwide overnight delivery service charges prepaid, return receipt requested,
to the following addresses:
(a) If to the Company: Internet Extra Corporation
131 Steuart Street, Fourth Floor
San Francisco, CA 94105
Attention: General Counsel
(b) If to you: To the address for notice set forth on the
signature page hereto or to such other
address as any party hereto may hereafter
designate by notice given as herein provided.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of California without giving effect to principles
regarding conflict of laws. Any action or proceeding brought by any party
against another arising out of or related to this Agreement shall be brought in
a state or federal court of competent subject matter jurisdiction located within
San Francisco County in the State of California, and each of the parties to this
Agreement consents to the personal jurisdiction of those courts.
12. Arbitration. In the event of any dispute or claim relating to or
arising out of our employment relationship, you and the Company agree that all
such disputes shall be fully and finally resolved by binding arbitration
conducted by the American Arbitration Association in San Francisco, California.
HOWEVER, we agree that this arbitration provision shall not apply to any
disputes or claims relating to or arising out of the misuse or misappropriation
of the Company's trade secrets or proprietary information.
-7-
<PAGE>
13. Amendments. This Agreement shall not be changed or modified in whole
or in part except by an instrument in writing signed by the Company and you nor
shall any covenant or provision of this Agreement be waived except by an
instrument in writing signed by the party against whom enforcement of such
waiver is sought.
14. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which shall together constitute
one and the same agreement.
15. Effect of Headings. The section headings herein are for convenience
only and shall not effect the construction or interpretation of the Agreement.
16. Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to either party upon any breach or default of the other party
hereto shall impair any such right, power or remedy of such non-defaulting
party, nor shall it be construed to be a waiver of any such breach or default or
an acquiescence therein, or of any similar breach or default thereafter
occurring; nor shall any waiver of a breach or default be deemed to be a waiver
of any other breach or default.
17. Rules of Construction. You and the Company each acknowledge that they
have been represented by, or had an opportunity to consult with, competent
counsel during the negotiation and execution of this Agreement and therefore,
waive the application of any law, regulation, holding or rule of construction
providing that ambiguities in any agreement will be construed against the party
drafting such agreement.
[The remainder of this page is intentionally left blank.]
-8-
<PAGE>
To indicate your acceptance of the terms of this Agreement, please sign and
date this letter in the space provided below and return it to me. A duplicate
original is enclosed for your records. This letter, along with the agreement
relating to proprietary rights between you and the Company, set forth the terms
of your employment with the Company and supersede any prior representations or
agreements, whether written or oral.
We look forward to working with you at Internet Extra Corporation.
Sincerely,
Internet Extra Corporation
/s/ Jon Logan Edwards
-----------------------------
Jon Logan Edwards
President, Founder & Director
ACCEPTED AND AGREED TO THIS
_____ DAY OF FEBRUARY, 1999.
/s/ Gregory R. Raifman
----------------------------
Gregory R. Raifman
Address for notices:
360 Mountain Avenue
Piedmont, California 94611
Phone: (510) 923-0666
Fax: (510) 923-0667
Enclosures: Duplicate Original Letter
Option Agreement
Confidential Information and Invention Assignment Agreement
-9-
<PAGE>
SCHEDULE A
Schedule of Exempted Companies
------------------------------
1. Raifman & Edwards LLP
2. PointBreak Ventures, LLC (including, without limitation, the existing
portfolio companies of PointBreak Ventures, LLC)
<PAGE>
INTERNET EXTRA CORPORATION
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with Internet Extra Corporation, its
subsidiaries, affiliates, successors or assigns (collectively, the "Company"),
and in consideration of my employment with the Company and my receipt of the
compensation now and hereafter paid to me by Company. I agree to the following:
1. Confidential Information.
------------------------
(a) Company Information. I agree at all times during the term of my
-------------------
employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without written authorization of the Board of Directors of the
Company, any Confidential Information of the Company. I understand that
"Confidential Information" means any Company proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, customer, vendor and contractor lists and
customers (including, but not limited to, customers of the Company on whom I
called or with whom I became acquainted during the term of my employment),
markets, software, developments, inventions, processes, formulas, technology,
designs, drawings, engineering, hardware configuration information, marketing,
finances or other business information disclosed to me by the Company either
directly or indirectly in writing, orally or by drawings or observation of parts
or equipment. I further understand that Confidential Information does not
include any of the foregoing items which has become publicly known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) Former Employer Information. I agree that I will not, during my
---------------------------
employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that I will not bring into the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(c) Third Party Information. I recognize that the Company has
-----------------------
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
<PAGE>
2. Inventions.
----------
(a) Inventions Retained and Licensed. I have attached hereto, as
--------------------------------
Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to my
employment with the Company (collectively referred to as "Prior Inventions"),
which belong to me, which relate to the Company's proposed business, products or
research and development, and which are not assigned to the Company hereunder;
or, if no such list is attached, I represent that there are no such Prior
Inventions. If in the course of my employment with the Company, I incorporate
into a Company product, process or machine a Prior Invention owned by me or in
which I have an interest, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make,
have made, modify, use and sell such Prior Invention as part of or in connection
with such product, process or machine.
(b) Assignment of Inventions. I agree that I will promptly make full
------------------------
written disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and hereby assign to the Company, or its designee, all
my right, title, and interest in and to any and all inventions, original works
of authorship, developments, concepts, improvements or trade secrets, whether or
not patentable or registrable under copyright or similar laws, which I may
solely or jointly conceive or develop or reduce to practice, or cause to be
conceived or developed or reduced to practice, during the period of time I am in
the employ of the Company (collectively referred to as "Inventions"), except as
provided in Section 2(f) below. I further acknowledge that all original works of
authorship which are made by me (solely or jointly with others) within the scope
of and during the period of my employment with the Company and which are
protectable by copyright are "works made for hire," as that term is defined in
the United States Copyright Act.
(c) Inventions Assigned to the United States. I agree to assign to
----------------------------------------
the United States government all my right, title, and interest in and to any and
all Inventions whenever such full title is required to be in the United States
by a contract between the Company and the United States or any of its agencies.
(d) Maintenance of Records. I agree to keep and maintain adequate
----------------------
and current written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain the sole
property of the Company at all times.
(e) Patent and Copyright Registrations. I agree to assist the
----------------------------------
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my
<PAGE>
obligation to execute or cause to be executed, when it is in my power to do so,
any such instrument or papers shall continue after the termination of this
Agreement. If the Company is unable because of my mental or physical incapacity
or for any other reason to secure my signature to apply for or to pursue any
application for any United States or foreign patents or copyright registrations
covering Inventions or original works of authorship assigned to the Company as
above, then I hereby irrevocably designate and appoint the Company and its duly
authorized officers and agents as my agent and attorney in fact, to act for and
in my behalf and stead to execute and file any such applications and to do all
other lawfully permitted acts to further the prosecution and issuance of letters
patent or copyright registrations thereon with the same legal force and effect
as if executed by me.
(f) Exception to Assignments. I understand that the provisions of
------------------------
this Agreement requiring assignment of Inventions to the Company do not apply to
any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Exhibit B). I will advise the Company
promptly in writing of any inventions that I believe meet the criteria in
California Labor Code Section 2870 and not otherwise disclosed on Exhibit A.
3. Conflicting Employment. I agree that, during the term of my
----------------------
employment with the Company, I will not engage in any other employment,
occupation, consulting other business activity directly related to the business
in which the Company and/or its customers are now involved or becomes involved
during the term of my employment, nor will I engage in any other activities that
conflict with my obligations to the Company.
4. At Will Employment. I understand that my employment with the Company
------------------
is "at will" and is for no specified term. As a result, I understand that the
Company can terminate my employment at any time and that, similarly, I am free
to terminate my employment with the Company at any time.
5. Returning Company Documents. I agree that, at the time of leaving the
---------------------------
employ of the Company, I will deliver to the Company (and will not keep in my
possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other documents or
property, or reproductions of any aforementioned items developed by me pursuant
to my employment with the Company or otherwise belonging to the Company, its
successors or assigns. In the event of the termination of my employment, I agree
to sign and deliver the "Termination Certification" attached hereto as Exhibit
C.
6. Notification to New Employer. In the event that I leave the employ of
----------------------------
the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
7. Solicitation of Employees. I agree that for a period of twelve (12)
-------------------------
months immediately following the termination of my relationship with the Company
for any reason, whether with or without cause, I shall not either directly or
indirectly solicit, induce, recruit or encourage any of the Company's employees
to leave their employment, or take away such employees, or attempt to
<PAGE>
solicit, induce, recruit, encourage or take away employees of the Company,
either for myself or for any other person or entity.
8. Conflict of Interest Guidelines. I agree to diligently adhere to the
-------------------------------
Conflict of Interest Guidelines attached as Exhibit D hereto.
9. Representations. I agree to execute any proper oath or verify any
---------------
proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
10. Arbitration and Equitable Relief.
--------------------------------
(a) Arbitration. Except as provided in Section 10(b) below, I agree
-----------
that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement, shall be
settled by arbitration to be held in San Francisco County, California, in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction. The
Company and I shall each pay one-half of the costs and expenses of such
arbitration, and each of us shall separately pay our counsel fees and expenses.
(b) Equitable Remedies. I agree that it would be impossible or
------------------
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 1, 2, 3, and 5 herein. Accordingly, I agree that
if I breach any of such Sections, the Company will have available, in addition
to any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any such provision of this Agreement. I further agree
that no bond or other security shall be required in obtaining, such equitable
relief and I hereby consent to the issuance of such injunction and to the
ordering of specific performance.
11. General Provisions.
------------------
(a) Governing Law; Consent to Personal Jurisdiction. This Agreement
-----------------------------------------------
will be governed by the laws of the State of California. I hereby expressly
consent to the personal jurisdiction of the state and federal courts located in
California for any lawsuit filed there against me by the Company arising from or
relating to this Agreement.
(b) Entire Agreement. This Agreement sets forth the entire agreement
----------------
and understanding between the Company and me relating to the subject matter
herein and merges all prior discussions between us. No modification for
amendment to this Agreement, nor any waiver of any rights under this agreement,
will be effective unless in writing signed by the party to be charged.
<PAGE>
Any subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) Severability. If one or more of the provisions in this Agreement
------------
are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) Successors and Assigns. This Agreement will be binding upon my
----------------------
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
INTERNET EXTRA CORPORATION
By: ______________________________
Name
Title
AGREED TO AND ACCEPTED:
Signature
Date:
Witness
<PAGE>
EXHIBIT A
---------
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
Identifying Number or Brief
Title Date Description
----- ---- -----------
______ No inventions or improvements
______ Additional Sheets Attached
Signature of Employee:
Print Name of Employee:
Date:_______________________
<PAGE>
EXHIBIT B
---------
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
<PAGE>
EXHIBIT C
---------
INTERNET EXTRA CORPORATION
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed
to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to Internet Extra Corporation, its subsidiaries, affiliates,
successors or assigns (collectively, the "Company").
I further certify that I have complied with all the terms of the Company's
Employment, Confidential Information and Invention Assignment Agreement signed
by me, including the reporting of any inventions and original works of
authorship (as defined therein), conceived or made by me (solely or jointly with
others) covered by that agreement.
I further agree that, in compliance with the Employment, Confidential
Information and Invention Assignment Agreement, I will preserve as confidential
all trade secrets, confidential knowledge, data or other proprietary information
relating to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not hire
any employees of the Company and I will not directly or indirectly solicit,
induce, recruit or encourage any of the Company's employees to leave their
employment, or take away such employees, or attempt to solicit, induce, recruit,
encourage or take away any employees of the Company, either for myself or for
any other person or entity.
Date:
_____________________________________
(Employee's Signature)
_____________________________________
(Type/Print Employee's Name)
<PAGE>
EXHIBIT D
---------
INTERNET EXTRA CORPORATION
CONFLICT OF INTEREST GUIDELINES
It is the policy of Internet Extra Corporation, its subsidiaries,
affiliates, successors or assigns (collectively, the "Company") to conduct its
affairs in strict compliance with the letter and spirit of the law and to adhere
to the highest principles of business ethics. Accordingly, all officers,
employees and independent contractors must avoid activities which are in
conflict, or give the appearance of being in conflict, with these principles and
with the interests of the Company. The following are potentially compromising
situations which must be avoided. Any exceptions must be reported to the
President and written approval for continuation must be obtained.
1. Revealing confidential information to outsiders or misusing
confidential information. Unauthorized divulging of information is a violation
of this policy whether or not for personal gain and whether or not harm to the
Company is intended. (The Employment, Confidential Information and Invention
Assignment Agreement elaborates on this principle and is a binding agreement.)
2. Accepting or offering substantial gifts, excessive entertainment,
favors or payments may be deemed to constitute undue influence or otherwise be
improper or embarrassing to the Company.
3. Initiating or approving personnel actions affecting reward or
punishment of employees or applicants where there is a family relationship or is
or appears to be a personal or social involvement.
4. Initiating or approving any form of personal or social harassment of
employees.
5. Investing or holding outside directorships in suppliers, customers or
competing companies, including financial speculation, where such investment or
directorship might influence in any manner a decision or course of action of the
Company.
6. Borrowing from or lending to employees, customers or suppliers.
7. Acquiring a real estate interest adverse to the Company.
8. Improperly using or disclosing to the Company any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity with whom obligations of confidentiality exist.
9. Unlawfully discussing prices, costs, customers, sales or markets with
competing companies or their employees.
10. Making any unlawful agreements with distributors with respect to
prices.
<PAGE>
11. Improperly using or authorizing the use of any inventions which are
the subject of patent claims of any other person or entity.
12. Engaging in any conduct which is not in the best interest of the
Company.
Each officer, employee and independent contractor must take every necessary
action to ensure compliance with these guidelines and to bring problem areas to
the attention of higher management for review. Violations of this conflict of
interest policy may result in discharge without warning.
<PAGE>
EXHIBIT 10.8
Internet Extra Corporation
131 Steuart Street, Fourth Floor
San Francisco, California 94105
February 19, 1999
Mr. Jon Logan Edwards
1602 Rancho View Road
Lafayette, California 94549
Dear Jon:
I am very pleased to offer you the position of President of Internet Extra
Corporation (the "Company") commencing as of the date hereof. We at the Company
are delighted that you have decided to join our enterprise and help MediaPlex
become a success. I would like to take this opportunity to set out the terms of
your employment more fully:
1. Effectiveness. This agreement (this "Agreement") is being entered into
effective as of the date hereof (the "Effective Date").
2. Employment.
(a) Duties. The Company shall employ you, and you shall initially
serve as, the Company's Chairman & Chief Executive Officer, subject at all times
and in all cases and respects to the ultimate control and direction of the board
of directors of the Company. In such capacity, you shall perform all such
services, accept all such responsibilities and discharge all such duties and
responsibilities as are consistent and commensurate with your position and as
may be assigned to or required of you from time to time by the Company. You
shall perform such services, accept such responsibilities and discharge such
duties within the policies and guidelines established from time to time by the
Company, subject at all times and in all cases and respects to the ultimate
control and direction of the Company. The Company shall have the right to review
and revise your services, responsibilities and duties at any time and from time
to time during the Term (as defined below) in any and all respects, provided
--------
that any revised services, responsibilities and duties, taken as a whole,
continue to reflect your knowledge, skill and experience. Such services shall be
primarily performed in the Company's offices in San Francisco, California,
although you may be required to travel to other locations as necessary and
consistent with your position with the Company.
(b) Exclusive Employment. At all times during the Term, you shall
devote all of your business time, attention and energies to the performance,
fulfillment and satisfaction of your duties and responsibilities to the Company
under this Agreement, and shall not undertake or be engaged in any other
activities, whether or not pursued for gain, profit or other pecuniary
advantage, which could impair your ability to perform, fulfill and satisfy your
duties and responsibilities to the Company under this Agreement, in any case
without the prior written consent of the Company which
<PAGE>
consent will not be unreasonably withheld. Notwithstanding the foregoing
provision of this Section, any work that you perform for the companies listed on
Schedule A attached hereto (the "Exempted Companies") or any such Exempted
Company's subsidiaries or affiliates pursuant to any agreement with any Exempted
Company or any of Exempted Company's subsidiaries or affiliates, oral or
written, which is fully disclosed to the Company's Board of Directors, shall not
be deemed a conflict of interest, impropriety or breach of corporate duty with
the Company and any work that you perform for any Exempted Company or any of
Exempted Company's subsidiaries or affiliates from time to time, pursuant to any
agreement, oral or written, which is fully disclosed to the Company's Board of
Directors, whether as employee, officer, director or consultant to any Exempted
Company or any of Exempted Company's subsidiaries or affiliates shall not be
deemed a conflict of interest, impropriety or breach of corporate duty with the
Company.
(c) Affirmation of Fiduciary Responsibilities. At all times during
the Term, you shall perform, satisfy, fulfill and carry out your duties and
responsibilities to the Company under this Agreement with fidelity and loyalty,
in a diligent manner, to the best of your ability, experience and talent, and in
a manner consistent with your fiduciary responsibilities to the Company.
3. Compensation.
(a) Base Salary and Incentive Compensation. Your annual base salary
during the Term shall be paid at the annual rate of $250,000 for the remainder
of calendar year 1999, $275,000 for the calendar year 2000 and $300,000 for the
calendar year 2001 ("Base Salary"), payable in accordance with the Company's
standard payroll practices. Unless otherwise specified herein, the Company shall
make such deductions, withholdings and other payments from all sums payable
pursuant to this Agreement which you request or that are required by law for
taxes and other charges.
(b) Stock Options. You shall receive, as of the Effective Date, an
option (the "New Stock Option") to acquire 1,500,000 shares of Common Stock of
the Company (the "Option Shares"), at an exercise price equal to $0.50 per
share. The New Stock Option shall be immediately exercisable with respect to all
of the Option Shares, and the Company shall have the right to repurchase the
Option Shares at the exercise price in the event your employment is terminated.
The Company's right of repurchase shall expire with respect to one-sixth (1/6th)
of the Option Shares on the six month anniversary of the Vesting Commencement
Date (as set forth in your stock option agreement), and with respect to an
additional 1/36th of the Option Shares on the same day of each month during the
thirty (30) months thereafter or until your employment is earlier terminated.
All other terms governing such options shall be set out in the Company's
standard option agreement and stock option plan.
(c) Benefits Plans. You will be entitled to participate in or receive
benefits under the Company's employee benefit plans and policies in effect from
time to time in which you are eligible to participate, subject to the applicable
terms and conditions of the particular benefit plan. The Company may change,
amend, modify or terminate to the extent legally allowable, any benefit plan
from time to time and without prior notice. To the extent benefits provided by
the Company are affected by seniority (i.e., length of service), you shall be
credited for time you served at the Company, to the fullest extent permitted by
law and consistent with the Company's current benefit plans.
-2-
<PAGE>
(d) Expenses. You shall be entitled to prompt reimbursement by the
Company for all reasonable ordinary and necessary travel, entertainment, and
other expenses incurred by you during the Term (in accordance with the policies
and procedures established by the Company for its senior executive officers) in
the performance of your duties and responsibilities under this Agreement;
provided, that you shall properly account for such expenses in accordance with
- --------
Company policies and procedures. Any necessary air travel shall be coach class
domestically and business class internationally .
(e) Vacation and Holidays. You shall be entitled to four (4) weeks
paid vacation and Company holidays in accordance with the Company's policies in
effect from time to time for its senior executive officers.
(f) Bonus. You shall be eligible to participate in any management
bonus plan or similar incentive compensation program adopted by the Company on
terms comparable to other senior officers of the Company.
(g) Other Benefits. During the Term the Company shall pay you the
following: (i) a monthly automobile allowance of Five Hundred Fifty Dollars
($550.00) and (ii) free parking at corporate premises for Raifman, or if no such
premises shall exist, then a monthly parking allowance up to a maximum of Two
Hundred Dollars ($200.00).
4. Term; Termination; Severance Payments.
(a) Term. Unless otherwise terminated as hereinafter provided, the
term of your employment under this Agreement (the "Term") shall commence upon
the Effective Date and shall continue until and terminate on the date that is
the three year anniversary of the Effective Date. Upon expiration of the Term,
you shall be an "at-will" employee of the Company, subject to such policies,
benefits and practices and procedures that are then applicable with respect to
an at-will employee of the Company (the "IEC Policies"). Notwithstanding the
foregoing, the Company may terminate your employment with the Company during the
Term for Cause (as defined below).
(b) Cause. As used in this Agreement, "Cause" shall mean (i)
-----
conviction of a felony or a crime involving moral turpitude causing material
harm to the standing and reputation of the Company or (ii) any habitual neglect
or willful misconduct in the performance of Purchaser's duties to the Company
where such habitual negligence or willful misconduct has resulted in substantial
and material damage to the Company or its subsidiaries, in each as determined in
good faith by the Board of Directors of the Company.
(c) Termination and Severance Benefits.
(i) Termination for Cause or Resignation. If your employment is
terminated for Cause or if you resign your employment voluntarily, no other
compensation or payments will be provided to you for any periods following the
date when such termination of employment is effective.
(ii) Termination without Cause; Constructive Termination. If your
employment is terminated by the Company without Cause, or if you are
Constructively Terminated
-3-
<PAGE>
(as defined below), you will be entitled to receive the severance payments
provided for in Section 4(c)(iv) below (if any) upon such termination. No other
compensation or payments will be made pursuant to this Agreement other than
those to which you are entitled through your last day of active service or under
the applicable IEC Policies and benefit plans. For purposes of this Section
4(c)(ii), the term "Constructively Terminated" shall mean your voluntary
termination, upon 30 days prior written notice to the Company, following: (A) a
material reduction or change in job duties, responsibilities and requirements
inconsistent with your position with the Company and prior duties,
responsibilities and requirements; (B) any reductions of your base compensation;
or (C) your refusal to relocate to facility or location more than 25 miles from
the Company's current location.
(iii) Death or Disability.
(A) Your employment shall terminate in the event of your
death.
(B) The Company may terminate your employment for
Disability by giving you 30 days' advance notice in writing. For all purposes
under this Agreement, "Disability" shall mean that you, at the time notice is
given, have been unable to substantially perform your duties under this
Agreement for a period of not less than six (6) consecutive months as the result
of your incapacity due to physical or mental illness. In the event that you
resume the performance of substantially all of your duties hereunder before the
termination of your employment under this subparagraph (B) becomes effective,
the notice of termination shall automatically be deemed to have been revoked.
(C) No compensation or benefits will be paid or provided
to you under this Agreement on account of termination for death or Disability,
or for periods following the date when such a termination of employment is
effective. Your rights under the benefit plans of the Company in the event of
your death or Disability shall be determined under the provisions of those
plans.
(iv) Severance Payments. During the Term, in the event your
employment with the Company is terminated without cause or if you are
Constructively Terminated, the Company's sole obligation to you will be to (a)
pay you a lump sum severance payment ("Severance Payment") in the amount equal
to (I) 2/26 of your effective Base Salary for the year in which you are so
terminated for each complete month worked by you commencing April 1, 1998;
provided, however, the Severance Payment shall, in no case, exceed one year of
- -------- -------
your Base Salary for such year; and (II) any benefits set forth in Section 3(b)
through (g) of this Agreement owing to you prior to the Termination Date and (b)
permit you to participate under the Company's Benefits Plans for up to one year
following your termination with the Company.
5. Assignment.
(a) Successors and Assigns. Any of the Company's affiliates may
assume the liabilities and obligations, and succeed to the rights and interests,
of the Company under this Agreement at any time and without limitation. In
addition to the foregoing, any successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation,
-4-
<PAGE>
liquidation or otherwise), or to all or substantially all of the Company's
business and/or assets, shall assume the obligations under this Agreement and
agree expressly to perform the obligations under this Agreement in the same
manner and to the same extent as the Company would be required to perform such
obligations in the absence of such succession. For all purposes of and under
this Agreement, the term "Company" shall include any successor to the Company's
business and/or assets which executes and delivers the assumption agreement
required by this Section 5, or which otherwise becomes bound by the terms of
this Agreement by operation of law. Any such assumption and/or succession under
this Section 5 shall not be deemed to be a termination of your employment
hereunder.
(b) The terms of this Agreement and all of your rights hereunder
shall inure to the benefit of, and be enforceable by, your personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees or legatees.
6. Covenant Not to Compete.
(a) Definitions. As used in this Agreement, the terms:
(i) "Restricted Business" shall mean any business related to (i)
advertising, marketing, media placement or banner serving, (ii) enterprise
software applications and/or enterprise integration relating to online or
traditional (including, without limitation, television, print, direct mail,
radio or the like) advertising, marketing, media placement or banner serving or
(iii) the transacting of business, or shopping, purchasing, or subscribing to or
registering for services, products, programs or information, or downloading or
obtaining software programs or information; or participating in other similar
types of transactions, in each case which specifically arise from banners served
by the Company.
(ii) "Restricted Territory" shall mean the larger of: (A) all of
the countries of the world or (B) if (A) is found unenforceable, the countries
in which the Company's products are available during the term of the non-compete
obligations specified in this Section 6.
(b) Non-Compete. In consideration of: (i) the several agreements made
by the Company with you in and pursuant to the Reorganization Agreement, (ii)
the issuance by the Company to you of the New Stock Option and (iii) the
consideration payable to you hereunder, you agree that until: (A) the one (1)
year anniversary of the date of your termination of employment with the Company
or (B) in the event that the period set forth in clause (A) is determined to be
unenforceable by a court of competent jurisdiction, the maximum period
allowable, you will not, directly or indirectly, engage in (whether as an
officer, employee, consultant, director, proprietor, partner, consultant or
otherwise), or have any ownership interest in, or participate in the financing,
operation, management or control of, any person, firm, corporation or business
that engages in a Restricted Business in a Restricted Territory. It is agreed
that ownership of no more than five percent (5%) of the outstanding voting stock
of a publicly-traded or privately-held corporation shall not constitute a
violation of this section. It is further agreed that the foregoing consideration
is not intended to constitute liquidated damages for a violation of this
section.
-5-
<PAGE>
(c) Non-Solicit. You agree that until the expiration of the non-
compete obligations specified above in subsection (b), you shall not:
(i) take any action to, or do anything reasonably intended to,
divert business from the Company, or any of its affiliates, or influence or
attempt to influence any retailer, dealer, vendor, supplier, customer or
potential customer of the Company, or any of its affiliates, in each case as
existing on the date of your termination (the "Termination Date"), to cease
doing business with the Company, or any of its affiliates, as the case may be,
or to alter its business relationship with the Company, or any of its
affiliates, in each case as existing on the Termination Date; or
(ii) recruit, attempt to hire, solicit, or assist others in
recruiting or hiring, any person who is an employee of the Company, or any of
its affiliates, in each case as of the Termination Date, or induce or attempt to
induce any such employee to terminate his or her employment with the Company, or
any of its affiliates.
7. REMEDIES. YOU HEREBY RECOGNIZE AND ACKNOWLEDGE THAT A MATERIAL
VIOLATION OF THE TERMS AND PROVISIONS OF THIS SECTION 7 WOULD CAUSE IRREPARABLE
INJURY TO THE COMPANY, OR ONE OR MORE OF ITS AFFILIATES, AS THE CASE MAY BE, FOR
WHICH THE COMPANY, OR ANY OF ITS AFFILIATES, WOULD HAVE NO ADEQUATE REMEDY AT
LAW. ACCORDINGLY, IN THE EVENT THAT YOU SHALL FAIL TO MATERIALLY COMPLY WITH THE
TERMS AND PROVISIONS OF THIS SECTION 7 IN ANY RESPECT, AND YOU HAVE BEEN GIVEN
NOTICE OF SUCH VIOLATION AND AN OPPORTUNITY TO CURE SUCH VIOLATION, THE COMPANY,
OR ANY OF ITS AFFILIATES, SHALL BE ENTITLED TO PRELIMINARY AND OTHER INJUNCTIVE
RELIEF AND TO SPECIFIC PERFORMANCE OF THE TERMS AND PROVISIONS HEREOF. IN
FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, YOU HEREBY WAIVE ANY CLAIM
OR DEFENSE RELATING TO ANY VIOLATION OR BREACH BY YOU OF THE TERMS AND
PROVISIONS OF THIS SECTION 7 THAT THE COMPANY, OR ANY OF ITS AFFILIATES, HAS AN
ADEQUATE REMEDY AT LAW OR THAT MONEY DAMAGES WOULD PROVIDE AN ADEQUATE REMEDY
FOR SUCH VIOLATION OR BREACH.
8. Severability. The parties intend that the covenants contained in the
preceding paragraphs shall be construed as a series of separate covenants, one
for each county, city, state and other political subdivision of each country in
the Restricted Territory. Except for geographic coverage, each separate
covenant shall be deemed identical in terms to the covenant contained in the
preceding paragraphs. If, in any judicial proceeding, a court shall refuse to
enforce any of the separate covenants (or any part thereof) deemed included in
said paragraphs, then such
-6-
<PAGE>
unenforceable covenant (or such part) shall be deemed eliminated from this
Agreement for the purpose of those proceedings to the extent necessary to permit
the remaining separate covenants (or portions thereof) to be enforced by such
court. It is the intent of the parties that the covenants set forth herein be
enforced to the maximum degree permitted by applicable law.
9. Entire Agreement. This Agreement and the Confidential Information and
Invention Assignment Agreement set forth the entire agreement and understanding
of the parties with respect to the subject matter hereof and thereof, and
supersede any other written or oral negotiations, agreements, understandings,
representations or practices concerning such subject matter hereof (including
without limitation any employment agreement or offer letter extended by the
Company at any time). In the event of any conflict between the provisions hereof
and the provisions of the Confidential Information and Invention Assignment
Agreement, the provisions hereof shall control.
10. Notices. Any notice, report or other communication required or
permitted to be given hereunder shall be in writing and shall be deemed given on
the date of delivery if delivered, or five days after mailing, if mailed first-
class mail, postage prepaid, return receipt requested, or delivered to a
nationwide overnight delivery service charges prepaid, return receipt requested,
to the following addresses:
(a) If to the Company: Internet Extra Corporation
131 Steuart Street, Fourth Floor
San Francisco, CA 94105
Attention: General Counsel
(b) If to you: To the address for notice set forth
on the signature page hereto or to
such other address as any party
hereto may hereafter designate
by notice given as herein
provided.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of California without giving effect to principles
regarding conflict of laws. Any action or proceeding brought by any party
against another arising out of or related to this Agreement shall be brought in
a state or federal court of competent subject matter jurisdiction located within
San Francisco County in the State of California, and each of the parties to this
Agreement consents to the personal jurisdiction of those courts.
12. Arbitration. In the event of any dispute or claim relating to or
arising out of our employment relationship, you and the Company agree that all
such disputes shall be fully and finally resolved by binding arbitration
conducted by the American Arbitration Association in San Francisco, California.
HOWEVER, we agree that this arbitration provision shall not apply to any
disputes or claims relating to or arising out of the misuse or misappropriation
of the Company's trade secrets or proprietary information.
-7-
<PAGE>
13. Amendments. This Agreement shall not be changed or modified in whole
or in part except by an instrument in writing signed by the Company and you nor
shall any covenant or provision of this Agreement be waived except by an
instrument in writing signed by the party against whom enforcement of such
waiver is sought.
14. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which shall together constitute
one and the same agreement.
15. Effect of Headings. The section headings herein are for convenience
only and shall not effect the construction or interpretation of the Agreement.
16. Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to either party upon any breach or default of the other party
hereto shall impair any such right, power or remedy of such non-defaulting
party, nor shall it be construed to be a waiver of any such breach or default or
an acquiescence therein, or of any similar breach or default thereafter
occurring; nor shall any waiver of a breach or default be deemed to be a waiver
of any other breach or default.
17. Rules of Construction. You and the Company each acknowledge that they
have been represented by, or had an opportunity to consult with, competent
counsel during the negotiation and execution of this Agreement and therefore,
waive the application of any law, regulation, holding or rule of construction
providing that ambiguities in any agreement will be construed against the party
drafting such agreement.
[The remainder of this page is intentionally left blank.]
-8-
<PAGE>
To indicate your acceptance of the terms of this Agreement, please sign and
date this letter in the space provided below and return it to me. A duplicate
original is enclosed for your records. This letter, along with the agreement
relating to proprietary rights between you and the Company, set forth the terms
of your employment with the Company and supersede any prior representations or
agreements, whether written or oral.
We look forward to working with you at Internet Extra Corporation.
Sincerely,
Internet Extra Corporation
/s/ Gregory R. Raifman
------------------------------------
Gregory R. Raifman
Chairman & Chief Executive Officer
ACCEPTED AND AGREED TO THIS
_____ DAY OF FEBRUARY, 1999.
/s/ Jon Logan Edwards
-------------------------
Address for notices:
1602 Rancho View Road
Lafayette, CA 94549
Phone: (925) 945-8028
Enclosures: Duplicate Original Letter
Option Agreement
Confidential Information and Invention Assignment Agreement
-9-
<PAGE>
SCHEDULE A
Schedule of Exempted Companies
------------------------------
1. Raifman & Edwards LLP
2. PointBreak Ventures, LLC (including, without limitation, the existing
portfolio companies of PointBreak Ventures, LLC)
<PAGE>
INTERNET EXTRA CORPORATION
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with Internet Extra Corporation, its
subsidiaries, affiliates, successors or assigns (collectively, the "Company"),
and in consideration of my employment with the Company and my receipt of the
compensation now and hereafter paid to me by Company. I agree to the following:
1. Confidential Information.
------------------------
(a) Company Information. I agree at all times during the term of my
-------------------
employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without written authorization of the Board of Directors of the
Company, any Confidential Information of the Company. I understand that
"Confidential Information" means any Company proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, customer, vendor and contractor lists and
customers (including, but not limited to, customers of the Company on whom I
called or with whom I became acquainted during the term of my employment),
markets, software, developments, inventions, processes, formulas, technology,
designs, drawings, engineering, hardware configuration information, marketing,
finances or other business information disclosed to me by the Company either
directly or indirectly in writing, orally or by drawings or observation of parts
or equipment. I further understand that Confidential Information does not
include any of the foregoing items which has become publicly known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) Former Employer Information. I agree that I will not, during my
---------------------------
employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that I will not bring into the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(c) Third Party Information. I recognize that the Company has
-----------------------
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
<PAGE>
2. Inventions.
----------
(a) Inventions Retained and Licensed. I have attached hereto, as
--------------------------------
Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to my
employment with the Company (collectively referred to as "Prior Inventions"),
which belong to me, which relate to the Company's proposed business, products or
research and development, and which are not assigned to the Company hereunder;
or, if no such list is attached, I represent that there are no such Prior
Inventions. If in the course of my employment with the Company, I incorporate
into a Company product, process or machine a Prior Invention owned by me or in
which I have an interest, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make,
have made, modify, use and sell such Prior Invention as part of or in connection
with such product, process or machine.
(b) Assignment of Inventions. I agree that I will promptly make full
------------------------
written disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and hereby assign to the Company, or its designee, all
my right, title, and interest in and to any and all inventions, original works
of authorship, developments, concepts, improvements or trade secrets, whether or
not patentable or registrable under copyright or similar laws, which I may
solely or jointly conceive or develop or reduce to practice, or cause to be
conceived or developed or reduced to practice, during the period of time I am in
the employ of the Company (collectively referred to as "Inventions"), except as
provided in Section 2(f) below. I further acknowledge that all original works of
authorship which are made by me (solely or jointly with others) within the scope
of and during the period of my employment with the Company and which are
protectable by copyright are "works made for hire," as that term is defined in
the United States Copyright Act.
(c) Inventions Assigned to the United States. I agree to assign to
----------------------------------------
the United States government all my right, title, and interest in and to any and
all Inventions whenever such full title is required to be in the United States
by a contract between the Company and the United States or any of its agencies.
(d) Maintenance of Records. I agree to keep and maintain adequate and
----------------------
current written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain the sole
property of the Company at all times.
(e) Patent and Copyright Registrations. I agree to assist the
----------------------------------
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my
<PAGE>
obligation to execute or cause to be executed, when it is in my power to do so,
any such instrument or papers shall continue after the termination of this
Agreement. If the Company is unable because of my mental or physical incapacity
or for any other reason to secure my signature to apply for or to pursue any
application for any United States or foreign patents or copyright registrations
covering Inventions or original works of authorship assigned to the Company as
above, then I hereby irrevocably designate and appoint the Company and its duly
authorized officers and agents as my agent and attorney in fact, to act for and
in my behalf and stead to execute and file any such applications and to do all
other lawfully permitted acts to further the prosecution and issuance of letters
patent or copyright registrations thereon with the same legal force and effect
as if executed by me.
(f) Exception to Assignments. I understand that the provisions of
------------------------
this Agreement requiring assignment of Inventions to the Company do not apply to
any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Exhibit B). I will advise the Company
promptly in writing of any inventions that I believe meet the criteria in
California Labor Code Section 2870 and not otherwise disclosed on Exhibit A.
3. Conflicting Employment. I agree that, during the term of my employment
----------------------
with the Company, I will not engage in any other employment, occupation,
consulting other business activity directly related to the business in which the
Company and/or its customers are now involved or becomes involved during the
term of my employment, nor will I engage in any other activities that conflict
with my obligations to the Company.
4. At Will Employment. I understand that my employment with the Company
------------------
is "at will" and is for no specified term. As a result, I understand that the
Company can terminate my employment at any time and that, similarly, I am free
to terminate my employment with the Company at any time.
5. Returning Company Documents. I agree that, at the time of leaving the
---------------------------
employ of the Company, I will deliver to the Company (and will not keep in my
possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other documents or
property, or reproductions of any aforementioned items developed by me pursuant
to my employment with the Company or otherwise belonging to the Company, its
successors or assigns. In the event of the termination of my employment, I
agree to sign and deliver the "Termination Certification" attached hereto as
Exhibit C.
6. Notification to New Employer. In the event that I leave the employ of
----------------------------
the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
7. Solicitation of Employees. I agree that for a period of twelve (12)
-------------------------
months immediately following the termination of my relationship with the Company
for any reason, whether with or without cause, I shall not either directly or
indirectly solicit, induce, recruit or encourage any of the Company's employees
to leave their employment, or take away such employees, or attempt to
<PAGE>
solicit, induce, recruit, encourage or take away employees of the Company,
either for myself or for any other person or entity.
8. Conflict of Interest Guidelines. I agree to diligently adhere to the
-------------------------------
Conflict of Interest Guidelines attached as Exhibit D hereto.
9. Representations. I agree to execute any proper oath or verify any
---------------
proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
10. Arbitration and Equitable Relief.
--------------------------------
(a) Arbitration. Except as provided in Section 10(b) below, I agree
-----------
that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement, shall be
settled by arbitration to be held in San Francisco County, California, in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction. The
Company and I shall each pay one-half of the costs and expenses of such
arbitration, and each of us shall separately pay our counsel fees and expenses.
(b) Equitable Remedies. I agree that it would be impossible or
------------------
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 1, 2, 3, and 5 herein. Accordingly, I agree that
if I breach any of such Sections, the Company will have available, in addition
to any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any such provision of this Agreement. I further agree
that no bond or other security shall be required in obtaining such equitable
relief, and I hereby consent to the issuance of such injunction and to the
ordering of specific performance.
11. General Provisions.
------------------
(a) Governing Law; Consent to Personal Jurisdiction. This Agreement
-----------------------------------------------
will be governed by the laws of the State of California. I hereby expressly
consent to the personal jurisdiction of the state and federal courts located in
California for any lawsuit filed there against me by the Company arising from or
relating to this Agreement.
(b) Entire Agreement. This Agreement sets forth the entire agreement
----------------
and understanding between the Company and me relating to the subject matter
herein and merges all prior discussions between us. No modification for
amendment to this Agreement, nor any waiver of any rights under this agreement,
will be effective unless in writing signed by the party to be charged.
<PAGE>
Any subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) Severability. If one or more of the provisions in this Agreement
------------
are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) Successors and Assigns. This Agreement will be binding upon my
----------------------
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
INTERNET EXTRA CORPORATION
By:________________________________
Name
Title
AGREED TO AND ACCEPTED:
Signature
Date:
Witness
<PAGE>
EXHIBIT A
---------
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
Identifying Number or
Title Date Brief Description
----- ---- -----------------
______ No inventions or improvements
______ Additional Sheets Attached
Signature of Employee:
Print Name of Employee:
Date:_________________________
<PAGE>
EXHIBIT B
---------
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
<PAGE>
EXHIBIT C
---------
INTERNET EXTRA CORPORATION
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed
to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to Internet Extra Corporation, its subsidiaries, affiliates,
successors or assigns (collectively, the "Company").
I further certify that I have complied with all the terms of the Company's
Employment, Confidential Information and Invention Assignment Agreement signed
by me, including the reporting of any inventions and original works of
authorship (as defined therein), conceived or made by me (solely or jointly with
others) covered by that agreement.
I further agree that, in compliance with the Employment, Confidential
Information and Invention Assignment Agreement, I will preserve as confidential
all trade secrets, confidential knowledge, data or other proprietary information
relating to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not hire
any employees of the Company and I will not directly or indirectly solicit,
induce, recruit or encourage any of the Company's employees to leave their
employment, or take away such employees, or attempt to solicit, induce, recruit,
encourage or take away any employees of the Company, either for myself or for
any other person or entity.
Date:
______________________________________
(Employee's Signature)
______________________________________
(Type/Print Employee's Name)
<PAGE>
EXHIBIT D
---------
INTERNET EXTRA CORPORATION
CONFLICT OF INTEREST GUIDELINES
It is the policy of Internet Extra Corporation, its subsidiaries,
affiliates, successors or assigns (collectively, the "Company") to conduct its
affairs in strict compliance with the letter and spirit of the law and to adhere
to the highest principles of business ethics. Accordingly, all officers,
employees and independent contractors must avoid activities which are in
conflict, or give the appearance of being in conflict, with these principles and
with the interests of the Company. The following are potentially compromising
situations which must be avoided. Any exceptions must be reported to the
President and written approval for continuation must be obtained.
1. Revealing confidential information to outsiders or misusing
confidential information. Unauthorized divulging of information is a violation
of this policy whether or not for personal gain and whether or not harm to the
Company is intended. (The Employment, Confidential Information and Invention
Assignment Agreement elaborates on this principle and is a binding agreement.)
2. Accepting or offering substantial gifts, excessive entertainment,
favors or payments may be deemed to constitute undue influence or otherwise be
improper or embarrassing to the Company.
3. Initiating or approving personnel actions affecting reward or
punishment of employees or applicants where there is a family relationship or is
or appears to be a personal or social involvement.
4. Initiating or approving any form of personal or social harassment of
employees.
5. Investing or holding outside directorships in suppliers, customers or
competing companies, including financial speculation, where such investment or
directorship might influence in any manner a decision or course of action of the
Company.
6. Borrowing from or lending to employees, customers or suppliers.
7. Acquiring a real estate interest adverse to the Company.
8. Improperly using or disclosing to the Company any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity with whom obligations of confidentiality exist.
9. Unlawfully discussing prices, costs, customers, sales or markets with
competing companies or their employees.
10. Making any unlawful agreements with distributors with respect to
prices.
<PAGE>
11. Improperly using or authorizing the use of any inventions which are
the subject of patent claims of any other person or entity.
12. Engaging in any conduct which is not in the best interest of the
Company.
Each officer, employee and independent contractor must take every necessary
action to ensure compliance with these guidelines and to bring problem areas to
the attention of higher management for review. Violations of this conflict of
interest policy may result in discharge without warning.
<PAGE>
Exhibit 10.9
Internet Extra Corporation
131 Steuart Street, Fourth Floor
San Francisco, California 94105
February 19, 1999
Mr. Walter Haefeker
164 Pepper Avenue
Burlingame, California 94010
Dear Walter:
I am very pleased to offer you the position of Chief Operating Officer with
Internet Extra Corporation (the "Company") commencing on the date hereof. We at
the Company are delighted that you have decided to join our enterprise and help
MediaPlex become a success. I would like to take this opportunity to set out
the terms of your employment more fully:
1. Effectiveness. This agreement (this "Agreement") is being entered into
effective as of the date hereof (the "Effective Date").
2. Employment.
(a) Duties. The Company shall employ you, and you shall initially
serve as, the Company's Chief Operating Officer, subject at all times and in all
cases and respects to the ultimate control and direction of the board of
directors of the Company. In such capacity, you shall perform all such services,
accept all such responsibilities and discharge all such duties and
responsibilities as are consistent and commensurate with your position and as
may be assigned to or required of you from time to time by the Company. You
shall perform such services, accept such responsibilities and discharge such
duties within the policies and guidelines established from time to time by the
Company, subject at all times and in all cases and respects to the ultimate
control and direction of the Company. The Company shall have the right to review
and revise your services, responsibilities and duties at any time and from time
to time during the Term (as defined below) in any and all respects, provided
--------
that any revised services, responsibilities and duties, taken as a whole,
continue to reflect your knowledge, skill and experience. Such services shall be
primarily performed in the Company's offices in San Francisco, California,
although you may be required to travel to other locations as necessary and
consistent with your position with the Company.
(b) Exclusive Employment. At all times during the Term, you shall
devote all of your business time, attention and energies to the performance,
fulfillment and satisfaction of your duties and responsibilities to the Company
under this Agreement, and shall not undertake or be engaged in any other
activities, whether or not pursued for gain, profit or other pecuniary
advantage, which could impair your ability to perform, fulfill and satisfy your
duties and responsibilities to the Company under this Agreement, in any case
without the prior written consent of the Company which consent will not be
unreasonably withheld. Notwithstanding the foregoing provision of this Section,
<PAGE>
any work that you perform for the companies listed on Schedule A attached hereto
(the "Exempted Companies") or any such Exempted Company's subsidiaries or
affiliates pursuant to any agreement with any Exempted Company or any of
Exempted Company's subsidiaries or affiliates, oral or written, which is fully
disclosed to the Company's Board of Directors, shall not be deemed a conflict of
interest, impropriety or breach of corporate duty with the Company and any work
that you perform for any Exempted Company or any of Exempted Company's
subsidiaries or affiliates from time to time, pursuant to any agreement, oral or
written, which is fully disclosed to the Company's Board of Directors, whether
as employee, officer, director or consultant to any Exempted Company or any of
Exempted Company's subsidiaries or affiliates shall not be deemed a conflict of
interest, impropriety or breach of corporate duty with the Company.
(c) Affirmation of Fiduciary Responsibilities. At all times during
the Term, you shall perform, satisfy, fulfill and carry out your duties and
responsibilities to the Company under this Agreement with fidelity and loyalty,
in a diligent manner, to the best of your ability, experience and talent, and in
a manner consistent with your fiduciary responsibilities to the Company.
3. Compensation.
(a) Base Salary and Incentive Compensation. Your annual base salary
during the Term shall be paid at the annual rate of $175,000 for the remainder
of calendar year 1999, $200,000 for the calendar year 2000 and $225,000 for the
calendar year 2001 ("Base Salary"), payable in accordance with the Company's
standard payroll practices. Unless otherwise specified herein, the Company shall
make such deductions, withholdings and other payments from all sums payable
pursuant to this Agreement which you request or that are required by law for
taxes and other charges.
(b) Stock Options. You shall receive, as of the Effective Date, an
option (the "New Stock Option") to acquire 1,250,000 shares of Common Stock of
the Company (the "Option Shares"), at an exercise price equal to $0.50 per
share. The New Stock Option shall be immediately exercisable with respect to all
of the Option Shares, and the Company shall have the right to repurchase the
Option Shares at the exercise price in the event your employment is terminated.
The Company's right of repurchase shall expire with respect to one-sixth (1/6th)
of the Option Shares on the six month anniversary of the Vesting Commencement
Date (as set forth in your stock option agreement), and with respect to an
additional 1/36th of the Option Shares on the same day of each month during the
thirty (30) months thereafter or until your employment is earlier terminated.
All other terms governing such options shall be set out in the Company's
standard option agreement and stock option plan.
(c) Benefits Plans. You will be entitled to participate in or receive
benefits under the Company's employee benefit plans and policies in effect from
time to time in which you are eligible to participate, subject to the applicable
terms and conditions of the particular benefit plan. The Company may change,
amend, modify or terminate to the extent legally allowable, any benefit plan
from time to time and without prior notice. To the extent benefits provided by
the Company are affected by seniority (i.e., length of service), you shall be
credited for time you served at the Company, to the fullest extent permitted by
law and consistent with the Company's current benefit plans.
-2-
<PAGE>
(d) Expenses. You shall be entitled to prompt reimbursement by the
Company for all reasonable ordinary and necessary travel, entertainment, and
other expenses incurred by you during the Term (in accordance with the policies
and procedures established by the Company for its senior executive officers) in
the performance of your duties and responsibilities under this Agreement;
provided, that you shall properly account for such expenses in accordance
- --------
with Company policies and procedures. Any necessary air travel shall be coach
class domestically and business class internationally.
(e) Vacation and Holidays. You shall be entitled to four (4) weeks
paid vacation and Company holidays in accordance with the Company's policies in
effect from time to time for its senior executive officers.
(f) Bonus. You shall be eligible to participate in any management
bonus plan or similar incentive compensation program adopted by the Company on
terms comparable to other senior officers of the Company.
(g) Other Benefits. During the Term the Company shall pay you the
following: (i) a monthly automobile allowance of Five Hundred Dollars ($500.00)
and (ii) free parking at corporate premises for Raifman, or if no such premises
shall exist, then a monthly parking allowance up to a maximum of Two Hundred
Dollars ($200.00).
4. Term; Termination; Severance Payments.
(a) Term. Unless otherwise terminated as hereinafter provided, the
term of your employment under this Agreement (the "Term") shall commence upon
the Effective Date and shall continue until and terminate on the date that is
the three year anniversary of the Effective Date. Upon expiration of the Term,
you shall be an "at-will" employee of the Company, subject to such policies,
benefits and practices and procedures that are then applicable with respect to
an at-will employee of the Company (the "IEC Policies"). Notwithstanding the
foregoing, the Company may terminate your employment with the Company during the
Term for Cause (as defined below).
(b) Cause. As used in this Agreement, "Cause" shall mean (i)
-----
conviction of a felony or a crime involving moral turpitude causing material
harm to the standing and reputation of the Company or (ii) any habitual neglect
or willful misconduct in the performance of Purchaser's duties to the Company
where such habitual negligence or willful misconduct has resulted in substantial
and material damage to the Company or its subsidiaries, in each as determined in
good faith by the Board of Directors of the Company.
(c) Termination and Severance Benefits.
(i) Termination for Cause or Resignation. If your employment is
terminated for Cause or if you resign your employment voluntarily, no other
compensation or payments will be provided to you for any periods following the
date when such termination of employment is effective.
(ii) Termination without Cause; Constructive Termination. If your
employment is terminated by the Company without Cause, or if you are
Constructively Terminated
-3-
<PAGE>
(as defined below), you will be entitled to receive the severance payments
provided for in Section 4(c)(iv) below (if any) upon such termination. No other
compensation or payments will be made pursuant to this Agreement other than
those to which you are entitled through your last day of active service or under
the applicable IEC Policies and benefit plans. For purposes of this Section
4(c)(ii), the term "Constructively Terminated" shall mean your voluntary
termination, upon 30 days prior written notice to the Company, following: (A) a
material reduction or change in job duties, responsibilities and requirements
inconsistent with your position with the Company and prior duties,
responsibilities and requirements; (B) any reductions of your base compensation;
or (C) your refusal to relocate to facility or location more than 25 miles from
the Company's current location.
(iii) Death or Disability.
(A) Your employment shall terminate in the event of your
death.
(B) The Company may terminate your employment for
Disability by giving you 30 days' advance notice in writing. For all purposes
under this Agreement, "Disability" shall mean that you, at the time notice is
given, have been unable to substantially perform your duties under this
Agreement for a period of not less than six (6) consecutive months as the result
of your incapacity due to physical or mental illness. In the event that you
resume the performance of substantially all of your duties hereunder before the
termination of your employment under this subparagraph (B) becomes effective,
the notice of termination shall automatically be deemed to have been revoked.
(C) No compensation or benefits will be paid or provided
to you under this Agreement on account of termination for death or Disability,
or for periods following the date when such a termination of employment is
effective. Your rights under the benefit plans of the Company in the event of
your death or Disability shall be determined under the provisions of those
plans.
(iv) Severance Payments. During the Term, in the event your
employment with the Company is terminated without cause or if you are
Constructively Terminated, the Company's sole obligation to you will be to (a)
pay you a lump sum severance payment ("Severance Payment") in the amount equal
to (I) 2/26 of your effective Base Salary for the year in which you are so
terminated for each complete month worked by you commencing September 1, 1999;
provided, however, the Severance Payment shall, in no case, exceed one year of
- -------- -------
your Base Salary for such year; and (II) any benefits set forth in Section 3(b)
through (g) of this Agreement owing to you prior to the Termination Date and (b)
permit you to participate under the Company's Benefits Plans for up to one year
following your termination with the Company.
5. Assignment.
(a) Successors and Assigns. Any of the Company's affiliates may
assume the liabilities and obligations, and succeed to the rights and interests,
of the Company under this Agreement at any time and without limitation. In
addition to the foregoing, any successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation,
-4-
<PAGE>
liquidation or otherwise), or to all or substantially all of the Company's
business and/or assets, shall assume the obligations under this Agreement and
agree expressly to perform the obligations under this Agreement in the same
manner and to the same extent as the Company would be required to perform such
obligations in the absence of such succession. For all purposes of and under
this Agreement, the term "Company" shall include any successor to the Company's
business and/or assets which executes and delivers the assumption agreement
required by this Section 5, or which otherwise becomes bound by the terms of
this Agreement by operation of law. Any such assumption and/or succession under
this Section 5 shall not be deemed to be a termination of your employment
hereunder.
(b) The terms of this Agreement and all of your rights hereunder
shall inure to the benefit of, and be enforceable by, your personal or legal
representatives, executors, administrators, successor, heirs, distributees,
devisees or legatees.
6. Covenant Not to Compete.
(a) Definitions. As used in this Agreement, the terms:
(i) "Restricted Business" shall mean any business related to (i)
advertising, marketing, media placement or banner serving, (ii) enterprise
software applications and/or enterprise integration relating to online or
traditional (including, without limitation, television, print, direct mail,
radio or the like) advertising, marketing, media placement or banner serving or
(iii) the transacting of business, or shopping, purchasing, or subscribing to or
registering for services, products, programs or information, or downloading or
obtaining software programs or information; or participating in other similar
types of transactions, in each case which specifically arise from banners served
by the Company.
(ii) "Restricted Territory" shall mean the larger of: (A) all of
the countries of the world or (B) if (A) is found unenforceable, the countries
in which the Company's products are available during the term of the non-compete
obligations specified in this Section 6.
(b) Non-Compete. In consideration of: (i) the several agreements made
by the Company with you in and pursuant to the Reorganization Agreement, (ii)
the issuance by the Company to you of the New Stock Option and (iii) the
consideration payable to you hereunder, you agree that until: (A) the one (1)
year anniversary of the date of your termination of employment with the Company
or (B) in the event that the period set forth in clause (A) is determined to be
unenforceable by a court of competent jurisdiction, the maximum period
allowable, you will not, directly or indirectly, engage in (whether as an
officer, employee, consultant, director, proprietor, partner, consultant or
otherwise), or have any ownership interest in, or participate in the financing,
operation, management or control of, any person, firm, corporation or business
that engages in a Restricted Business in a Restricted Territory. It is agreed
that ownership of no more than five percent (5%) of the outstanding voting stock
of a publicly-traded or privately-held corporation shall not constitute a
violation of this section. It is further agreed that the foregoing consideration
is not intended to constitute liquidated damages for a violation of this
section.
-5-
<PAGE>
(c) Non-Solicit. You agree that until the expiration of the non-
compete obligations specified above in subsection (b), you shall not:
(i) take any action to, or do anything reasonably intended to,
divert business from the Company, or any of its affiliates, or influence or
attempt to influence any retailer, dealer, vendor, supplier, customer or
potential customer of the Company, or any of its affiliates, in each case as
existing on the date of your termination (the "Termination Date"), to cease
doing business with the Company, or any of its affiliates, as the case may be,
or to alter its business relationship with the Company, or any of its
affiliates, in each case as existing on the Termination Date; or
(ii) recruit, attempt to hire, solicit, or assist others in
recruiting or hiring, any person who is an employee of the Company, or any of
its affiliates, in each case as of the Termination Date, or induce or attempt to
induce any such employee to terminate his or her employment with the Company, or
any of its affiliates.
7. REMEDIES. YOU HEREBY RECOGNIZE AND ACKNOWLEDGE THAT A MATERIAL
VIOLATION OF THE TERMS AND PROVISIONS OF THIS SECTION 7 WOULD CAUSE IRREPARABLE
INJURY TO THE COMPANY, OR ONE OR MORE OF ITS AFFILIATES, AS THE CASE MAY BE, FOR
WHICH THE COMPANY, OR ANY OF ITS AFFILIATES, WOULD HAVE NO ADEQUATE REMEDY AT
LAW. ACCORDINGLY, IN THE EVENT THAT YOU SHALL FAIL TO MATERIALLY COMPLY WITH THE
TERMS AND PROVISIONS OF THIS SECTION 7 IN ANY RESPECT, AND YOU HAVE BEEN GIVEN
NOTICE OF SUCH VIOLATION AND AN OPPORTUNITY TO CURE SUCH VIOLATION, THE COMPANY,
OR ANY OF ITS AFFILIATES, SHALL BE ENTITLED TO PRELIMINARY AND OTHER INJUNCTIVE
RELIEF AND TO SPECIFIC PERFORMANCE OF THE TERMS AND PROVISIONS HEREOF. IN
FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, YOU HEREBY WAIVE ANY CLAIM
OR DEFENSE RELATING TO ANY VIOLATION OR BREACH BY YOU OF THE TERMS AND
PROVISIONS OF THIS SECTION 7 THAT THE COMPANY, OR ANY OF ITS AFFILIATES, HAS AN
ADEQUATE REMEDY AT LAW OR THAT MONEY DAMAGES WOULD PROVIDE AN ADEQUATE REMEDY
FOR SUCH VIOLATION OR BREACH.
8. Severability. The parties intend that the covenants contained in the
preceding paragraphs shall be construed as a series of separate covenants, one
for each county, city, state and other political subdivision of each country in
the Restricted Territory. Except for geographic coverage, each separate covenant
shall be deemed identical in terms to the covenant contained in the preceding
paragraphs. If, in any judicial proceeding, a court shall refuse to enforce any
of the separate covenants (or any part thereof) deemed included in said
paragraphs, then such unenforceable covenant (or such part) shall be deemed
eliminated from this Agreement for the purpose of those proceedings to the
extent necessary to permit the remaining separate covenants (or portions
thereof) to be enforced by such court. It is the intent of the parties that the
covenants set forth herein be enforced to the maximum degree permitted by
applicable law.
9. Entire Agreement. This Agreement and the Confidential Information and
Invention Assignment Agreement set forth the entire agreement and understanding
of the parties with respect
-6-
<PAGE>
to the subject matter hereof and thereof, and supersede any other written or
oral negotiations, agreements, understandings, representations or practices
concerning such subject matter hereof (including without limitation any
employment agreement or offer letter extended by the Company at any time). In
the event of any conflict between the provisions hereof and the provisions of
the Confidential Information and Invention Assignment Agreement, the provisions
hereof shall control.
10. Notices. Any notice, report or other communication required or
permitted to be given hereunder shall be in writing and shall be deemed given on
the date of delivery if delivered, or five days after mailing, if mailed first-
class mail, postage prepaid, return receipt requested, or delivered to a
nationwide overnight delivery service charges prepaid, return receipt requested,
to the following addresses:
(a) If to the Company: Internet Extra Corporation
131 Steuart Street, Fourth Floor
San Francisco, CA 94105
Attention: General Counsel
(b) If to you: To the address for notice set forth on the
signature page hereto or to such other
address as any party hereto may hereafter
designate by notice given as herein provided.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of California without giving effect to principles
regarding conflict of laws. Any action or proceeding brought by any party
against another arising out of or related to this Agreement shall be brought in
a state or federal court of competent subject matter jurisdiction located within
San Francisco County in the State of California, and each of the parties to this
Agreement consents to the personal jurisdiction of those courts.
12. Arbitration. In the event of any dispute or claim relating to or
arising out of our employment relationship, you and the Company agree that all
such disputes shall be fully and finally resolved by binding arbitration
conducted by the American Arbitration Association in San Francisco, California.
HOWEVER, we agree that this arbitration provision shall not apply to any
disputes or claims relating to or arising out of the misuse or misappropriation
of the Company's trade secrets or proprietary information.
13. Amendments. This Agreement shall not be changed or modified in whole
or in part except by an instrument in writing signed by the Company and you nor
shall any covenant or provision of this Agreement be waived except by an
instrument in writing signed by the party against whom enforcement of such
waiver is sought.
14. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which shall together constitute
one and the same agreement.
-7-
<PAGE>
15. Effect of Headings. The section headings herein are for convenience
only and shall not effect the construction or interpretation of the Agreement.
16. Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to either party upon any breach or default of the other party
hereto shall impair any such right, power or remedy of such non-defaulting
party, nor shall it be construed to be a waiver of any such breach or default or
an acquiescence therein, or of any similar breach or default thereafter
occurring; nor shall any waiver of a breach or default be deemed to be a waiver
of any other breach or default.
17. Rules of Construction. You and the Company each acknowledge that they
have been represented by, or had an opportunity to consult with, competent
counsel during the negotiation and execution of this Agreement and therefore,
waive the application of any law, regulation, holding or rule of construction
providing that ambiguities in any agreement will be construed against the party
drafting such agreement.
[The remainder of this page is intentionally left blank.]
-8-
<PAGE>
To indicate your acceptance of the terms of this Agreement, please sign and
date this letter in the space provided below and return it to me. A duplicate
original is enclosed for your records. This letter, along with the agreement
relating to proprietary rights between you and the Company, set forth the terms
of your employment with the Company and supersede any prior representations or
agreements, whether written or oral.
We look forward to working with you at Internet Extra Corporation.
Sincerely,
Internet Extra Corporation
/s/ Gregory R. Raifman
-----------------------------------
Gregory R. Raifman
Chairman & Chief Executive Officer
ACCEPTED AND AGREED TO THIS
_____ DAY OF FEBRUARY, 1999.
/s/ Walter Haefeker
---------------------------
Walter Haefeker
Address for notices:
164 Pepper Avenue
Burlingame, California 94010
Phone: (650) 347-6725
Fax: (650) 680-2329
Enclosures: Duplicate Original Letter
Option Agreement
Confidential Information and Invention Assignment Agreement
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<PAGE>
SCHEDULE A
Schedule of Exempted Companies
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1. PointBreak Ventures, LLC (including, without limitation, the existing
portfolio companies of PointBreak Ventures, LLC)
<PAGE>
INTERNET EXTRA CORPORATION
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with Internet Extra Corporation, its
subsidiaries, affiliates, successors or assigns (collectively, the "Company"),
and in consideration of my employment with the Company and my receipt of the
compensation now and hereafter paid to me by Company. I agree to the following:
1. Confidential Information.
------------------------
(a) Company Information. I agree at all times during the term of my
-------------------
employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without written authorization of the Board of Directors of the
Company, any Confidential Information of the Company. I understand that
"Confidential Information" means any Company proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, customer, vendor and contractor lists and
customers (including, but not limited to, customers of the Company on whom I
called or with whom I became acquainted during the term of my employment),
markets, software, developments, inventions, processes, formulas, technology,
designs, drawings, engineering, hardware configuration information, marketing,
finances or other business information disclosed to me by the Company either
directly or indirectly in writing, orally or by drawings or observation of parts
or equipment. I further understand that Confidential Information does not
include any of the foregoing items which has become publicly known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) Former Employer Information. I agree that I will not, during my
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employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that I will not bring into the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(c) Third Party Information. I recognize that the Company has
-----------------------
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
<PAGE>
2. Inventions.
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(a) Inventions Retained and Licensed. I have attached hereto, as
--------------------------------
Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to my
employment with the Company (collectively referred to as "Prior Inventions"),
which belong to me, which relate to the Company's proposed business, products or
research and development, and which are not assigned to the Company hereunder;
or, if no such list is attached, I represent that there are no such Prior
Inventions. If in the course of my employment with the Company, I incorporate
into a Company product, process or machine a Prior Invention owned by me or in
which I have an interest, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make,
have made, modify, use and sell such Prior Invention as part of or in connection
with such product, process or machine.
(b) Assignment of Inventions. I agree that I will promptly make full
------------------------
written disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and hereby assign to the Company, or its designee, all
my right, title, and interest in and to any and all inventions, original works
of authorship, developments, concepts, improvements or trade secrets, whether or
not patentable or registrable under copyright or similar laws, which I may
solely or jointly conceive or develop or reduce to practice, or cause to be
conceived or developed or reduced to practice, during the period of time I am in
the employ of the Company (collectively referred to as "Inventions"), except as
provided in Section 2(f) below. I further acknowledge that all original works of
authorship which are made by me (solely or jointly with others) within the scope
of and during the period of my employment with the Company and which are
protectable by copyright are "works made for hire," as that term is defined in
the United States Copyright Act.
(c) Inventions Assigned to the United States. I agree to assign to
----------------------------------------
the United States government all my right, title, and interest in and to any and
all Inventions whenever such full title is required to be in the United States
by a contract between the Company and the United States or any of its agencies.
(d) Maintenance of Records. I agree to keep and maintain adequate
----------------------
and current written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain the sole
property of the Company at all times.
(e) Patent and Copyright Registrations. I agree to assist the
----------------------------------
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my
<PAGE>
obligation to execute or cause to be executed, when it is in my power to do so,
any such instrument or papers shall continue after the termination of this
Agreement. If the Company is unable because of my mental or physical incapacity
or for any other reason to secure my signature to apply for or to pursue any
application for any United States or foreign patents or copyright registrations
covering Inventions or original works of authorship assigned to the Company as
above, then I hereby irrevocably designate and appoint the Company and its duly
authorized officers and agents as my agent and attorney in fact, to act for and
in my behalf and stead to execute and file any such applications and to do all
other lawfully permitted acts to further the prosecution and issuance of letters
patent or copyright registrations thereon with the same legal force and effect
as if executed by me.
(f) Exception to Assignments. I understand that the provisions of
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this Agreement requiring assignment of Inventions to the Company do not apply to
any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Exhibit B). I will advise the Company
promptly in writing of any inventions that I believe meet the criteria in
California Labor Code Section 2870 and not otherwise disclosed on Exhibit A.
3. Conflicting Employment. I agree that, during the term of my
----------------------
employment with the Company, I will not engage in any other employment,
occupation, consulting other business activity directly related to the business
in which the Company and/or its customers are now involved or becomes involved
during the term of my employment, nor will I engage in any other activities that
conflict with my obligations to the Company.
4. At Will Employment. I understand that my employment with the Company
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is "at will" and is for no specified term. As a result, I understand that the
Company can terminate my employment at any time and that, similarly, I am free
to terminate my employment with the Company at any time.
5. Returning Company Documents. I agree that, at the time of leaving the
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employ of the Company, I will deliver to the Company (and will not keep in my
possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other documents or
property, or reproductions of any aforementioned items developed by me pursuant
to my employment with the Company or otherwise belonging to the Company, its
successors or assigns. In the event of the termination of my employment, I agree
to sign and deliver the "Termination Certification" attached hereto as Exhibit
C.
6. Notification to New Employer. In the event that I leave the employ of
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the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
7. Solicitation of Employees. I agree that for a period of twelve (12)
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months immediately following the termination of my relationship with the Company
for any reason, whether with or without cause, I shall not either directly or
indirectly solicit, induce, recruit or encourage any of the Company's employees
to leave their employment, or take away such employees, or attempt to
<PAGE>
solicit, induce, recruit, encourage or take away employees of the Company,
either for myself or for any other person or entity.
8. Conflict of Interest Guidelines. I agree to diligently adhere to the
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Conflict of Interest Guidelines attached as Exhibit D hereto.
9. Representations. I agree to execute any proper oath or verify any
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proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
10. Arbitration and Equitable Relief.
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(a) Arbitration. Except as provided in Section 10(b) below, I agree
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that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement, shall be
settled by arbitration to be held in San Francisco County, California, in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction. The
Company and I shall each pay one-half of the costs and expenses of such
arbitration, and each of us shall separately pay our counsel fees and expenses.
(b) Equitable Remedies. I agree that it would be impossible or
------------------
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 1, 2, 3, and 5 herein. Accordingly, I agree that
if I breach any of such Sections, the Company will have available, in addition
to any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any such provision of this Agreement. I further agree
that no bond or other security shall be required in obtaining such equitable
relief, and I hereby consent to the issuance of such injunction and to the
ordering of specific performance.
11. General Provisions.
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(a) Governing Law; Consent to Personal Jurisdiction. This Agreement
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will be governed by the laws of the State of California. I hereby expressly
consent to the personal jurisdiction of the state and federal courts located in
California for any lawsuit filed there against me by the Company arising from or
relating to this Agreement.
(b) Entire Agreement. This Agreement sets forth the entire agreement
----------------
and understanding between the Company and me relating to the subject matter
herein and merges all prior discussions between us. No modification for
amendment to this Agreement, nor any waiver of any rights under this agreement,
will be effective unless in writing signed by the party to be charged.
<PAGE>
Any subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) Severability. If one or more of the provisions in this Agreement
------------
are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) Successors and Assigns. This Agreement will be binding upon my
----------------------
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
INTERNET EXTRA CORPORATION
By: __________________________
Name
Title
AGREED TO AND ACCEPTED:
Signature
Date:
Witness
<PAGE>
EXHIBIT A
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LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
Identifying Number or
Title Date Brief Description
----- ---- -----------------
______ No inventions or improvements
______ Additional Sheets Attached
Signature of Employee:
Print Name of Employee:
Date: ___________________________________
<PAGE>
EXHIBIT B
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CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
<PAGE>
EXHIBIT C
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INTERNET EXTRA CORPORATION
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed
to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to Internet Extra Corporation, its subsidiaries, affiliates,
successors or assigns (collectively, the "Company").
I further certify that I have complied with all the terms of the Company's
Employment, Confidential Information and Invention Assignment Agreement signed
by me, including the reporting of any inventions and original works of
authorship (as defined therein), conceived or made by me (solely or jointly with
others) covered by that agreement.
I further agree that, in compliance with the Employment, Confidential
Information and Invention Assignment Agreement, I will preserve as confidential
all trade secrets, confidential knowledge, data or other proprietary information
relating to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not hire
any employees of the Company and I will not directly or indirectly solicit,
induce, recruit or encourage any of the Company's employees to leave their
employment, or take away such employees, or attempt to solicit, induce, recruit,
encourage or take away any employees of the Company, either for myself or for
any other person or entity.
Date:
_________________________________
(Employee's Signature)
_________________________________
(Type/Print Employee's Name)
<PAGE>
EXHIBIT D
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INTERNET EXTRA CORPORATION
CONFLICT OF INTEREST GUIDELINES
It is the policy of Internet Extra Corporation, its subsidiaries,
affiliates, successors or assigns (collectively, the "Company") to conduct its
affairs in strict compliance with the letter and spirit of the law and to adhere
to the highest principles of business ethics. Accordingly, all officers,
employees and independent contractors must avoid activities which are in
conflict, or give the appearance of being in conflict, with these principles and
with the interests of the Company. The following are potentially compromising
situations which must be avoided. Any exceptions must be reported to the
President and written approval for continuation must be obtained.
1. Revealing confidential information to outsiders or misusing
confidential information. Unauthorized divulging of information is a violation
of this policy whether or not for personal gain and whether or not harm to the
Company is intended. (The Employment, Confidential Information and Invention
Assignment Agreement elaborates on this principle and is a binding agreement.)
2. Accepting or offering substantial gifts, excessive entertainment,
favors or payments may be deemed to constitute undue influence or otherwise be
improper or embarrassing to the Company.
3. Initiating or approving personnel actions affecting reward or
punishment of employees or applicants where there is a family relationship or is
or appears to be a personal or social involvement.
4. Initiating or approving any form of personal or social harassment of
employees.
5. Investing or holding outside directorships in suppliers, customers or
competing companies, including financial speculation, where such investment or
directorship might influence in any manner a decision or course of action of the
Company.
6. Borrowing from or lending to employees, customers or suppliers.
7. Acquiring a real estate interest adverse to the Company.
8. Improperly using or disclosing to the Company any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity with whom obligations of confidentiality exist.
9. Unlawfully discussing prices, costs, customers, sales or markets with
competing companies or their employees.
10. Making any unlawful agreements with distributors with respect to
prices.
<PAGE>
11. Improperly using or authorizing the use of any inventions which are
the subject of patent claims of any other person or entity.
12. Engaging in any conduct which is not in the best interest of the
Company.
Each officer, employee and independent contractor must take every necessary
action to ensure compliance with these guidelines and to bring problem areas to
the attention of higher management for review. Violations of this conflict of
interest policy may result in discharge without warning.
<PAGE>
EXHIBIT 10.10
Internet Extra Corporation
131 Steuart Street, Fourth Floor
San Francisco, California 94105
March 24, 1999
Mr. Ruiqing "Barclay" Jiang
Netranscend Software, Inc.
655 Bonanza Court
Sunnyvale, California 94087
Dear Barclay:
I am very pleased to offer you the position of Chief Technology Officer
with Internet Extra Corporation (the "Company") commencing on the effectiveness
of the merger between Netranscend Software, Inc. ("Netranscend") and the
Company. We at the Company are delighted that you have decided to join our
enterprise and help MediaPlex become a success. I would like to take this
opportunity to set out the terms of your employment more fully:
1. Effectiveness. This agreement (this "Agreement") is being entered in
connection with the Agreement and Plan of Reorganization (the "Reorganization
Agreement"), dated as of March 8, 1999, by and among the Company, Netranscend
and you, and all capitalized terms used but not defined herein shall have the
meaning ascribed to them in the Reorganization Agreement. Your employment under
this Agreement shall become effective as of the Effective Time of the Merger. In
the event that the Reorganization Agreement is terminated prior to the Effective
Time of the Merger, this Agreement shall terminate and be of no further force
and effect.
2. Employment.
(a) Duties. The Company shall employ you, and you shall initially
serve as, the Company's Chief Technology Officer, subject at all times and in
all cases and respects to the ultimate control and direction of the board of
directors of the Company. In such capacity, you shall perform all such services,
accept all such responsibilities and discharge all such duties and
responsibilities as are consistent and commensurate with your position and as
may be assigned to or required of you from time to time by the Company. You
shall perform such services, accept such responsibilities and discharge such
duties within the policies and guidelines established from time to time by the
Company, subject at all times and in all cases and respects to the ultimate
control and direction of the Company. The Company shall have the right to review
and revise your services, responsibilities and duties at any time and from time
to time during the Term (as defined below) in any and all respects, provided
--------
that any revised services, responsibilities and duties, taken as a whole,
continue to reflect your knowledge, skill and experience. Such services shall be
primarily performed in the Company's offices in Cupertino, California, although
you may be required to travel to other locations as necessary and consistent
with your position with the Company.
(b) Exclusive Employment. At all times during the Term, you shall
devote all of your business time, attention and energies to the performance,
fulfillment and satisfaction of your duties and responsibilities to the Company
under this Agreement, and shall not undertake or be engaged in any other
activities, whether or not pursued for gain, profit or other pecuniary
advantage, which could impair your ability to perform, fulfill and satisfy your
duties and responsibilities to the Company under this Agreement, in any case
without the prior written consent of the Company which consent will not be
unreasonably withheld.
<PAGE>
(c) Affirmation of Fiduciary Responsibilities. At all times during
the Term, you shall perform, satisfy, fulfill and carry out your duties and
responsibilities to the Company under this Agreement with fidelity and loyalty,
in a diligent manner, to the best of your ability, experience and talent, and in
a manner consistent with your fiduciary responsibilities to the Company.
3. Compensation.
(a) Base Salary and Incentive Compensation. Your annual base salary
during the Term shall be paid at the annual rate of $150,000 for the remainder
of calendar year 1999, $168,000 for the calendar year 2000 and $180,000 for the
calendar year 2001 ("Base Salary"), payable in accordance with the Company's
standard payroll practices. Notwithstanding the foregoing, your Base Salary
shall be increased to the annual rate of $180,000 for the remainder of calendar
year 1999, $198,000 for the calendar year 2000 and $218,000 for the calendar
year 2001, upon the closing by the Company of a financing providing aggregate
gross proceeds of at least $5,000,000. Unless otherwise specified herein, the
Company shall make such deductions, withholdings and other payments from all
sums payable pursuant to this Agreement which you request or that are required
by law for taxes and other charges.
(b) Stock Options. You shall receive, as of the Effective Time, an
option (the "New Stock Option") to acquire 600,000 shares of Common Stock of the
Company (the "Option Shares"), at an exercise price equal to $0.50 per share.
The New Stock Option shall be immediately exercisable with respect to all of the
Option Shares, and the Company shall have the right to repurchase the Option
Shares at the exercise price in the event your employment is terminated. The
Company's right of repurchase shall expire with respect to one-sixth (1/6th) of
the Option Shares on the six month anniversary of the Effective Time, and with
respect to an additional 1/36th of the Option Shares on the same day of each
month during the thirty (30) months thereafter or until your employment is
earlier terminated. All other terms governing such options shall be set out in
the Company's standard option agreement and stock option plan.
(c) Benefits Plans. You will be entitled to participate in or receive
benefits under the Company's employee benefit plans and policies in effect from
time to time in which you are eligible to participate, subject to the applicable
terms and conditions of the particular benefit plan. The Company may change,
amend, modify or terminate to the extent legally allowable, any benefit plan
from time to time and without prior notice. To the extent benefits provided by
the Company are affected by seniority (i.e. length of service), you shall be
credited for time you served at Netranscend, to the fullest extent permitted by
law and consistent with the Company's current benefit plans.
(d) Expenses. You shall be entitled to prompt reimbursement by the
Company for all reasonable ordinary and necessary travel, entertainment, and
other expenses incurred by you during the Term (in accordance with the policies
and procedures established by the Company for its senior executive officers) in
the performance of your duties and responsibilities under this Agreement;
provided, that you shall properly account for such expenses in accordance with
- --------
Company policies and procedures. Any necessary air travel shall be coach class
domestically and business class internationally.
(e) Vacation and Holidays. You shall be entitled to four (4) weeks
paid vacation and Company holidays in accordance with the Company's policies in
effect from time to time for its senior executive officers.
(f) Bonus. You shall be eligible to participate in any management
bonus plan or similar incentive compensation program adopted by the Company on
terms comparable to other senior officers of the Company.
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<PAGE>
4. Term; Termination; Severance Payments.
(a) Term. Unless otherwise terminated as hereinafter provided, the
term of your employment under this Agreement (the "Term") shall commence upon
the Effective Time as defined in the Reorganization Agreement and shall continue
until and terminate on the date that is the three year anniversary of the
Effective Time. Upon expiration of the Term, you shall be an "at will" employee
of the Company, subject to such policies, benefits and practices and procedures
that are then applicable with respect to an at will employee of the Company (the
"IEC Policies"). Notwithstanding the foregoing, the Company may terminate your
employment with the Company during the Term for Cause (as defined below).
(b) Cause. As used in this Agreement, "Cause" shall mean:
(i) Your personally engaging in or knowingly authorizing
conduct that you reasonably should know, or that you intend, to be
materially injurious to the Company or its employees;
(ii) Your (A) being convicted of a felony under the laws of the
United States or any State, (B) violating a federal or state law or
regulation applicable to the Company, (C) making any material
misrepresentation to the Company, or (D) committing a material act of
dishonesty or fraud against, or the material misappropriation of property
belonging to, the Company;
(iii) Your unreasonable failure or refusal to perform the
material duties of your position after written notice of such failure to
perform and you shall not have cured such failure by the tenth (10th)
business day after notice by the Company to you of such failure;
(iv) Your knowingly and intentionally breaching in any material
respect the terms of this Agreement or the Confidential Information and
Invention Assignment Agreement (attached hereto); provided that, except for
--------
those breaches which, by their nature, are incurable, you shall not have
cured such breach by the tenth (10th) business day after notice by the
Company to you of such breach; or
(v) Your commencement of employment with another employer.
(c) Termination and Severance Benefits.
(i) Termination for Cause or Resignation. If your employment
is terminated for Cause or if you resign your employment voluntarily, no other
compensation or payments will be provided to you for any periods following the
date when such termination of employment is effective.
(ii) Termination without Cause; Constructive Termination. If
your employment is terminated by the Company without Cause, or if you are
Constructively Terminated (as defined below), you will be entitled to receive
the severance payments provided for in Section 4(c)(iv) below (if any) upon such
termination. No other compensation or payments will be made pursuant to this
Agreement other than those to which you are entitled through your last day of
active service or under the applicable IEC Policies and benefit plans. For
purposes of this Section 4(c)(ii), the term "Constructively Terminated" shall be
deemed to mean (i) a reduction of your Base Salary, (ii) your refusal to
relocate to a facility or location which is located beyond twenty-five (25)
miles from Sunnyvale, California, or (iii) an alteration during the Term of the
services to be performed by, and the responsibilities and duties assigned to,
you under this Agreement if such services, responsibilities and duties, taken as
a whole, materially fail to reflect your knowledge, skill and experience;
provided that a change in your title will not in and of itself constitute
- ---------
Constructive Termination; provided further that, your expenses-paid travel to
--------
the Company's headquarters in San Francisco, California at the Company's
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<PAGE>
request will not in and of itself constitute Constructive Termination; and
provided further that, in each case, you have resigned in writing from your
- --------
position with the Company within thirty (30) calendar days of the commencement
of any Constructive Termination.
(iii) Death or Disability.
(A) Your employment shall terminate in the event of your
death.
(B) The Company may terminate your employment for
Disability by giving you 30 days' advance notice in writing. For all purposes
under this Agreement, "Disability" shall mean that you, at the time notice is
given, have been unable to substantially perform your duties under this
Agreement for a period of not less than six (6) consecutive months as the result
of your incapacity due to physical or mental illness. In the event that you
resume the performance of substantially all of your duties hereunder before the
termination of your employment under this subparagraph (B) becomes effective,
the notice of termination shall automatically be deemed to have been revoked.
(C) No compensation or benefits will be paid or provided
to you under this Agreement on account of termination for death or Disability,
or for periods following the date when such a termination of employment is
effective. Your rights under the benefit plans of the Company in the event of
your death or Disability shall be determined under the provisions of those
plans.
(iv) Severance Payments. During the Term, in the event your
employment with the Company is terminated without cause or if you are
Constructively Terminated, the Company's sole obligation to you will be to pay
you a severance payment ("Severance Payment") in the amount equal to 1/26 of
your effective Base Salary for the year in which you are so terminated for each
complete month during the Term worked by you; provided, however, the Severance
--------
Payment shall, in no case, exceed 1/2 of your Base Salary for such year.
5. Assignment
(a) Successors and Assigns. Any of the Company's affiliates may
assume the liabilities and obligations, and succeed to the rights and interests,
of the Company under this Agreement at any time and without limitation. In
addition to the foregoing, any successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise), or to all or substantially all of the Company's business and/or
assets, shall assume the obligations under this Agreement and agree expressly to
perform the obligations under this Agreement in the same manner and to the same
extent as the Company would be required to perform such obligations in the
absence of such succession. For all purposes of and under this Agreement, the
term "Company" shall include any successor to the Company's business and/or
assets which executes and delivers the assumption agreement required by this
Section 5, or which otherwise becomes bound by the terms of this Agreement by
operation of law. Any such assumption and/or succession under this Section 5
shall not be deemed to be a termination of your employment hereunder.
(b) The terms of this Agreement and all of your rights hereunder
shall inure to the benefit of, and be enforceable by, your personal or legal
representatives, executors, administrators, successor, heirs, distributees,
devisees or legatees.
6. Covenant Not to Compete.
(a) Definitions. As used in this Agreement, the terms:
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<PAGE>
(i) "Restricted Business" shall mean any business related to
(i) advertising, marketing, media placement or banner serving, (ii) enterprise
software applications and/or enterprise integration relating to online or
traditional (including, without limitation, television, print, direct mail,
radio or the like) advertising, marketing, media placement or banner serving or
(iii) the transacting of business, or shopping, purchasing, or subscribing to or
registering for services, products, programs or information, or downloading or
obtaining software programs or information; or participating in other similar
types of transactions, in each case which specifically arise from banners served
by the Company.
(ii) "Restricted Territory" shall mean the larger of: (A) all
of the countries of the world or (B) if (A) is found unenforceable, the
countries in which the Company's products are available during the term of the
non-compete obligations specified in this Section 6.
(b) Non-Compete. In consideration of: (i) the several agreements
made by the Company with you in and pursuant to the Reorganization Agreement,
(ii) the issuance by the Company to you of the New Stock Option, (iii) the
Company's willingness to enter into the Reorganization Agreement, and (iv) the
consideration payable to you hereunder, you agree that until: (A) the three (3)
year anniversary of the date of your termination of employment with the Company
or (B) in the event that the period set forth in clause (A) is determined to be
unenforceable by a court of competent jurisdiction, the maximum period
allowable, you will not, directly or indirectly, engage in (whether as an
officer, employee, consultant, director, proprietor, partner, consultant or
otherwise), or have any ownership interest in, or participate in the financing,
operation, management or control of, any person, firm, corporation or business
that engages in a Restricted Business in a Restricted Territory. It is agreed
that ownership of no more than two percent (2%) of the outstanding voting stock
of a publicly-traded or privately-held corporation shall not constitute a
violation of this section. It is further agreed that the foregoing consideration
is not intended to constitute liquidated damages for a violation of this
section.
(c) Non-Solicit. You agree that until the expiration of the non-
compete obligations specified above in subsection (b), you shall not:
(i) take any action to, or do anything reasonably intended to,
divert business from the Company, or any of its affiliates, or influence or
attempt to influence any retailer, dealer, vendor, supplier, customer or
potential customer of the Company, or any of its affiliates, in each case as
existing on the date of your termination (the "Termination Date"), to cease
doing business with the Company, or any of its affiliates, as the case may be,
or to alter its business relationship with the Company, or any of its
affiliates, in each case as existing on the Termination Date; or
(ii) recruit, attempt to hire, solicit, or assist others in
recruiting or hiring, any person who is an employee of the Company, or any of
its affiliates, in each case as of the Termination Date, or induce or attempt to
induce any such employee to terminate his or her employment with the Company, or
any of its affiliates.
(d) REMEDIES. YOU HEREBY RECOGNIZE AND ACKNOWLEDGE THAT A MATERIAL
VIOLATION OF THE TERMS AND PROVISIONS OF THIS SECTION 6 WOULD CAUSE IRREPARABLE
INJURY TO THE COMPANY, OR ONE OR MORE OF ITS AFFILIATES, AS THE CASE MAY BE, FOR
WHICH THE COMPANY, OR ANY OF ITS AFFILIATES, WOULD HAVE NO ADEQUATE REMEDY AT
LAW. ACCORDINGLY, IN THE EVENT THAT YOU SHALL FAIL TO MATERIALLY COMPLY WITH
THE TERMS AND PROVISIONS OF THIS SECTION 6 IN ANY RESPECT, AND YOU HAVE BEEN
GIVEN NOTICE OF SUCH VIOLATION AND AN OPPORTUNITY TO CURE SUCH VIOLATION, THE
COMPANY, OR ANY OF ITS AFFILIATES, SHALL BE ENTITLED TO PRELIMINARY AND OTHER
INJUNCTIVE RELIEF AND TO SPECIFIC PERFORMANCE OF THE TERMS AND PROVISIONS
HEREOF. IN FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, YOU
-5-
<PAGE>
HEREBY WAIVE ANY CLAIM OR DEFENSE RELATING TO ANY VIOLATION OR BREACH BY YOU OF
THE TERMS AND PROVISIONS OF THIS SECTION 6 THAT THE COMPANY, OR ANY OF ITS
AFFILIATES, HAS AN ADEQUATE REMEDY AT LAW OR THAT MONEY DAMAGES WOULD PROVIDE AN
ADEQUATE REMEDY FOR SUCH VIOLATION OR BREACH.
(e) Severability. The parties intend that the covenants contained in
the preceding paragraphs shall be construed as a series of separate covenants,
one for each county, city, state and other political subdivision of each country
in the Restricted Territory. Except for geographic coverage, each separate
covenant shall be deemed identical in terms to the covenant contained in the
preceding paragraphs. If, in any judicial proceeding, a court shall refuse to
enforce any of the separate covenants (or any part thereof) deemed included in
said paragraphs, then such unenforceable covenant (or such part) shall be deemed
eliminated from this Agreement for the purpose of those proceedings to the
extent necessary to permit the remaining separate covenants (or portions
thereof) to be enforced by such court. It is the intent of the parties that the
covenants set forth herein be enforced to the maximum degree permitted by
applicable law.
7. Entire Agreement. This Agreement and the Confidential Information and
Invention Assignment Agreement set forth the entire agreement and understanding
of the parties with respect to the subject matter hereof and thereof, and
supersede any other written or oral negotiations, agreements, understandings,
representations or practices concerning such subject matter hereof (including
without limitation any employment agreement or offer letter extended by the
Company at any time). In the event of any conflict between the provisions hereof
and the provisions of the Confidential Information and Invention Assignment
Agreement the, provisions hereof shall control.
8. Notices. Any notice, report or other communication required or
permitted to be given hereunder shall be in writing and shall be deemed given on
the date of delivery if delivered, or five days after mailing, if mailed first-
class mail, postage prepaid, return receipt requested, or delivered to a
nationwide overnight delivery service charges prepaid, return receipt requested,
to the following addresses:
(a) If to the Company: Internet Extra Corporation
131 Steuart Street, Fourth Floor
San Francisco, CA 94105
Attention: Gregory R. Raifman
(b) If to you: To the address for notice set forth on the
signature page hereto or to such other
address as any party hereto may hereafter
designate by notice given as herein provided.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of California without giving effect to principles
regarding conflict of laws. Any action or proceeding brought by any party
against another arising out of or related to this Agreement shall be brought in
a state or federal court of competent subject matter jurisdiction located within
Santa Clara County in the State of California, and each of the parties to this
Agreement consents to the personal jurisdiction of those courts.
10. Arbitration. In the event of any dispute or claim relating to or
arising out of our employment relationship, you and the Company agree that all
such disputes shall be fully and finally resolved by binding arbitration
conducted by the American Arbitration Association in San Francisco, California.
HOWEVER, we agree that this arbitration provision shall not apply to any
disputes or claims relating to or arising out of the misuse or misappropriation
of the Company's trade secrets or proprietary information.
-6-
<PAGE>
11. Amendments. This Agreement shall not be changed or modified in whole
or in part except by an instrument in writing signed by the Company and you nor
shall any covenant or provision of this Agreement be waived except by an
instrument in writing signed by the party against whom enforcement of such
waiver is sought.
12. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which shall together constitute
one and the same agreement.
13. Effect of Headings. The section headings herein are for convenience
only and shall not effect the construction or interpretation of the Agreement.
14. Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to either party upon any breach or default of the other
party hereto shall impair any such right, power or remedy of such non-defaulting
party, nor shall it be construed to be a waiver of any such breach or default or
an acquiescence therein, or of any similar breach or default thereafter
occurring; nor shall any waiver of a breach or default be deemed to be a waiver
of any other breach or default.
15. Rules of Construction. You and the Company each acknowledge that they
have been represented by, or had an opportunity to consult with, competent
counsel during the negotiation and execution of this Agreement and therefore,
waive the application of any law, regulation, holding or rule of construction
providing that ambiguities in any agreement will be construed against the party
drafting such agreement.
[The remainder of this page is intentionally left blank.]
<PAGE>
To indicate your acceptance of the terms of this Agreement, please sign and
date this letter in the space provided below and return it to me. A duplicate
original is enclosed for your records. This letter, along with the agreement
relating to proprietary rights between you and the Company, set forth the terms
of your employment with the Company and supersede any prior representations or
agreements, whether written or oral.
We look forward to working with you at Internet Extra Corporation.
Sincerely,
Internet Extra Corporation
/s/ Gregory R. Raifman
---------------------------------------
Gregory R. Raifman
Chief Executive Officer
ACCEPTED AND AGREED TO this
____ day of March, 1999.
/s/ Ruiqing "Barclay" Jiang
- ----------------------------
Ruiqing "Barclay" Jiang
Address for notices:
_________________________________
_________________________________
_________________________________
Enclosures: Duplicate Original Letter
Confidential Information and Invention Assignment Agreement
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
<PAGE>
INTERNET EXTRA CORPORATION
CONFIDENTIAL INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
As a condition of my employment with Internet Extra Corporation, its
subsidiaries, affiliates, successors or assigns (collectively, the "Company"),
and in consideration of my employment with the Company and my receipt of the
compensation now and hereafter paid to me by Company. I agree to the following:
1. Confidential Information.
------------------------
(a) Company Information. I agree at all times during the term of my
-------------------
employment and thereafter, to hold in strictest confidence, and not to use,
except for the benefit of the Company, or to disclose to any person, firm or
corporation without written authorization of the Board of Directors of the
Company, any Confidential Information of the Company. I understand that
"Confidential Information" means any Company proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research,
product plans, products, services, customer, vendor and contractor lists and
customers (including, but not limited to, customers of the Company on whom I
called or with whom I became acquainted during the term of my employment),
markets, software, developments, inventions, processes, formulas, technology,
designs, drawings, engineering, hardware configuration information, marketing,
finances or other business information disclosed to me by the Company either
directly or indirectly in writing, orally or by drawings or observation of parts
or equipment. I further understand that Confidential Information does not
include any of the foregoing items which has become publicly known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) Former Employer Information. I agree that I will not, during my
---------------------------
employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that I will not bring into the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(c) Third Party Information. I recognize that the Company has
-----------------------
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company consistent with the Company's agreement with such third party.
<PAGE>
2. Inventions.
----------
(a) Inventions Retained and Licensed. I have attached hereto, as
--------------------------------
Exhibit A, a list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to my
employment with the Company (collectively referred to as "Prior Inventions"),
which belong to me, which relate to the Company's proposed business, products or
research and development, and which are not assigned to the Company hereunder;
or, if no such list is attached, I represent that there are no such Prior
Inventions. If in the course of my employment with the Company, I incorporate
into a Company product, process or machine a Prior Invention owned by me or in
which I have an interest, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make,
have made, modify, use and sell such Prior Invention as part of or in connection
with such product, process or machine.
(b) Assignment of Inventions. I agree that I will promptly make full
------------------------
written disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and hereby assign to the Company, or its designee, all
my right, title, and interest in and to any and all inventions, original works
of authorship, developments, concepts, improvements or trade secrets, whether or
not patentable or registrable under copyright or similar laws, which I may
solely or jointly conceive or develop or reduce to practice, or cause to be
conceived or developed or reduced to practice, during the period of time I am in
the employ of the Company (collectively referred to as "Inventions"), except as
provided in Section 2(f) below. I further acknowledge that all original works of
authorship which are made by me (solely or jointly with others) within the scope
of and during the period of my employment with the Company and which are
protectable by copyright are "works made for hire," as that term is defined in
the United States Copyright Act.
(c) Inventions Assigned to the United States. I agree to assign to
----------------------------------------
the United States government all my right, title, and interest in and to any and
all Inventions whenever such full title is required to be in the United States
by a contract between the Company and the United States or any of its agencies.
(d) Maintenance of Records. I agree to keep and maintain adequate and
----------------------
current written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain the sole
property of the Company at all times.
(e) Patent and Copyright Registrations. I agree to assist the
----------------------------------
Company, or its designee, at the Company's expense, in every proper way to
secure the Company's rights in the Inventions and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto in any and
all countries, including the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my
<PAGE>
obligation to execute or cause to be executed, when it is in my power to do so,
any such instrument or papers shall continue after the termination of this
Agreement. If the Company is unable because of my mental or physical incapacity
or for any other reason to secure my signature to apply for or to pursue any
application for any United States or foreign patents or copyright registrations
covering Inventions or original works of authorship assigned to the Company as
above, then I hereby irrevocably designate and appoint the Company and its duly
authorized officers and agents as my agent and attorney in fact, to act for and
in my behalf and stead to execute and file any such applications and to do all
other lawfully permitted acts to further the prosecution and issuance of letters
patent or copyright registrations thereon with the same legal force and effect
as if executed by me.
(f) Exception to Assignments. I understand that the provisions of
------------------------
this Agreement requiring assignment of Inventions to the Company do not apply to
any invention which qualifies fully under the provisions of California Labor
Code Section 2870 (attached hereto as Exhibit B). I will advise the Company
promptly in writing of any inventions that I believe meet the criteria in
California Labor Code Section 2870 and not otherwise disclosed on Exhibit A.
3. Conflicting Employment. I agree that, during the term of my employment
----------------------
with the Company, I will not engage in any other employment, occupation,
consulting other business activity directly related to the business in which the
Company and/or its customers are now involved or becomes involved during the
term of my employment, nor will I engage in any other activities that conflict
with my obligations to the Company.
4. At Will Employment. I understand that my employment with the Company
------------------
is "at will" and is for no specified term. As a result, I understand that the
Company can terminate my employment at any time and that, similarly, I am free
to terminate my employment with the Company at any time.
5. Returning Company Documents. I agree that, at the time of leaving the
---------------------------
employ of the Company, I will deliver to the Company (and will not keep in my
possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications,
drawings, blueprints, sketches, materials, equipment, other documents or
property, or reproductions of any aforementioned items developed by me pursuant
to my employment with the Company or otherwise belonging to the Company, its
successors or assigns. In the event of the termination of my employment, I
agree to sign and deliver the "Termination Certification" attached hereto as
Exhibit C.
6. Notification to New Employer. In the event that I leave the employ of
----------------------------
the Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
7. Solicitation of Employees. I agree that for a period of twelve (12)
-------------------------
months immediately following the termination of my relationship with the Company
for any reason, whether with or without cause, I shall not either directly or
indirectly solicit, induce, recruit or encourage any of the Company's employees
to leave their employment, or take away such employees, or attempt to
<PAGE>
solicit, induce, recruit, encourage or take away employees of the Company,
either for myself or for any other person or entity.
8. Conflict of Interest Guidelines. I agree to diligently adhere to the
-------------------------------
Conflict of Interest Guidelines attached as Exhibit D hereto.
9. Representations. I agree to execute any proper oath or verify any
---------------
proper document required to carry out the terms of this Agreement. I represent
that my performance of all the terms of this Agreement will not breach any
agreement to keep in confidence proprietary information acquired by me in
confidence or in trust prior to my employment by the Company. I have not entered
into, and I agree I will not enter into, any oral or written agreement in
conflict herewith.
10. Arbitration and Equitable Relief.
--------------------------------
(a) Arbitration. Except as provided in Section 10(b) below, I agree
-----------
that any dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this Agreement, shall be
settled by arbitration to be held in San Francisco County, California, in
accordance with the rules then in effect of the American Arbitration
Association. The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction. The
Company and I shall each pay one-half of the costs and expenses of such
arbitration, and each of us shall separately pay our counsel fees and expenses.
(b) Equitable Remedies. I agree that it would be impossible or
------------------
inadequate to measure and calculate the Company's damages from any breach of the
covenants set forth in Sections 1, 2, 3, and 5 herein. Accordingly, I agree that
if I breach any of such Sections, the Company will have available, in addition
to any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any such provision of this Agreement. I further agree
that no bond or other security shall be required in obtaining such equitable
relief, and I hereby consent to the issuance of such injunction and to the
ordering of specific performance.
11. General Provisions.
------------------
(a) Governing Law; Consent to Personal Jurisdiction. This Agreement
-----------------------------------------------
will be governed by the laws of the State of California. I hereby expressly
consent to the personal jurisdiction of the state and federal courts located in
California for any lawsuit filed there against me by the Company arising from or
relating to this Agreement.
(b) Entire Agreement. This Agreement sets forth the entire agreement
----------------
and understanding between the Company and me relating to the subject matter
herein and merges all prior discussions between us. No modification for
amendment to this Agreement, nor any waiver of any rights under this agreement,
will be effective unless in writing signed by the party to be charged.
<PAGE>
Any subsequent change or changes in my duties, salary or compensation will not
affect the validity or scope of this Agreement.
(c) Severability. If one or more of the provisions in this Agreement
------------
are deemed void by law, then the remaining provisions will continue in full
force and effect.
(d) Successors and Assigns. This Agreement will be binding upon my
----------------------
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
INTERNET EXTRA CORPORATION
By:________________________________
Name
Title
AGREED TO AND ACCEPTED:
Signature
Date:
Witness
<PAGE>
EXHIBIT A
---------
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
Identifying Number or
Title Date Brief Description
----- ---- -----------------
______ No inventions or improvements
______ Additional Sheets Attached
Signature of Employee:
Print Name of Employee:
Date:_________________________
<PAGE>
EXHIBIT B
---------
CALIFORNIA LABOR CODE SECTION 2870
EMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS
"(a) Any provision in an employment agreement which provides that an
employee shall assign, or offer to assign, any of his or her rights in an
invention to his or her employer shall not apply to an invention that the
employee developed entirely on his or her own time without using the employer's
equipment, supplies, facilities, or trade secret information except for those
inventions that either:
(1) Relate at the time of conception or reduction to practice of the
invention to the employer's business, or actual or demonstrably anticipated
research or development of the employer.
(2) Result from any work performed by the employee for the employer.
(b) To the extent a provision in an employment agreement purports to
require an employee to assign an invention otherwise excluded from being
required to be assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable."
<PAGE>
EXHIBIT C
---------
INTERNET EXTRA CORPORATION
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed
to return, any devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any aforementioned
items belonging to Internet Extra Corporation, its subsidiaries, affiliates,
successors or assigns (collectively, the "Company").
I further certify that I have complied with all the terms of the Company's
Employment, Confidential Information and Invention Assignment Agreement signed
by me, including the reporting of any inventions and original works of
authorship (as defined therein), conceived or made by me (solely or jointly with
others) covered by that agreement.
I further agree that, in compliance with the Employment, Confidential
Information and Invention Assignment Agreement, I will preserve as confidential
all trade secrets, confidential knowledge, data or other proprietary information
relating to products, processes, know-how, designs, formulas, developmental or
experimental work, computer programs, data bases, other original works of
authorship, customer lists, business plans, financial information or other
subject matter pertaining to any business of the Company or any of its
employees, clients, consultants or licensees.
I further agree that for twelve (12) months from this date, I will not hire
any employees of the Company and I will not directly or indirectly solicit,
induce, recruit or encourage any of the Company's employees to leave their
employment, or take away such employees, or attempt to solicit, induce, recruit,
encourage or take away any employees of the Company, either for myself or for
any other person or entity.
Date:
______________________________________
(Employee's Signature)
______________________________________
(Type/Print Employee's Name)
<PAGE>
EXHIBIT D
---------
INTERNET EXTRA CORPORATION
CONFLICT OF INTEREST GUIDELINES
It is the policy of Internet Extra Corporation, its subsidiaries,
affiliates, successors or assigns (collectively, the "Company") to conduct its
affairs in strict compliance with the letter and spirit of the law and to adhere
to the highest principles of business ethics. Accordingly, all officers,
employees and independent contractors must avoid activities which are in
conflict, or give the appearance of being in conflict, with these principles and
with the interests of the Company. The following are potentially compromising
situations which must be avoided. Any exceptions must be reported to the
President and written approval for continuation must be obtained.
1. Revealing confidential information to outsiders or misusing
confidential information. Unauthorized divulging of information is a violation
of this policy whether or not for personal gain and whether or not harm to the
Company is intended. (The Employment, Confidential Information and Invention
Assignment Agreement elaborates on this principle and is a binding agreement.)
2. Accepting or offering substantial gifts, excessive entertainment,
favors or payments may be deemed to constitute undue influence or otherwise be
improper or embarrassing to the Company.
3. Initiating or approving personnel actions affecting reward or
punishment of employees or applicants where there is a family relationship or is
or appears to be a personal or social involvement.
4. Initiating or approving any form of personal or social harassment of
employees.
5. Investing or holding outside directorships in suppliers, customers or
competing companies, including financial speculation, where such investment or
directorship might influence in any manner a decision or course of action of the
Company.
6. Borrowing from or lending to employees, customers or suppliers.
7. Acquiring a real estate interest adverse to the Company.
8. Improperly using or disclosing to the Company any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity with whom obligations of confidentiality exist.
9. Unlawfully discussing prices, costs, customers, sales or markets with
competing companies or their employees.
10. Making any unlawful agreements with distributors with respect to
prices.
<PAGE>
11. Improperly using or authorizing the use of any inventions which are
the subject of patent claims of any other person or entity.
12. Engaging in any conduct which is not in the best interest of the
Company.
Each officer, employee and independent contractor must take every necessary
action to ensure compliance with these guidelines and to bring problem areas to
the attention of higher management for review. Violations of this conflict of
interest policy may result in discharge without warning.
<PAGE>
EXHIBIT 10.12
CONFIDENTIAL TREATMENT REQUESTED
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION, CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
TECHNOLOGY INTEGRATION AND
SERVICES AGREEMENT
THIS TECHNOLOGY INTEGRATION AND SERVICES AGREEMENT (this
"Agreement"), effective as of this 22nd day of July, 1999 (the "Effective
Date"), by and between DoubleClick, Inc., a Delaware corporation
("DoubleClick") and MediaPlex, Inc., a California corporation ("MediaPlex").
WHEREAS, MediaPlex provides full service e-business marketing and
technology solutions for third party advertiser and advertising agency clients
(including, without limitation, planning, buying, management and serving of ads)
and has recently developed its MOJO technology for the creation of dynamic
functionality for online messages and banner ads, including banner ads based on
data derived from client enterprise databases, for more accurate analysis of ROI
and for better fine-targeting of banner ads;
WHEREAS, DoubleClick, through its DART service, is the leading
provider of third party ad serving services;
WHEREAS, the DART service is comprised of the following equipment and
technology components: (i) the ad server component, which includes the
technology that identifies the advertisement that is sent to a Visitor (as
defined below); and (ii) the media server component, which stores the
advertisements available for delivery and delivers advertisements to Visitors;
WHEREAS, MediaPlex would like to continue to offer full service
advertising services and its MOJO technology to its advertiser and advertising
agency clients but desires in certain instances to outsource some or all of the
third party ad serving and reporting components of such services;
WHEREAS, DoubleClick and MediaPlex desire to enter into an agreement,
pursuant to which DoubleClick would make available to MediaPlex, on a private
label basis, DoubleClick's DART ad serving and reporting services for
MediaPlex's advertiser and advertising agency clients;
WHEREAS, MediaPlex would like to transition ad serving services to
DoubleClick (i) by having DoubleClick provide the media server component of its
DART service as soon as the necessary implementation and customization work can
be completed and (ii) having DoubleClick develop in parallel a customized
private label version of its DART service which works in conjunction with the
MOJO technology, which MediaPlex will utilize as soon as the necessary
development work has been completed;
WHEREAS, DoubleClick and MediaPlex desire that in certain limited
instances DoubleClick shall have access and use of the MOJO technology only to
enable DoubleClick to provide its ad serving and reporting services in
conjunction with MediaPlex's provision of MOJO technology based services to its
clients; and
<PAGE>
WHEREAS, in furtherance of the objectives set forth above, the parties
hereto desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
DoubleClick and MediaPlex, intending to be legally bound, hereby agree as
follows:
SECTION 1
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall
-----------
have the meanings specified below:
(a) "Advertiser" shall mean any Person that desires to target and
measure Advertisements on Target Sites.
(b) "Advertising Agency" shall mean any Person that desires to
target and measure Advertisements for Advertisers on Target Sites.
(c) "Advertising" or "Advertisement" shall mean material that (i)
promotes a brand or products or services and (ii) is provided to DoubleClick for
delivery to Visitors.
(d) "Affiliate" shall mean, with respect to any Person, any other
Person that, directly or indirectly, controls, is controlled by, or is under
common control with, such Person.
(e) "Agreement" shall mean this Agreement and the schedules,
exhibits and addenda attached hereto as the same may be amended, supplemented or
modified in accordance with the terms hereof.
(f) "Confidential Information" shall have the meaning set forth in
Section 11 to this Agreement.
(g) "Development Services" shall mean the customization, development
and implementation services set forth in Section 4 of this Agreement. The
Development Services will be provided in multiple Phases as described in Section
4.
(h) "DoubleClick" shall have the meaning set forth in the recitals
to this Agreement.
(i) "DoubleClick Competitor" shall mean any Person that is primarily
engaged in the business of providing Web-based advertising services or sales.
(j) "DoubleClick Indemnitee" shall have the meaning set forth in
Section 10.1 to this Agreement.
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(k) "Effective Date" shall have the meaning set forth in the
preamble to this Agreement.
(l) "Impression" shall mean each occurrence of Advertising on a page
of a Target Site resulting from a Visitor accessing or visiting such page.
(m) "Indemnitee" shall have the meaning set forth in Section 10.3 to
this Agreement.
(n) "Indemnitor" shall have the meaning set forth in Section 10.3 to
this Agreement.
(o) "MediaPlex" shall have the meaning set forth in the preamble to
this Agreement.
(p) "MediaPlex Client" shall mean an Advertiser or Advertising
Agency with whom MediaPlex has entered into a MediaPlex Client Agreement for the
purchase and delivery of Advertising to Target Sites.
(q) "MediaPlex Client Agreement" shall mean an agreement between
MediaPlex and an Advertiser or Advertising Agency that covers the provision of
advertising services from MediaPlex and its third party service providers to the
Advertiser or Advertising Agency and which includes the provisions and terms
required by this Agreement.
(r) "MediaPlex Indemnitee" shall have the meaning set forth in
Section 10.2 to this Agreement.
(s) "MediaPlex Served Ads" shall have the meaning set forth in
Section 2.4(a) to this Agreement.
(t) "Media Serving Services" shall mean hosting and providing
MediaPlex access to DoubleClick media servers which (i) store Advertisements
available for delivery and (ii) deliver Advertisements to Visitors to Target
Sites in accordance with the instructions and data provided by MediaPlex (using
MediaPlex's ad serving technologies).
(u) "MOJO Technology" shall mean MediaPlex's proprietary technology
which includes, without limitation, dynamic functionality for banner ads, and
which may be based on data derived from MediaPlex client enterprise databases.
(v) "Person" shall mean any individual, firm, corporation,
partnership, trust, association, joint venture, company or other entity, or any
government authority.
(w) "Private Label DART Service" shall mean the DART service
provided by DoubleClick to MediaPlex for resale to Advertisers and Advertising
Agencies for targeted and measured delivery of Advertising from DoubleClick's
servers to Target Sites (including both Media Serving Services and the ad server
component that identifies the Advertisement that is sent to a Visitor) and that
has been configured and customized as required in Section 4 below
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(except to the extent such configuration or customization is waived by MediaPlex
or the parties do not agree upon specifications, schedule and fees).
(x) "Services" shall mean, collectively, the Media Serving Services,
Private Label DART Service, the Development Services, training, technical
support and any other services provided by DoubleClick.
(y) "System" shall mean DoubleClick's proprietary DART software
technology, including DoubleClick's proprietary ad management system software
technology running on DoubleClick's servers.
(z) "Target Site" shall mean any Web site on the Internet specified
by a MediaPlex Client on which Advertisements are to be served on behalf of that
MediaPlex Client pursuant to an ad insertion order or other agreement between
MediaPlex or the MediaPlex Client and the proprietor of that Web site that
allows for serving of the Advertisements from third party ad serving services.
(aa) "Term" shall have the meaning set forth in Section 7.1 to this
Agreement.
(bb) "Visitors" shall mean visitors to a Web site.
SECTION 2
DOUBLECLICK AD SERVING SERVICES
2.1 Media Serving Services. Subject to completion of Phase I Development
----------------------
Services and the terms and conditions of this Agreement, until the commencement
of the full Private Label DART Service, DoubleClick shall provide the Media
Serving Services to MediaPlex for the delivery of Advertisements from
DoubleClick's servers to Visitors of the Target Sites. The Advertisements
delivered by the Media Serving Services shall be based on instructions and data
from MediaPlex and MediaPlex Clients as provided to DoubleClick via the MOJO
Technology.
2.2 Private Label DART Service.
--------------------------
(a) Subject to completion of Phase II Development Services (or, at
MediaPlex's option, a portion thereof pending completion) and the terms and
conditions of this Agreement, during the Term DoubleClick shall provide the
Private Label DART Service to MediaPlex for the targeted and measured delivery
of Advertisements from DoubleClick's servers to Visitors of the Target Sites.
The Advertisements shall be delivered by the Private Label DART Service to
Visitors based on criteria selected by MediaPlex and MediaPlex Clients and based
on instructions and data that have been input into the System by MediaPlex and
the MediaPlex Clients and/or provided to DoubleClick by the MOJO Technology.
(b) The standard DART for Advertisers service is available
immediately after the Effective Date. If MediaPlex elects to utilize the
standard DART for Advertisers service, such service shall be provided subject to
all the terms and conditions set forth in this Agreement that are applicable to
the Private Label DART Service.
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2.3 Ad Management System.
--------------------
(a) MediaPlex and DoubleClick understand that MediaPlex and MediaPlex
Clients shall be required to use the System in order to receive the Private
Label DART Service. Accordingly, DoubleClick grants to MediaPlex the non-
exclusive and nontransferable right to access and use the System, which
MediaPlex can access and use only on DoubleClick's Web servers by means of a
unique password chosen by MediaPlex, and only for the purposes of: (i) uploading
and storing Advertising for delivery by the Private Label DART Service, (ii)
selecting trafficking criteria for the delivery of Advertising to Target Sites
and Visitors, (iii) receiving reports of Impressions and other data related to
the delivery of Advertising by the Private Label DART Service and (iv) creating
and maintaining a data record for each MediaPlex Client and (v) such other
functionality that DoubleClick may incorporate into the DART service or Private
Label DART Service from time to time.
(b) The non-exclusive right in Section 2.3(a) above shall be personal
to MediaPlex and non-transferable, except that MediaPlex shall be permitted to
allow MediaPlex Clients to access and use the System in accordance with
DoubleClick's stated policies, but only to the extent necessary for such parties
to receive reports of Impressions and other data related to the delivery and
measurement of that MediaPlex Client's own Advertising, or if the MediaPlex
Client is an Advertising Agency, then for that Advertising Agency's client's
Advertising. MediaPlex shall be responsible and liable for any breaches of the
terms of this Agreement by any MediaPlex Client.
2.4 Preferred Provider.
------------------
(a) During the Term, MediaPlex agrees that DoubleClick shall be the
preferred third party provider of ad serving and reporting to MediaPlex and
MediaPlex Clients, as set forth herein. Accordingly, after the completion of
the Phase I Development Services, MediaPlex shall, at its sole option, use the
System for ad serving (and associated reporting) in those cases when MediaPlex
is using, or would have used, its own ad servers ("MediaPlex Served Ads");
provided, however, that MediaPlex shall not be obligated to use DoubleClick's
- -------- -------
services.
(b) Nothing in this Section 2.4 shall be deemed to prevent MediaPlex
from marketing, selling, distributing or deploying its MOJO Technology to a
DoubleClick Competitor, a client of a DoubleClick Competitor or an existing
DoubleClick customer. In the event that MediaPlex shall enter into such an
agreement with a DoubleClick Competitor or a client of a DoubleClick Competitor,
then MediaPlex shall be entitled to deploy its MOJO Technology on the ad
management or serving system or technology of such DoubleClick Competitor or
client of DoubleClick Competitor without being required to use DoubleClick's
System in that instance. In the event that MediaPlex shall enter into such an
agreement with an existing DoubleClick customer then MediaPlex shall deploy its
MOJO Technology on the DoubleClick System.
(c) Nothing in Section 2.4(a) shall prohibit or restrict MediaPlex
from:
(i) placing its ad objects directly on vendor or MediaPlex
client sites;
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(ii) using third parties (including without limitation
DoubleClick Competitors) to serve ads (A) at the request
of MediaPlex Clients (including without limitation
Advertisers or Advertising Agencies), or (B) in connection
with MediaPlex Clients (including, without limitation,
Advertisers or Advertising Agencies) referred to MediaPlex
by the third party; or
(iii) integrating MOJO Technology into any third party
(including without limitation DoubleClick Competitors or
clients of DoubleClick competitors) ad serving capability
or other product or service.
2.5 Coordination of Marketing Efforts. In the event that the parties
---------------------------------
become aware that they are both pursuing the same potential new client, then the
parties shall cooperate to provide a coordinated solution to such client.
2.6 Support.
-------
(a) For the first 60 days from the Effective Date the Agreement,
DoubleClick will provide assistance (as DoubleClick customarily provides to its
DART (or Advertiser customers) with inputting ad creatives into its media
servers and in delivering HTML ad tags to the Target Sites MediaPlex designates.
The group providing such support shall be available by telephone Monday through
Friday from 9:00 AM-6:00 PM EST.
(b) DoubleClick shall also provide MediaPlex with Telephone Support
throughout the Term which shall consist of: (1) Monday through Friday (excluding
federal legal holidays) making a DoubleClick Customer Support Analyst available
by telephone for support twenty-four (24) hours a day; and (2) Saturdays,
Sundays and federal legal holidays: (i) call-back within one (1) hour by a
Customer Support Analyst available twenty-four (24) hours a day via pager access
for assistance other than System down support, and (ii) a live Operations
Technician available by telephone for operational emergency support twenty-four
(24) hours a day. DoubleClick shall supply MediaPlex with any names, phone
numbers, email addresses and pager numbers required in connection with the
foregoing. Telephone Support will be provided to MediaPlex free of charge.
2.7 Private Label DART Service Level Up-Time. DoubleClick shall use
----------------------------------------
commercially reasonable efforts to ensure that the Private Label DART Service
delivers Advertising at [*], calculated on a calendar monthly basis; it being
understood that Private Label DART Service Advertising delivery "down" time
(calculated as the difference between 100% and the actual percentage delivery of
ads) shall exclude time (i) required for routine system maintenance not to
exceed thirty (30) minutes in any calendar month that is performed by
DoubleClick so long as MediaPlex is notified at least one (1) day in advance,
and MediaPlex approves the scheduling which must be during low volume time
periods and (ii) resulting from technical malfunctions in either the MOJO
Technology (including its interaction with the Private Label DART Service)
Target Sites' systems, or any other circumstances beyond DoubleClick's
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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reasonable control (including without limitation, Internet delays, network
congestion and ISP malfunctions). In the event that unscheduled down time
materially exceeds that which is experienced by other DoubleClick DART customers
in any month, [*]. The Average Impressions shall be determined by dividing the
total ads served in the previous month by the total number of hours in that
month.
2.8 Internal Ad Delivery Time. DoubleClick shall use reasonable
--------------------------
commercial efforts to ensure that its servers shall respond to a request for an
Advertisement to be delivered within the period of time equal to the sum of [*].
However, MediaPlex acknowledges that Ad delivery time from DoubleClick's servers
to a Visitor is a function of the Internet and MediaPlex systems and is not
within DoubleClick's control.
2.9 Ad Management System Availability. DoubleClick shall use commercially
---------------------------------
reasonable efforts to ensure that the Ad Management System (provided as part of
the Private Label DART Service) is available for MediaPlex use [*] calculated on
a calendar monthly basis; it being understood that Ad Management System "down"
time shall exclude time (i) required for routine system maintenance not to
exceed twenty-four (24) hours in any calendar month that is performed by
DoubleClick so long as MediaPlex is notified at least one (1) business day in
advance (it being understood that (x) the Ad Management System is "down" for
routine scheduled maintenance for up to four (4) hours each Saturday morning
between the hours of 10 AM to 2 PM Eastern standard time and (y) advance notice
shall not be required for such routine scheduled maintenance) and (ii) resulting
from technical malfunctions in Target Site's systems, or any other circumstances
reasonably beyond DoubleClick's control (including without limitation, Internet
delays, network congestion and ISP malfunctions).
2.10 Training. DoubleClick will provide up to 4 free training sessions per
---------
year to MediaPlex in relation to the Private Label DART Service. In addition,
DoubleClick will provide a single free training session to each MediaPlex Client
that requests such training. Further training sessions are available to
MediaPlex and MediaPlex Clients at DoubleClick's then standard charges for such
training. Training will be provided at DoubleClick's premises in New York or on
site at MediaPlex or the MediaPlex Client. In the event of MediaPlex or a
MediaPlex client requiring training on site at MediaPlex or the MediaPlex
Client, DoubleClick's reasonable travel expenses shall be paid by the recipient
of any such training services provided at such sites.
SECTION 3
MEDIAPLEX'S OBLIGATIONS
3.1 Migration of Existing MediaPlex Clients. At such time following the
---------------------------------------
completion of Phase I Development Services that MediaPlex desires, MediaPlex
shall commence the process
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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by which MediaPlex shall transition some or all of its existing MediaPlex
Clients to the Media Serving Services and, when available, the Private Label
DART Service.
3.2 Integration Assistance. Upon execution of this Agreement, MediaPlex
----------------------
shall assist DoubleClick in the process of interfacing and/or integrating into
the Media Serving Services and the Private Label DART Service (i) the MOJO
Technology, (ii) MediaPlex's existing data and (iii) any other software or data
necessary for the operation of the Media Serving Services or Private Label DART
Service on behalf of MediaPlex Clients or completion of the Development
Services. MediaPlex shall also be responsible for making any amendments, if any,
as required to their MediaPlex Client Agreements and agreements with Target
Sites. MediaPlex hereby grants to DoubleClick, during the Term, a nonexclusive,
nontransferable, worldwide, royalty free license, with no right to sublicense,
to incorporate necessary components of the MOJO Technology, in executable form
only, into the System solely to integrate and implement such component into the
System, solely (A) to provide to MediaPlex access to the System using MOJO
Technology and (B) to provide the Private Label Dart Service and support for
such service to MediaPlex and MediaPlex clients as contemplated by this
Agreement (the purposes in the preceding clauses (A) and (B) are the `Permitted
Purposes'). DoubleClick's incorporation into the System of MOJO Technology and
use of MOJO Technology shall be limited to the Permitted Purposes only. No
license is granted to, and DoubleClick shall not, use any components of the MOJO
Technology for any other purpose or Person. All rights not expressly granted to
DoubleClick are retained by MediaPlex.
3.3 Marketing, Sales and Other Responsibilities. MediaPlex shall be
-------------------------------------------
solely responsible for soliciting all MediaPlex Clients, Target Sites,
trafficking of Advertising (which shall include the input of Advertising into
the System) and handling all inquiries of any type or nature. Outsourcing of
trafficking of Advertising is available from DoubleClick as specified in Section
4.4 below and if trafficking of Advertising is entirely outsourced to
DoubleClick, it shall no longer be a responsibility of MediaPlex.
3.4 Content; Privacy. MediaPlex shall obtain all necessary rights,
----------------
licenses, consents, waivers and permissions to allow DoubleClick to store and
deliver Advertising and otherwise operate the Private Label DART Service on
MediaPlex's behalf and on behalf of MediaPlex Clients, and to use any data
provided to or collected by the System as contemplated by this Agreement.
MediaPlex further represents that it will conform to DoubleClick's statement on
privacy at all times during the Term. MediaPlex further agrees that all
Advertisements provided by MediaPlex for delivery on the Private Label DART
Service, and MediaPlex's other promotional and marketing activities in
connection with the use of the Private Label DART Service, shall not be
deceptive, misleading, obscene, defamatory, illegal or unethical.
3.5 Support and Training.
--------------------
(a) MediaPlex shall provide to DoubleClick support and training
relating to its MOJO Technology and such other training beneficial to the
integration of the MOJO Technology into the Private Label DART Service.
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(b) MediaPlex shall provide DoubleClick with sufficient technical
support for the integration and maintenance of interfaces and communications
with the MOJO Technology as it relates to the Media Serving Services and the
Private Label DART Service. These resources shall be available by telephone for
at the same times and levels as is required from DoubleClick for the
availability of its Telephone Support for the Private Label DART Service.
MediaPlex shall supply DoubleClick with any names, phone numbers, email
addresses and pager numbers required in connection with the foregoing. The
foregoing Telephone Support will be provided to DoubleClick free of any charge.
3.6 Impression Level Estimates. MediaPlex agrees to provide DoubleClick
--------------------------
with estimates of anticipated Impression levels for its Advertisements to be
delivered by the Media Serving Services and Private Label DART Service, and to
update such estimates when there are material changes in such estimates.
SECTION 4
DOUBLECLICK DEVELOPMENT SERVICES
4.1 Phase I - Implementation of Media Serving Services. DoubleClick shall
--------------------------------------------------
provide the following services which shall be completed within the time periods
specified below (collectively, "Phase I Development Services"):
(a) Make available sufficient media servers to provide the Media
Serving Services within twenty (20) business days of the Effective Date.
MediaPlex will use its ad serving technology to redirect to the relevant image
files on these DoubleClick media servers as ad requests are processed by
MediaPlex.
(b) Develop a custom process whereby MediaPlex can populate the
DoubleClick media servers with Advertising creatives and verify successful
transfer of such files, subject to the parties mutually agreeing on the
specifications, schedules and fees for the development of such process. It is
contemplated by the parties that such population process would likely take place
approximately once per hour when it is in operation. DoubleClick shall not be
required to complete this aspect of Phase I until such specifications, schedule
and fees have been mutually agreed. Both parties will cooperate and exhibit
good faith effort in establishing a more efficient transfer process.
(c) MediaPlex shall provide to DoubleClick detailed and accurate
reporting of all Advertisements served using just the Media Serving Services and
not the full Private Label DART Service. The parties shall cooperate to
implement such reporting.
(d) Make available the Ad Server macro within (45) business days of
the effective date. The Ad Server macro will append to the re-direct URL the
appropriate data from the DART IP database for the use of further message
targeting by MOJO
4.2 Phase II - DART for Advertisers customization. DoubleClick shall
---------------------------------------------
modify its standard DART for Advertisers service to create the Private Label
DART Service with the
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following customizations, which shall be completed within the time periods
specified below (collectively, "Phase II Development Services"):
(a) Customer Ad management and reporting user interfaces shall be
developed to provide MediaPlex branding (and/or, at MediaPlex's option, branding
of MediaPlex Advertising Agency clients) and eliminate references to DoubleClick
by name or logo. References to DoubleClick shall also be eliminated from the
reporting URLs by allowing MediaPlex DNS records to refer to DoubleClick
reporting servers. Completion of this capability is estimated to be by October
1, 1999.
(b) A custom login screen with MediaPlex branding (and/or, at
MediaPlex's option, branding of MediaPlex Advertising Agency clients) would also
be available upon written request and within thirty (30) business days of such
request.
(c) The DART software shall be configured so that it can be used for
ad-matching that redirects either to DoubleClick media servers, or to MediaPlex
java objects which in turn determine which redirect is appropriate. Estimated
to be completed during October 1999.
(d) ASCII files incorporating data from MediaPlex's online
advertising served by DoubleClick, including logs of all Impressions and click
events, shall be developed within five (5) business days of the Effective Date.
(e) Reporting functionality shall be configured within five (5)
business days of the Effective Date so that MediaPlex files will be available
and updated, on average, every 24 hours, and stored at DoubleClick for a period
of 10 days before deletion. Delivery of the data from DoubleClick to MediaPlex
will be via FTP over the Internet. Such FTP transfer will be a complete
transfer of the previous days data transmitted during off peak hours and
DoubleClick shall store the previous 10 days data from MediaPlex and MediaPlex
Clients.
(f) A custom trafficking API shall be developed consisting of CSV
files to assist MediaPlex in avoiding trafficking Advertising campaigns
duplicatively (i.e., once in their own systems and once in the DoubleClick
System) within fifteen (15) business days of the Effective Date. In the event
that MediaPlex requests in writing that the API instead consist of XML files,
the development of such API shall be subject to the parties mutually agreeing
upon the specifications, schedule and fees for such development work and
DoubleClick shall not be required to complete this aspect of Phase II until such
specifications, schedule and fees have been mutually agreed.
(g) Data integration shall be carried out subject to the parties
mutually agreeing upon the specifications, schedule and fees for such
integration to be determined after further discussion on requirements.
DoubleClick shall not be required to complete this aspect of Phase II until such
specifications, schedule and fees have been mutually agreed.
(h) A facility for the importing of historical data from client
campaigns being transferred to the DART system will be developed with the
cooperation of MediaPlex.
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DoubleClick shall not be required to complete this aspect of Phase II until
specifications, schedule and fees of this effort have been mutually agreed.
4.3 Phase III - Integration of MediaPlex Mobile Adserver. The parties
----------------------------------------------------
agree to enter into good faith discussions in relation to the development of
hosting solutions for the MediaPlex mobile adserver java objects, including
servlets, classes, and parsers, subject to reaching mutual agreement as to the
specifications, schedule and fees for such Development Services.
4.4 Outsourced Trafficking Services. At MediaPlex's option, MediaPlex may
-------------------------------
request that DoubleClick provide trafficking services in relation to the
MediaPlex Client Advertising (which shall include input of banner ads into the
System).
4.5 Completion and Acceptance of Development Services. When DoubleClick
-------------------------------------------------
believes it has appropriately completed a deliverable within a Phase,
DoubleClick will deliver it to MediaPlex. MediaPlex will accept or reject the
deliverable within fourteen (14) days after delivery; and failure to give notice
of acceptance or rejection within that period or first commercial use
(regardless of notice of rejection) will constitute acceptance. MediaPlex may
reject the deliverable only if the deliverable fails in a material respect to
meet the mutually agreed specifications for that deliverable. A rejection
notice will be effective only if it provides a detailed description of any such
failures in a manner sufficient to allow DoubleClick to reproduce them. If a
deliverable is accepted, DoubleClick will be conclusively presumed to have met
its obligations with respect thereto. If MediaPlex properly rejects a
deliverable, DoubleClick will use diligent efforts to promptly correct the
failures properly specified in the rejection notice. When it believes that it
has made the necessary corrections, DoubleClick will again deliver the
deliverable to MediaPlex and the acceptance/rejection/correction provisions
above shall be reapplied until the deliverable is accepted. MediaPlex may not
reject a resubmitted Deliverable for a failure that was present and reasonably
discoverable in a previously submitted version of the deliverable. If MediaPlex
identifies a failure with a deliverable and DoubleClick shows that the failure
was caused by something other than the deliverable, MediaPlex will pay
DoubleClick for any related work to that time at the DoubleClick's standard time
and materials rates. Any deadlines for completing a Phase or a deliverable
shall be extended day for day by the period of any delay caused by MediaPlex.
Completion of Phase II of the Development Services shall be subject to
completion of Phase I of the Development Services.
SECTION 5
FEES
5.1 Payments. During the Term of this Agreement, MediaPlex shall pay to
--------
DoubleClick (i) a fee for all Advertising delivered by DoubleClick on behalf of
MediaPlex or MediaPlex Clients, (ii) the agreed upon fees for the Development
Services, (iii) fees for time and expenses for any further customization of the
Private Label DART Service that the parties may agree, (iv) fees for training
over and above the free training services, and (v) outsource trafficking fees,
if trafficking services are requested by MediaPlex.
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CONFIDENTIAL TREATMENT REQUESTED
5.2 Advertising Fee. MediaPlex shall pay a fee for all Advertising that
---------------
is delivered by DoubleClick during the Term on behalf of MediaPlex Clients. For
all Advertising delivered by servers located in the U.S., the fee shall be as
follows:
(a) Banner and Badge delivery fee of [*] CPM for the first one
billion Impressions per month.
(b) Banner and Badge re-direct fee of [*] CPM.
(c) Banner and Badge delivery fee of [*] CPM for Impressions in
excess of one billion per month.
(d) Hard Code and Text Link tracking fee of [*] CPM clicks.
(e) 1x1 Pixel serving fee is [*] CPM (provided that there shall be [*]
charge for 1x1 Pixel serving provided as part of another DoubleClick product,
such as Boomerang).
(f) [*]. Within thirty (30) days after the end of each calendar
---
quarter of the Term, DoubleClick shall make a determination and deliver to
MediaPlex such information as to whether, based on [*] served for MediaPlex by
DoubleClick during such quarter MediaPlex is one of DoubleClick's [*] during the
same calendar quarter [*]. Within this thirty (30) day period, DoubleClick shall
send to MediaPlex a detailed written notice of this determination, including the
volume of advertising by MediaPlex in that quarter.
Should the [*] be met for any calendar quarter, MediaPlex shall be
entitled to [*] (as defined below) for the succeeding calendar quarter. [*]
provided, however, that (i) MediaPlex is only entitled to such [*] to the extent
this Agreement contains, or is amended to contain, substantially similar terms
and conditions with respect to term, termination, indemnification, and
representations and warranties as DoubleClick's agreement with such top DART
Service Client, and (ii) in the event that during any quarter in which MediaPlex
is entitled to [*], DoubleClick ceases to extend any element of the [*] to such
top DART Service Client for any reason, then that element of [*] shall equal the
most recent [*] in effect for MediaPlex (the "Last MediaPlex [*]") before such
DART Service Client lost its [*] and the Last MediaPlex [*] shall continue for
those quarters in which MediaPlex is entitled to [*]. If, however, the [*]
Trigger is not met in any calendar quarter, MediaPlex shall pay the fees set
forth in Section 5.2(a)-(e) of this Agreement for the succeeding calendar
quarter. During each quarter, the pricing in effect during the prior quarter
shall continue
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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CONFIDENTIAL TREATMENT REQUESTED
to apply until it is determined, as set forth hereinabove, whether MediaPlex is
entitled to [*] for that quarter and MediaPlex then elects whether or not to
receive such [*] or receive the pricing set forth in Section 5.2(a)-(e). In
connection with the [*], DoubleClick hereby represents to MediaPlex that as of
the date of this Agreement, this Agreement contains substantially similar terms
and conditions with respect to term, termination, indemnification, and
representation and warranties as DoubleClick agreement with its top DART Service
Client as of the date of this Agreement.
If for any quarter after the first twelve (12) months of this
Agreement, MediaPlex does not meet the [*], [*] is no longer in effect because
the DART Service Client lost its [*] status with DoubleClick, DoubleClick no
longer offers [*] to a DART Service Client, or MediaPlex has elected (per its
right under the preceding paragraph) to receive the pricing set forth in Section
5.2(a)-(e) rather than the [*], then MediaPlex, regardless of whether it has
made such an election, shall be entitled to terminate this Agreement without
further obligation or penalty on written notice to DoubleClick at any time on or
prior to sixty (60) days after DoubleClick's notice to MediaPlex of such failure
to meet the [*].
5.3 Development Services Fees.
-------------------------
(a) MediaPlex shall pay the Development Services fees for Phase I,
which shall be:
1. Fees for the Development Services described in Section 4.1(a)
are at no charge.
2. Fees for the Fees for the Development Services described in
Section 4.1(b) are to be mutually agreed.
(b) MediaPlex shall pay the Development Services fees for Phase II,
which shall be:
1. One time fee of [*] due upon the Effective Date, for the
Development Services described in Sections 4.2 (a) through (e)
above. This fee, and all other Development Service fees for all
Phases, are fully creditable against future Advertising fees due
under Section 5.1 above if MediaPlex serves [*] Impressions
through the Private Label DART Service within [*] following the
full availability of the Private Label DART Service.
2. Further fees to be mutually agreed for the Development Services
described in Sections 4.2 (f) and (g) above.
(c) MediaPlex shall pay the Development Service fees for Phase III
which are to be mutually agreed.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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CONFIDENTIAL TREATMENT REQUESTED
5.4 Data Fees: (a) One daily FTP transfer during off peak hours will be
---------
at no charge. For other FTP transfers (unless the failure to transfer during
off-peak hours was the fault of DoubleClick) a charge shall be mutually agreed.
(b) MediaPlex shall pay a fee of [*] for storage of the ten days worth of data,
pursuant to the terms of Section 4.2(e) above.
5.5 Further Customization of Private Label DART Service Fees. Any
--------------------------------------------------------
customization or modification of the Private Label DART Service that is over and
above the Development Services set forth in Article 4 shall be charged on a time
and materials basis at DoubleClick's customary rates.
5.6 Trafficking Outsourcing Fees. In the event that MediaPlex elects for
----------------------------
DoubleClick to provide trafficking services, the monthly charge shall be [*].
5.7 Payment Terms. Unless otherwise specified, the fees due hereunder
-------------
from MediaPlex shall be payable within [*] following receipt of an invoice from
DoubleClick. The fees shall be denominated in U.S. dollars and paid by wire
transfer to an account to be designated by DoubleClick, or by other means
expressly agreed to in writing by DoubleClick. MediaPlex shall also be
responsible for and shall pay any applicable sales, use or other taxes or
duties, tariffs or the like applicable to provision of the Private Label DART
Service (except for taxes on DoubleClick's income). Late payments will be
subject to late fees at the rate of one and one half percent (1.5%) per month,
or, if lower, the maximum rate allowed by law. In addition, MediaPlex agrees to
pay any attorneys' fees and/or collection costs incurred by DoubleClick in
collecting any past due amounts from MediaPlex.
SECTION 6
PROPRIETARY RIGHTS AND RESTRICTIONS
6.1 Private Label DART Service. DoubleClick is the exclusive supplier of
--------------------------
the Private Label DART Service and the exclusive owner of all right, title and
interest in and to the System, all software and other aspects and technologies
related to the System and Private Label DART Service, including any developments
or enhancements made pursuant to this Agreement or otherwise (provided that
developments or enhancements that constitute MOJO Technology or enhancements
thereto shall be owned by MediaPlex) and any materials provided to MediaPlex by
DoubleClick through the System or otherwise. MediaPlex may not use the System
except pursuant to the limited rights expressly granted in this Agreement, and
DoubleClick reserves all rights not expressly granted in this Agreement.
MediaPlex shall use the System only in accordance with reference manuals to be
supplied by DoubleClick and only in accordance with DoubleClick's standard
security procedures, as posted on the DoubleClick Web site or otherwise notified
to MediaPlex.
6.2 MOJO Technology. MediaPlex is the exclusive supplier of the MOJO
---------------
Technology and the exclusive owner of all right, title and interest in and to
all software and other aspects and technologies related to the MOJO Technology,
including any developments or enhancements made pursuant to this Agreement or
otherwise and any materials provided to DoubleClick by MediaPlex through the
MOJO Technology or otherwise. DoubleClick may not
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
14
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use the MOJO Technology except pursuant to the limited rights expressly granted
in this Agreement, and MediaPlex reserves all rights not expressly granted in
this Agreement.
6.3 Data. MediaPlex shall have the sole and exclusive right to use all
----
data derived from MediaPlex's use of the Private Label DART Service, for any
purpose related to MediaPlex's business and the MediaPlex Clients' respective
business; provided that DoubleClick may use and disclose the Visitors' data
(other than personally-identifiable information) derived from MediaPlex's and
MediaPlex Clients' use of the Private Label DART Service (i) for DoubleClick's
reporting purposes, consisting of compilation of aggregated statistics about the
DART service (e.g., the aggregate number of Advertisements delivered) that may
be provided to customers, potential customer and the general public; (ii) if
required by court order, law or governmental agency; and (iii) to the extent
necessary to integrate operation and management of the Private Label DART
Service provided to MediaPlex within the operation and management of the DART
service by DoubleClick for all its customers.
SECTION 7
TERM AND TERMINATION
7.1 Term. Unless terminated earlier in accordance with the termination
----
rights set forth in this Agreement, the term of this Agreement shall be for an
initial period of five (5) years from the Effective Date ("Initial Term"),
renewable at MediaPlex's option for an additional (five (5) year term ("Renewal
Term") by giving DoubleClick notice of its intent to renew at least twelve (12)
months prior to the expiration of the then current term (the Initial Term and
any Renewal Term, together, the "Term").
7.2 Termination by MediaPlex. MediaPlex shall have the right to terminate
------------------------
this Agreement under the following circumstances:
(a) A material breach of a material provision of this Agreement by
DoubleClick that is not cured within thirty (30) days following delivery of a
written notice thereof to DoubleClick; or
(b) DoubleClick is adjudged insolvent or bankrupt; or a proceeding is
instituted by DoubleClick seeking relief, reorganization or arrangement under
any laws relating to insolvency; or a proceeding is instituted against
DoubleClick seeking relief, reorganization or arrangement under any laws
relating to insolvency that is not dismissed within sixty (60) days; or
DoubleClick makes a general assignment for the benefit of its creditors; or upon
the appointment of a receiver, liquidator, or trustee of any of DoubleClick's
property or assets, or upon liquidation, dissolution or winding up of
DoubleClick's businesses.
(c) In the event of a termination by MediaPlex, DoubleClick shall, at
MediaPlex's request, cooperate to transition MediaPlex's ad serving as set forth
in Section 7.3(e) below.
(d) As otherwise provided in Section 5.2 hereof.
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7.3 Termination by DoubleClick. Subject to Section 7.3(e), DoubleClick
--------------------------
shall have the right to terminate this Agreement only in the following
circumstances:
(a) MediaPlex has used, or has permitted a third party to use, the
Private Label DART Service or System, in a manner prohibited by this Agreement;
(b) A material breach of a material provision of this Agreement by
MediaPlex that is not cured within thirty (30) days following delivery of a
written notice thereof by MediaPlex;
(c) MediaPlex has failed to pay, within thirty (30) days following
receipt of a reminder notice from DoubleClick, an invoice that is more than
sixty (60) days past due; or
(d) MediaPlex is adjudged insolvent or bankrupt; or a proceeding is
instituted by MediaPlex seeking relief, reorganization or arrangement under any
laws relating to insolvency; or a proceeding is instituted against MediaPlex
seeking relief, reorganization or arrangement under any laws relating to
insolvency that is not dismissed within sixty (60) days; or MediaPlex makes a
general assignment for the benefit of its creditors; or upon the appointment of
a receiver, liquidator, or trustee of any of MediaPlex's property or assets, or
upon liquidation, dissolution or winding up of DoubleClick's businesses.
(e) Any termination by DoubleClick shall be effective only six (6)
months after the written notice period required in the applicable subsection
===
above, and during such notice period the parties shall cooperate diligently and
in all reasonable ways to effect an orderly transition of MediaPlex's ad serving
to MediaPlex and/or third parties designated by MediaPlex. This shall include,
without limitation, removal of MediaPlex media from DoubleClick servers, and
transfer to MediaPlex of a copy of all data, regarding all MediaPlex Clients, in
the DART database. If an orderly such transition is not fully accomplished
within such notice period, DoubleClick will continue to provide to MediaPlex the
Private Label Dart Service, and associated services, until the complete
transition is effect for the fee applicable immediately prior to the
termination. All activities contemplated by this Section 7.3(e) shall be billed
by DoubleClick at its then current rates plus any out-of-pocket costs or
expenses.
7.4 Effect of Expiration or Termination. In the event that this Agreement
-----------------------------------
expires or is terminated, except as set forth in Section 7.3(e), MediaPlex and
MediaPlex Clients shall immediately cease using the Private Label DART Service
and the System, and DoubleClick shall immediately cease serving Advertising
through the Private Label DART Service as set forth in this Agreement, and
DoubleClick shall immediately cease using, and shall return to MediaPlex, any
MOJO Technology then in its possession. The following provisions of this
Agreement, any rights to payment and any causes of action arising in relation to
this Agreement prior to its expiration or earlier termination, shall survive
such expiration or earlier termination: Sections 6, 8, 9, 10, 11 and 12.
16
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SECTION 8
REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties of MediaPlex. MediaPlex represents and
-------------------------------------------
warrants at all times that MediaPlex (i) owns or has sufficient license rights
to the MOJO Technology and such other technology required to use the MOJO
Technology in relation to the Media Serving Services and the Private Label DART
Service, (ii) will not use the System or the Media Serving Services or Private
Label DART Service in a way or for any purpose where such use causes
infringement or misappropriation any third party's intellectual property rights
or personal rights, (iii) shall not provide to MediaPlex Clients or other third
parties any unauthorized representations or warranties regarding the Media
Serving Services or the Private Label DART Service, (iv) shall disclose
MediaPlex's data collection activities on its Web site in a privacy statement
that substantially includes the substance of the form of the Privacy Statement
attached hereto as Exhibit A, (v) shall use reasonable efforts to ensure that
MediaPlex Clients disclose their data collection activities on their Web sites
in substantially the form of the Privacy Statement attached as Exhibit A, and
(vi) has all necessary rights and permissions to provide the Advertiser's data
and the Advertising to DoubleClick.
8.2 Representations and Warranties of DoubleClick. DoubleClick represents
---------------------------------------------
and warrants that (i) it owns the DART Private Label DART Service and the
System, (ii) the System was developed by DoubleClick without infringement or
misappropriation of any third party's copyrights or trade secrets, (iii) there
are no known disputes regarding the DART technology, and (iv) it is in the
process of assessing the Year 2000 compliance of the DART Service, and that it
will take steps to ensure that the Private Label DART Service is Year 2000
compliant by December 31, 1999.
8.3 Representations and Warranties of Both Parties. Each party represents
----------------------------------------------
and warrants to the other that (i) it has the right and authority to enter into
this Agreement, to grant the rights herein granted and fully to perform its
obligations hereunder; (ii) it shall materially comply with all applicable laws,
statutes, ordinances, rules and regulations with respect to its performance of
this Agreement, (iii) no authorization or approval from any third party is or
will be required in connection with such party's execution, delivery or
performance of this Agreement, (iv) the execution and performance of this
Agreement does not violate or conflict with the terms or conditions of any other
agreement to which it is a party or by which it is bound and (v) this Agreement
has been duly executed and delivered and constitutes a valid and binding
agreement enforceable against such party in accordance with its terms
SECTION 9
DISCLAIMERS AND LIMITATIONS ON LIABILITY
9.1 Warranty Disclaimers.
--------------------
(a) DoubleClick Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT,
----------------------
DOUBLECLICK MAKES NO WARRANTIES OF ANY KIND TO ANY PERSON WITH RESPECT TO THE
SERVICES, THE SYSTEM, ANY ADVERTISING OR ANY DATA SUPPLIED, WHETHER EXPRESS OR
IMPLIED, INCLUDING ANY IMPLIED
17
<PAGE>
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT.
(b) MediaPlex Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT,
--------------------
MEDIAPLEX MAKES NO WARRANTIES OF ANY KIND TO ANY PERSON WITH RESPECT TO THE MOJO
TECHNOLOGY, ANY ADVERTISING OR ANY DATA SUPPLIED, WHETHER EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR NONINFRINGEMENT.
9.2 Limitation and Exclusion of Liability. Neither party shall be liable
-------------------------------------
to the other party, any Advertisers Advertising Agency or any other third party
for any loss, cost, damage or expense incurred in connection with the
unavailability or inoperability of the System, the Private Label DART Service or
the Internet, technical malfunction, computer error or loss or corruption of
data, or other injury, damage or disruption of any kind related thereto. Except
for a breach of Section 11, in no event shall either party be liable for any
indirect, incidental, consequential, special or exemplary damages, including,
but not limited to, loss of profits, or loss of business opportunity, even if
such damages are foreseeable and whether or not the other party has been advised
of the possibility thereof. Except in relation to a claim against a party based
on its breach of its representations and warranties in this Agreement as to
infringement and misappropriation of third party copyrights, patents, trademarks
or trade secrets, each party's maximum aggregate liability shall not exceed the
total amount paid by MediaPlex to DoubleClick under this Agreement during the
twelve (12) month period prior to the first date the liability arose. For all
MediaPlex's agreements with Target Sites and in MediaPlex Client Agreements,
MediaPlex shall use commercially reasonable efforts to include a provision that
will state that DoubleClick is a third party beneficiary of any disclaimers and
limitations or exclusions of liability that MediaPlex agrees with the Target
Site proprietor or the MediaPlex Client. The limitations of this section,
however, shall not apply to breaches of Section 11 or infringement of the other
party's intellectual property rights.
SECTION 10
INDEMNITIES
10.1 MediaPlex's Indemnities. MediaPlex agrees to indemnify and hold
-----------------------
DoubleClick and its Affiliates, officers, directors, employees and agents (each
a "DoubleClick Indemnitee") harmless from and against any and all claims,
actions, losses, damages, liability, costs and expenses (including, without
limitation, reasonable attorneys' fees and disbursements incurred by a
DoubleClick Indemnitee in any action between MediaPlex and the DoubleClick
Indemnitee, or between the DoubleClick Indemnitee and any third party or
otherwise) arising out of or in connection with any claim or action caused by
any breach of any of MediaPlex's representations and warranties set forth in
this Agreement. DoubleClick shall promptly notify MediaPlex of all claims and
proceedings related thereto of which DoubleClick becomes aware.
10.2 DoubleClick's Indemnities. DoubleClick agrees to indemnify and hold
-------------------------
MediaPlex and its Affiliates, officers, directors, employees and agents (each a
"MediaPlex
18
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Indemnitee") harmless from and against any and all claims, actions, losses,
damages, liability, costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements incurred by a MediaPlex Indemnitee
in any action between DoubleClick and the MediaPlex Indemnitee, or between the
MediaPlex Indemnitee and any third party or otherwise) arising out of or in
connection with any claim or action caused by any breach of DoubleClick's
representations and warranties set forth in this Agreement. MediaPlex shall
promptly notify DoubleClick of all claims and proceedings related thereto of
which MediaPlex becomes aware.
10.3 Procedure. The Indemnitee ("Indemnitee") that intends to claim
---------
indemnification under this Agreement shall promptly notify the other party (the
``Indemnitor'') of any claim, demand, action or other proceeding for which the
Indemnitee intends to claim such indemnification, and the Indemnitor shall have
the right to participate in, and, to the extent the Indemnitor so desires, to
assume sole control of the defense thereof with counsel selected by the
Indemnitor; provided, however, that the Indemnitee shall have the absolute right
to retain its own counsel, with the fees and expenses to be paid by the
Indemnitee if the Indemnitor assumes control of the defense. The indemnity
obligations under this Agreement shall not apply to amounts paid in settlement
of any loss, claim, damage, liability or action if such settlement is effected
without the consent of the Indemnitor, which consent shall not be unreasonably
withheld or delayed. The failure to deliver notice to the Indemnitor within a
reasonable time after the commencement of any such action, if prejudicial to
Indemnitor's ability to defend such action, shall relieve the Indemnitor of any
liability to the Indemnitee under this Section 10. The Indemnitee, its
employees, agents, officers, directors and partners shall cooperate fully with
the Indemnitor and its legal representatives in the investigation of any action,
claim or liability covered by an indemnification from the Indemnitor.
SECTION 11
CONFIDENTIALITY
The terms of this Agreement and information and data that one party (the
"Receiving Party") has received or will receive from the other party (the
"Disclosing Party") about the Private Label DART Service, the System, the MOJO
Technology, and other matters are proprietary and confidential information
("Confidential Information"), including without limitation any information
that is marked as "confidential" or should be reasonably understood to be
confidential or proprietary to the Disclosing Party and any reference manuals
compiled or provided hereunder. The Receiving Party agrees that the Receiving
Party will not disclose the Confidential Information to any third party, nor use
the Confidential Information for any purpose not permitted under this Agreement.
The nondisclosure obligations set forth in this Section shall not apply to
information that the Receiving Party can document is generally available to the
public (other than through breach of this Agreement), or was already lawfully in
the Receiving Party's possession, without being subject to a confidentiality
obligation to the Disclosing Party or a third party, at the time of receipt of
the information from the Disclosing Party, or was obtained by the Receiving
Party from a third party, without confidentiality obligation, and without breach
by the third party of any confidentiality or other obligation owed to the
Disclosing Party or a third party, or was independently developed by the
Receiving Party without use or reference to the Disclosing Party's Confidential
Information. The parties acknowledge
19
<PAGE>
that, due to the disclosure of MOJO Technology to DoubleClick, any development
by DoubleClick of similar technology may benefit from such disclosure.
Accordingly, DoubleClick agrees that, until six (6) months after termination or
expiration of this Agreement, DoubleClick will not in good faith use information
regarding MOJO Technology gained pursuant to this Agreement to develop, or have
developed, any technology that is similar to, or is deployed in a manner that is
competitive with, any MOJO Technology. Nothing in the preceding sentence shall
relieve DoubleClick of its obligations pursuant to this Section 11 during or
after this six (6) month period.
SECTION 12
MISCELLANEOUS
12.1 Publicity. None of the parties hereto shall issue a press release or
---------
public announcement or otherwise make any disclosure concerning this Agreement
or the terms hereof, without prior approval by the other party hereto (which
approval shall not be unreasonably withheld); provided, however, that (i) within
-------- -------
14 days after the Effective Date, the parties shall issue a joint press release
in the form attached hereto as Exhibit C, and (ii) nothing in this Agreement
shall restrict any party from disclosing information (including any Confidential
Information subject to Section 11 (a) that is already publicly available, except
as a result of a breach of this provision by the disclosing party, (b) that is
required to be disclosed by law, provided that if such disclosing party is
required to file a copy of this Agreement with a governmental authority, such
party shall seek confidential treatment to the extent reasonably available, (c)
to its attorneys accountant, consultants and other advisers. Prior to issuing
any press release, public announcement or disclosure, the disclosing party will
deliver a draft of such press release, public announcement or disclosure to the
other party and shall give such party a reasonable opportunity to comment
thereon.
12.2 Notices. All notices, demands and other communications provided for
-------
or permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
If to DoubleClick, to:
DoubleClick Inc.
41 Madison Avenue
New York, NY 10010
Attention: Chief Executive Officer
Telecopier No.: (212) 889-0029
With a copy to:
DoubleClick Inc.
41 Madison Avenue
New York, NY 10010
Attention: General Counsel
Telecopier No.: (212) 497-4397
20
<PAGE>
If to MediaPlex. to:
MediaPlex, Inc.
131 Steuart Street, Fourth Floor
San Francisco, CA 94105-1230
Attention: Chief Executive Officer
Telecopier No.: (415) 808-1901
With a copy to:
MediaPlex, Inc.
131 Steuart Street, Fourth Floor
San Francisco, CA 94105-1230
Attention: General Counsel
Telecopier No.: (415) 808-1901
or to such other address or attention of such other Person as such party shall
advise the other party in writing. All such notices and communications shall be
deemed to have been duly given when delivered by hand, if personally delivered;
when delivered by courier, if delivered by commercial courier service; five (5)
business days after being deposited in the mail, postage prepared, if mailed;
and when receipt is mechanically acknowledged, if telecopied.
12.3 Dispute Resolution. The parties shall attempt to settle any claim or
------------------
controversy arising out of this Agreement through consultation and negotiation
in good faith and spirit of mutual cooperation. In the event that any dispute
arises between the parties in connection with any subject matter of this
Agreement, the dispute will be referred to a senior-level manager of each party
involved in the day-to-day performance of this Agreement, who shall promptly
meet and endeavor to resolve the dispute in a timely manner. In the event such
individuals are unable to resolve such dispute within ten (10) days from the
commencement of the dispute, the matter shall be referred to the Chief Executive
Officer ("CEO") of each party, who shall promptly meet and endeavor to resolve
the dispute. In the event that the respective CEOs of the parties are unable to
resolve such dispute within ten (10) days, the dispute shall be deemed an
unresolved dispute and either party may commence litigation in a court having
proper jurisdiction to resolve such dispute.
12.4 Independent Contractor Status. Each party shall be and act as an
-----------------------------
independent contractor and not as partner, joint venturer or agent of the other.
12.5 Entire Agreement; Modifications and Waivers. This Agreement
-------------------------------------------
(including the Exhibits hereto) represents the entire understanding between
DoubleClick and MediaPlex and supersedes all prior agreements relating to the
subject matter of this Agreement. No failure or delay on the part of either
party in exercising any right, power or remedy under this Agreement shall
operate as a waiver, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise or the exercise of any
other right, power or remedy. Unless otherwise specified, any amendment,
supplement or modification of or to any provision of this Agreement, any waiver
of any provision of this Agreement and any consent to
21
<PAGE>
any departure by the parties from the terms of this Agreement, shall be
effective only if it is made or given in writing and signed by both parties.
12.6 Assignment. This Agreement and the rights hereunder are not
----------
transferable or assignable without prior written consent of the non-assigning
party, it being understood that the acquisition of all or substantially all of a
party's assets or more than forty percent (40%) of a party's stock shall be
deemed a transfer and assignment for these purposes. Notwithstanding the
foregoing, this Agreement may be assigned by DoubleClick (a) to a person or
entity who acquires substantially all of DoubleClick's assets, stock or business
by sale, merger or otherwise and (b) to an Affiliate of DoubleClick.
Notwithstanding the foregoing, this Agreement may be assigned by MediaPlex to an
Affiliate or successor of MediaPlex.
12.7 Applicable Law. This Agreement shall be governed by the law of New
--------------
York, without reference to its conflict of laws rules or principles, and the
United States. The jurisdiction and venue for all disputes hereunder shall be
New York City.
12.8 Validity. Any provision of this Agreement which is prohibited or
--------
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the minimum extent necessary without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provisions in any other jurisdiction.
12.9 Force Majeure. No failure or omission by either party in the
-------------
performance of any obligation under this Agreement shall be deemed a breach of
this Agreement nor create any liability if the same shall arise from any cause
or causes beyond the reasonable control of such party, including but not limited
to the following: acts of God, acts or omissions of any government or any rules,
regulations or orders of any governmental authority or any officer, department,
agency or instrument thereof; fire, storm, flood, earthquake, accident, acts of
the public enemy, war, rebellion, Internet brown out, insurrection, riot,
invasion, strikes, or lockouts
12.10 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
22
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
dates provided below.
DOUBLECLICK INC. MEDIAPLEX, INC.
By: ______________________________ By: __________________________________
Kevin O'Connor Gregory R. Raifman
Chairman & Chief Executive Officer Chairman & Chief Executive Officer
By: ______________________________ By: __________________________________
Martin Wesley Walter Haefeker
Director of Business Development Chief Operating Officer
Closed-Loop Marketing
23
<PAGE>
EXHIBIT A
Privacy Statement
-----------------
Concept to be included in MediaPlex's Privacy Statement
- -------------------------------------------------------
MediaPlex agrees to include in a privacy statement on its Web site a disclosure
that states that data about users who visit such site may be collected as a
result of the user's use of the Web site and such data may be used by MediaPlex
or MediaPlex's third party service providers for advertising and marketing
purposes on MediaPlex's Web site, as well as other Web sites. MediaPlex also
agrees to provide a link to "opt-out" procedures at DoubleClick's site if such
users do not want DoubleClick to use such data.
Concept to be included in MediaPlex's Advertiser/Agency's Privacy Statement
- ---------------------------------------------------------------------------
Advertiser/Agency agrees to include in a privacy statement on its Web site a
disclosure that states that data about users who visit such site may be
collected as a result of the user's use of the Web site and such data may be
used by Advertiser/Agency or Advertiser/Agency's third party service providers
for advertising and marketing purposes on Advertiser/Agency's Web site, as well
as other Web sites. Advertiser/Agency also agrees to provide a link to "opt-
out" procedures at DoubleClick's site if such users do not want DoubleClick to
use such data.
