**Exhibit 10.12**

 

**AMENDED AND RESTATED EMPLOYMENTAGREEMENT**

 

**Amended and Restated EmploymentAgreement** (the “Agreement”) made as of March 14, 2006, by andbetween **24/7 Real Media, Inc.**, a Delawarecorporation, with its principal place of business at 132 W.31stStreet, 9th Floor, New York, New York 10001 (the “Company”), andDavid J. Moore (“Executive”).

 

**W I T N E S S E T H:**

 

**WHEREAS**, theCompany and Executive are parties to an Employment Agreement (the “PriorAgreement”), pursuant to which the Company employed Executive as its ChiefExecutive Officer, and Executive agreed to serve in such capacity; and

 

**WHEREAS**, theCompany and Executive now desire to amend and restate the Prior Agreement inits entirety.

 

**NOW, THEREFORE**,in consideration of the premises and of the mutual covenants and agreementsherein contained and for other good and valuable consideration, the receipt andadequacy of which are hereby acknowledged, the Company and Executive agree asfollows:

 

**1.             EMPLOYMENT**.

 

(a)           TheCompany hereby agrees to employ Executive, and Executive agrees to be employedby the Company, on the terms and conditions herein contained as its ChiefExecutive Officer. Executive shall report directly to the Company’s Board ofDirectors (the “Board”) and shall have such duties, authority andresponsibilities commensurate with Executive’s position for similarly sizedcompanies in the industry.

 

(b)           Executiveshall devote all of his business time, energy, skill and efforts to theperformance of his duties hereunder and shall faithfully and diligently servethe Company. The foregoing shall not prevent Executive from participating innot-for-profit activities or from managing his passive personal investments orfrom providing incidental assistance to family members on matters of familybusiness or, subject to the approval of the Company, from serving on the boardsof directors of other entities, provided that these activities do notmaterially interfere with Executive’s obligations hereunder.

 

(c)           Uponthe request of the Board, Executive shall also serve as a director or officerof subsidiaries in positions commensurate with his position with the Companywithout additional compensation. If any compensation is paid Executive by suchsubsidiaries, they shall be a credit against amounts due hereunder.

 

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**2.**             **TERM OFEMPLOYMENT**.

 

(a)           Exceptfor earlier termination as provided in Section 7 hereof or as extended in thisSection 2, Executive’s employment under this Agreement (the “Employment Term”)shall commence on the date hereof (the “Commencement Date”) and continue untilterminated by either party pursuant to Section 7 hereof.

 

(b)           Notwithstandinganything else herein, the provisions of Sections 8 and 9 hereof shall surviveand remain in effect notwithstanding the termination of the Employment Term ora breach by the Company or Executive of this Agreement or any of its terms.

 

**3.**             **COMPENSATION**.

 

(a)           Ascompensation for his services under this Agreement, the Company shall payExecutive the base salary (the “Base Salary”) and the target bonuses (the “TargetBonuses”) set forth on Exhibit A. Payment of the Base Salary shall be made inequal installments twice a month. Payment of the Target Bonuses shall be asspecified on Exhibit A.

 

(b)           TheBase Salary and Target Bonuses set forth on Exhibit A shall be deemed to beamended and restated by any final determination regarding Executive’scompensation that is set forth in the official minutes of the CompensationCommittee of the Board.

 

**4.**             **BENEFITS ANDFRINGES**.

 

(a)           Duringthe Employment Term, Executive shall be entitled to such benefits and fringes,if any, as are generally provided from time to time by the Company to itsexecutive officers, including pension, retirement, savings, welfare (includinglife and health insurance) and other employee benefit plans and arrangements.

 

(b)           Exceptas otherwise specifically provided herein, the Executive shall be responsiblefor the tax consequences of all benefits and fringes.

 

**5.**             **EXPENSES**.The Company shall reimburse Executive in accordance with its expensereimbursement policy as in effect from time to time for all reasonable expensesincurred by Executive in connection with the performance of his duties underthis Agreement upon the presentation by Executive of an itemized account ofsuch expenses and appropriate receipts and otherwise in compliance with suchrules relating thereto as the Company may, from time to time, adopt.

 

**6.**             **VACATION**.During the Employment Term, Executive shall be entitled to **four weeks** of paid vacation per calendaryear.

 

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**7.**             **TERMINATION**.

 

(a)           Executive’semployment under this Agreement and the Employment Term shall terminate uponany of the following events:

 

(i)            Automaticallyon the date of Executive’s death;

 

(ii)           Upon written notice given by theCompany to Executive if Executive is unable to substantially perform hismaterial duties hereunder for one hundred eighty (180) continuous days duringany period of three hundred sixty (360) consecutive days by reason of physicalor mental incapacity;

 

(iii)          Upon written notice by the Company toExecutive for Cause. “Cause” shall mean (a) Executive being convicted of (orpleading *nolo contendere* to) a felony (other thana traffic violation) or a crime involving fraud, misappropriation, orembezzlement; (b) refusal of the Executive to attempt to properly perform hisobligations under this Agreement, or follow any direction of the Boardconsistent with this Agreement, which in either case is not remedied within ten(10) business days after receipt by Executive of written notice from theCompany specifying the details thereof; provided, that, the refusal to follow adirection shall not be Cause if Executive in good faith reasonably believesthat such direction is not legal, ethical or moral and promptly notifies theBoard in writing of such belief; (c) Executive’s gross negligence with regardto his duties or willful misconduct with regard to the business, assets oremployees of the Company that is materially injurious to the financialcondition or business reputation of the Company; or (d) any other breach byExecutive of a material provision of this Agreement that remains uncured fortwenty (20) business days after written notice thereof is given to Executive orsuch longer period as may reasonably be required to remedy the default,provided that Executive endeavors in good faith to remedy the default;

 

(iv)          Upon **30days’**written notice by the Company without Cause; or

 

(v)           Upon not less than **30 days’** written notice by the Executive.

 

(b)           Upontermination of the Employment Term, Executive shall be promptly paid any unpaidsalary and accrued vacation through his date of termination and reimbursementfor any expenses incurred in connection with the official business of theCompany prior to his date of termination which he would be otherwise entitledto reimbursement for in accordance with the Company’s policies on thereimbursement of business expenses and any benefits or amounts under anybenefit or equity plan in accordance with the terms of said plan and any fringebenefits due for the period prior to such termination. In addition, he shall bepaid any declared, but unpaid, bonus.

 

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(c)           IfExecutive’s termination is pursuant to subsection (a)(i) above, Executive’sBeneficiary (as defined in the next sentence) shall continue to receivepayments of Executive’s Base Salary, at the same time such amounts would havebeen paid if Executive was still an employee of the Company for a period of two(2) years following Executive’s death. For purposes of this provision,Executive’s Beneficiary shall be Executive’s spouse; if Executive is notmarried on his date of death, Executive’s children, per stirpes; and otherwise,Executive’s estate.

 

(d)           IfExecutive’s termination is pursuant to subsection (a)(ii) above, Executiveshall be entitled to receive an amount equal to two (2) years’ of Executive’sBase salary, in one lump sum payment, less any amounts actually received by himpursuant to long-term disability coverage, if any, provided for by the Companyfor the matching pay period. After such two (2) years, Executive shall only beentitled to any amounts due him under the long-term disability coverage, ifany.

 

(e)           IfExecutive’s termination is pursuant to subsection (a)(iv) above, Executiveshall receive:

 

(i)            for one year following thetermination of Executive’s employment, at the same time as it would have beenpaid if he were an employee of the Company, his Base Salary;

 

(ii)           continued medical and dental coveragefor a period of one year following termination of Executive’s employment; and,

 

(iii)          a prorated portion of his TargetBonuses for the year of termination, reduced by amounts already paid, plus alump-sum payment equal to 50% the total Target Bonuses for the full-year inwhich termination occurs.

 

(f)            Allamounts payable pursuant to this Section 7 shall be subject to requiredwithholding. The Company shall have no other obligations to Executive as aresult of his termination.

 

**8.**             **CONFIDENTIALINFORMATION AND NON-COMPETITION**. Executive has entered into aNon-Competition and Non-Disclosure and Developments Agreement, dated March[  ], 2006, which agreement is set forthon Exhibit B and is made a part hereof as though fully set forth herein.

 

**9.**             **INDEMNIFICATION**.During the Employment Term and thereafter, the Company shall **defend********Executiveto the fullest extent permitted by law against any claims, demands, suits oractions, and**indemnify Executive to the fullest extentpermitted by law against any judgments, fines, amounts paid in settlement andreasonable expenses (including attorneys’ fees), and advance amounts necessaryto pay the foregoing at the earliest time and to the fullest extent permittedby law, in connection with any claim, action or proceeding (whether civil orcriminal) against Executive (other than a claim brought by the Company) as aresult of Executive serving as an officer, director or employee of the Companyor in any capacity at the request of the Company, in or with regard to anyother entity, employee benefit plan or enterprise. This **dutyto**

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**defend and indemnify******shall be in addition to, and not in lieuof, any other defense and indemnification rights. Executive shall be entitledto pursuant to the Company’s Certificate of Incorporation or By-laws orotherwise. Following Executive’s termination of employment, the Company shallcontinue to cover Executive under the Company’s directors and officers insurancefor the period during which Executive may be subject to potential liability forany claim, action or proceeding (whether civil or criminal) as a result of hisservice as an officer or director of the Company or in any capacity at therequest of the Company, at the highest level then maintained for any thencurrent or former officer or director.

 

**10.          EXECUTIVE REPRESENTATION.**Executiverepresents and warrants that he is not limited under any contractual or otherprovision from entering into this Agreement and performing his obligationshereunder.

 

**11.**          **ENTIRE AGREEMENT;MODIFICATION**. This Agreement constitutes the full and completeunderstanding of the parties hereto and will supersede all prior agreements andunderstandings, oral or written, with respect to the subject matter hereof. Eachparty to this Agreement acknowledges that no representations, inducements,promises or agreements, oral or otherwise, have been made by either party, oranyone acting on behalf of either party, which are not embodied herein and thatno other agreement, statement or promise not contained in this Agreement shallbe valid or binding. This Agreement may not be modified or amended except by aninstrument in writing signed by the party against whom or which enforcement maybe sought.

 

**12.**          **SEVERABILITY**. Anyterm or provision of this Agreement which is invalid or unenforceable in anyjurisdiction shall, as to such jurisdiction, be ineffective to the extent ofsuch invalidity or unenforceability without rendering invalid or unenforceablethe remaining terms and provisions of this Agreement or affecting the validityor enforceability of any of the terms or provisions of this Agreement in anyother jurisdiction.

 

**13.**          **WAIVER OF BREACH**.The waiver by any party of a breach of any provisions of this Agreement, whichwaiver must be in writing to be effective, shall not operate as or be construedas a waiver of any subsequent breach.

 

**14.**          **NOTICES**. Allnotices hereunder shall be in writing and shall be deemed to have been dulygiven when delivered by hand, or one (1) day after sending by United StatesPostal Service express mail or other “overnight mail service,” or three (3)days after sending by certified or registered mail, postage prepaid, returnreceipt requested. Notice shall be sent as follows:  if to Executive, to his home address aslisted in the Company’s records; and if to the Company, at its office as setforth at the head of this Agreement. Either party may change the notice addressby notice given as aforesaid.

 

**15.**          **ASSIGNABILITY; BINDINGEFFECT**. This Agreement shall be binding upon and inure to thebenefit of Executive and Executive’s legal representatives, heirs anddistributees, and shall be binding upon and inure to the benefit of theCompany, its successors and assigns. This Agreement may not be assigned byExecutive. This Agreement may not be assigned by the Company except inconnection with a merger or a sale by the 

 

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Company of all orsubstantially all of its assets, and then only provided that the assigneespecifically assumes in writing all of the Company’s obligations hereunder.

 

**16.**          **ARBITRATION**. Anydispute or controversy arising under or in connection with this Agreement,other than injunctive relief under Section 8 (provided that Executive mayinitiate an arbitration proceeding to recover legal fees in connection withsuch injunctive activities under the last sentence of this Section 16) shall besettled exclusively by arbitration, conducted before a panel of three (3)arbitrators in New York, New York, in accordance with the rules of the AmericanArbitration Association then in effect, and judgment may be entered on thearbitrators’ award in any court having jurisdiction. The decision of thearbitrators shall be final and binding on the parties. The parties shallequally divide all costs of the American Arbitration Association and thearbitrators, except that the arbitrators shall direct the Company to reimburseExecutive’s portion of the cost on the same basis as set forth in the nextsentence with regard to legal fees. Each party shall bear its own legal fees inany dispute except that, in the event the Executive prevails on any materialissue, the arbitrators shall award the Executive his legal fees attributable toall matters other than frivolous positions taken by the Executive (asdetermined by the arbitrators).

 

**17.**          **GOVERNING LAW**. Allissues pertaining to the validity, construction, execution and performance ofthis Agreement shall be construed and governed in accordance with the laws ofthe State of New York, without giving effect to the conflict or choice of lawprovisions thereof.

 

**18.**          **HEADINGS**. Theheadings in this Agreement are intended solely for convenience or reference andshall be given no effect in the construction or interpretation of thisAgreement.

 

**19.**          **COUNTERPARTS**. ThisAgreement may be executed in several counterparts, each of which shall bedeemed to be an original but all of which together shall constitute one and thesame instrument.

 

[Remainder of thispage intentionally left blank]

 

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**INWITNESS WHEREOF**, the Company has caused this Agreement to beduly executed and Executive has hereunto set his hand as of the date first setforth above.

 

 
|   | **24/7 REAL MEDIA, INC.**                              |
|--------|--------------------------------------------------------|
|   |
|   |
|   | By:                                                    |   | /s/ Jonathan K. Hsu |   |
|   | Jonathan K. Hsu                                        |
|   | Executive  Vice President and  Chief Executive Officer |
|   |                                                   |
|   |                                                   |
|   | **EXECUTIVE**                                          |
|   |
|   |
|   |                                                   |   | /s/ David J. Moore |   |   |
|   |                                                   |
|   | David J. Moore                                         |
|        |                                                        |  |  |  |  |  |  |

 

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**EXHIBITA**

 

#### **BASE SALARY:**

**The Company shall pay Executive a base salary at a rate of $300,000.00per annum (the “Base Salary”). Annual increases in Base Salary shall be atleast 3.0%, effective the first day of each calendar year.**

** **

**TARGET BONUSES:**

** **

**The total amount of the target bonuses set forth in this Exhibit Ashall not be decreased from year to year; provided, that, target bonus levelsand the factors on which they are payable may be adjusted from year to year byagreement of the parties hereto to reflect the Company’s new budget for eachyear.**

** **

**REVENUE BONUS**

**Executive has a target revenue bonus compensation of $133,333.33 (“TargetRevenue Bonus”) during FY2006. The quarterly revenue bonus (“Quarterly RevenueBonus”) will be determined by the following formula:**

** **
| **Actual  Company**    | ** ** | ** ** | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                   |
|------------------------|------------|------------|------------|---------------------------|------------|------------|------------|------------------------------|
| **Quarterly  Revenue** | ** ** | **X**      | ** ** | **Target Revenue  Bonus** | ** ** | **=**      | ** ** | **Quarterly  Revenue Bonus** |
| **Annual  Company**    | ** ** |
| **Revenue Goal**       | ** ** | ** ** | ** ** | ** **                | ** ** | ** ** | ** ** | ** **                   |

** **

**The Quarterly Revenue Bonus shall be paid quarterly, within 45 daysafter the end of each quarter.**

** **

**GROSS PROFIT BONUS**

**Executive has a target gross profit bonus compensation of $133,333.33 (“TargetGross Profit Bonus”) during FY2006. The quarterly gross profit bonus (“QuarterlyGross Profit Bonus”) will be determined by the following formula:**

 
| **Actual  Company**         | ** ** | ** ** | ** ** | ** **                     | ** ** | ** ** | ** ** | ** **                        |
|-----------------------------|------------|------------|------------|--------------------------------|------------|------------|------------|-----------------------------------|
| **Quarterly  Gross Profit** | ** ** | **X**      | ** ** | **Target Gross  Profit Bonus** | ** ** | **=**      | ** ** | **Quarterly  Gross Profit Bonus** |
| **Annual  Company**         | ** ** |
| **Gross Profit  Goal**      | ** ** | ** ** | ** ** | ** **                     | ** ** | ** ** | ** ** | ** **                        |

 

**The Quarterly Gross Profit Bonus shall be paid quarterly, within 45days after the end of each quarter.**

 

**A-I**

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**EBITA BONUS**

**Executive has a target EBITDA bonus compensation of $133,333.33 (“TargetEBITDA Bonus”) during FY2006. The annual EBITDA bonus (“Annual EBITDA Bonus”)will be determined by the following formula:**

** **
| **Actual  Company** | ** ** | ** ** | ** ** | ** **               | ** ** | ** ** | ** ** | ** **               |
|---------------------|------------|------------|------------|--------------------------|------------|------------|------------|--------------------------|
| **Annual  EBITDA**  | ** ** | **X**      | ** ** | **Target  EBITDA Bonus** | ** ** | **=**      | ** ** | **Annual  EBITDA Bonus** |
| **Annual  Company** | ** ** |
| **EBITDA Goal**     | ** ** | ** ** | ** ** | ** **               | ** ** | ** ** | ** ** | ** **               |

** **

**EBITDA Percentage is defined as Actual Company Annual EBITDA divided byAnnual Company EBITDA Goal. If the EBITDA Percentage is above 120%, Executivewill be paid the Target EBITDA Bonus multiplied by 120%. No bonus will be paidif the EBITDA Percentage is less than 80%. The Annual EBITDA Bonus shall bepaid annually, upon completion of the annual company audit.**

 

**A-II**

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**EXHIBITB**

 

**NON-COMPETITION**

**AND**

**NON-DISCLOSURE AND DEVELOPMENTSAGREEMENT**

 

**NON-COMPETITION ANDNON-DISCLOSURE AND DEVELOPMENTS AGREEMENT**(the “Agreement”)dated March [   ], 2006 between 24/7 RealMedia, Inc., a Delaware corporation (the “Company”), with a place of businessat 132 W.31st Street, 9th Floor, New York, NY 10001, andDavid J. Moore (“Executive”).

 

**WHEREAS**, theCompany sells Internet advertising on behalf of affiliated Web sites and offersemail and customer management services (the “Business”); and

 

**WHEREAS**, theCompany has developed certain proprietary information in the course of growingits Business; and

 

**WHEREAS**,Executive acknowledges the proprietary nature of the Company’s information andrecognizes that Company would be irreparably damaged if Executive were todisclose or make unauthorized use of any proprietary information; and

 

**WHEREAS**,Executive desires to continue to work for the Company.

 

**NOW, THEREFORE**,in consideration of the continuation of Executive’s employment with the Companyand the compensation and other benefits Executive will continue to receive asan employee, it is agreed as follows:

 

**1.             Non-Competition and ConfidentialInformation:**

 

**1.1**          Executive understands and agrees thatthe Company has in the past and will in the future, continue to expend largesums of money, and apply its unique and special “know-how”, and has in the pastand will continue in the future, to devote a great effort in building aneffective organization by utilization of unique and effective management,sales, service, marketing, finance, and other corporate techniques. Executivefurther understands and agrees that the Company has gained a unique reputationfor its ability to solicit, market, sell, and service high visibility Internetand Web-commerce accounts and that this reputation is a major factor inbringing about the sales of the same and accounts for the continued success ofthe Company in the complex and evolving Business in which the is Companyengaged.

 

**1.2**          Executive understands, admits, andagrees that he will necessarily become privy to relationships with otheremployees of the Company, the Company’s customers, customer lists, advertisers,advertiser lists, confidential plans and structures, and other confidential 

 

B-I

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information and tradesecrets, and that, to the extent Executive is directly or indirectly involvedin the marketing or sales aspect of the Company’s Business, he will necessarilyestablish a unique and strong personal and professional relationship with theCompany’s customers during the term of this Agreement, and that the aforesaidinformation and other information obtained as to customers’ and advertisers’methods of doing business, specifications of customers’ and advertisers’advertising requirements and capacities, the time, places and other details ofwhen, where, and how to contact and best serve customers and advertisers,customers’ and advertisers’ bias and prejudice as to various services,information as to other employees or third parties who influence decisions, andthe extensive and frequent customer and advertiser contact in the personalrelationship acquired with customer and advertiser, all constitute legitimateand protectable business interests of the Company, and are now, and even thoughsame may be enhanced by Executive, will continue to be extremely confidentialinformation and thereby exclusive property of the Company. Executive agreesthat he will hold in strictest confidence and not use for his own benefit, orthe benefit of any third party, any such confidential information.

 

**1.3**          Executive acknowledges, admits andagrees that the Company has a legitimate business interest and right inprohibiting Executive from soliciting or enticing customers or advertisers ofthe Company after termination of Executive’s relationship with the Company, andthe restrictions, limitations, and covenants made by Executive herein,specifically within this Section 1, are reasonable and valid and should bestrictly enforced and upheld by any court of competent jurisdiction.

 

**1.4**          Executive further understands andagrees that all customers of the Business at the time of the signing of thisAgreement and all such customers of the Company during the term of hisemployment and during the term of this Agreement, are the exclusive customersof the Company and not those of Executive.

 

**1.5**          Executive therefore agrees that, inconsideration of the continuation of Executive’s employment and thecompensation Executive will continue to receive as an employee, the sufficiencyof which consideration is hereby acknowledged, until the earlier of five (5)years from the date hereof or one (1) year after the effective date oftermination of Executive’s employment with the Company (the “Non-CompetitionPeriod”), Executive absolutely and unconditionally agrees that he will notdirectly or indirectly, either for his own account or for the benefit of anyperson, firm or corporation, engage in any business that is competitive withthe Business.

 

**1.6**          Executive agrees that during the Non-CompetitionPeriod, Executive shall not discuss or accept any relationship as a sales ormarketing representative, consultant, director, manager, officer, executive, orother employee, or representative with any person, firm or corporation whichduring the term of this Agreement was or is engaged in business activitieswhich are competitive to the Business, except for any such relationship thatwould not in any way involve or relate to such activities or businesses.

 

B-II

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**1.7**          During the Non-Competition Period,Executive shall not directly or indirectly own or be a shareholder, partner of,or otherwise participate in any company that is engaged in business activitiesthat are competitive to the Business. Notwithstanding, the above, Executive mayhold up to a five percent (5%) interest in any such publicly held or tradedcompany and shall have an unlimited right to invest in any mutual fund which ispublicly traded or managed by a major financial institution.

 

**1.8**          During the Non-Competition Period,Executive agrees to refrain from knowingly, directly or indirectly, solicitingthe Company’s employees or independent agents so as to induce them to leavetheir employment or relationship with the Company.

 

**1.9**          During the Non-Competition Period,Executive shall inform any prospective new employer or associate prior toaccepting any employment or any business relationship of the existence of thisAgreement or provide same with a copy of this Agreement.

 

**1.10**        In the event any covenant made in thisAgreement shall be more restrictive than permitted by applicable law, it shallbe limited to the extent which is so permitted. Nothing in this Agreement shallbe construed as preventing the Company from pursuing any and all other remediesavailable to it for the breach or threatened breach of covenants made in thisAgreement, including recovery of money damages or temporary or permanentinjunctive relief. Accordingly, Executive acknowledges that the remedy at lawfor breach of the provisions of this agreement may be inadequate and that, inaddition to any other remedy the Company may have, it shall be entitled to aninjunction restraining any breach or threatened breach, without any bond orother security being required and without the necessity of showing actualdamages.

 

**2.             Executive Work Product**

 

**2.1**          During the term of Executive’semployment with the Company, Executive agrees to work exclusively for theCompany.

 

**2.2**          Executive agrees to disclose promptlyto the Company all ideas, inventions, discoveries, improvements, designs,formulae, processes, production methods and technological innovations (“IntellectualProperty”), whether or not patentable, which he may conceive or make, alone orwith others, during his employment with the Company, whether or not duringworking hours, and which directly or indirectly:

 

**2.2.1**       relate to the Business of the Company; or

 

**2.2.2**       are based on or derived from hisknowledge of the actual or planned business activities of the Company; or

 

**2.2.3**       are aided by the use of materials,facilities or information belonging to the Company.

 

B-III

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**2.3**          Executive agrees to assign to theCompany (and to bind his heirs, executors and administrators, to assign) allIntellectual Property covered by Section 2.2 of this Agreement.

 

**2.4**          Without further compensation, but atthe Company’s expense, Executive agrees to give all testimony and execute allpatent applications, rights of priority, assignments and other documents, and ingeneral do all lawful things requested of the Executive by the Company toenable the Company to obtain, maintain and enforce its rights to suchIntellectual Property.

 

**2.5**          Executive also recognizes that anyIntellectual Property of the type covered by Section 2.2 of this Agreementwhich is conceived or made by the Executive within one year of the terminationof his employment with the Company is likely to have been conceived insignificant part in the course of his employment with the Company. Accordingly,Executive agrees that any such Intellectual Property shall be presumed to havebeen conceived in the course of his employment with the Company unless anduntil Executive establishes the contrary by clear and convincing evidence.

 

**3.             Representations and Warranties by Executive.**

 

Executive represents and warrants to the Company that:

 

**3.1**          this Agreement is valid and bindingupon and enforceable against him in accordance with its terms;

 

**3.2**          he is not bound by or subject to anycontractual or other obligation or any law that would be violated by hisexecution or performance of this Agreement; and

 

**3.3**          he is not the subject of any pendingor, to the best of his knowledge, threatened, claim, action, judgment, order,or investigation that could adversely affect his ability to perform hisobligations under this Agreement.

 

**4.             Notices.** All notices or other communications hereunder shall be in writingand shall be deemed to have been duly given when delivered by hand, or one (1)day after sending by United States Postal Service express mail or other “overnightmail service,” or three (3) days after sending by certified or registered mail,postage prepaid, return receipt requested, to the parties at the addresses setforth below (or at such other address as a party may specify by notice to theother in accordance with this provision):

 

**4.1         **If to Executive, to his home address aslisted in the Company’s records.

 

B-IV

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**4.2****                              **Ifto the Company:

 

24/7 Media Real, Inc.

132 W.31st Street, 9th Floor

New York, NY 10001

Attention: General Counsel

 

**5.             Miscellaneous.**

 

**5.1**          This Agreement may not be changed orterminated orally.

 

**5.2**          Executive may not assign any of hisrights or delegate any of his duties under this Agreement. The Company mayassign any or all of its rights under this Agreement to any subsequent owner ofthe Company’s business, and the assignee shall have the right to enforce thisAgreement to the same extent as the Company.

 

**5.3**          No waiver of any term or condition ofthis Agreement shall be deemed to be a waiver of any subsequent breach of thatterm or condition or any breach of any other term or condition of thisAgreement. Any waiver must be in writing.

 

**5.4**          This Agreement does not give Executiveany rights to employment by the Company and, unless otherwise provided in aseparate writing executed by an officer of the Company and the Executive, theExecutive’s employment at the Company shall be at will by both Executive andthe Company.

 

**5.5**          If any provision of this Agreementwould be deemed invalid or unenforceable for any reason, including, withoutlimitation, because of its geographic or business scope or duration, suchprovision shall be construed in such a way as to make it valid and enforceableto the maximum extent possible. Any invalidity or unenforceability of anyprovision in this Agreement shall not affect or render invalid or unenforceableany other provision of this Agreement or any other Agreement or instrument.

 

**5.6**          This Agreement shall be governed byand construed in accordance with the laws of the state of New York, withoutgiving effect to the conflict or choice of law provisions thereof.

 

B-V

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**IN WITNESS WHEREOF**,the Company has caused this Agreement to be duly executed and Executive hashereunto set his hand as of the date first set forth above.

 

 
|   | **24/7 Real Media, Inc.**                         |
|--------|--------------------------------------------------------|
|   | ** **                                             |
|   |                                                   |
|   | By:                                                    |   | /s/ Jonathan K. Hsu |   |
|   | Jonathan K. Hsu                                        |
|   | Executive  Vice President and  Chief Executive Officer |
|   |                                                   |
|   |                                                   |
|   | **EXECUTIVE**                                          |
|   |                                                   |
|   |                                                   |
|   |                                                   | /s/ David J. Moore |   |
|   |                                                   |
|   | David J. Moore                                         |
|        |                                                        |  |  |  |  |

 

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