EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT
(the "Agreement"), dated as of
September 22, 2006 between Net Perceptions, Inc., a Delaware
corporation, (the “Company") and Albert
Weggeman (the "Employee").
W I T N E S S E T
H :
WHEREAS , the Company desires to employ the Employee and
to be assured of his services on the terms and conditions
hereinafter set forth; and
WHEREAS , the Employee is willing to accept such
employment on such terms and conditions.
NOW
THEREFORE , in
consideration of the mutual covenants and agreements set forth in
this Agreement, the Company and the Employee hereby agree as
follows:
1.
Term .
The term of this Agreement shall commence and be
effective only upon the closing (the “Closing”) of the
transactions contemplated by that certain Asset Purchase Agreement
(the “Purchase Agreement”), dated as of September 22,
2006, by and between the Company and CRC Acquisition Co., LLC (the
“Commencement Date”) and shall expire on the third
anniversary of Commencement Date (the “Term”), subject
to earlier termination as provided herein. This Agreement shall
terminate if the Closing does not occur on or prior to October 31,
2006; provided however that the provisions of Sections 5, 6 and 9
shall survive any such termination.
2.
Duties .
(a) During the Term of this Agreement, the
Employee shall serve as the President and Chief Executive Officer
of the Company and shall perform all duties commensurate with his
position and as may be assigned to him by the Chairman of the Board
of Directors of the Company or such other person(s) as may be
designated by the Board of Directors of the Company (the
“Board”). The Employee shall devote his full business
time and energies to the business and affairs of the Company and
shall use his best efforts, skills and abilities to promote the
interests of the Company, and to diligently and competently perform
the duties of his position.
(b) The Employee shall report to the Chairman of
the Board or such other person(s) as may be designated by the Board
and shall at all times keep the Chairman of the Board (or such
other officer as the Chairman of the Board or the Board may
designate from time to time) promptly and fully informed (in
writing if so requested) of his conduct and of the business or
affairs of the Company, and provide such explanations of his
conduct as may be required.
3.
Compensation, Bonus, Stock Options, Benefits,
etc.
(a)
Salary . During the Term of this Agreement,
the Company shall pay to the Employee, and the Employee shall
accept from the Company, as compensation for the performance of
services under this Agreement and the Employee's observance and
performance of all of the provisions hereof, an annual salary at
the rate of $300,000 (the "Base Compensation"). The Base
Compensation shall be payable in accordance with the normal payroll
practices of the Company. The Employee’s performance and the
Base Compensation shall be subject to annual review by the
Company.
(b)
Bonus . In addition to the Base
Compensation described above, the Employee shall, in the sole and
absolute discretion of the Compensation Committee of the Board, be
entitled to performance bonuses which may be based upon a variety
of factors, including the Employee’s performance and the
achievement of Company goals, all as determined in the sole and
absolute discretion of the Board or Compensation Committee of the
Board. Any bonus paid to the Employee shall be subject to
withholding for applicable taxes and other amounts. In addition,
the Employee may be entitled to participate in such other bonus
plans, whether during the term of this Agreement as the
Compensation Committee of the Board may, in its sole and absolute
discretion, determine.
(c) Stock Options . Upon
the Commencement Date, the Company shall issue and grant to
Employee options to purchase 2,491,419 shares of the
Company’s common stock, having an exercise price equal to
$0.64 per share, of which (i) 1,245,709 shall vest in three
equal installments commencing on the first anniversary of the date
of grant; and (ii) 1,245,710 shall vest upon satisfaction of the
performance targets set forth in and in accordance with Exhibit
A , attached hereto. The parties understand and agree that such
options shall not be issued under any stock option plan or stock
incentive plan of the Company. During the Term of this Agreement
the Employee agrees not to sell, pledge, hypothecate or otherwise
transfer the Common Stock issuable upon the exercise of each
tranche of options identified above within a one year period after
vesting of such tranche without the consent of the Board of
Directors. The terms and provisions of such options shall be set
forth in a stock option agreement in a form satisfactory to the
Company. In addition, the Employee may be entitled, during the term
of this Agreement, to receive such additional options, at such
exercise prices and other terms as the Compensation Committee of
the Board may, in its sole and absolute discretion,
determine.
(d) Restricted Stock .
Upon the Commencement Date, the Company agrees to issue and grant
to Employee, the following amounts of restricted Common Stock under
the Company’s 1999 Equity Stock Incentive Plan (or such
successor or other Company stock incentive plans as the Company may
hereafter maintain or adopt), as priced in the manner set forth
below (the “Restricted Stock”), upon the occurrence of
the following events during the Term: (i) $1,000,000 of Restricted
Stock shall be granted upon the Company achieving annual earnings
before interest, taxes, depreciation and amortization, as computed
by the Company on or prior to its filing of its annual report on
Form 10-K, on a consistent basis (“EBITDA”) of at least
$25,000,000 in a fiscal year of the Company; (ii) $1,000,000 of
Restricted Stock shall be granted upon the Company achieving annual
EBITDA of at least $50,000,000 in a fiscal year of the Company; and
(iii) $1,000,000 shall be granted upon the Company achieving annual
EBITDA of at least $75,000,000 in a fiscal year of the Company.
Each of the grants specified in (i)-(iii) above are one-time grants
and shall vest on the date on which the Company’s Form 10-K
is filed in respect of the fiscal year for which the grant is being
made and the grant price shall be the closing price of the Common
Stock of the Company on the principal exchange on which it is
traded on such date. During the Term of this Agreement the Employee
agrees not to sell, pledge, hypothecate or otherwise transfer the
Restricted Stock identified above within a one year period after
grant without the consent of the Board of Directors. The terms and
provisions of such Restricted Stock shall be set forth in a
restricted stock agreement in a form satisfactory to the
Company.
(e) Benefits . During
the Term of this Agreement, the Employee shall be entitled to
participate in or benefit from, in accordance with the eligibility
and other provisions thereof, the Company's medical insurance and
other fringe benefit plans or policies as the Company may make
available to, or have in effect for, its senior executive officers
from time to time. The Company and its affiliates retain the right
to terminate or alter any such plans or policies from time to time.
The Employee shall also be entitled to four weeks paid vacation
each year, sick leave and other similar benefits in accordance with
policies of the Company from time to time in effect for its senior
executive officers.
(f) Reimbursement of Business
Expenses . During the Term of this Agreement, upon
submission of proper invoices, receipts or other supporting
documentation reasonably satisfactory to the Company and in
accordance with and subject to the Company’s expense
reimbursement policies, the Employee shall be reimbursed by the
Company for all reasonable business expenses actually and
necessarily incurred by the Employee on behalf of the Company in
connection with the performance of services under this
Agreement.
(g)
Taxes
.
The Base Compensation and any other
compensation paid to Employee shall be subject to withholding for
applicable taxes and other amounts.
4.
Representations of Employee .
(a) The
Employee represents and warrants that he is not party to, or bound
by, any agreement or commitment, or subject to any restriction,
including but not limited to agreements related to previous
employment containing confidentiality or noncompetition covenants,
which presently has or may in the future have a possibility of
adversely affecting the business of the Company or the performance
by the Employee of his duties under this Agreement.
(b) During the
Term and the Severance Period, if any, the Employee agrees that he
will not offer for sale, sell, pledge, assign, hypothecate or
otherwise create any interest in or dispose of (or enter into any
transaction or device that is designed to, or could reasonably be
expected to, result in any of the foregoing) any shares of Common
Stock owned by him on the Commencement Date or any shares of Common
Stock owned or acquired by him after the Commencement Date upon the
conversion or exercise of options or any securities convertible
into or exercisable or exchangeable for Common Stock, without first
notifying the Board in writing to inquire as to whether there
exists any facts or circumstances that would make it inadvisable
for the Company if the Employee engaged in such
transaction.
(c) The representations, warranties and
covenants of this Section 4 shall survive termination of the
Employee’s employment hereunder and the expiration of the
Term hereof.
5.
Confidentiality, Noncompetition, Nonsolicitation and
Non-Disparagement.
For purposes of
this Section 5, all references to the Company shall be deemed to
include the Company’s affiliates and subsidiaries and their
respective subsidiaries, whether now existing or hereafter
established or acquired. In consideration for the compensation and
benefits provided to the Employee pursuant to this Agreement, the
Employee agrees with the provisions of this Section 5.
(a)
Confidential Information . (i) The Employee
acknowledges that as a result of his retention by the Company, the
Employee has and will continue to have knowledge of, and access to,
proprietary and confidential information of the Company, including,
without limitation, research and development plans and results,
software, databases, technology, inventions, trade secrets,
technical information, know-how, plans, specifications, methods of
operations, product and service information, product and service
availability, pricing information (including pricing strategies),
financial, business and marketing information and plans, and the
identity of customers, clients and suppliers (collectively, the
“Confidential Information”), and that the Confidential
Information, even though it may be contributed, developed or
acquired by the Employee, constitutes valuable, special and unique
assets of the Company developed at great expense which are the
exclusive property of the Company. Accordingly, the Employee shall
not, at any time, either during or subsequent to the Term of this
Agreement, use, reveal, report, publish, transfer or otherwise
disclose to any person, corporation or other entity, any of the
Confidential Information without the prior written consent of the
Company, except to responsible officers and employees of the
Company and other responsible persons who are in a contractual or
fiduciary relationship with the Company and who have a need for
such Confidential Information for purposes in the best interests of
the Company, and except for such Confidential Information which is
or becomes of general public knowledge from authorized sources
other than the Employee.
(ii) The
Employee acknowledges that the Company would not enter into this
Agreement without the assurance that all the Confidential
Information will be used for the exclusive benefit of the
Company.
(b)
Return of Confidential Information . Upon
the termination of this Agreement or upon the request of the
Company, the Employee shall promptly return to the Company all
Confidential Information in his possession or control, including
but not limited to all drawings, manuals, computer printouts,
computer databases, disks, data, files, lists, memoranda, letters,
notes, notebooks, reports and other writings and copies thereof and
all other materials relating to the Company’s business,
including without limitation any materials incorporating
Confidential Information.
(c)
Inventions, etc . During the Term and for a
period of one year thereafter, the Employee will promptly disclose
to the Company all designs, processes, inventions, improvements,
developments, discoveries, processes, techniques, and other
information related to the business of the Company conceived,
developed, acquired, or reduced to practice by him alone or with
others during the Term of this Agreement, whether or not conceived
during regular working hours, through the use of Company time,
material or facilities or otherwise
(“Inventions”).
The Employee
agrees that all copyrights created in conjunction with his service
to the Company and other Inventions, are “works made for
hire” (as that term is defined under the Copyright Act of
1976, as amended). All such copyrights, trademarks, and other
Inventions shall be the sole and exclusive property of the Company,
and the Company shall be the sole owner of all patents, copyrights,
trademarks, trade secrets, and other rights and protection in
connection therewith. To the extent any such copyright and other
Inventions may not be works for hire, the Employee hereby assigns
to the Corporation any and all rights he or she now has or may
hereafter acquire in such copyrights and any other Inventions. Upon
request the Employee shall deliver to the Company all drawings,
models and other data and records relating to such copyrights,
trademarks and Inventions. The Employee further agrees as to all
such Inventions, to assist the Company in every proper way (but at
the Company’s expense) to obtain, register, and from time to
time enforce patents, copyrights, trademarks, trade secrets, and
other rights and protection relating to said Inventions in and all
countries, and to that end the Employee shall execute all documents
for use in applying for and obtaining such patents, copyrights,
trademarks, trade secrets and other rights and protection on and
enforcing such Inventions, as the Company may desire, together with
any assignments thereof to the Company or persons designated by it.
Such obligation to assist the Company shall continue beyond the
termination of the Employee’s service to the Company, but the
Company shall compensate the Employee at a reasonable rate after
termination of service for time actually spent by the Employee at
the
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