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Resignation and Severance
Agreement
and General Release
Resignation and Severance Agreement and General Release
(the "Agreement") made and executed as of December
__, 2006, by and between Net Perceptions, Inc., a Delaware
corporation (the "Company"), with offices at One Landmark Square,
22 nd Floor, Stamford, Connecticut 06901, and Nigel P.
Ekern ("Employee") residing at 741 Hollow Tree Ridge Road, Darien,
Connecticut 06820.
W I T N E S S E T H
Whereas, Employee is employed by
the Company as Chief Administrative Officer of the Company pursuant
to an agreement dated as of January 1, 2006, between the Company
and the Employee(the "Employment Agreement");
Whereas, the Employee desires to
voluntarily resign from his position effective as of the day
following the date on which the Company files its Quarterly Report
on Form 10-Q for the Quarter Ended September 30, 2006, with the
Securities and Exchange Commission (the "End Date") and accept the
severance and benefits set forth herein in lieu of all severance
and benefits otherwise provided in the Employment
Agreement;
Whereas, Company desires to
accept such resignation and to provide Employee with the severance
and benefits set forth herein;
Whereas, the parties desire to
set forth their agreement and understanding concerning the
termination of the Employee’s employment.
Now, Therefore , in
consideration of the foregoing premises and the mutual promises
herein contained, it is agreed as follows:
1. Separation from Employment, etc.
(a) Resignation . The parties acknowledge and agree that
Employee’s resignation as an officer and employee of the
Company and the Company’s direct and indirect subsidiaries
and affiliates, and Employee’s separation from employment
with the Company and all of the Company’s direct or indirect
subsidiaries or affiliates shall be effective as of the End Date.
The Company shall continue to pay the Employee all salary and
benefits to which he is entitled under his Employment Agreement,
subject to the Company’s customary payroll practices, until
the End Date.
(b) Confidentiality . For purposes of this Agreement, all
references to the Company shall be deemed to include all of the
Company's affiliates and direct and indirect subsidiaries.
(i) Confidential
Information . The Employee acknowledges that as a result of
his employment with the Company, the Employee has and will continue
to have knowledge of, and access to, proprietary and confidential
information of the Company (in written, graphic, electronic, oral
and other forms, and in electronic, magnetic, paper and other
media), including, without limitation, information regarding the
Company’s assets, properties, business, plans, strategies,
operations, and business and product development, including without
limitation, acquisitions and new lines of business, trade secrets,
novel ideas, inventions, know-how, customers, business affiliates,
techniques, training materials, algorithms, computer programs
(including source codes and object codes), designs, formulas, test
plans, data, analyses and results, services, costs, finances,
financial statements and projections, financial and marketing
information, markets, sales, vendors, suppliers, personnel, pricing
policies, plans for future developments, acquisition or disposition
strategies, specifications, technology, research and development,
and other similar information in respect of the Company
(collectively, the "Confidential Information"), and that such
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. Ac-cord-ingly, the Employee
shall not, at any time, either during the term of his employment
with the Company or subsequent to the End Date, use (whether for
personal gain or otherwise), reveal, report, publish, transfer or
otherwise disclose to any person, corporation or other entity, any
of the Con-fi-dential 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 information for purposes in the best interests of the Company,
and except (i) for such information which is or be-comes of
general public knowledge from authorized sources other than the
Employee, and (ii) as may be required by law, regulation,
legal proceeding or court order. The Employee acknow-ledges that
the Company would not enter into this Agreement without the
assurance that all such Confi-dential Information will be used for
the exclusive benefit of the Company.
(ii) Return of
Confidential Information . The Employee shall promptly, but
in any event no later than the End Date, deliver to the Company all
drawings, manuals, letters, notes, notebooks, reports and copies
thereof and all other materials relating to the Company's business,
including without limitation any materials incorporating
Confidential Information, which are in the Employee's possession or
control. In the event that any such materials are provided to
Employee in connection with Section 9(F) of this Agreement during
the six month period following the End Date, then Employee shall,
within 10 business days following the expiration of such six-month
period, deliver to the Company all such materials which are in
Employee’s possession or control, except for such having
a de minimus value to the Company.
(iii) Return of
Company Property . The Employee covenants and agrees that on
or before the End Date, he will return to the Company all property
of the Company which has theretofore been furnished to him,
including without limitation cell phones, computers, Blackberries
and other equipment.
(iv) Inventions,
etc . The Employee will promptly disclose to the Com-pany
all designs, processes, inventions, improvements, discoveries and
other information related to the business of the Company
(collectively "developments") conceived, developed or acquired
by the Employee alone or with others during the term of the
Employee's employment with the Company, whether or not conceived
during regular working hours, through the use of Company time,
material or facilities or otherwise, whether prior to or within
eighteen (18) months after the End Date. All such developments
shall be the sole and exclusive property of the Company, and upon
request the Employee shall deliver to the Com-pany all draw-ings,
models and other data and records relating to such developments. In
the event any such developments shall be deemed by the Company to
be patentable or copyrightable, the Employee shall, at the expense
of the Company, assist the Company in obtaining any patents or
copyrights thereon and execute all documents and do all other
things necessary or proper to obtain letters patent and copyrights
and to vest the Company with full title thereto.
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(c) Non-competition . The Employee will not utilize his
special knowledge of the business of the Company and his
rela-tionships with customers, suppliers of the Company and others
to compete with the Company. Subject to the fourth sentence of this
Section 1(c), for a period of three years from the date hereof, the
Employee shall not engage, directly or in-directly, or have an
interest, directly or indirectly, anywhere in the United States of
America or any other geographic area where the Company does
business or in which its products or services are marketed, alone
or in association with others, as principal, officer, agent,
employee, director, partner or stockholder, or through the
investment of capital, lending of money or property, ren-dering of
services or otherwise, in any business competitive with or
substantially similar to that engaged in or, to the knowledge of
the Employee, contemplated to be engaged in, by the Company or any
vendor, supplier or distributor of the Company during the term of
Employee’s employment by the Company, or any line of business
or acquisition that the Company has obtained due diligence or other
information on during Employee’s employment with the Company.
Subject to the fourth sentence of this Section (c), during the same
period, the Employee shall not, and shall not permit any of his
employees, agents or others under his control to, directly or
indirectly, on behalf of himself or any other person, (i) call
upon, accept business from, or solicit the business of any person
who is, or who had been at any time during the preceding two (2)
years, a customer of the Company or any successor to the business
of the Company, or otherwise divert or attempt to divert any
busi-ness from the Company or any such successor, or
(ii) directly or indirectly recruit or other-wise solicit or
induce any person who is an employee of, or otherwise engaged by,
the Company or any successor to the business of the Company to
terminate his or her employment or other rela-tionship with the
Company or such successor, or hire any person who has left the
employ of the Company or any such successor during the preceding
two (2) years. The Employee shall not at any time, directly or
indirectly, use or purport to authorize any person to use any name,
mark, logo, trade dress or other identifying words or images which
are the same as or similar to those used at any time by the Company
in connection with any product or service, whether or not such use
would be in a business competitive with that of the Company. Any
breach or violation by the Employee of the provisions of Section
1(b)(iv) or this Section 1(c) shall toll the running of any time
periods set forth in this Section 1(c) for the duration of any such
breach or violation. Notwithstanding any provision in this
Agreement to the contrary, the parties hereto agree and understand
that the ownership by the Employee of five percent (5%) or less of
the stock of any company listed on a national securities exchange
shall not be deemed a violation of this Section 1(c) and it being
further understood that nothing herein shall prevent the Employee
from engaging in the business of investing, reinvesting or trading
in securities or other financial instruments.
(d) Remedies . The restrictions set forth in Sections 1(b)
and 1(c) are con-sidered by the parties to be fair and reasonable.
The Employee acknowledges that the restrictions contained in
Sections 1(b) and 1(c) will not prevent him from earning a
livelihood. The Em-ployee further acknowledges that the Company
would be irreparably harmed and that monetary damages would not
provide an adequate remedy in the event of a breach of the
provisions of Sections 1(b) or 1(c). Accordingly, the Employee
agrees that, in addition to any other remedies available to the
Company, the Company (i) shall be entitled to specific
performance, injunction, and other equitable relief to secure the
enforcement of such provisions, (ii) shall not be required to
post bond in connection with seeking any such equitable remedies,
and (iii) shall be entitled to receive reimbursement from the
Employee for all reasonable attorneys' fees and expenses in-curred
by the Company in enforcing such provisions if the Company prevails
in any action brought to enforce Sections 1(b) or 1(c) hereof. If
any provisions of Sections 1(b), 1(c), or 1(d) relating to the time
period, scope of activities or geographic area of restrictions is
declared by a court of competent jurisdiction to exceed the maximum
permissible time period, scope of acti-vities or geographic area,
the maximum time period, scope of activities or geographic area, as
the case may be, shall be reduced to the maximum which such court
deems enforceable. If any pro-visions of Sections 1(b), 1(c), or
1(d) other than those described in the preceding sentence are
adjudicated to be invalid or unenforceable, the invalid or
unenforceable provisions shall be deemed amended (with respect only
to the jurisdiction in which adjudication is made) in such manner
as to render them enforceable and to effectuate as nearly as
possible the original inten-tions and agreement of the
parties.
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2. Employee’s and Company’s Representations and
Covenants . The Employee represents that he has not filed
any claims, complaints, charges or lawsuits (collectively
"Actions") against the Company and any parent, subsidiary and
related corporations and divisions of any of them, and the members,
owners, stockholders, predecessors, successors, assigns, agents,
directors, officers, employees and representatives of any of them
with any governmental agency, arbitrator, or any court with respect
to his employment or separation from employment, and that he will
not do so at any time hereafter; provided, however, this clause
shall not limit the Employee from filing a lawsuit for the sole
purpose of enforcing his rights under this Agreement. The Company
represents that it has not filed any Actions against the Employee
with any governmental agency, arbitrator, or any court with respect
to his employment or separation from employment as of the date
hereof.
3. Acknowledgment of Payment and Receipt . The parties
acknowledge that all pay-ments for wages and benefits due to the
Employee through the date hereof, including payment for all accrued
vacation pay and any expense reimbursements, have be
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