NET PERCEPTIONS, INC. RESTRICTED STOCK AWARD AGREEMENT DAVID A. JONES
NET
PERCEPTIONS, INC.
XXXXX
X. XXXXX
RESTRICTED
STOCK AWARD AGREEMENT
(the
"Agreement") made as of this 22nd day of September, 2006, by and between Net
Perceptions, Inc., a Delaware corporation, having its principal office at One
Landmark Square, 22nd
Floor,
Stamford, Connecticut 06901(the "Company"), and Xxxxx X. Xxxxx, an individual
residing at 000 Xxxxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxxx 00000 (the
"Recipient").
WHEREAS,
the
Company has heretofore adopted the 1999 Equity Incentive Plan of Net
Perceptions, Inc. (the "Plan") which Plan has been approved by the Company's
stockholders; and
WHEREAS,
the
Recipient has rendered valuable service to the Company and/or one of its
subsidiaries, in his capacity as a director (“Director”) and otherwise;
and
WHEREAS,
the
Company believes it to be in the best interests of the Company to reward
Recipient for services rendered and to secure the future services of the
Recipient by providing the Recipient with an inducement to continue to serve
as
a Director through the grant of restricted
shares of the Company’s common stock;
and
WHEREAS,
this
Agreement is delivered and entered into pursuant to the Plan.
NOW,
THEREFORE,
the
parties agree as follows:
1. Stock
Restricted.
Subject
to the provisions hereinafter set forth and the terms and conditions of the
Plan, the Company hereby grants to the Recipient, as of the date hereof (the
"Grant Date"), a restricted stock award, which shall vest immediately, of
One-Hundred Thousand
(100,000) shares
(the “Restricted Shares”) of common stock of the Company, par value $0.00001 per
share (the "Common Stock"), such number being subject to adjustment as provided
in the Plan.
2. Vesting.
(a) The
Restricted Shares shall vest and be deemed fully earned on the date hereof,
but
shall be subject to the restrictions on transfer provided elsewhere
herein.
(b) Upon
the
execution and delivery of this Agreement, the Restricted Shares shall be issued
to the Recipient in accordance with the Plan and the terms thereof, and hereof,
including Section 3 and 4 below.
(c) Nothing
in the Plan shall confer on Recipient any right to continue as a Director of
the
Company or any subsidiary of the Company, or limit in any way the right of
the
Board of Directors or Stockholders of the Company or any Affiliate (as defined
in the Plan) or subsidiary of the Company to terminate the Recipient's status
as
a Director. Without limiting the generality of the foregoing, the Recipient’s
status as Director is subject to, among other things, the Company’s Bylaws,
Articles of Incorporation, the requirements of the Delaware corporation law,
state and federal securities laws, and the right of the Company’s shareholders
to elect Directors. This
Agreement does not constitute an employment contract. This Agreement does not
guarantee that Recipient will continue to serve as a Director in the
future.
(d) Tax
Consequences. Recipient understands that Recipient may suffer adverse tax
consequences as a result of the grant, vesting or disposition of the Restricted
Shares. Recipient represents that Recipient has consulted with the Recipient's
own independent tax consultant(s) as Recipient deems advisable in connection
with the grant, vesting or disposition of the Restricted Shares and that
Recipient is not relying on the Company for any tax
advice.
3. Issuance
and Withholding.
(a) Upon
vesting, the Company shall issue the Restricted Shares registered in the name
of
Recipient and shall deliver certificates representing the Restricted Shares
to
the Recipient.
(b) Prior
to
the issuance of the Restricted Shares, Recipient must pay or provide for any
applicable federal or state withholding obligations in accordance with Section
15 below.
4. Compliance
With Laws and Regulations/Lockup.
(a) The
issuance and transfer of Restricted Shares shall be subject to compliance by
the
Company and Recipient with all applicable requirements of federal and state
securities laws and with all applicable requirements of any stock exchange
or
quotation system on which the Company's Common Stock may be listed at the time
of such issuance or transfer.
(b) The
Recipient shall not sell, transfer, exchange, hypothecate, grant a security
interest in, pledge or otherwise dispose of (collectively, “Transfer”),
other
than by will or by the laws of descent and distribution, the Restricted Shares,
except in accordance with the following schedule:
|
Date
("Release Date")
|
Number
of Shares Released
from
Restrictions on Transfer
|
Aggregate
Number of Shares
Released
from Restrictions
|
||
|
September
30, 2006
|
12,500
|
12,500
|
||
|
December
31, 2006
|
12,500
|
25,000
|
||
|
March
31, 2007
|
12,500
|
37,500
|
||
|
June
30, 2007
|
12,500
|
50,000
|
||
|
September
30, 2007
|
12,500
|
67,500
|
||
|
December
31, 2007
|
12,500
|
75,000
|
||
|
March
31, 2008
|
12,500
|
87,500
|
||
|
June
30, 2008
|
12,500
|
100,000
|
(c) The
Recipient acknowledges that the Transfer of the Restricted Shares is subject
to
the requirements of the Plan, the Securities Act, and all other applicable
securities laws.
2
5. Privileges
of Stock Ownership.
Except
for the restrictions on Transfer herein, the Recipient shall have full voting
rights, dividend rights, and other rights of a stockholder with respect to
the
Restricted Shares upon their issuance.
6. Interpretation.
Any
dispute regarding the interpretation of this Agreement shall be submitted by
Recipient or the Company to the Committee for review. The resolution of such
a
dispute by the Committee shall be final and binding on the Company and
Recipient.
7. Entire
Agreement.
The
Plan
is incorporated herein by reference. This Agreement and the Plan constitute
the
entire agreement and understanding of the parties hereto with respect to the
subject matter hereof and supersede all prior understandings and agreements
with
respect to such subject matter.
8. Notices.
Any
notice required to be given or delivered to the Company under the terms of
this
Agreement shall be in writing and addressed to the Corporate Secretary of the
Company at its principal corporate offices. Any notice required to be given
or
delivered to Recipient shall be in writing and addressed to Recipient at the
address indicated above or to such other address as such party may designate
in
writing from time to time to the Company. All notices shall be deemed to have
been given or delivered upon: personal delivery; three (3) days after deposit
in
the United States mail by certified or registered mail (return receipt
requested); one (1) business day after deposit with any return receipt express
courier (prepaid); or one (1) business day after transmission by
facsimile.
9. Successors
and Assigns.
The
Company may assign any of its rights under this Agreement. This Agreement shall
be binding upon and inure to the benefit of the successors and assigns of the
Company. Subject to the restrictions on transfer set forth herein, this
Agreement shall be binding upon Recipient and Recipient's heirs, executors,
administrators, legal representatives, successors and assigns.
10.
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, applicable to agreements made and to be performed entirely
within such state, other than conflict of laws principles thereof directing
the
application of any law other than that of Delaware.
11. Acceptance.
Recipient
hereby acknowledges receipt of a copy of the Plan and this Agreement. Recipient
has read and understands the terms and provisions thereof and hereof, and
accepts this restricted stock award subject to all the terms and conditions
of
the Plan and this Agreement. Recipient acknowledges that there maybe adverse
tax
consequences upon the grant or the vesting of this restricted stock award,
issuance or disposition of the Restricted Shares and that the Company has
advised Recipient to consult a tax advisor regarding the tax consequences of
the
grant, vesting, issuance or disposition.
12. Covenants
of the Recipient.
The
Recipient agrees (and for any proper successor hereby agrees) upon the request
of the Committee, to execute and deliver a certificate, in form reasonably
satisfactory to the Committee, regarding applicable Federal and state securities
law matters.
3
13. Obligations
of the Company
(a) Notwithstanding
anything to the contrary contained herein, neither the Company nor its transfer
agent shall be required to issue any fraction of a share of Common Stock, and
the Company shall issue the largest number of whole Restricted Shares of Common
Stock to which Recipient is entitled and shall return to the Recipient the
amount of any unissued fractional share in cash.
(b) The
Company may endorse such legend or legends upon the certificates for Restricted
Shares issued to the Recipient pursuant to the Plan and may issue such "stop
transfer" instructions to its transfer agent in respect of such Restricted
Shares as, in its discretion, it determines to be necessary or appropriate
to:
(i) prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act; (ii) implement the provisions of the Plan
and any agreement between the Company and the Recipient or grantee with respect
to such Restricted Shares; or (iii) as may be required pursuant to the Company’s
Amended and Restated Certificate of Incorporation, as amended.
(c) The
Company shall pay all issue or transfer taxes with respect to the issuance
or
transfer of Restricted Shares to Recipient, as well as all fees and expenses
necessarily incurred by the Company in connection with such issuance or
transfer.
(d) All
Restricted Shares issued following vesting shall be fully paid and
non-assessable to the extent permitted by law.
14. Section
83(b) Election.
If
the
Recipient files an election with the Internal Revenue Service to include the
fair market value of any Restricted Shares in gross income as of the Grant
Date,
the Restricted Stockholder agrees to promptly furnish the Company with a copy
of
such election, together with the amount of any federal, state, local or other
taxes required to be withheld to enable the Company to claim an income tax
deduction with respect to such election
15. Withholding
Taxes.
The
Recipient acknowledges that the Company is not responsible for the tax
consequences to the Recipient of the granting, vesting or issuance of the
Restricted Shares, and that it is the responsibility of the Recipient to consult
with the Recipient’s personal tax advisor regarding all matters with respect to
the tax consequences of the granting, vesting and issuance of the Restricted
Shares. The Company shall have the right to deduct from the Restricted Shares
or
any payment to be made with respect to the Restricted Shares any amount that
federal, state, local or foreign tax law requires to be withheld with respect
to
the Restricted Shares or any such payment. Alternatively, the Company may
require that the Recipient, prior to or simultaneously with the Company
incurring any obligation to withhold any such amount, pay such amount to the
Company in cash or in shares of the Company’s Common Stock (including shares of
Common Stock retained from the restricted stock award creating the tax
obligation), which shall be valued at the Fair Market Value of such shares
on
the date of such payment. In any case where it is determined that taxes are
required to be withheld in connection with the issuance, transfer or delivery
of
the shares, the Company may reduce the number of shares so issued, transferred
or delivered by such number of shares as the Company may deem appropriate to
comply with such withholding. The Company may also impose such conditions on
the
payment of any withholding obligations as may be required to satisfy applicable
regulatory requirements under the Exchange Act, if any.
4
16. Miscellaneous
(a) If
the
Recipient loses the share certificates evidencing the Restricted Shares granted
hereunder, or if such share certificates are stolen, damaged or destroyed,
the
Company shall, subject to such reasonable terms as to indemnity as the
Committee, in its sole discretion shall require, replace the Agreement.
(b) This
Agreement cannot be amended, supplemented or changed, and no provision hereof
can be waived, except by a written instrument making specific reference to
this
Agreement and signed by the party against whom enforcement of any such
amendment, supplement, modification or waiver is sought. A waiver of any right
derived hereunder by the Recipient shall not be deemed a waiver of any other
right derived hereunder.
(c) This
Agreement may be executed in any number of counterparts, but all counterparts
will together constitute but one agreement.
(d) In
the
event of a conflict between the terms and conditions of this Agreement and
the
Plan, the terms and conditions of the Plan shall govern. All capitalized terms
used herein but not defined shall have the meanings given to such terms in
the
Plan.
(e) TAX
CONSEQUENCES. RECIPIENT UNDERSTANDS THAT RECIPIENT MAY SUFFER ADVERSE TAX
CONSEQUENCES AS A RESULT OF THE GRANT, VESTING OR DISPOSITION OF THE RESTRICTED
SHARES. RECIPIENT REPRESENTS THAT RECIPIENT HAS CONSULTED WITH HIS OR HER OWN
INDEPENDENT TAX CONSULTANT(S) AS RECIPIENT DEEMS ADVISABLE IN CONNECTION WITH
THE GRANT, VESTING OR DISPOSITION OF THE RESTRICTED SHARES AND THAT RECIPIENT
IS
NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
[Remainder
of this Page Intentionally Left Blank]
5
In
Witness Whereof,
the
Corporation has caused this Restricted Stock Award Agreement to be executed
by
its duly authorized officer and the Recipient has executed this Agreement as
of
the 22nd day of September, 2006.
|
Net
Perceptions, Inc.
By:_______________________________
Name:___________________
Title:_______________
|
|
|
Recipient:
__________________________________
Xxxxx
X. Xxxxx
|
