EMPLOYMENT AGREEMENT
Exhibit
G to Asset
Purchase
Agreement
EMPLOYMENT
AGREEMENT
(the
“Agreement”),
dated
as of October 3, 2006, between Net
Perceptions, Inc.,
a
Delaware corporation, (the “Company”)
and
Xxxx
Xxxxx
(the
“Employee”).
W
I T N E S S E T H :
WHEREAS,
the
Company desires to employ the Employee as President & General Manager-
Concord Steel 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, SIG Acquisition Corp.
(the
“Purchaser”)
and
CRC Acquisition Co., LLC (the “Commencement
Date”)
and,
unless renewed pursuant to the mutual agreement of the Company and the Employee,
shall expire on the third anniversary of the Commencement Date, if a Business
Day, or otherwise on the first Business Day thereafter, subject to earlier
termination as provided herein (the “Term”).
As
used herein, “Business Day” means any day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or otherwise
required by law to close.
2. Duties.
(a)
During the Term of this Agreement, the Employee shall serve as President &
General Manager- Concord Steel, or in such other executive capacity as may
be
assigned to him, 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. 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 Company’s President and Chief Executive Officer or
such other person(s) as may be designated by the Board and shall at all times
keep the Company’s President and Chief Executive Officer (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 $180,000 (the
“Base
Compensation”).
The
Base Compensation shall be payable in accordance with the normal payroll
practices of the Company and shall be subject to withholding for applicable
taxes and other amounts. The Employee’s performance and any potential increases
in the Base Compensation shall be subject to annual review by the
Company.
(b)
Cash
EBITDA Bonus.
In
addition to the Base Compensation described above, the Employee shall be
entitled to an annual performance bonus of up to 100% of Base Compensation
(the
“Maximum
Annual EBITDA Bonus”)
based
upon the achievement of Company goals as described below. If the Company
achieves 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 (“EBITDA”)
of the
target expressed in the Company’s annual budget approved by the Board for such
fiscal year (each such target, an “Annual
EBITDA Target”),
the
Employee’s bonus shall be equal to 50 percent of his Base Compensation (the
“Annual
EBITDA Target Bonus”).
If an
Annual EBITDA Target is exceeded, the Employee’s bonus shall be increased above
the Annual EBITDA Target Bonus by 5 percentage points for every one percent
increase in EBITDA above the Annual EBITDA Target up to a maximum bonus amount
equal to the Maximum Annual EBITDA Bonus. If the Annual EBITDA Target is not
achieved, the Employee’s bonus shall be reduced from the Annual EBITDA Target
Bonus by five percentage points for every one percent shortfall in EBITDA.
(c) Cash
Revenue Bonus (solely for Fiscal Year ended 2006).
In
addition to all payments set forth above, if the Company achieves revenues
of
$80,700,000 for the fiscal year ending December 31, 2006, the Employee shall
be
entitled to a payment of $125,000, payable upon filing of the Company’s annual
report on Form 10-K for fiscal year 2006.
(d)
Restricted
Stock.
(i) On
the
Commencement Date, the Company shall issue and grant to Employee, under the
Company’s 1999 Equity Stock Incentive Plan (the “Plan”)
and
applicable law, 147,059 shares of restricted Common Stock of the Company (the
“Restricted
Stock”)
which
shall fully vest upon filing of the Company’s annual report on Form 10-K for
fiscal year 2007 upon the occurrence of any of the following: (i) the Purchaser
achieving revenues of at least $90,000,000 for the fiscal year ending December
31, 2007, (ii) the Purchaser achieving gross profit of at least $18,600,000
for
the fiscal year ending December 31, 2007 or (iii) the Purchaser achieving EBITDA
of at least $14,800,000 for the fiscal year ending December 31, 2007.
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(ii) In
addition, on the Commencement Date, the Company shall issue and grant to
Employee 11,765 shares of fully vested Restricted Stock under the Plan and
applicable law.
(iii) During
the Term of this Agreement the Employee agrees not to sell, pledge, hypothecate
or otherwise transfer the Restricted Stock within a one year period after grant
without the consent of the Board of Directors (the “Board”). The terms and
provisions of Restricted Stock granted pursuant hereto shall be set forth in
a
restricted stock agreement in a form satisfactory to the Company and consistent
with the Company’s standard form of restricted stock agreement under the Plan.
Upon the occurrence of a “change in control” (as defined in the Plan) all
unvested Restricted Stock shall vest immediately.
(e)
Other
Bonus Plans.
The
Employee may be entitled to participate in such other bonus plans and stock
incentive plans during the Term of this Agreement as the Compensation Committee
of the Board may, in its sole and absolute discretion, determine.
(f)
Benefits.
During
the Term of this Agreement and during any Severance Period (as defined below),
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.
(g)
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.
(h)
Taxes.
Any
amount of compensation paid to the Employee shall be subject to withholding
for
applicable taxes and other required amounts.
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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 non-competition 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 ( as defined in Section 7(f) hereof),
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; provided, however, that the
restrictions set forth in this Section 4(b) will not apply to the Employee
in
the event of a termination of this Agreement by reason of his death or without
cause pursuant to Section 7(c). Notwithstanding any provision of this Section
4(b), Employee shall, to the extent permitted under applicable law, rule,
regulation and the Plan, and upon prior notice to the Company, be permitted
to
transfer shares of Common Stock of the Company to his immediate family members
or trusts for the benefit of his immediate family members for estate planning
purposes, provided that any such transferees shall be subject to the
restrictions applicable to employee set forth herein.
(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 during the Term of
this Agreement or for a period of five years thereafter, 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.
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(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 Company’s
request for such assistance. In the event the Company is unable, after
reasonable effort, to secure the Employee’s signature on any document or
documents needed to apply for or prosecute any patent, copyright, trademark,
trade secret, or other right or protection relating to an Invention, whether
because of the Employee’s physical or mental incapacity or for any other reason
whatsoever, the Employee hereby irrevocably designates and appoints the Company
and its duly authorized officers and agents as his agent coupled with an
interest and attorney-in-fact, to act for and in his behalf and stead to execute
and file any such application or applications and to do all other lawfully
permitted acts to further the prosecution and issuance of patents, copyrights,
trademarks, trade secrets, or similar rights or protection thereon with the
same
legal force and effect as if executed by the Employee.
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(d)
Non-competition.
During
the Term of this Agreement and (A) for a period of one year after the
termination of this Agreement pursuant to Sections 7(a), 7(b) or 7(e) hereof
(subject to extension pursuant to Section 7(f) hereof), as applicable; or (B)
in
the event of termination pursuant to Sections 7(c) or 7(d), the duration of
the
Severance Period (as defined in Section 7(f)) the Employee (i) shall not utilize
his special knowledge of the business operations of the Company and his
relationships with customers and suppliers of the Company and others to compete
with the Company and (ii) without limiting the forgoing, shall not engage,
directly or indirectly, 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 (except with respect to his employment by the Company),
or through the investment of capital, lending of money or property, rendering
of
services or otherwise, in any business competitive with or substantially similar
to that engaged in by the Company during the Term of this Agreement (it being
understood hereby, 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 5).
(e)
Non-solicitation.
During
the Term of this Agreement and (A) for a period of one year after the
termination of this Agreement pursuant to Sections 7(a), 7(b) or 7(e) hereof,
as
applicable or (B) in the event of termination pursuant to Sections 7(c) or
7(d)
hereof, the duration of the Severance Period (as defined in Section 7(f) 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 competitive business from, or solicit the
competitive business of any individual or entity who is, or who had been at
any
time during the preceding two years, a customer of the Company or any successor
to the business of the Company, or otherwise divert or attempt to divert any
business from the Company or any such successor, or (ii) directly or indirectly
recruit or otherwise 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 employment or other relationship with the Company
or
such successor, or hire or enter into any business with any person is employed
by or who has left the employ of the Company or any such successor during the
preceding two years. The Employee shall not at any time, directly or indirectly,
use or purport to authorize any person to use any name, xxxx, 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 this
Section 5 shall toll the running of any time periods set forth in this Section
5
for the duration of any such breach or violation.
6
(f)
Non-Disparagement.
The
Employee shall not at any time, directly or indirectly, take any action (whether
orally or in writing or otherwise) which has or may be expected to have the
effect of disparaging the Company or any of its subsidiaries or affiliates
or
their directors, officers or executives or their respective reputations,
including, but not limited to, their business models, practices, relationships,
internal workings, financial condition or operations, in any manner whatsoever
at any time.
6. Remedies.
The
restrictions set forth in Section 5 are considered by the parties to be fair
and
reasonable. The Employee acknowledges that the restrictions contained in Section
5 will not prevent him from earning a livelihood. The Employee 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 Section 5. Accordingly, the Employee agrees that, in addition
to
any other remedies available to the Company, the Company shall be entitled
to
injunctive and other equitable relief to secure the enforcement of these
provisions, and shall be entitled to receive reimbursement from the Employee
for
all reasonable attorneys' fees and expenses incurred by the Company in enforcing
these provisions. In connection with seeking any such equitable remedy,
including, but not limited to, an injunction or specific performance, the
Company shall not be required to post a bond as a condition to obtaining such
remedy. If any provisions of Sections 5 or 6 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
activities or geographic area, the 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 provisions of Sections 5 or 6 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 such adjudication is made)
in
such manner as to render them enforceable and to effectuate as nearly as
possible the original intentions and agreement of the parties. For purposes
of
this Section 6, all references to the Company shall be deemed to include the
Company's affiliates and subsidiaries, whether now existing or hereafter
established or acquired.
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7. Termination;
Non-renewal.
This
Agreement may be terminated prior to the expiration of the Term set forth in
Section 1 upon the occurrence of any of the events set forth in, and subject
to
the terms of, this Section 7.
(a)
Death
or Permanent Disability.
If
the
Employee dies or becomes permanently disabled, this Agreement shall terminate
effective at the end of the calendar month during which his death occurs or
when
his disability is deemed to have become permanent. If the Employee is unable
to
perform his normal duties for the Company because of illness or incapacity
(whether physical or mental) for 60 consecutive days during the Term of this
Agreement, or for 90 days (whether or not consecutive) out of any calendar
year
during the Term of this Agreement, his disability shall be deemed to have become
permanent. If this Agreement is terminated on account of the death or permanent
disability of the Employee, then the Employee or his estate shall be entitled
to
receive accrued Base Compensation through the date of such termination and
the
Employee and the Employee’s estate shall have no further entitlement to Base
Compensation, bonus, or benefits, except (i) in the case of the Employee’s
death, the proceeds of any life insurance policies payable to his beneficiaries
shall be paid pursuant to the terms and conditions of such policies following
the effective date of such termination and (ii) in the case of the Employee’s
death or permanent disability, if not already received, the bonus specified
in
Section 3(c) hereof (subject to the specified target being met), and payable
on
the payment date specified therein.
(b)
Cause.
This
Agreement may be terminated at the Company’s option, immediately upon written
notice to the Employee, upon: (i) fraud, criminal conduct, dishonesty or
embezzlement by the Employee; (ii) the Employee’s misappropriation of funds of
the Company or any of the Company’s affiliates; (iii) the Employee’s gross
negligence, willful or intentional act or omission in the performance of his
duties under this Agreement as determined by the Board; (iv) the Employee’s
disregard of a lawful direction of the Board or the executive officer to whom
the Employee reports that continues unremedied for six days following the
Employee’s receipt of written notice from the Board (except that if two prior
notices have been delivered to Employee for substantively the same or similar
matter, no further notice or cure or compliance period shall be required);
(v)
the Employee’s appropriation for himself of a Company corporate opportunity
without the express prior written consent of the Board; (vi) the Employee’s
material breach of any of his obligations under this Agreement (other than
Section 5 of this Agreement) that continues unremedied for 14 days following
the
Employee’s receipt of written notice from the Board thereof; (vii) the
Employee’s breach of any of his obligations of any of the provisions of Section
5 of this Agreement; or (viii) the Employee is convicted of a felony. If this
Agreement is terminated by the Company for cause, then the Employee shall be
entitled to receive accrued Base Compensation through the date of such
termination.
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(c)
Without
Cause.
This
Agreement may be terminated at any time by the Company without cause immediately
upon giving written notice to the Employee of such termination. Upon termination
of this Agreement by the Company pursuant to this Section 7(c), (i) the Employee
shall be entitled to receive his Base Compensation for the remainder of the
Term
(based on the highest rate of annual base salary paid to the Employee during
the
Term) and (ii) all unvested stock awards of the Employee shall vest at the
end
of the non-compete period as described in Sections 5(d) and 5(e) hereof. After
termination pursuant to this Section 7(c), the Employee shall continue to be
bound by the provisions of Sections 5(d) and 5(e) of this Agreement for the
Severance Period (as defined in Section 7(f) hereof).
(d)
Non-renewal.
In the
event the Company fails to renew or extend the Term, the Employee shall be
entitled to receive his Base Compensation (based on the highest rate of annual
base salary paid to the Employee during the Term) for an additional period
of 12
months after the expiration of the Term and shall continue to be bound by the
provisions of Sections 5(d) and 5(e) of this Agreement for such additional
period, provided, however, the Employee’s right to receive any such payment
shall be subject to the Employee complying with the terms of this Agreement.
(e)
By
Employee.
The
Employee may terminate the Agreement at anytime upon providing the Company
with
two weeks prior written notice. If this Agreement is terminated by the Employee
pursuant to this Section 7(e), the Employee shall be entitled to receive his
accrued Base Compensation and benefits through the effective date of such
termination and the Employee shall have no further entitlement to Base
Compensation, bonus, or benefits from the Company following the effective date
of such termination; provided, however, that if Employee terminates this
Agreement within 45 days after being notified that he will be relocated (other
than with respect to interim relocations for operational purposes) to an office
that is more than 45 miles from 0000 Xxxxx Xxxxx Xxxxxx, X.X., Xxxxxx, Xxxx,
the
Employee shall be entitled to receive his Base Compensation for the remainder
of
the Term (based on the highest rate of annual base salary paid to the Employee
during the Term).
(f)
Severance
Payment and Period.
The
period of time during which the Company continues to pay the Employee (or would
continue to pay, but for any breach by the Employee of this Agreement) following
the termination or expiration of this Agreement pursuant to Sections 7(b),
(c),
(d), (e) or this Section 7(f) shall be referred to as the “Severance
Period”,
and
the amounts due thereunder shall be referred to as the “Severance
Payment.”
Upon
termination of this Agreement pursuant to Sections 7(b), (c), (d) or (e) the
Company shall have the election (such election to be exercised within 10 days
after the termination of Employee’s employment pursuant to such provisions), to
extend the applicable period that the covenants set forth in Sections 5(d)
and
(e) are applicable to the Employee through and including the second anniversary
of the date of termination (or through and including any lesser period) provided
that the Company agrees to pay the Employee (or would continue to pay, but
for
any breach by the Employee of this Agreement) the Base Compensation (based
on
the highest rate of annual base salary paid to the Employee during the Term)
during such extension period during which the covenants are extended. The
Severance Payment shall be payable bi-monthly in accordance with the normal
payroll practices of the Company and shall be subject to withholding for
applicable taxes and other amounts. Notwithstanding the foregoing, upon a breach
by the Employee of Section 5 of this Agreement, any unpaid portion of the
Severance Payment shall not be payable and the Employee shall immediately repay
to the Company the full gross amount of any Severance Payment already paid
before taking into account any withholdings for applicable taxes and other
amounts.
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8. Life
Insurance.
The
Employee acknowledges that the Company may seek to obtain key man life insurance
policy on his life with the Company as the named beneficiary. The Employee
hereby agrees to provide such information and to submit to such medical
examinations and otherwise cooperate as may be required to assist the Company
in
obtaining such policy. During the Term, provided that Employee is insurable
at
customary and reasonable premium rates for a person of his age, the Company
will
maintain, and pay all premiums under, a policy of life insurance on Employee
pursuant to which no less than $500,000 of the death benefit will be payable
to
Employee's spouse or other beneficiary chosen by Employee.
9. Miscellaneous.
(a)
Survival.
The
provisions of Sections 4, 5, 6, 7, 8 and 9 shall survive the termination of
this
Agreement.
(b) Entire
Agreement.
This
Agreement sets forth the entire understanding of the parties and, except as
specifically set forth herein, merges and supersedes any prior or
contemporaneous agreements between the parties pertaining to the subject matter
hereof.
(c) Modification.
This
Agreement may not be modified or terminated orally, and no modification,
termination or attempted waiver of any of the provisions hereof shall be binding
unless in writing and signed by the party against whom the same is sought to
be
enforced.
(d) Waiver.
Failure
of a party to enforce one or more of the provisions of this Agreement or to
require at any time performance of any of the obligations hereof shall not
be
construed to be a waiver of such provisions by such party nor to in any way
affect the validity of this Agreement or such party’s right thereafter to
enforce any provision of this Agreement, nor to preclude such party from taking
any other action at any time which it would legally be entitled to
take.
(e)
Successors
and Assigns.
Neither
party shall have the right to assign this Agreement, or any rights or
obligations hereunder, without the consent of the other party; provided,
however,
that
upon the sale of all or substantially all of the assets, business and good-will
of the Company to another company, or upon the merger or consolidation of the
Company with another company, this Agreement shall inure to the benefit of,
and
be binding upon, both Employee and the company purchasing such assets, business
and goodwill, or surviving such merger or consolidation, as the case may be,
in
the same manner and to the same extent as though such other company were the
Company; and provided,
further,
that the
Company shall have the right to assign this Agreement to any affiliate or
subsidiary of the Company. Subject to the foregoing, this Agreement shall inure
to the benefit of, and be binding upon, the parties hereto and their legal
representatives, heirs, successors and assigns.
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(f) Communications.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed to have been given at the time personally
delivered or when mailed in any United States post office enclosed in a
registered or certified postage prepaid envelope and addressed to the addresses
set forth below, or to such other address as any party may specify by notice
to
the other party; provided,
however,
that any
notice of change of address shall be effective only upon receipt.
|
If
to the Company:
Net
Perceptions, Inc.
Xxx
Xxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Chief Executive Officer
|
With
a copy to:
Xxxx
Xxxxxxx, P.C.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxx X. Xxxxxxxx, Esq.
|
|
If
to the Employee, to:
Xxxx
Xxxxx
0000
Xxxxxxxxxx-Xxxxxx Xx.
Xxxxxxx
Xxxxx, XX 00000
|
(g) Severability.
If any
provision of this Agreement is held to be invalid or unenforceable by a court
of
competent jurisdiction, such invalidity or unenforceability shall not affect
the
validity and enforceability of the other provisions of this Agreement and the
provisions held to be invalid or unenforceable shall be enforced as nearly
as
possible according to its original terms and intent to eliminate such invalidity
or unenforceability.
(h) Jurisdiction;
Venue.
This
Agreement shall be subject to the non-exclusive jurisdiction of the courts
of
New York County, New York. Any breach of any provision of this Agreement shall
be deemed to be a breach occurring in the State of New York by virtue of a
failure to perform an act required to be performed in the State of New York,
and
the parties irrevocably and expressly agree to submit to the non-exclusive
jurisdiction of the courts of New York County, New York for the purpose of
resolving any disputes among them relating to this Agreement or the transactions
contemplated by this Agreement and waive any objections on the grounds of forum
non conveniens or otherwise. The parties hereto agree to service of process
by
certified or registered United States mail, postage prepaid, addressed to the
party in question.
11
(i) Governing
Law; Indemnification.
This
Agreement is made and executed and shall be governed by the laws of the State
of
New York, without regard to the conflicts of law principles thereof.
Notwithstanding the foregoing, the Employee shall have the right to be
indemnified by the Company in accordance with the provisions of the Company's
certificate of incorporation, bylaws, and the provisions of Delaware
law.
(j) Counterparts.
This
Agreement may be executed in any number of counterparts, but all counterparts
will together constitute but one agreement.
(k)
Third
Party Beneficiaries.
This
Agreement is for the sole and exclusive benefit of the parties hereto and,
except as provided herein, shall not be deemed for the benefit of any other
person or entity.
(l)
IRC
Section 409A.
The
parties to this Agreement intend that the Agreement complies with Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”),
where
applicable, and this Agreement shall be interpreted in a manner consistent
with
that intention. Notwithstanding any provision of this Agreement, no payment
or
other distribution required to be made to the Employee hereunder (including
any
payment of cash, any transfer of property and any provision of taxable benefits)
as a result of his termination with the Company shall be made prior to the
earliest date that Employee may receive such payments without a penalty,
remedial measure or similar effect being imposed against the Company or the
Employee pursuant to Section 409A of the Code.
[SIGNATURE
PAGE FOLLOWS]
12
IN
WITNESS WHEREOF,
each of
the parties hereto has duly executed this Employment Agreement as of the date
set forth above.
|
NET
PERCEPTIONS, INC.
By:
____________________________
Name:
Xxxxx X. Xxxxx
Title:
Chief Administrative Officer
|
EMPLOYEE
__________________________________
Xxxx
Xxxxx
|
