Employment Agreement between Mediaplex, Inc. and Francis P. Patchel (Chief Financial Officer)

Summary

This agreement outlines the terms of employment for Francis P. Patchel as Chief Financial Officer of Mediaplex, Inc. It specifies an at-will employment relationship, a base salary of $200,000, eligibility for bonuses based on performance milestones, and participation in company benefit plans. The agreement also provides for stock options and reimbursement of business expenses. In the event of a change of control and certain types of termination, Mr. Patchel is entitled to severance pay. Employment is contingent on successful background checks and proof of work eligibility.

EX-10.2 3 dex102.txt EMPLOYMENT AGREEMENT WITH FRANCIS P. PATCHEL Exhibit 10.2 January 9, 2001 Mr. Frank Patchel 11 Dorothy Place Berkeley, CA 94705 Re: Terms of Employment Offer with Mediaplex, Inc. Dear Frank: Mediaplex, Inc, (the "Company"), is pleased to offer you the position described below. This letter sets forth the terms and conditions of your employment with the Company and is subject to the satisfactory completion of background and reference checks currently underway. I. Description of Employment Position and Responsibilities. You will serve in the position of Chief Financial Officer. By executing this agreement, you agree to assume and discharge such duties and responsibilities as are commensurate with this position and such other duties and responsibilities that are assigned to you from time to time by the Company's Board of Directors, Chief Executive Officer, or your then supervisor. During the term of your employment, you shall devote your full time, skill and attention to your duties and responsibilities and shall perform them faithfully, diligently and competently. In addition, you shall comply with and be bound by the operating policies, procedures and practices of the Company in effect from time to time during your employment. II. Employment Considerations. 2.1 At-Will Employment. You acknowledge that your employment with the Company is for an unspecified duration that constitutes at-will employment, and that either you or the Company can terminate this relationship at any time, with or without cause and without notice. 2.2 Employment Eligibility. Your employment is contingent on your submission to the Company of satisfactory original documentation to verify your identity and eligibility for employment in the United States. III. Compensation. 3.1 Base Salary. In consideration of your services, effective January 15, 2001, you will be paid an annual base salary of $200,000 (Two Hundred Thousand Dollars and no Cents), payable no less frequently than on a monthly basis in accordance with the Company's standard payroll practices. Your base salary, in conjunction with your performance evaluation, is normally reviewed annually by appropriate managers of the Company. 3.2 Incentive Compensation. In addition to your base salary, you may be entitled to participate in such incentive compensation plan that may be adopted by the Company in its sole discretion. You understand that the adoption of any such plan, the eligibility and measurement criteria and all other terms shall be at the sole discretion of the Company. You will be eligible to receive a bonus of up to 25% (Twenty-Five Percent) of your Base Salary upon the achievement of certain milestones to be established by your supervisor within thirty (30) days of your date of commencement with the Company. For the fiscal year ending 31 December 2001, your bonus will be payable upon completion to the satisfaction of the CEO, of the following objectives, and according to the indicated proportion of the total bonus: 20% Equity Line of Credit in Q1 20% Evaluation of and Conversion to AdWare FinPro 6 for Mediaplex in Q1 10% Maintenance of Company Adherence to Budget for 2001 and timely variance reporting 10% Successful Purchase Order Management of Consultants & Contractors 10% Evaluation and negotiation of timely sublets for the NY/San Jose offices 10% Timely bill/pay recon 10% Implementation of a weekly sales-to-date and sales forecasting system 10% Timely SEC filings, management reports (by 15th of following month), production of flash financial results (Sales and Operating Profit) (by 3rd of following month). 3.3 Termination. If your employment is terminated by the Company for any reason, with or without cause, or if you resign your employment voluntarily, no compensation or other payments will be paid or provided to you for periods following the date when such a termination of employment is effective, provided that any rights you may have under the benefit plans of the Company shall be determined under the provisions of those plans. If your employment terminates as a result of your death or disability, no compensation or payments will be made to you other than those to which you may otherwise be entitled under the benefit plans of the Company. IV. Additional Benefits. 4.1 Health Insurance/Vacation/Benefit Plans. You will be entitled to receive the standard employee benefits made available by the Company to its employees to the full extent of your eligibility therefor. You shall be entitled to three (3) weeks of paid personal time off ("PTO") per year, which may be accumulated to a maximum of 180 hours; the terms and conditions of your benefits shall be in accordance with the Company's PTO policy in effect at that time. During your employment, you shall be permitted, to the extent eligible, to participate in any group medical, dental, life insurance and disability insurance plans, or similar benefit plan of the Company that is available to employees generally. Participation in any such plan shall be consistent with your rate of compensation to the extent that compensation is a determinative factor with respect to coverage under any such plan. 4.2 Reimbursed Expenses. The Company shall reimburse you for all reasonable expenses actually incurred or paid by you in the performance of your services on behalf of the Company, upon prior authorization and approval in accordance with the Company's expense reimbursement policy as from time to time in effect. 4.3 Stock Options. Pursuant to Board approval, and under the terms and conditions of the Company's Stock Option Plan and Stock Option Agreement, including the stock vesting provisions contained therein, you will be granted an option to purchase 100,000 shares of common stock of the Company. You will be granted an option to purchase an additional 50,000 shares of common stock of the Company for the fiscal year ending 31 December 2001, upon completion to the satisfaction of the CEO, of the objectives and according to the indicated proportion of the total options as outlined for your bonus in Section 3.2 herein. The Company Stock Option Plan, including the Stock Option Agreement, will be sent to you separately. V. Termination; Change of Control Benefits. 5.1 Voluntary Termination; Cause. At any time, if your employment is terminated by the Company with Cause, or if you resign your employment voluntarily, no compensation or other payments will be paid or provided to you for periods following the date when such a termination of employment is effective, provided that any rights you may have under the benefit plans of the Company shall be determined under the provisions of those plans. If your employment terminates as a result of your death or disability, no compensation or payments will be made to you other than those to which you may otherwise be entitled under the benefit plans of the Company. 5.2 Change of Control Compensation. In the event there should occur a Change of Control (as defined below), and (i) your employment by the Company terminates for any reason other than for Cause or on account of your permanent disability or death or (ii) there occurs a Constructive Termination the Company will pay to you as severance, in one lump sum amount (unless you indicate in writing to the Company prior to the Company's payment of your election to be paid in installments over a specified period) an amount equal to five (5) months of your annual base salary in effect immediately prior to the time of such termination. Such amount will be paid by the Company as soon as administratively possible following such termination, but in all events not later than fifteen (15) days following the effective date of such termination. Such amounts paid will be reduced by all applicable withholding taxes and other deductions required by law and any additional amounts authorized by you to be withheld. 5.3 Other Change of Control Benefits. In addition to any amounts payable under Section 5.2 above, for a period of four (4) months following termination of employment, the Company will continue to provide you with, and pay the same portion of the cost as is then paid by the Company as of the termination date of health, disability and life insurance coverage for you, your spouse and dependents that is commensurate with the coverage then provided to you at the time of termination. The Company will structure such health, disability and life insurance coverage as nontaxable benefits to the maximum extent possible, including, but not limited to, by characterizing such benefits as coverage to a former employee. Specifically for health insurance coverage to the extent permitted by the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and by the Company's group health insurance policies, you will elect COBRA continuation coverage and the Company will pay you and your covered dependents' COBRA continuation premiums for following the date of termination of employment. You agree to notify the Vice President of Human Resources of the Company in writing immediately upon the commencement of health benefit coverage, which would cause your COBRA continuation coverage to cease. This Section 5.3 provides only for the Company's payment of COBRA continuation premiums for the periods specified above. This Section V is not intended to affect, nor does it affect, the rights of you, or your covered dependents under any applicable law with respect to health insurance continuation coverage. 5.4 Outplacement Services. In addition, the Company will, at its sole expense as incurred, for a period of four (4) months following termination of employment, provide you with outplacement services the scope and provider of which will be selected by you in your sole discretion. 5.5 Change in Control Definitions. For purposes of this Agreement: (a) A "Change in Control" will be deemed to occur upon consummation of any one of the following: (i) a sale, lease or other disposition of all or substantially all of the assets of the Company; (ii) a merger, consolidation or other reorganization in which the Company is not the surviving corporation and the stockholders of the Company immediately prior to the merger, consolidation or other reorganization fail to possess direct or indirect ownership of more than fifty percent (50%) of the voting power of the securities of the surviving corporation (or if the surviving corporation is a controlled affiliate of another Person, then the required beneficial ownership will be determined with respect to the securities of that Person which controls the surviving corporation and is not itself a controlled affiliate of any other Person) immediately following such transaction; (iii) a merger, consolidation or other reorganization in which the Company is the surviving corporation and the stockholders of the Company immediately prior to such merger, consolidation or other reorganization fail to possess direct or indirect beneficial ownership of more than fifty percent (50%) of the securities of the Company (or if the Company is a controlled affiliate of another Person, then the required beneficial ownership will be determined with respect to the securities of that Person which controls the Company and is not itself a controlled affiliate of any other Person) immediately following such transaction; (iv) any transaction or series of related transactions after which any person (as such term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), other than any employee benefit plan or related trust sponsored or maintained by the Company or any subsidiary of the Company, becomes the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act or comparable successor rule) of voting securities of the Company representing thirty percent (30%) or more of the combined voting power of all of the voting securities of the Company; (v) the individuals who, as of the date immediately following the Company's 2000 Annual Meeting of Stockholders, are members of the Company's Board of Directors (the "Incumbent Board") cease for any reason to constitute at least fifty percent (50%) thereof. (If the election, or nomination for election by the Company's stockholders, of any new director was approved by a vote of at least two-thirds (2/3) of the Incumbent Board, such new director will be considered as a member of the Incumbent Board); and (vi) the liquidation or dissolution of the Company. For purposes of Sections 5.5(a)(ii) and 5.5(a)(iii) above, any Person who acquired securities of the Company prior to the occurrence of the specified transaction in contemplation of such transaction and who immediately after such transaction possesses direct or indirect beneficial ownership of at least ten percent (10%) of the securities of the Company or the surviving corporation, as appropriate (or if the Company or the surviving corporation is a controlled affiliate, then of the appropriate Person as determined above), will not be included in the group of stockholders of the Company immediately prior to such transaction. (b) A "Constructive Termination" means any of the following occurring after a Change in Control: (i) a reduction, without your written consent, in your then current annual base salary; (ii) a relocation of your principal place of employment by more than twenty-five (25) miles, unless you consent in writing to such relocation; and (iii) any material breach by the Company of any provision of this offer letter after written notice delivered to the Company of such breach and a reasonable opportunity to cure such breach (which opportunity shall not extend beyond a period of thirty (30) days from the date of delivery of such written notice). (c) "Cause" means (i) a conviction of a felony or a crime involving moral turpitude causing material harm to the standing and reputation of the Company or (ii) any willful misconduct in the performance of your duties to the Company where such willful misconduct has resulted in substantial and material damage to the Company or its successor or the Person whose transactions caused the Change in Control or any of their respective subsidiaries, as determined by the Board of Directors of the Company and as stated in a written notice from the Company to you. (d) "Person" means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization or other legal entity including any governmental entity. VI. Continuation of Employment and Cooperation with the Company after Change in Control. Following a Change in Control, you agree that you will continue to provide your services as an employee of the Company (or the successor to the Company), as requested, as previously provided prior to the Change in Control or such performance as is reasonably requested by the Company (or its successor) and is substantially similar as your duties prior to such Change in Control; and to cooperate with the Company (or its successor) in all matters relating to any winding up of your pending work on behalf of the Company (or its successor) and the orderly transfer of any such pending work to other employees of the Company (or its successor) as may be designated by the Company (or its successor), which period will not exceed ninety (90) days. Furthermore, you agree to return all property of the Company in your possession or control to the Company (or its successor) as promptly as practicable within ten (10) days after the effective date of your termination of employment, except to the extent that retention of any of such property is necessary or desirable or convenient in order to permit you to satisfy your obligations under this Section VI. The performance your obligations under this Section VI shall be a condition to any and all of the benefits payable or otherwise granted to you upon a termination of your employment after a Change in Control pursuant to Section VI hereof.] VII. Intellectual Property Rights/Confidential Information. 5.1 Valuable Trade Secrets. You agree that the Company is the owner of valuable trade secrets, client, vendor, customer and contractor lists and other confidential and proprietary information. As such, you agree that your employment is contingent upon your execution of, and delivery to, the Company of a Confidential Information and Invention Assignment Agreement ("Intellectual Property Agreement") in the standard form utilized by the Company. 5.2 Additional Confidential Information. You agree to maintain the confidentiality ofall elements of this Agreement, agreeing to an absolute prohibition on any disclosure or use of such information in any fashion, with the exception of discussions with your supervisor or myself, or the Company's Human Resources Department or Legal Department. As you are well aware the maintenance of confidentiality of this kind of information is critical to our organization. 5.3 Equitable Remedies. You agree that it would be impossible or inadequate to measure and calculate the Company's damages from any breach of the covenants set forth in this Section as well as Sections 1, 2, 3, and 5 of the Intellectual Property Agreement. Accordingly, you agree that if you breach any of such Sections, the Company will have available, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this Agreement. You further agree that no bond or other security shall be required in obtaining, such equitable relief and you hereby consent to the issuance of such injunction and to the ordering of specific performance. VIII. Non-Competition/Conflicting Employment. You agree that, during the term of your employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company and/or its customers are now involved or become involved during the term of your employment, nor will you engage in any other activities that conflict with your obligations to the Company. IX. Arbitration. Except as otherwise provided in Section 5.3 above, it is agreed that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be exclusively settled by confidential arbitration to be held in San Francisco County, California, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgement may be entered on the arbitrator's decision in any court having jurisdiction. Each party shall pay one-half of the costs and expenses of such arbitration, and each of us shall separately pay our counsel fees and expenses. X. General Provisions. 8.1 Governing Law. This offer letter will be governed by the laws of the State of California. 8.2 Entire Agreement. This offer letter sets forth the entire agreement and understanding between the Company and you relating to your employment and supersedes all prior verbal discussion and written agreements between us. Any subsequent change or changes in your duties, salary or other compensation will not affect the validity or scope of this agreement. Any change to the at-will term of this agreement must be executed in writing and signed by you and the Chief Executive Officer or President of the Company. 8.3 Successors/Assigns. This agreement will be binding upon your heirs, executors, administrators and other legal representatives and will be for the benefit of the Company and its respective successors and assigns. Please acknowledge and confirm your acceptance of this letter by signing and returning the enclosed copy of this offer letter, and the Confidential Information and Invention Assignment Agreement as soon as possible. This offer shall expire at 5:00 p.m. on January 11, 2001 if not accepted by you and executed and returned below prior to that time. If you have any questions about this offer letter, please call me directly. MEDIAPLEX, INC. By: /s/ Gregory R. Raifman ----------------------------- Gregory R. Raifman CEO and Chairman of the Board ACCEPTANCE: I accept the terms of my employment with Mediaplex, Inc. as set forth herein. I understand that this offer letter does not constitute a contract of employment for any specified period of time, and that my employment relationship may be terminated by either party, with or without cause and with or without notice. ACCEPTED AND AGREED: /s/ Frank Patchel Date: 1/9/01 -------------------- -------- Frank Patchel