EXECUTIVE AGREEMENT
Exhibit
10.2
THIS
EXECUTIVE AGREEMENT (the
"Agreement") is made effective as of the 15th day of July, 2004 (the "Effective
Date") between Xxxxx X. Xxxxx, an individual resident of the State of
Connecticut ("Executive"), and BANKRATE, INC., a Florida corporation with its
principal places of business located in North Palm Beach, Florida and New York
City (the "Company").
WHEREAS,
the Company desires to engage Executive to perform certain services for the
Company, and Executive desires to accept said engagement from the Company;
and
WHEREAS,
the Company and Executive have agreed upon the terms and conditions of
Executive's engagement by the Company, and the parties desire to express the
terms and conditions in this Agreement.
WHEREAS,
the Company and Executive intend for this Agreement to supersede all agreements
between Executive and the Company.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and accepted, the parties hereby agree as
follows:
Employment
of Executive. The
Company hereby employs Executive initially as its Senior Vice President,
Marketing and Communications, and Executive hereby accepts such employment by
the Company, under the terms of this Agreement subject to termination pursuant
to the provisions of Section 8 hereof.
Duties
and Location.
Executive's
position and duties will consist of a position and duties normally associated
with the position identified in Section 1. Executive shall initially report to
the Company’s Chief Executive Officer or his designee. Executive shall devote
his full business time to the Company’s business and shall not render to others
any service of any kind for compensation or engage in any activity which
conflicts or interferes with the performance of his obligations under this
Agreement without the express written consent of the Board; provided, however,
that Executive may engage in non-profit or charitable activities which do not
involve substantial time and which do not materially interfere with his
employment under this Agreement and which activities are not in competition with
the Company as determined in the discretion of the Board of Directors of the
Company and those activities set forth on Addendum A hereto.
Executive
agrees that he shall at all times faithfully and to the best of his ability and
experience perform all of the duties that may be required of him pursuant to the
terms of this Agreement.
Executive
will perform his services from Company's New York City office in or at any other
location within 50 miles of New York City at the Company’s discretion. Executive
recognizes that his position will entail reasonable travel to the company’s
North Palm Beach office.
Base
Salary.
Executive shall receive a base salary commencing on the Effective Date and
during his employment hereunder of $180,000 per annum (the "Base Salary"), which
amount may be increase annually at the discretion of the Compensation Committee
of the Board (the "Committee"). The Base Salary shall be paid to Executive by
the Company in accordance with the Company's regular payroll practice as in
effect from time to time.
Annual
Bonus.
Executive will be eligible for an annual bonus program generally available to
executive officers of the Company as approved at the discretion of the
Compensation Committee of the Board. The target bonus is to be $120,000.
Executive will be guaranteed a bonus of $30,000 for the remainder of 2004,
payable quarterly.
Stock
Incentive.
Executive shall be eligible to participate in the Company' stock option, stock
purchase, or other stock incentive plans which are generally available to
executive officers of the Company and shall be eligible for the grant of stock
options, restricted stock or other awards there under in accordance with the
terms and provisions of such plans. The executive will be granted 150,000
options of the company’s stock, subject to the approval of the board of
directors. The options will vest in accordance with the company’s stock option
plan.
1
Company
represents and warrants that it shall timely prepare and file with the
Securities and Exchange Commission all documents as may be necessary to comply
with the provisions of the Securities Act of 1933 and the Securities Exchange
Act of 1934, each as amended, with respect to such plans and Executive’s grants
and awards thereunder.
Executive
Benefits.
Executive shall be entitled to participate in all benefit plans as shall be in
effect for other executive officers of Company from time to time, subject to the
terms and conditions of each such plan. Executive shall be entitled to paid
vacation each year in accordance with Company policy. All vacation times shall
be subject to the approval of the Company’s Chief Executive Officer or, absent
the Chief Executive Officer, the Board of Directors, which approval may not be
unreasonably withheld.
Expenses.
Executive shall be reimbursed by the Company monthly for the ordinary and
necessary reasonable business expenses incurred by him in the performance of his
duties for the Company, including travel and lodging expenses, meals, client
entertainment, and cell phone expense, all in accordance with Company policy;
provided that Executive shall first document said business expenses in the
manner generally required by the Company under its policies and procedures, and
in any event, in the manner required to meet applicable regulations of the
Internal Revenue Service relating to the deductibility of such
expenses.
Termination.
This
Agreement shall terminate upon the occurrence of any of the following events:
Death of
Executive;
Mental or
physical disability of Executive which prevents him from performing
substantially all of his duties hereunder for a period of 90 consecutive days or
120 days during any one year.
For
Cause, as defined below:
The
Executive's material breach of this agreement which is not cured within ten (10)
days of receipt of written notice to Executive specifying the
breach;
The
Executive's dishonesty, fraud, malfeasance, gross negligence or misconduct
which, in the reasonable judgment of the Board of Directors, is, or is likely
to, lead to material injury to the Company or the business reputation of the
Company;
The
Executive's willful failure to comply with the direction (consistent with the
Executive's duties) of the Board or to follow the policies, procedures, and
rules of the Company;
The
Executive's negligent failure to comply with the direction (consistent with the
Executive's duties) of the Board or to follow the policies, procedures, and
rules of the Company which is not cured within thirty (30) days of receipt of
written notice;
Executive's
conviction of, or the Executive's entry of a plea of guilty or no contest to, a
felony or crime involving moral turpitude; or
Executive’s
resignation.
By either
party in their sole discretion upon at least thirty (30) days’ prior written
notice.
Without
Cause. "Without Cause" means any termination of employment by Company which is
not defined in sub-sections A, B, or C, above.
Post
Termination Payment Obligations.
If this
Agreement terminates for any of the reasons stated in sub-sections A, B or C of
Section 8 of this Agreement or is terminated by Executive pursuant to subsection
D of Section 8 of this Agreement, then the Executive shall be entitled to
receive his Base Salary at the then current rate and any accrued bonus through
the effective date of the termination, payable within fifteen (15) days of the
effective termination date, and thereafter the Company shall have no further
obligations under this Agreement, but Executive shall continue to be bound by
Sections 12, 13, and 14 and all other post-termination obligations contained in
this Agreement and provisions of this Agreement that specifically survive
termination of this Agreement.
2
If this
Agreement terminates in accordance with sub-sections E of Section 8 of this
Agreement or is terminated by Company pursuant to subsection D of Section 8 of
this Agreement then Company shall pay Executive his Base Salary at the then
current rate and any accrued bonus through the effective termination date,
payable within fifteen (15) days of the termination date and the Company shall
pay Executive a separation payment in the amount of twelve months Base Salary at
the then current rate (the “Separation Payment”). The Separation Payment shall
be paid in three installments as follows:
One-Third
of the Separation Payment shall be payable upon the later of (a) fifteen (15)
days after the termination date or (b) the day after the expiration date of
Executive’s legally required right, if any, to revoke his signature or agreement
in connection with the Separation and Release Agreement described in Section
9(C) below;
One-Third
of the Separation Payment shall be payable on the six (6) month anniversary of
the termination date; and
One-Third
of the Separation Payment shall be payable on the twelve (12) month anniversary
of the termination date.
The
post-termination obligations under this Section 9(B) shall be binding upon the
Company regardless of the Executive's subsequent employment with any other
person, firm, partnership, association, business organization, corporation or
other entity which is not affiliated with the Company.
In
consideration of, and as a condition to the Company’s obligation to pay the
Separation Payment, Executive shall:
Execute a
Separation and Release Agreement in a form prepared by and acceptable to the
Company whereby Executive releases the Company from any and all liability and
settles claims of any kind; and
Comply
with the restrictive covenants (Sections 12 and 13 of this Agreement), all other
post-termination obligations contained in this Agreement and the provisions of
this Agreement that specifically survive termination of this
Agreement.
Work
Product. All Work
Product (defined below) shall be work made for hire by Executive and owned by
the Company. If any of the Work Product may not, by operation of law or
otherwise, be considered work made for hire by Executive for the Company, or if
ownership of all right, title, and interest to the legal rights therein shall
not otherwise vest exclusively in the Company, Executive hereby assigns to the
Company, and upon the future creation thereof automatically assigns to the
Company, without further consideration, the ownership of all Work Product. The
Company shall have the right to obtain and hold in its own name copyrights,
patents, registrations, and any other protection available in the Work Product.
Executive agrees to perform, during or after termination of Executive's
employment by the Company, such further acts as may be necessary or desirable to
transfer, perfect and defend the Company's ownership of the Work Product as
requested by the Company. "Work Product" means the data, materials, formulas,
research, documentation, computer programs, communication systems, audio
systems, system designs, inventions (whether or not patentable), and all works
of authorship, including all worldwide rights therein under patent, copyright,
trade secret, confidential information, moral rights and other property rights,
created or developed in whole or in part by Executive, while employed by the
Company, within the scope of Executive's employment or which otherwise relates
in any manner to the Company's Business.
Set-Off. If at
the time of termination of this Agreement for any reason, Executive has any
outstanding obligations to the Company, Executive acknowledges that the Company
is authorized to deduct from Executive's final paycheck and the Separation
Payment any then documented amounts owed to the Company.
Trade
Secrets and Confidential Information. During
the course of Executive's employment with the Company, the Company may disclose
to Executive Trade Secrets and Confidential Information (defined below). The
Trade Secrets and the Confidential Information of the Company are the sole and
exclusive property of the Company (or a third party providing such information
to the Company). The disclosure of the Trade Secrets and the Confidential
Information of the Company to Executive does not give the Executive any license,
interest or rights of any kind in the Trade Secrets or Confidential
Information.
3
Executive
may use the Trade Secrets and Confidential Information solely for the benefit of
the Company while Executive is an employee of the Company. Executive shall hold
in confidence the Trade Secrets and Confidential Information of the Company.
Except in the performance of services for the Company, Executive shall not
reproduce, distribute, transmit, reverse engineer, decompile, disassemble, or
transfer the Trade Secrets or the Confidential Information of the Company or any
portion thereof.
The
obligations under this Agreement with regard to the Trade Secrets of the Company
remain in effect as long as the information constitutes a trade secret under
applicable law. The obligations with regard to the Confidential Information of
the Company shall remain in effect while Executive is employed by the Company
and for a period of three (3) years thereafter.
Executive
agrees to return to the Company, upon Executive's resignation, termination, or
upon request by the Company, the Trade Secrets and Confidential Information of
the Company and all materials relating thereto.
As used
herein, "Trade Secrets" means information of the Company, and its licensors,
suppliers, clients and customers, including, but not limited to, technical or
non-technical data, formulas, patterns, compilations, programs, devices,
methods, techniques, drawings, processes, financial data, financial plans,
product plans, or a list of actual or potential customers or suppliers, which is
not commonly known or available to the public and which information (i) derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use and (ii) is the subject of efforts
that are reasonable under the circumstances to maintain its
secrecy.
As used
herein, "Confidential Information" means information, other than Trade Secrets,
that is treated as confidential, and that would potentially damage or interfere
with, in any manner, the Company's business if disclosed. Confidential
Information includes, but is not limited to, information concerning the
Company's financial structure, pricing, revenue sharing, partner agreements,
customer agreements, marketing plans, methods of operation, and internal
operating procedures.
Notwithstanding
the foregoing, the provisions of this sub-section D do not apply to (i)
information which is general knowledge in the Company's industry, (ii)
information that has been disclosed to Executive by third parties who are
unrelated to the Company and who are not bound by agreements of confidentiality
with respect thereto, and (iii) as Executive may be required to disclose by law
but only to the extent required by law.
Restrictive
Covenants.
Non-competition.
Executive agrees that for so long as Executive is employed by the Company and
for a period of one (1) year thereafter, Executive will not, individually or on
behalf of any person, firm, partnership, association, business organization,
corporation or other entity engaged in the Business of the Company, engage in or
perform, anywhere within the United States, Canada and any other such geography
in which the Company operates, which shall constitute the territory, any
activities which are competitive with the Business of the Company. Nothing
herein shall be construed to prohibit Executive from acquiring shares of capital
stock of any public corporation, provided that such investment does not exceed
5% of the stock of such public corporation.
Non-Recruit.
Executive agrees that for so long as Executive is employed by the Company and
for a period of one (1) year thereafter, Executive will not call upon, solicit,
recruit, or assist others in calling upon, recruiting or soliciting any person
who is an employee of the Company and with whom Executive had contact or became
aware of by virtue of Executive's employment, for the purpose of having such
person work for Executive or for any Client (as defined below) of the Company,
or for any other person, firm, corporation or entity which is engaged in the
Business (defined below).
For
purposes of this Section 13, the term "Business" shall mean the business of the
delivery of editorial content and product research related to consumer financial
services delivered in print or over the Internet; and the term "Client" shall
mean any individual or business entity which employs the Company for purposes of
delivery of editorial content and product research related to consumer financial
services delivered in print or over the Internet.
4
Injunctive
Relief.
Executive
acknowledges that breach of the provisions of Sections 12, and/or 13 of this
Agreement would result in irreparable injury and permanent damage to the
Company, which prohibitions or restrictions Executive acknowledges are both
reasonable and necessary under the circumstances, singularly and in the
aggregate, to protect the interests of the Company. Executive recognizes and
agrees that the ascertainment of damages in the event of a breach of Sections 12
and/or 13 of this Agreement would be difficult, and that money damages alone
would be an inadequate remedy for the injuries and damages which would be
suffered by the Company from breach by Executive.
Executive
therefore agrees: (i) that, in the event of a breach of Sections 12 and/or 13 of
this Agreement, the Company, in addition to and without limiting any of the
remedies or rights which it may have at law or in equity or pursuant to this
Agreement, shall have the right to injunctive relief or other similar remedy in
order to specifically enforce the provisions hereof; and (ii) to waive and not
to (A) assert any defense to the effect that the Company has an adequate remedy
at law with respect to any such breach, (B) require that the Company submit
proof of the economic value of any Trade Secret, or (C) require that the Company
post a bond or any other security. Nothing contained herein shall preclude the
Company from seeking monetary damages of any kind, including reasonable fees and
expenses of counsel and other expenses, in a court of law.
Survival. The
provisions of Paragraphs 9 through 31 shall survive termination of this
Agreement.
Invalidity
of Any Provision. It is
the intention of the parties hereto that Sections 12 through 14 of this
Agreement shall be enforced to the fullest extent permissible under the laws and
public policies of each state and jurisdiction in which such enforcement is
sought, but that the unenforceability (or the modification to conform with such
laws or public policies) of any provision hereof shall not render unenforceable
or impair the remainder of this Agreement which shall be deemed amended to
delete or modify, as necessary, the invalid or unenforceable provisions. The
parties further agree to alter the balance of this Agreement in order to render
the same valid and enforceable.
Waiver
of Breach. The
waiver by either party of a breach of any provision of this Agreement by the
other shall not operate or be construed as a waiver of any subsequent
breach.
Successors
and Assigns. This
Agreement shall be binding upon and shall inure to the benefit of the Company,
its successors and assigns, and the Company shall require any successors and
assigns to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession or assignment had taken place. Neither this Agreement nor
any right or interest hereunder shall be assignable or transferable by
Executive, his beneficiaries or legal representatives, except by will or by the
laws of descent and distribution.
License. To the
extent that any pre-existing materials are contained in the materials Executive
delivers to the Company or the Company's customers, and such preexisting
materials are not Work Product, Executive grants to the Company an irrevocable,
nonexclusive, worldwide, royalty-free license to: (i) use and distribute
(internally or externally) copies of, and prepare derivative works based upon,
such pre-existing materials and derivative works thereof and (ii) authorize
others to do any of the foregoing. Executive shall notify Company in writing of
any and all pre-existing materials delivered to the Company by
Executive.
Release.
Executive acknowledges that Executive may provide the image, likeness, voice, or
other characteristics of Executive or third parties ("Owner") in the services,
materials, computer programs and other deliverables that Executive provides as a
part of this Agreement ("Deliverables"). Executive hereby consents to the use of
such characteristics of Executive by the Company in the products or services of
the Company and releases the Company, its agents, contractors, licensees and
assigns from any claims which Executive has or may have for invasion of privacy,
right of publicity, defamation, copyright infringement, or any other causes of
action arising out of the use, adaptation, reproduction, distribution,
broadcast, or exhibition of such characteristics ("Release"). Executive
represents that Executive has obtained the same Release in writing benefiting
Company from all third party Owners whose characteristics are included in the
Deliverables.
Severability. If any
provision or part of a provision of this Agreement shall be determined to be
void and unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall remain valid and enforceable.
Costs
of Enforcement. In the
event either party breaches this Agreement, the breaching party shall be liable
to the non-breaching party for all costs of enforcement, including reasonable
attorneys' fees and court costs, in addition to all other damages and redress
available in equity or at law.
5
No
Prior Agreements.
Executive hereby represents and warrants to Company that the execution of this
Agreement by Executive and Executive's employment by Company and the performance
of Executive's duties hereunder shall not violate or be a breach of any
agreement with a former employer, client or any other person or
entity.
Entire
Agreement. This
Agreement represents the entire understanding of the parties concerning the
subject matter hereof and supersedes all prior communications, agreements and
understandings, whether oral or written, relating to the subject matter hereof.
The language contained herein shall be deemed to be that negotiated and approved
by both parties and no rule of strict construction shall be
applied.
Modification. This
Agreement may be modified only by agreement in writing signed by both Company
and Executive.
Governing
Law. This
Agreement shall be governed in all aspects by the laws of the State of Florida
without regard to its rules governing conflicts of law.
Section
Headings. The
section headings are included for convenience and are not intended to limit or
affect the interpretation of this Agreement.
Notice. Whenever
any notice is required, it shall be given in writing addressed as
follows:
To
Company:
Bankrate,
Inc.
00000
X.X. Xxxxxxx Xxx Xxxxx 000
Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention:
Xxxxxx X. Xxxxx
With a
copy to:
Xxxxx X.
Xxxxx, Esq.
Xxxxxxx
Xxxxxxx & Xxxxxxx, P.A.
000 Xxxxx
Xxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx
Xxxxx, XX 00000
To
Executive: Xxxxx X.
Xxxxx
Notice
shall be deemed given and effective three (3) days after the deposit in the U.S.
mail of a writing addressed as above and sent first class mail, certified,
return receipt requested, or when actually received. Either party may change the
address for notice by notifying the other party of such change in accordance
with this Section.
Indemnification. The
Company agrees, to the extent permitted by applicable law and the Company's
Articles of Incorporation, to defend, indemnify and hold harmless Executive
against any and all loss, damage, liability and expense, including, without
limitation, reasonable attorneys' fees, disbursements court costs, and any
amounts paid in settlement and the costs and expenses of enforcing this section
of the Agreement, which may be suffered or incurred by Executive in connection
with the provision of his services hereunder, including, without limitation, any
claims, litigations, disputes, actions, investigations or other matters,
provided that such loss, damage, liability and expense (i) arises out of or in
connection with the performance by Executive of his obligations under this
Agreement and (ii) is not the result of any material breach by Executive of his
obligations hereunder, and provided further that Company shall be under no
obligation to defend, indemnify or hold harmless Executive if Executive has
acted with gross negligence or willful misconduct.
In
addition to the foregoing, Company agrees to provide Executive with coverage
under a Directors & Officers insurance policy to the same extent as the
Company currently provides its executive officers.
Jurisdiction
and Venue.
The parties acknowledge that a substantial portion of the negotiations,
anticipated performance and execution of this Agreement occurred or shall occur
in Palm Beach County, Florida. Any civil action or legal proceeding
arising out of or relating to this Agreement shall be brought in the courts of
record of the State of Florida in Palm Beach County or the United States
District Court, Southern District of Florida. Each party consents to the
jurisdiction of such Florida court in any such civil action or legal proceeding
and waives any objection to the laying of venue of any such civil action or
legal proceeding in such Florida court. Service of any court paper may be
effected on such party by mail, as provided in this Agreement, or in such other
manner as may be provided under applicable laws, rules of procedure or local
rules.
6
JURY
WAIVER. IN ANY
CIVIL ACTION, COUNTERCLAIM, OR PROCEEDING, WHETHER AT LAW OR IN EQUITY, WHICH
ARISES OUT OF, CONCERNS, OR RELATES TO THIS AGREEMENT, ANY AND ALL TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, THE PERFORMANCE OF THIS AGREEMENT, OR THE
RELATIONSHIP CREATED BY THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT,
STRICT LIABILITY, OR OTHERWISE, TRIAL SHALL BE TO A COURT OF COMPETENT
JURISDICTION AND NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY. ANY PARTY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT, AS WRITTEN EVIDENCE OF
THE CONSENT OF THE PARTIES TO THIS AGREEMENT OF THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY. NEITHER PARTY HAS MADE OR RELIED UPON ANY ORAL
REPRESENTATIONS TO OR BY ANY OTHER PARTY REGARDING THE ENFORCEABILITY OF THIS
PROVISION. EACH PARTY HAS READ AND UNDERSTANDS THE EFFECT OF THIS JURY
WAIVER PROVISION. EACH PARTY ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY ITS
OWN COUNSEL WITH RESPECT TO THE TRANSACTION GOVERNED BY THIS AGREEMENT AND
SPECIFICALLY WITH RESPECT TO THE TERMS OF THIS SECTION.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
| EXECUTIVE: | COMPANY: | ||
| BANKRATE, INC. | |||
| /s/ Xxxxx X. Xxxxx |
By: |
/s/ Xxxxxx X. Xxxxx | |
|
|
| ||
| Xxxxx X. Xxxxx | Xxxxxx X.
Xxxxx President & CEO |
7
