exhibit
10.2
FindWhat.com
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made
this 1st day of February 2004, (this “Agreement”)
between FindWhat.com (“FindWhat.com” or the
“Company”), a Nevada corporation, and John B. Pisaris
(“Executive”).
Recitals
A. The Company wishes to employ
Executive and Executive wishes to be employed by the Company on the
terms and conditions set forth in this Agreement.
Statement of Agreement
In consideration of the foregoing,
and of Executive’s employment, the parties agree as
follows:
1. Employment .
Executive’s employment with FindWhat.com shall be upon the
terms and conditions hereinafter set forth to become effective upon
execution of this Agreement (the “Effective
Time”).
2. Duties .
(a) From
the date of this Agreement until August 1, 2004
(“Commute Period”), Executive shall (i) be
employed as the Vice President of the Company reporting to the
Company’s Chief Operating Officer, (ii) perform such
other or additional duties and responsibilities consistent with
Executive’s title(s), status, and position as the Chief
Operating Officer or Board of Directors of FindWhat.com may, from
time to time, prescribe, and (iii) be based out of his
residence in the metropolitan Columbus, Ohio area, provided,
however, that the Company shall maintain a furnished apartment for
Executive in Ft. Meyers, and Executive shall travel to and from Ft.
Meyers, Florida as necessary or required in connection with the
performance of his duties. On or before August 1, 2004,
Executive shall relocate to Ft. Meyers, Florida, and by
October 31, 2004, the Company will promote Executive to Senior
Vice President and General Counsel. In this capacity, Executive
will serve as the Company’s chief legal officer and will
provide legal advice, representation and counsel to the Company
with respect to its business and affairs, and perform such other or
additional duties and responsibilities consistent with
Executive’s title(s), status, and position as the Chief
Operating Officer or Board of Directors of FindWhat.com may, from
time to time, prescribe.
(b) So
long as employed under this Agreement, Executive agrees to devote
full time and efforts exclusively on behalf of the Company and to
competently, diligently and effectively discharge all duties of
Executive hereunder. Executive shall not be prohibited from
engaging in such personal, charitable, or other nonemployment
activities as do not interfere with full time employment hereunder
and which do not violate the other provisions of this Agreement.
Executive further agrees to comply fully with all reasonable
policies of the Company as are from time to time in effect.
(c) After
August 1, 2004, the Executive shall be based out of the
Company’s Ft. Myers, Florida office. If the Company decides
to move its operations more than 35 miles from its current offices
in Fort Myers, Florida, Executive shall not be required to relocate
and, to the extent the Executive cannot perform his duties
hereunder as a result of such a move, his non-performance will not
constitute Cause (as defined below).
3.
Compensation .
(a) As full compensation for all
services rendered to the Company pursuant to this Agreement, in
whatever capacity rendered, (i) the Company will pay to
Executive during the term hereof a minimum base salary at the rate
of $225,000 per year (the “Basic Salary”), payable in
accordance with the usual payroll practices of the Company, and
(ii) pursuant to Section 3(b), the Company will issue to
Executive 40,000 options for the Company’s common stock. The
Basic Salary thereafter may be increased, but not decreased, from
time to time, by the Board of Directors in connection with reviews
of Executive’s performance occurring no less frequently than
annually and pursuant to the same review process employed by the
Board of Directors for the Company’s other executive
officers; provided, however, that the Company will have no
obligation to perform such review before April 1, 2005.
(b) On the date hereof and
pursuant to the Company’s FindWhat 1999 Stock Incentive Plan,
the FindWhat.com Non-Qualified Stock Option Agreement dated
February 1, 2004 between the Company and Executive, and the
FindWhat.com Incentive Stock Option Agreement dated
February 1, 2004 between the Company and Executive, the
Company will issue to Executive options to acquire an aggregate of
40,000 shares of the Company’s Common Stock, of which options
to acquire a total of 10,000 shares of the Company’s Common
Stock will vest on each of the first four anniversaries of this
Agreement.
(c) Executive will be entitled
to receive incentive compensation pursuant to the terms of plans
adopted by the Board of Directors or its Compensation Committee
from time to time. The Board of Directors or its Compensation
Committee, as applicable, shall review Executive’s
performance on an annual basis and pursuant to the same review
process employed by the Board of Directors for the Company’s
other executive officers; provided, however, that the Company will
have no obligation to perform such review before April 1,
2005. In connection with such annual review, the Executive may be
entitled to receive additional stock option grants. Such options
will be granted, if at all, in the sole discretion of the Board of
Directors or its Compensation Committee on terms and conditions
they determine. Notwithstanding the foregoing, (i) if the
Executive’s employment with the Company is terminated by the
Company without Cause (as defined below) or by Executive for Good
Reason (as defined below), or (ii) there is a Change in
Control of the Company (as defined below), any stock options
granted to Executive on or after the Effective Time shall
immediately fully vest and remain exercisable during the Exercise
Period (as defined in the FindWhat.com Non-Qualified Stock Option
Agreement dated February 1, 2004 between the Company and
Executive, and the FindWhat.com Incentive Stock Option Agreement
dated February 1, 2004 between the Company and Executive) as
if the Executive were still employed by the Company.
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4. Business Expenses .
The Company shall promptly pay directly, or reimburse Executive
for, all business expenses to the extent such expenses are paid or
incurred by Executive during the term of employment in accordance
with Company policy in effect from time to time and to the extent
such expenses are reasonable and necessary to the conduct by
Executive of the Company’s business and properly
substantiated. In addition, the Company will reimburse Executive
for (a) during the Commute Period, all travel expenses between
Ohio and Ft. Meyers, Florida and the cost of a furnished apartment
in Ft. Meyers, Florida for Executive’s use, (b) bar dues
and bar registration fees payable to the Ohio and Florida State bar
associations, (c) continuing legal education fees and related
costs and expenses, and (d) up to $20,000 of reasonable
expenses that Executive incurs in relocating his household from
metropolitan Columbus, Ohio area to Florida; provided, however,
that the Company will not pay realtors’ or brokers’
fees and commissions in connection with the sale of his existing
residence in Ohio or the purchase of a new residence in
Florida.
5. Benefits . During the
term of this Agreement and Executive’s employment hereunder,
the Company shall provide to Executive such insurance, vacation,
sick leave and other like benefits as are provided to other
executive officers of the Company from time to time. Executive will
use his reasonable best efforts to schedule vacation periods to
minimize disruption of the Company’s business.
6. Term; Termination
.
(a) The
Company shall employ the Executive, and the Executive accepts such
employment, for an initial term commencing on the date of this
Agreement and ending on the first anniversary of the date of this
Agreement. Thereafter, this Agreement shall be extended
automatically for additional twelve-month periods, unless
terminated as described herein. Executive’s employment may be
terminated at any time as provided in this Section 6. For
purposes of this Section 6, “Termination Date”
shall mean the date on which any notice period required under this
Section 6 expires or, if no notice period is specified in this
Section 6, the effective date of the termination referenced in
the notice.
(b) The
Company may terminate Executive’s employment without Cause
(as defined below) upon giving 30 days’ advance written
notice to Executive. If Executive’s employment is terminated
without Cause under this Section 6(b), the Executive shall be
entitled to receive (A) the earned but unpaid portion of
Executive’s Basic Salary and pro rata portion of
Executive’s bonus, if any, through the Termination Date;
(B) over a period of twelve (12) months following the
Termination Date (the “Severance Period”) an amount
equal to the sum of his (i) Basic Salary at the time of the
Termination Date, plus (ii) the Termination Bonus (as defined
below); (C) any other amounts or benefits owing to Executive
under the then applicable employee benefit, long term incentive or
equity plans and programs of the Company, which shall be paid or
treated in accordance with Section 3 hereof and otherwise in
accordance with the terms of such plans and programs; and
(D) benefits, (including, without limitation health, life,
disability and pension) as if Executive were an employee during the
Severance Period.
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(c) The
Company may terminate Executive’s employment upon a
determination by the Company that “Cause” exists for
Executive’s termination and the Company serves written notice
of such termination upon Executive. As used in this Agreement, the
term Cause shall refer only to any one or more of the following
grounds:
(i)
commission of a material and substantive act of theft, including,
but not limited to, misappropriation of funds or any property of
the Company;
(ii)
intentional engagement in activities or conduct clearly injurious
to the best interests or reputation of the Company which in fact
result in material and substantial injury to the Company;
(iii)
refusal to perform his assigned duties and responsibilities (so
long as the Company does not assign any duties or responsibilities
which would give the Executive Good Reason to terminate his
employment as described in Section 6(e)) after receipt by
Executive of written detailed notice and reasonable opportunity to
cure;
(iv)
gross insubordination by Executive, which shall consist only of a
willful refusal to comply with a lawful written directive to
Executive issued pursuant to a duly authorized resolution adopted
by the Board of Directors (so long as the directive does not give
the Executive Good Reason to terminate his employment as described
in Section 6(e));
(v) the
clear violation of any of the material terms and conditions of this
Agreement or any written agreement or agreements Executive may from
time to time have with the Company (following 30 days’
written notice from the Company specifying the violation and
Executive’s failure to cure such violation within such
30 day period);
(vi)
Executive’s substantial dependence, as determined by the
Board of Directors of the Company, on alcohol or any narcotic drug
or other controlled or illegal substance which materially and
substantially prevents Executive from performing his duties
hereunder;
(vii)
the final and unappealable conviction of Executive of a crime which
is a felony or a misdemeanor involving an act of moral turpitude,
or a misdemeanor committed in connection with his employment by the
Company, which causes the Company a substantial detriment;
and
(viii)
Executive fails to have established a permanent residence in
Florida by August 1, 2004.
In the
event of a termination under this Section 6(c), the Company
will pay Executive the earned but unpaid portion of
Executive’s Basic Salary through the Termination Date. If any
determination of substantial dependence under Section 6(c)(vi)
is disputed by the Executive, the parties hereto agree to abide by
the decision of a panel of three physicians appointed in the manner
as specified in Section 6(d) of this Agreement.
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If any
determination of “Cause” is made under items 6(c), (i),
(ii), (iii), (iv), (v), or (vii) which Executive contests,
Executive shall have the opportunity, within 30 days of such
determination, to personally appear in front of the Board of
Directors and present his case to the Board of Directors and have
the Board of Directors reconsider the determination of Cause.
(d) Executive’s
employment shall terminate upon the death or permanent disability
of Executive. For purposes hereof, “permanent
disability,” shall mean the inability of the Executive, as
determined by the Board of Directors of FindWhat.com, by reason of
physical or mental illness to perform the duties required of him
under this Agreement for more than 120 days in any
360 day period. Upon a determination by the Board of Directors
of FindWhat.com that Executive’s employment shall be
terminated under this Section 6(d), the Board of Directors
shall give Executive 30 days’ prior written notice of
the termination. If Executive disputes a determination of the Board
of Directors under this Section 6(d), the parties agree to
abide by the decision of a panel of three physicians. FindWhat.com
will select a physician, Executive will select a physician and the
physicians selected by FindWhat.com and Executive will select a
third physician. Executive agrees to make himself available for and
submit to examinations by such physicians as may be directed by the
Company. Failure to submit to any examination shall constitute a
breach of a material part of this Agreement. In the event of
termination due to death or permanent disability, the Company will
pay Executive, or his legal representative, the earned but unpaid
portion of Executive’s Basic Salary through the Termination
Date and the earned but unpaid portion of any vested incentive
compensation under and consistent with plans adopted by the Company
prior to the Termination Date.
(e) The
Executive may terminate his employment for Good Reason (as defined
below) upon giving 30 days advance written notice to the
Company. If Executive’s employment is terminated with Good
Reason under this Section 6(e), the Executive shall be
entitled to receive (A) the earned but unpaid portion of
Executive’s Basic Salary and pro rata portion of
Executive’s bonus, if any, through the Termination Date;
(B) over a period of twelve (12) months after the
Termination Date an amount equal to the sum of his (i) Basic
Salary at the time of the Termination Date, plus (ii) the
Termination Bonus (as defined below); (C) any other amounts or
benefits owing to Executive under the then applicable employee
benefit, long term incentive or equity plans and programs of the
Company, which shall be paid or treated in accordance with
Section 3 hereof and otherwise in accordance with the terms of
such plans and programs; and (D) benefits, (including, without
limitation health, life, disability and pension) as if Executive
were an employee during the Severance Period. As used in this
Agreement, the term “Good Reason” means any one or more
of the following grounds:
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(i) |
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a change in Executive’s title(s), status, position or
responsibilities without Executive’s written consent, which
does not represent a promotion from his existing status, position
or responsibilities, despite Executive’s written notice to
the Company of his objection to such change and the Company’s
failure to address such notice in a reasonable fashion within
30 days of such notice; |
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