Exhibit
10.1
EXECUTIVE
AGREEMENT
THIS EXECUTIVE AGREEMENT
(the "Agreement") is made effective
as of the 3rd day of April, 2006 (the "Effective Date") between
Edward J. DiMaria, 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:
1.
Employment of
Executive . The Company hereby employs Executive initially
as its Chief Financial Officer, 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.
A. 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.
B. 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.
C. 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 frequent travel
to the company’s North Palm Beach office, and may at some
point and at the Board’s discretion, require relocation to
the company’s Florida office.
3.
Base
Salary . Executive shall receive a base salary commencing
on the Effective Date and during his employment hereunder of
$220,000 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.
4.
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 Management Incentive Plan target bonus is to be
$125,000.
5. 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.
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.
6.
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.
7.
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.
This Agreement shall terminate upon the
occurrence of any of the following events:
B. 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.
C. For Cause, as defined below:
1. 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;
2. 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;
3. 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;
4. 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;
5. 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
6. Executive’s resignation.
D. By either party in their sole discretion upon
at least thirty (30) days’ prior written notice.
E. Without Cause. "Without Cause" means any
termination of employment by Company which is not defined in
sub-sections A, B, or C, above.
9.
Post Termination Payment
Obligations .
A. 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.
B. 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:
1. 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;
2. One-Third of the Separation Payment shall be
payable on the six (6) month anniversary of the termination date;
and
3. 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.
C. In consideration of, and as a condition to the
Company’s obligation to pay the Separation Payment, Executive
shall:
1. 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
2. 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.
10.
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,
a
