EXHIBIT
10.13
EXECUTIVE
AGREEMENT
THIS EXECUTIVE AGREEMENT
(the "Agreement") is made effective
as of the 31st day of May, 2005 (the "Effective Date") between
Daniel P. Hoogterp, 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 Senior Vice President,
Chief Technology 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 North Palm Beach office in
or at any other location within 50 miles of North Palm Beach at the
Company’s discretion.
3.
Base Salary . Executive shall receive a
base salary commencing on the Effective Date and during his
employment hereunder of $185,000 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 target bonus is to be
$80,000. Executive will be guaranteed a bonus of $50,000 for the
remainder of 2005, payable in the first quarter of 2006.
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 80,000 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. In
addition, Executive will be reimbursed for all reasonable expenses
associated with his move of his family from his current home to
Florida.
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 one years 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,
audio syste
