Employment Agreement - FindWhat.com Inc. and Courtney P. Jones
FINDWHAT.COM
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT is made effective as of this 16th day
of March, 2001, (the "Agreement") between FindWhat.com ("FindWhat.com" or the
"Company"), a Nevada corporation, and Courtney P. Jones (the "Executive").
RECITALS
A. Executive is currently employed as an employee of FindWhat.com.
B. The parties desire to continue Executive's employment with FindWhat.com
and to appoint Executive to the position of Co-founder and Chairman, on the
terms and conditions stated herein.
STATEMENT OF AGREEMENT
In consideration of the foregoing, and of Executive's continued employment,
the parties agree as follows:
1. EMPLOYMENT. The Company hereby employs Executive and Executive accepts
such employment upon the terms and conditions hereinafter set forth to become
effective on execution of this Agreement (the "Effective Time").
2. DUTIES.
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(a) Executive shall be employed: (i) to serve as Co-founder and
Chairman of the Board of Directors of FindWhat.com, subject to the
authority and direction of the Board of Directors of FindWhat.com, it is
understood that Executive will step down as Chairman of the Board of
Directors and assume the title of Vice Chairman at the request of the Board
of Directors; (ii) to manage relations with Beasley Broadcasting Group,
Inc.; (iii) to formulate ideas on all aspects of the Company's business and
to suggest such ideas to the Chief Executive Officer and to the Chief
Operating Officer; (iii) to manage the Company's relationship with certain
current investors; (iv) to attend key meetings at the request of the Chief
Executive Officer or Chief Operating Officer. Executive shall have such
administrative support as is reasonably necessary to carry out the duties
forth set herein. As long as Executive is employed hereunder, Executive
shall also be a member of the Executive Advisory Board.
(b) So long as employed under this Agreement, Executive agrees to
competently, diligently and effectively discharge all duties of Executive
hereunder. Executive shall not be prohibited from engaging in such
business, charitable, or other activities, including serving as an officer,
director or consultant to other businesses, which activities do not violate
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the other provisions of this Agreement and the Confidentiality,
Non-Competition and Assignment Agreement, of even date herewith, between
the Company and the Executive.
3. COMPENSATION. As full compensation for all services rendered to the
Company pursuant to this Agreement, in whatever capacity rendered, the
Company shall pay to Executive during the term hereof a minimum base salary
at the rate of $180,000 per year (the "Basic Salary"), payable bi-weekly or
in other more frequent installments, as determined by the Compensation
Committee of the Board of Directors. Prior to March 16, 2002, the Basic
Salary may be increased, but not decreased, from time to time, by the
Compensation Committee of the Board of Directors. Notwithstanding any
contrary provision in any Stock Option Agreement between the Company and
the Executive, if the Executive's employment with the Company is terminated
for any reason, such stock options shall vest and remain exercisable
throughout their term as if the Executive were still employed by the
Company.
4. BUSINESS EXPENSES. The Company shall promptly pay directly for
expenses relating to the use of a cellular telephone and Internet
connectivity for the Executive, in a manner consistent with practices in
place prior to the date of this Agreement. The Company shall reimburse
Executive, in the manner consistent with past practice, for actual travel
and entertainment expenses incurred in furtherance of this Agreement up to
$2,000.00 per month, which amount shall be increased to the extent such
expenses are incurred by Executive at the request of the Chief Executive
Officer or Chief Operating Officer.
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.
6. TERM; TERMINATION.
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The Company shall employ the Executive, and the Executive accepts such
employment, for a term commencing on the date of this Agreement and ending
on March 16, 2002 (the "Term"). Unless notice of non-renewal is given by
either party prior to the end of the Term, this Agreement shall
automatically renew for an additional one year period at the expiration of
the Term. In the event the Company elects not to renew this Agreement as
provided above, the Company shall continue to pay Executive at the rate of
his Basic Salary for the six-month period following the end of the Term.
6.1. TERMINATION WITHOUT CAUSE; RESIGNATION FOR GOOD REASON.
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6.1.1. GENERAL. Subject to the provisions of subparagraphs 6.1.2
hereof, if, prior to the expiration of the Term, the Executive's
employment hereunder is terminated by the Company without Cause (as
defined in subparagraph 6.2.2 hereof), or if the Executive terminates
his employment hereunder for Good Reason (as defined in subparagraph
6.2.3 hereof), the Company shall continue to pay the Executive two
times his Basic Salary as then in effect for a period of one year from
the Date of Termination (as defined in Section 6.4. hereof) (such
period being referred to hereinafter as the "Severance Period"), at
such intervals as the same would have been paid had the Executive
remained in the active service of the Company. In
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addition, during the Severance Period, the Executive shall be entitled
to continue to participate in all employee benefit plans that the
Company provides (and continues to provide) generally to its senior
executives.
6.1.2. DEATH DURING SEVERANCE PERIOD. In the event of the
Executive's death during the Severance Period, payments of Basic
Salary under this paragraph 6 and payments under the Company's
employee benefit plan(s) shall continue to be made in accordance with
their terms during the remainder of the Severance Period to the
beneficiary designated in writing for such purpose by the Executive
or, if no such beneficiary is specifically designated, to the
Executive's estate.
6.2. TERMINATION FOR CAUSE; RESIGNATION WITHOUT GOOD REASON.
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6.2.1. General. If, prior to the expiration of the Term, the
Executive's employment is terminated by the Company for Good Cause, or
the Executive resigns his employment hereunder other than for Good
Reason, the Executive shall be entitled only to payment of his Base
Salary as then in effect through and including the Date of Termination
(as defined below) and accrued but unused vacation. The Executive
shall have no further right to receive any other compensation or
benefits after such termination or resignation of employment, except
as determined in accordance with the terms of the employee benefit
plans or programs of the Company applicable to the Executive. No
termination of the Executive's employment for Good Cause shall be
effective without the consent of the Board.
6.2.2. GOOD CAUSE. Termination for "Good Cause" shall mean
termination of the Executive's Employment because of:
(i) A 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) the willful and continued failure by the Executive to
perform his material obligations under this Agreement (other than
any such failure resulting from the Executive's incapacity due to
physical or mental illness) after demand for performance is
delivered by the Company to the Executive, in writing,
identifying the manner in which the Company believes the
Executive has not performed his duties and the Executive fails to
perform as required within thirty (30) days after such demand is
made;
(iv) gross insubordination by Executive, which shall consist
only of a willful refusal to comply with a lawful written
directive consistent with the terms of this Agreement to
Executive issued pursuant to a duly
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authorized resolution adopted by the Board of Directors of
the Company; or
(v) the final and unappealable conviction of the
Executive of a felony.
6.2.3. GOOD REASON. For purposes of this Agreement, "Good
Reason" shall mean any of the following (without the Executive's
prior written consent):
(i) a decrease in the Executive's Base Salary or a
failure by the Company to pay material compensation due and
payable to the Executive in connection with his employment,
provided, however, the Company may suspend payments to
Executive of his Base Salary to the same extent and in
connection with the tolling of base salaries and all other
compensation of all other executive officers of the Company
for financial reasons as directed by a lawful resolution of
the Board of Directors of the Company. In the event of such
suspension, Executive shall receive shares of common stock
of the Company equal to one times the amount of such
suspended Base Salary (in addition to and not in lieu of
such suspended salary, which shall be paid at the earliest
practical time) as of the date such salary was due and
payable;
(ii) a diminution of the duties or title of the
Executive outlined in Section 2(a) hereof or the assignment
to Executive of duties inconsistent in any material respect
with his position;
(iii) a change in the functions, responsibilities,
authority or term of the Company's Executive Advisory Board
or Executive's removal therefrom;
(iv) a breach by the Company of any material term or
provision of this Agreement; or
(v) other than in connection with a Change in Control
(as defined below) the removal of the Executive as a
director of the Company or the failure of the Executive to
be re-elected as a director of the Company. For purposes of
this Agreement, a "Change in Control" shall be deemed to
occur (i) when any "person" as defined in Section 3(a)(9) of
the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), and as used in Section 13(d) and 14(d)
thereof, including a "group" as defined in Section 13(d) of
the Exchange Act, but excluding the Executive, the Company
or any subsidiary or any affiliate of the Company or any
employee benefit plan sponsored or maintained by the Company
or any subsidiary of the Company (including any trustee of
such plan acting as trustee), becomes the "beneficial owner"
(as defined in Rule 13(d)(3) under the Exchange Act) of
securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding
securities; or (ii) the occurrence of a transaction
requiring stockholder approval for the acquisition of the
Company by an entity other than the Company or a subsidiary
or an affiliated company of the Company through purchase of
assets, or by merger, or otherwise.
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6.3. NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Company or by the Executive (other than termination by
reason of the Executive's death) shall be communicated by written Notice of
Termination to the other party of this Agreement. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment
under the provision so indicated.
6.4. DATE OF TERMINATION. The "Date of Termination" shall mean (a) if
the Executive's employment is terminated by his death, the date of his
death, (b) if the Executive's employment is terminated pursuant to Section
6.1 above, the date on which the Notice of Termination is given, (c) if the
Executive's employment is terminated pursuant to Section 6.2 above, the
date specified in the Notice of Termination after the expiration of any
applicable cure periods, and (d) if the Executive's employment is
terminated for any other reason, the date on which a Notice of Termination
is given after the expiration of any applicable cure periods.
6.5. 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 180 days in any one year period. Successive periods of disability,
illness or incapacity will be considered separate periods unless the later
period of disability, illness or incapacity is due to the same or related
cause and commences less than 180 days from the ending of the previous
period of disability. 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 a determination of the Board of
Directors under this Section 6(d) is disputed by Executive, 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.
6.6. The Executive may terminate his employment for any reason upon
giving 30 days' advance written notice to the Company. If Executive's
employment is so terminated under this Section 6(e), the Company will pay
Executive the earned but unpaid portion of Executive's Basic Salary through
the Termination Date and any incentive compensation under and consistent
with plans adopted by the Company prior to the Termination Date.
7. PLACE OF PERFORMANCE.
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If the Company decides to terminate operations in Fort Myers, Florida,
Executive shall not be required to relocate and, to the extent the
Executive can't perform his duties hereunder because there is no office in
Fort Myers, his non-performance will not constitute "Good Cause" or "Good
Reason".
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8. INDEMNITY.
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(a) Subject only to the exclusions set forth in Section 8(b) hereof,
the Company hereby agrees to hold harmless and indemnify Executive against
any and all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by Executive in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(excluding an action by or in the right of the Company) to which Executive
is, was or at any time becomes a party, or is threatened to be made a
party, by reason of the fact that Executive is, was or at any time becomes
a director, officer, employee or agent of the Company, or is or was serving
or at any time serves at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise. The Company further agrees to advance to Executive all
amounts to which he would be entitled under this subsection (a) subject
only to repayment by Executive if it is ultimately determined that he is
not entitled to indemnification pursuant to Section 8(b).
(b) No indemnity pursuant to Section 8(a) hereof shall be paid by the
Company:
(i) to the extent the aggregate losses to be indemnified
hereunder are actually paid pursuant to any directors and officers
liability insurance purchased and maintained by the Company;
(ii) on account of any suit in which judgment is rendered against
Executive for an accounting of profits made from the purchase or sale
by Executive of securities of the Company pursuant to the provisions
of Section 16(b) of the Securities Exchange Act of 1934 and amendments
thereto or similar provisions of any federal, state or local statutory
law;
(iii) if the indemnity is prohibited by Nevada law or the
Company's By-Laws.
(c) All agreements and obligations of the Company contained herein
shall continue during the period Executive is a director, officer, employee
or agent of the Company (or is or was serving at the request of the Company
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise) and shall continue
thereafter so long as Executive shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that Executive was an
officer or director of the Company or serving in any other capacity
referred to herein.
(d) Promptly after receipt by Executive of notice of the commencement
of any action, suit or proceeding, Executive will, if a claim in respect
thereof is to be made against the Company under this Section 8, notify the
Company of the commencement thereof; but the omission so to notify the
Company will not relieve it from any liability which it may have to
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Executive otherwise than under this Section 8. With respect to any such
action, suit or proceeding as to which Executive notifies the Company under
this Section 8(d):
(i) The Company will be entitled to participate therein at its
own expense.
(ii) Except as otherwise provided below, to the extent that it
may wish, the Company jointly with any other indemnifying party
similarly notified will be entitled to assume the defense thereof,
with counsel selected by the Company and approved by the Executive,
which approval shall not be unreasonably withheld. After notice from
the Company to Executive of its election so to assume the defense
thereof, the Company will not be liable to Executive under this
Section 7 for any legal or other expenses subsequently incurred by
Executive in connection with the defense thereof other than reasonable
costs of investigation or as otherwise provided below. Executive shall
have the right to employ his counsel in such action, suit or
proceeding but the fees and expenses of such counsel incurred after
notice from the Company of its assumption of the defense thereof shall
be at the expense of Executive, unless (A) the employment of counsel
by Executive has been authorized by the Company, or (B) the Company
shall not in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of counsel shall
be at the expense of the Company. The Company shall not be entitled to
assume the defense of any action, suit or proceeding brought by or on
behalf of the Company.
(iii) The Company shall not be liable to indemnify Executive
under this Agreement for any amounts paid in settlement of any action
or claim effected without its written consent. The Company shall not
settle in any manner which would impose any penalty or limitation on
Executive without Executive's written consent. Neither the Company nor
Executive will unreasonably withhold their consent to any proposed
settlement.
(e) Executive agrees that Executive will reimburse the Company for all
customary and reasonable expenses paid by the Company in defending any
civil or criminal action, suit or proceeding against Executive in the event
and only to the extent that it shall be ultimately determined that
Executive is not entitled to be indemnified by the Company for such
expenses under the provisions of Nevada law, federal securities laws, the
Company's By-laws or this Agreement.
9. PUBLIC OFFERING RIGHTS. In the event that the Company undertakes an
underwritten public offering of its own securities (a "Public Offering")
and any Officer or founding member of the Company participates in the
Public Offering as a selling shareholder (a "Selling Shareholder"), the
Company shall offer Executive the right to participate in the Public
Offering as a Selling Shareholder on the same terms and conditions as the
participating Selling Shareholders and to sell a number of shares of common
stock of the Company (as determined by Executive) up to the "Maximum
Amount". The term "Maximum Amount" means the number of shares of common
stock of the Company owned by Executive multiplied by the highest
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percentage of shares of common stock of the Company owned by a Selling
Shareholder (on an actual outstanding basis) as to which any Selling
Shareholder is permitted to sell in the Public Offering. Executive's rights
under this provision are in addition to any other rights of Executive in
this regard and shall survive termination of this Agreement and Executive's
termination of Employment for any reason. Notwithstanding anything to the
contrary above, Executive shall not have any rights under this Section 9 if
Executive owns less than 1% of the Company's outstanding securities and
such securities are not "restricted" within the meaning of Rule 144 of the
Securities Act of 1933, as amended.
10. ASSIGNMENT. This Agreement is personal to Executive and Executive
may not assign or delegate any of his rights or obligations hereunder.
Subject to the foregoing, this Agreement shall be binding upon and inure to
the benefit of the respective parties hereto, their heirs, executors,
administrators, successors and assigns.
11. WAIVER. The waiver by either party hereto of any breach or
violation of any provision of this Agreement by the other party shall not
operate as or be construed to be a waiver of any subsequent breach by such
waiving party.
12. NOTICES. Any and all notices required or permitted to be given
under this Agreement will be sufficient and deemed effective three (3) days
following deposit in the United States mail if furnished in writing and
sent by certified mail to Executive at:
9407 Sage Court
Sanibel, FL 33937
and to the Company at:
FindWhat.com
12751 Suite 3
Westlinks Drive
Fort Myers, FL 10001
Attention: Chief Executive Officer
with a copy to:
John B. Pisaris
Porter, Wright, Morris & Arthur LLP
41 South High Street
Columbus, OH 43215
13. GOVERNING LAW. This Agreement shall be interpreted, construed and
governed according to the laws of the State of Florida without reference to
its choice of law rules.
14. AMENDMENT. This Agreement may be amended in any and every respect
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only by agreement in writing executed by both parties hereto.
15. SECTION HEADINGS. Section headings contained in this Agreement are
for convenience only and shall not be considered in construing any
provision hereof.
16. ENTIRE AGREEMENT. With the exception of the Confidentiality,
Assignment and Noncompetition Agreement of even date herewith, and the
Executive's stock option agreements with the Company, this Agreement
terminates, cancels and supersedes all previous employment or other
agreements relating to the employment of Executive with the Company or any
predecessor, written or oral, and this Agreement contains the entire
understanding of the parties with respect to the subject matter of this
Agreement. This Agreement was fully reviewed and negotiated on behalf of
each party and shall not be construed against the interest of either party
as the drafter of this Agreement. EXECUTIVE ACKNOWLEDGES THAT, BEFORE
SIGNING THIS AGREEMENT, HE HAS READ THE ENTIRE AGREEMENT AND HAS THIS DAY
RECEIVED A COPY HEREOF.
17. SEVERABILITy. The invalidity or unenforceability of any one or
more provisions of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement or parts thereof.
18. SURVIVAL. The last sentence of Section 3, and Sections 6, 8 and 9
of this Agreement and this Section 18 shall survive any termination or
expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE:
/s/ Courtney P. Jones
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Courtney P. Jones
FINDWHAT.COM
By: /s/ Phillip R. Thune
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Its: Chief Operating Officer &
Chief Financial Officer
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