Executive Employment Agreement - MatchNet plc and Philip Nelson
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement"), effective as of October 4,
2004, is entered into by and between MATCHNET PLC, an English company (the
"Company"), with its principal office at 8383 Wilshire Boulevard, Suite 800,
Beverly Hills, California 90211, and Philip Nelson, an individual (the
"Executive").
In consideration of the promises and the respective covenants and agreements of
the parties herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. EMPLOYMENT:
The Company hereby agrees to employ Executive, and Executive hereby
agrees to serve the Company, on the terms and conditions set forth herein.
2. TERM:
The employment of Executive by Company as provided in paragraph 1 will
commence on the "Commencement Date", defined as the effective date of this
Agreement, and will continue indefinitely, subject to the termination provisions
as set forth in paragraph 5.
3. POSITION AND DUTIES:
Executive shall serve as Chief Technology Officer and shall report
directly to the CEO and the President of the Company. The Executive shall have
such duties and responsibilities as are commensurate with his position and any
additional responsibilities and authority as may be from time to time assigned
to Executive by the Company. Executive shall devote substantially all his
working time and efforts to the business and affairs of the Company. From time
to time the Company may assign the Executive to work in other departments or
locations of the Company, or for a subsidiary, affiliated or holding company, in
a similar position.
4. COMPENSATION AND RELATED MATTERS:
(a) Salary: The Company shall pay to Executive an annual salary at a
rate of not less than $250,000 per year (the "Base Salary"), paid in accordance
with the Company's regular and normal payroll practices and withholdings.
(b) Vacation: In addition to legal holidays observed by the Company,
Executive shall be entitled to fifteen (15) days of paid vacation per year.
Vacation days shall accrue at a rate of 1.25 days per calendar month of
continuous employment, subject to the applicable two-year maximum cap on accrual
and other standard vacation policies of the Company. The Company may grant
Executive advances against future vacation accruals at Executive's request. Upon
termination of employment, unused vacation days will be paid out to Executive on
the date of termination.
(c) Expenses: During the term of Executive's employment hereunder,
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by Executive in performing services hereunder, including a all
expenses for travel and living expenses while away from home on business or at
the request of and in the service of the Company, provided that such expenses
are incurred and accounted for in accordance with the policies and procedures
established by the Company. The Company will reimburse the Executive up to
$3,000 per month as a commute allowance for the first 6 months of employment.
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(d) Health, and Other Benefits: The Company shall keep in full force
and effect, and Executive shall be entitled to continue to participate in, all
of the Company's Executive benefit plans or arrangements, including health
insurance, providing Executive and his immediate family with at least equivalent
benefits thereunder. The Company shall not make any changes in such plans and
arrangements which would adversely affect the Executive's rights or benefits
thereunder, unless such change occurs pursuant to a program applicable to all
Executives of the Company and does not result in a proportionately greater
reduction in the rights of or benefits to Executive as compared with any other
Executives of the Company.
(e) Options: The Company shall issue to Executive options to purchase
250,000 of the Company's ordinary shares (the "Options"). The exercise price per
share of the Options will be equal to the fair market value per share, as quoted
on the Frankfurt Stock Exchange, on the "Commencement Date". The Options will
vest equally over 16 quarterly periods beginning three months after your
employment date and ending 4 years after your employment date. In addition, the
Options will contain a "Change of Control Provision" whereby all unvested
Options will vest if any person acquires a vested interest in more than 50% of
the Company's then outstanding shares. The Option shall lapse on 4 October 2009
(subject to the terms of the Option Agreement referenced below). Executive shall
be required to sign an Option Agreement between Executive and Company and the
vesting and exercise of the Options shall be subject to the terms of the Option
Agreement and the applicable Company stock option plan.
5. TERMINATION AND SEVERANCE:
(a) Either party may terminate this Agreement by giving to the other
party thirty (30) days' notice.
(b) The Company may terminate this Agreement for "Cause" at any time.
As used herein, "Cause" shall mean; (i) a material misappropriation of any
monies or assets or properties of the Company, (ii) a material breach by the
Executive of the terms of this Agreement that has not been cured within ten (10)
days after written notice to the Executive of such breach, (iii) the conviction
of, or plea of guilty or nolo contendere, by the Executive to any criminal
offense involving the Executive's moral turpitude, or (iv) gross negligence or
willful misconduct of the Executive in connection with the material duties
required by this Agreement. "Involuntary Termination" is defined as the
occurrence of one or more of the following events without the Executive's
express written consent: (i) a substantial reduction of Executive's employment,
title, role, job description or responsibilities; (ii) a reduction by the
Company of the Executive's base salary or target bonus as in effect immediately
prior to such reduction; (iii) the relocation of the Executive to a facility or
a location more than fifty (50) miles from his or her then current location; or
(iv) any termination of the Executive by the Company which is not effected for
Cause. If an involuntary Termination occurs within two months before or six
months after a Change of Control, and the Executive executes (and does not
revoke) a release agreement (in the form provided by the Company in accordance
with applicable law), then the Executive shall receive the following benefits:
(i) all stock options and shares of restricted stock held by the Executive shall
become fully vested and exercisable, to the extent such stock options and shares
of restricted stock are outstanding and not already vested on such date
(together with an extension of the "Final Exercise Date" as defined in the
relevant Option Agreement to one year from the date of such termination);
(c) Executive's employment hereunder shall terminate upon his death.
(d) If, as a result of Executive's incapacity due to physical or mental
disability, Executive shall have been absent from his duties hereunder on a
full-time basis for a cumulative total of six months during the previous twelve
month period, and Executive is unable to return to the performance of his duties
hereunder on a full-time basis (with our without reasonable accommodation), the
Company may terminate Executive's employment hereunder.
(e) Upon termination for whatever reason, the Executive shall return
all books, documents, papers, materials and any other property, including any
Company vehicles (including the documentation
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pertaining thereto), which relates to the business of the Company (or any
subsidiary, affiliated, or holding, companies) which may then be in the
Executive's possession or under the Executive's power or control.
6. NO SOLICITATION:
As consideration for the Company to enter into this Agreement,
Executive agrees that he shall not, for a period of twelve (12) months following
the termination of this Agreement, for whatever reason, directly or indirectly,
either as a principal, agent, employee, employer, shareholder, partner, or in
any other capacity, use any Confidential Information of Company to solicit or
attempt to solicit any customer of the Company, nor shall the Executive seek to
entice away or disaffect any other employee of the Company. In the event of a
breach or threatened breach by Executive of any of the provisions of this
paragraph, the Company, in addition to and not in limitation of any rights,
remedies or damages available to the Company at law or in equity, shall be
entitled to injunctive relief in order to prevent or to restrain any such breach
by Executive, or by Executive's partners, agents, representatives, servants,
employers, employees and/or any and all persons directly or indirectly acting
for or with him.
7. CONFIDENTIALITY;
Executive acknowledges that, in and as a result of his employment
hereunder he will be making use of, acquiring and/or adding to confidential
information of special and unique nature and value relating to such matters as
the Company's trade secrets, systems, procedures, manuals, customer information,
confidential reports and lists of clients, as well as the nature and type of
services rendered by the Company, and the equipment and methods used by the
Company (collectively the "Confidential Information"). As a material inducement
to the Company to enter into this Agreement, and to pay to Executive the
compensation referred to in this Agreement, Executive covenants and agrees that
he shall not, at any time during or following the term of his employment
hereunder, directly or indirectly, divulge or disclose, or use for any purpose
whatsoever, any of such Confidential Information which has been obtained by or
disclosed to him as a result of his employment by the Company. In the event of a
breach or threatened breach by Executive of any of the provisions of this
paragraph, the Company, in addition to and not in limitation of any rights,
remedies or damages available to the Company at law or in equity, shall be
entitled to injunctive relief in order to prevent or to restrain any such breach
by Executive, or by Executive's partners, agents, representatives, servants,
employers, employees and/or any and all persons directly or indirectly acting
for or with him.
8. OWNERSHIP AND WORK PRODUCT:
The ownership, copyright, and any other rights to any intellectual
property (including any business methods) developed by Executive during the
performance of his duties under this Agreement shall be considered "Works for
Hire" and shall be the sole property of the Company.
9. NOTICE:
For the purposes of this Agreement, notices, demands and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or (unless otherwise specified)
mailed by registered mail, return receipt requested, postage prepaid, addressed
as set forth above, or to such other address as any party may have furnished to
the other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
10. MISCELLANEOUS:
(a) The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of California. The parties
consent to the exclusive jurisdiction and venue of the federal and state courts
located in Los Angeles County, California.
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(b) Paragraphs 6 and 7 of this Agreement shall remain in full force and
effect and shall survive the termination of this Agreement.
11. SUCCESSORS AND ASSIGNS:
The Company may assign this Agreement to any successor company or
entity. Executive may not assign this Agreement to any other person or entity.
12. VALIDITY:
The validity and unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
13. INDEMNIFICATION:
To the fullest extent permitted by the Company's charter documents and
applicable law, the Company agrees to defend and indemnify you and hold you
harmless against any liability that you incur within the scope of your service
as an officer of the Company. The Company agrees to use its best efforts to
purchase and maintain adequate Directors' and Officers' liability insurance from
a reputable and financially sound insurer with coverage limits to be determined
by the Board of Directors and with provisions that will provide coverage for you
as an officer as well as coverage as a former officer following any termination
of your services as an officer.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year written below.
MATCHNET PLC
By: /s/ Mark G. Thompson Dated: November 11, 2004
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Mark G. Thompson, CFO
EXECUTIVE
/s/ Philip Nelson Dated: November 11, 2004
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Philip Nelson
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