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Exhibit 10(xviii)
SEPARATION OF EMPLOYMENT AGREEMENT AND
GENERAL RELEASE AND CONSULTING AGREEMENT
WHEREAS Xxxxxxx X. Xxxxxxx (hereinafter "Xxxxxxx") has been employed by
DBT Online, Inc., a Pennsylvania corporation (hereinafter the "Company").
WHEREAS, the parties hereto desire to set forth their agreements with
respect to the termination of Xxxxxxx'x employment and desire to assure the
continued service of Xxxxxxx upon the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the covenants, conditions,
representations and acknowledgments, and in reliance upon the agreements and
releases of each of the parties as set forth in this Agreement, the parties,
intending to be legally bound, agree as follows:
1. TERMINATION OF EMPLOYMENT Xxxxxxx shall be employed by the Company
from the date hereof until February 15, 2000, unless another date is mutually
agreed upon by the parties, upon which Xxxxxxx'x employment with the Company
shall be terminated (the "Termination Date"). Through the Termination Date
Xxxxxxx agrees to perform his assignment in a professional manner and in the
best interests of the Company, understanding that he may take some time off for
reasonable job search. Specifically, Xxxxxxx will be responsible for closing the
1999 books, overseeing the year end audit and otherwise performing customary and
normal duties of the Chief Financial Officer. The Company and Xxxxxxx
acknowledge that the employment of Xxxxxxx by the Company, and all rights and
obligations of any nature of the Company and Xxxxxxx with respect to such
employment, will be duly terminated effective the Termination Date. Xxxxxxx
further acknowledges and agrees that payments made or to be made and benefits
provided or to be provided hereunder are in lieu of any and all compensation and
benefits of any nature whatsoever due to Xxxxxxx under any other agreement or
arrangement (whether written or oral) between or binding upon the Company and
Xxxxxxx.
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2. CONSULTING ARRANGEMENT. In consideration of Xxxxxxx'x execution of
this Agreement and his agreement to be legally bound by its terms, the Company
desires to enter into a consulting relationship with Xxxxxxx, in accordance with
the terms and conditions hereinafter set forth.
2.1 CONSULTING TERM. Xxxxxxx shall perform consulting services
for the Company for the term beginning on the Termination Date and ending on the
one year anniversary of the Termination Date and, provided Xxxxxxx has performed
his employment and consulting duties in a professional manner and has comported
himself in the best interest of the Company, for an additional twelve month
consulting term, on such terms and conditions as the Chief Executive Officer and
the Board of Directors shall determine (collectively the "Consulting Term"). If
Xxxxxxx is not so performing or comporting, the Company shall provide him with
written notice thereof and reasonable time to cure. During the Consulting Term,
Xxxxxxx will be considered a "Key Advisor," as defined under the Company's Stock
Option Plan, for purposes of determining the time during which vested stock
options granted pursuant to the Stock Option Plan continue to be exercisable.
2.2 DUTIES AND RESPONSIBILITIES. During the Consulting Term,
Xxxxxxx shall provide consulting services to the Company as an independent
contractor and not as an employee of the Company. Xxxxxxx shall at all times
during the Consulting Term act as an independent contractor and during such
period nothing hereunder shall create or imply a relationship of
employer-employee between the Company and Xxxxxxx. Xxxxxxx shall provide
consultation as requested by the Company, at the times and on the occasions
reasonably requested by the Company and reasonably convenient to Xxxxxxx. During
the Consulting Term, Xxxxxxx shall at all times comply with all reasonable
policies and procedures adopted by the Company, including without limitation the
procedures and policies adopted by the Company regarding conflicts of interest
and confidentiality of the Company's business information.
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2.3 EXTENT OF SERVICE. During the Consulting Term, Xxxxxxx
agrees to devote such time, attention and energy as is necessary to fulfill his
duties and responsibilities as a consultant under Section 2.2 hereof.
3. CONSIDERATION. In full consideration of and in exchange for
Xxxxxxx'x execution of this Separation of Employment Agreement and General
Release and Consulting Agreement, and his agreement to be legally bound by its
terms, Company will provide Xxxxxxx with the following payments or
consideration, to which he would not otherwise be entitled:
(a) From the date hereof until the Termination Date, the Company
shall compensate Xxxxxxx on the same basis as Xxxxxxx is
compensated on the date hereof.
(b) For all services rendered by Xxxxxxx as a consultant to the
Company during the Consulting Term, the Company shall pay
Xxxxxxx $12,916.66 per month for the period beginning on the
Termination Date and ending on the one year anniversary of the
Termination Date (the "First Anniversary Date") payable on the
15th of each month beginning February 15, 2000 (until a total
of $155,000 is paid), and for any period after the First
Anniversary Date such compensation in such form as the Chief
Executive Officer and the Board of Directors shall determine.
(c) Xxxxxxx will receive his bonus for 1999 payable in 2000,
provided that the Board authorizes a bonus for any officer of
the Company. Xxxxxxx will receive no bonus for any years after
1999. He will
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also receive a special $15,000 net transition payment payable
February 4, 2000.
(d) During the Consulting Term, Xxxxxxx shall be solely
responsible for the payment of all federal, state and local
taxes or contributions imposed or required under unemployment
insurance, social security and income tax laws that pertain to
the compensation paid or benefits provided to Xxxxxxx for his
performance of consulting services.
(e) Xxxxxxx agrees that, to the extent there are any taxes to
Xxxxxxx or the Company arising from the payments made by the
Company pursuant to this section, he shall be exclusively
responsible for any payment of federal and state taxes on the
payments set forth above.
(f) The Company agrees to provide extended family coverage under
its insured health and dental plan to Xxxxxxx to the extent
that he does not have coverage under another plan from the
Termination Date through the First Anniversary Date, at which
time Xxxxxxx will be offered standard COBRA coverage on the
same basis and for the same period as other participants and
beneficiaries. Xxxxxxx will notify the Company at the
commencement of any coverage under another health and/or
dental insurance plan. To the extent that Xxxxxxx does not
have coverage under another plan, and remains covered under
the Company's medical and dental plan, the Company further
agrees to reimburse Xxxxxxx for medical
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expenses accrued from the Termination Date through the First
Anniversary Date that are not covered by the Company's insured
health and/or dental plan, including participant premium
costs, copayments and deductibles, on the same basis and to
the same extent such reimbursements are provided to senior
executives of the Company.
(g) As of the Termination Date, the Company will assume the
obligations under Xxxxxxx'x automobile lease at Company's
expense, including Xxxxxxx'x personal guarantee of the lease,
but Xxxxxxx will have use of this automobile through up to
July 24, 2000. Additionally, the Company will pay for all
insurance, maintenance, and repairs in this period. Xxxxxxx
will return the automobile to the Company by the end of that
period.
(h) With respect to stock options granted to Xxxxxxx on January
13, 1997, the parties agree that Xxxxxxx will vest on the
vesting date in those options that are first exercisable on or
before January 13, 2000. With respect to stock options granted
to Xxxxxxx on June 4, 1997, the parties agree that, provided
Xxxxxxx has performed his employment and consulting duties in
a satisfactory manner and has comported himself in the best
interest of the Company (subject to the notice and right to
cure provisions provided in Section 2.1 hereof), Xxxxxxx will
vest on the vesting date in those options that are first
exercisable on or before June 4, 2000. Any of such stock
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options that are first exercisable on June 4, 2000 and that do
not vest in accordance with the preceding sentence shall be
forfeited and terminate prior to June 4, 2000. If Xxxxxxx is
not so performing or comporting the Company shall provide him
with written notice and reasonable time to cure. The terms
governing these options are set forth in the Amended Stock
Option Grant Letters executed contemporaneously with this
Agreement and attached hereto as Exhibit 1. The parties
further agree that Xxxxxxx will not be entitled to exercise or
vest in any further stock options (including those granted to
Xxxxxxx on August 2, 1999) as this Agreement terminates those
options as of the date of this Agreement.
(i) The Company shall promptly reimburse Xxxxxxx, as expended, for
all reasonable out-of-pocket expenses of selling his primary
residence in Parkland, Florida, including any brokerage
commission on the sale; provided that the Company will not
reimburse Xxxxxxx for any loss on the sale of his residence or
moving expenses.
(j) Xxxxxxx agrees that he is still subject to and continues to be
governed by the Key Person Employment Agreement,
Confidentiality Agreement and Covenant Against Competition
that he originally signed on January , 1997, to the extent
that those terms are not inconsistent with this Agreement.
Xxxxxxx further
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agrees he will not solicit employees of the Company through
the end of the Consulting Term.
Except as set forth in this Agreement, it is expressly agreed and
understood that after the Termination Date the Company does not have, and will
not have, any obligation to provide Xxxxxxx at any time in the future with any
payments, bonuses, benefits or considerations other than those recited in
paragraph 3.
4. DEFINITION OF COMPANY. For purposes of this Agreement, the term
"Company" shall include DBT Online, Inc., and its parents, subsidiaries,
affiliates, and its and their officers, directors, shareholders, employees,
agents, successors, assigns, heirs, executors, and administrators and any
individual or organization related to DBT Online, Inc., and against whom or
which Xxxxxxx could maintain a claim.
5. RELEASE. In consideration of and in exchange for the promises of
Company set forth above, Xxxxxxx on behalf of himself and his heirs, executors
and administrators, intending to be legally bound, hereby permanently and
irrevocably accepts termination by the Company according to the terms set forth
in this Agreement, and releases and discharges Company from any and all causes
of actions, suits, debts, claims and demands whatsoever, which Xxxxxxx had, has,
or may have had up to and including the effective date of this Agreement, and
will as of the Termination Date provide the Company as well a similar release
and discharge up to and including the Termination Date, including those which
are based on or are in any way related to his former employment with Company or
the termination of that employment, excepting disputes relating to the Company's
independently administered 401(k) plan. Xxxxxxx'x release of claims and actions
includes, but is not limited to, actions arising under the Age Discrimination in
Employment Act (ADEA); Title VII of the Civil Rights Act of 1964, as
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amended; the Americans with Disabilities Act (ADA); the Fair Labor Standards Act
(FLSA); the Employee Retirement Income Security Act, as amended (ERISA); the
Family and Medical Leave Act (FMLA); the Florida Civil Rights Act of 1992, as
amended (FCRA); Florida Statutes Chapter 448.101, ET SEQ., commonly known as the
Florida Private Whistleblower Act; and the common law, such as actions in tort
or contract. Xxxxxxx also promises not to seek any personal relief whether legal
or equitable in any proceeding brought by any agency or any other person.
6. RETURN OF PROPERTY. Xxxxxxx agrees to promptly return all Company
property, excluding the property contained on the itemized list attached hereto
as Exhibit 2, to Xxxxx Xxxx, Human Resources Director of DBT Online, Inc.
7. PERFORMANCE. The parties acknowledge that the performance of the
promises of each are expressly contingent upon the fulfillment and satisfaction
of the obligations of the other party as set forth in this Agreement.
8. ACKNOWLEDGMENT OF SEPARATION. Xxxxxxx hereby agrees and recognizes
that as of the Termination Date his employment relationship with Company will be
permanently and irrevocably severed and that Company will have no obligation to
re-employ him in the future.
9. NON-ADMISSION. Xxxxxxx agrees and acknowledges that this Agreement
is not and shall not be construed to be an admission of any violation of any
federal, state or local statute or regulation, or of any duty owed by Company.
10. CERTIFICATION. Xxxxxxx hereby certifies that he has read the terms
of this Separation of Employment Agreement and General Release and Consulting
Agreement, that he has been advised by Company to consult with an attorney prior
to executing this Agreement, that he has had an opportunity to do so, and that
he understands this Agreement's terms and effects. Xxxxxxx further certifies
that Company has not made any representations to Xxxxxxx concerning this
Separation of Employment
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Agreement and General Release and Consulting Agreement other than those
contained in this Agreement.
11. NON-DISPARAGEMENT. Xxxxxxx will not issue any communication or
statement, written or otherwise, that disparages, criticizes or otherwise
reflects adversely upon the Company, except if testifying truthfully under oath
pursuant to subpoena or other legal process. In the event Xxxxxxx is compelled
by subpoena process to testify, he will provide, to the extent possible, written
notice to the Company in time to permit the Company to seek an appropriate
protective order or such other relief as may be necessary to enforce the
Company's rights under this Agreement.
12. EXECUTION. Xxxxxxx acknowledges that he is informed that prior to
entering into this Agreement, he has a period of 21 days to consider this
Agreement. He also understands that he has the right to revoke this Agreement
for a period of 7 days following the signing (execution) of this Agreement by
giving written notice to DBT Online, Inc., c/o Human Resources Director, Xxxxx
Xxxx at 0000 Xxxx Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000.
13. SEVERABILITY. If any provision of this Separation of Employment
Agreement and General Release and Consulting Agreement is deemed invalid, the
remaining provisions shall not be affected.
14. ENTIRE AGREEMENT. This Agreement, including its referenced
attachments, contains the entire agreement between the parties and its terms are
contractual and are not a mere recital. The parties expressly acknowledge that
there exist no oral agreements or understandings that vary the terms or meaning
of this Agreement. This Agreement supersedes and annuls any and all other
agreements, contracts, promises, representations, whether oral or written, made
by or on behalf of the parties, their personal representatives and/or their
successors and assigns unless they are expressly incorporated herein.
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15. ARBITRATION. Xxxxxxx and the Company agree that all disputes
concerning the terms of this Agreement will be subject solely to binding
arbitration. The arbitrator selection and conduct of the arbitration will be
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. The place of the arbitration will be Palm Beach County, Florida.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties have executed the foregoing Separation of Employment Agreement and
General Release and Consulting Agreement this 12th day of January, 2000.
DBT ONLINE, INC.
/s/ Xxxxxxx X. Xxxxxxx By:
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Xxxxxxx X. Xxxxxxx
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EXHIBIT 2
1. Desktop computer
2. Printer
3. Monitor
4. Fax machine
5. Laptop computer
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DBT ONLINE, INC.
STOCK OPTION PLAN
AMENDED STOCK OPTION GRANT LETTER
DATE OF GRANT: JANUARY 13, 1997
This Agreement made this 12th day of January, 2000 constitutes an amendment to
the Incentive Stock Option Agreement (the "Grant Letter") between DBT Online,
Inc. (the "Company") and Xxxxxxx X. Xxxxxxx (the "Optionee") evidencing the
grant made to the Optionee on January 13, 1997 under the terms of the DBT
Online, Inc. Stock Option Plan (the "Plan"). All capitalized terms not defined
herein shall have the meaning as defined in the Grant Letter or the Plan, as the
case may be.
The Company and the Optionee, intending to be legally bound hereby, agree as
follows:
1 . Section 3 of the Grant Letter is hereby amended by adding the following
sentence at the end the thereof:
Anything contained herein to the contrary notwithstanding, the Optionee
acknowledges that the Option will cease to be treated as an "incentive
stock option" under section 422 of the Code if it is not exercised
within 90 days of the Termination Date, as such term is defined in the
agreement between the Company and the Optionee entered into on the date
first above written (the "Consulting Agreement")
2. Section 4 of the Grant Letter is hereby amended by adding the following
sentence, flush to the margin, at the end thereof:
Anything contained herein to the contrary notwithstanding, the Optionee
shall be considered a Key Advisor during the Consulting Term, as such
term is defined in the Consulting Agreement, and as such, the
references in subsections (b) and (c) above to the termination of the
Optionee's employment with the Company shall be read instead to mean
the termination of the Optionee's services as a Key Advisor to the
Company.
3. Except as expressly amended hereby, the terms of the Grant letter shall
continue in full force and effect.
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4. This Agreement shall be effective and the Option shall be amended as provided
herein as of the date first above written.
DBT Online Inc.
By: /s/
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Title: President & CEO
PARTICIPANT
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
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DBT ONLINE, INC.
STOCK OPTION PLAN
AMENDED STOCK OPTION GRANT LETTER
DATE OF GRANT: JUNE 4, 1997
This Agreement made this 12th day of January, 2000 constitutes an amendment to
the Incentive Stock Option Agreement (the "Grant Letter") between DBT Online,
Inc. (the "Company") and Xxxxxxx X. Xxxxxxx (the "Optionee") evidencing the
grant made to the Optionee on June 4, 1997 under the terms of the DBT Online,
Inc. Stock Option Plan (the "Plan"). All capitalized terms not defined herein
shall have the meaning as defined in the Grant Letter or the Plan, as the case
may be.
The Company and the Optionee, intending to be legally bound hereby, agree as
follows:
1 . Section 3 of the Grant Letter is hereby amended by adding the following
sentence at the end the thereof:
Anything contained herein to the contrary notwithstanding, the Optionee
acknowledges that the Option will cease to be treated as an "incentive
stock option" under section 422 of the Code if it is not exercised
within 90 days of the Termination Date, as such term is defined in the
agreement between the Company and the Optionee entered into on the date
first above written (the "Consulting Agreement").
2. Section 4 of the Grant Letter is hereby amended by adding the following
sentence, flush to the margin, at the end thereof:
Anything contained herein to the contrary notwithstanding, the Optionee
shall be considered a Key Advisor during the Consulting Term, as such
term is defined in the Consulting Agreement, and as such, the
references in subsections (b) and (c) above to the termination of the
Optionee's employment with the Company shall be read instead to mean
the termination of the Optionee's services as a Key Advisor to the
Company.
3. Section 5 of the Grant Letter is hereby amended by adding the following
sentence, flush to the margin, at the end thereof:
Anything contained herein to the contrary notwithstanding, the Option
shall vest as provided above if on the applicable vesting date the
Optionee continues to be either an employee of, or Key Advisor to, the
Company.
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4. Except as expressly amended hereby, the terms of the Grant letter shall
continue in full force and effect.
5. This Agreement shall be effective and the Option shall be amended as provided
herein as of the date first above written.
DBT Online Inc.
By: /s/
-------------------------------
Title: President & CEO
PARTICIPANT
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
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AMENDMENT
TO
SEPARATION OF EMPLOYMENT AGREEMENT AND
GENERAL RELEASE AND CONSULTING AGREEMENT
WHEREAS, Xxxxxxx X. Xxxxxxx (hereinafter "Xxxxxxx") and DBT Online,
Inc., a Pennsylvania Corporation (hereinafter the "company") entered into a
Separation of Employment Agreement and General Release and Consulting Agreement,
dated January 7, 2000 (the "agreement");
WHEREAS, the parties hereto now desire to amend the;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, the parties, intending to be legally bound, agree as follows:
1. The last sentence of Section 2.1 of the Agreement is hereby
amended, in its entirely, to read as follows:
"During the Consulting Term, Xxxxxxx shall be considered a
"Key Advisor", as defined under the Company's Stock Option Plan, for
purposes of determining the time during which stock options granted
under the Stock Option Plan become and continue to be exercisable."
2. Subsection (h) of Section 3 of the Agreement is hereby amended, in
its entirety, to read as follows:
"With respect to stock options granted to Xxxxxxx on January
13, 1997, June 4, 1997, and August 2, 1999, the parties agree that such
stock options shall become and continue to be exercisable in accordance
with their terms".
3. Exhibit 1 to the Agreement is deleted in its entirety.
4. Except as expressly amended hereby, the terms of the Agreement shall
continue in full force and effect.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties have executed this Amendment to the Agreement this 11th day of
February, 2000.
/s/ Xxxxxxx X. Xxxxxxx DBT ONLINE, INC.
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Xxxxxxx X. Xxxxxxx
By: /s/ X. Xxxxx
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