Employment Agreement - Database Technologies Inc. and Ron Fournet
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered by and between DATABASE
TECHNOLOGIES, INC., a Florida corporation (the "Company"), and RON FOURNET
("Employee"). The Company is a wholly owned subsidiary of DBT Online, Inc., a
Pennsylvania corporation ("DBT"). The parties to this Agreement agree as
follows:
1. EMPLOYMENT. This Agreement will be effective as of August 10, 1999
("Effective Date"). The Company agrees to employ Employee as President and Chief
Executive Officer of the Company, and Employee accepts and agrees to such
employment, as of the Effective Date, in the capacity and for the term of
employment specified herein (the "Term"). Employee will at all times be subject
to the general supervision, control and guidance of the board of directors of
DBT (the "Board" as used herein shall mean the DBT Board, for so long as DBT is
a parent, and otherwise the Company's board). During the Term, Employee will
render such services, perform such Company duties and exercise such supervision
and powers, to, for and with respect to the Company and its present and future
parents, subsidiaries and divisions, as may be established from time to time by
the Board. Employee will report to the Board and its Chairman. Employee will
devote his fulltime business efforts to the performance of his duties hereunder.
2. TERM. The Term will consist of a four year term beginning on the
Effective Date and ending on the date following the third anniversary of the
Effective Date, but may terminate earlier under Section 11 of this Agreement.
3. SALARY; REIMBURSABLE EXPENSES.
(a) The basic annual rate of compensation of Employee's employment
services is $250,000 (the "Salary"). The Company will pay the Salary to Employee
in equal installments according to the Company's payroll payment schedule in
effect from to time. The salary shall be subject to review on an annual basis by
the Compensation Committee of the Board which in its sole discretion may
increase the Salary.
(b) Employee will be reimbursed for all reasonable "out-of-pocket
expenses for business travel and business entertainment incurred in connection
with the performance of Employee's duties under this Agreement (i) so long as
such expenses constitute deductions from taxable income for the Company and are
excludable from taxable income to the Employee under the governing laws and
regulations of the Internal Revenue Code; and (ii) to the extent such expenses
are consistent with the DBT Travel Expense Policy as such Policy may be amended
from time to time. The reimbursement of Employee's business expenses will be
upon monthly
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presentation to and approval by the DBT Chief Financial Officer of valid
receipts and other appropriate documentation for such expenses.
(c) Employee will be entitled to receive both (i) an allowance of
$700 per month to pay for the costs associated with leasing an automobile of
Employee's choice and (ii) reimbursement for the costs of maintenance,
operation and insurance, and gasoline used for business purposes of the Company
for such automobile.
4. BONUS.
Employee may receive an incentive bonus of up to 50% of Employee's
Salary for each fiscal year beginning with fiscal year ending December 31,
1999, based upon the criteria, and payable at such times, as may be determined
by the Board, upon the advice and with the consent of the Board or the
Compensation Committee of the Board. This amount may, in the sole and absolute
discretion of the Board or the Compensation Committee of the Board, exceed 50%
based on overachievement of targets set by the Compensation Committee. The
amount, manner of payment, and form of consideration, if any, will be
determined by the Board, in its sole and absolute discretion, and such
determination will be binding and final. Employee will be eligible to receive
the incentive bonus if Employee is employed with the Company on the date the
incentive bonus is paid. The bonus will generally be paid on or before March 1
or each year beginning March 1, 2000.
5. VACATION. During the term hereof, Employee will be entitled to four
(4) weeks of paid vacation a year.
6. OPTIONS. Employee has been granted stock options to purchase 115,000
shares of DBT common stock under the terms of DBT's stock option plan with
vesting and other terms as described in the option grant letter delivered to
Employee.
7. CHANGE OF CONTROL.
7.1 CHANGE OF CONTROL DEFINITION. As used herein, a "Change of
Control" shall be deemed to have occurred if:
(a) The merger or consolidation of the Company with another
corporation where (i) the stockholders of the Company,
immediately prior to the merger or consolidation, would not
beneficially own, immediately after the merger or consolidation,
shares entitling such stockholders to 50% or more of all votes
(without consideration of the rights of any class of stock to
elect directors by a separate class vote) to which all
stockholders of the surviving corporation would be entitled in
the election of directors, and (ii) the members of the Board,
immediately prior to the merger or consolidation, do not,
immediately after the merger or
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consolidation, constitute a majority of the board of directors
of the surviving corporation; or
(b) The sale or other disposition of all or substantially all
the assets of the Company, or a liquidation, dissolution or
statutory exchange of the Company.
7.2 EFFECT OF A CHANGE OF Control. If a Change of Control
occurs during the final year of the Employment Term, this Section 7.2 will have
no effect on the Agreement. Notwithstanding any other provision of this
Agreement, if a Change of Control occurs before the final year of the Employment
Tenn, then the Executive shall have the right during the 30 days following the
Change of Control to elect either (i) to continue under the terms of the
Agreement, or (ii) to convert the Agreement into a one year agreement, with an
Employment Term commencing upon the date of the Change of Control and ending on
the day before the one year anniversary of the Change of Control, and the
Executive's Annual Salary under this Agreement shall be equal to the Annual
Salary in effect immediately prior to the Change of Control multiplied by two
for such Employment Term, and all other provisions of this Agreement shall
remain in effect for such Employment Term. The Executive's election under this
Section 7.2 shall be made by written notice to the Company under Section 15.
8. COVENANT NOT TO COMPETE. For so long as Employee is employed by the
Company and for a period of eighteen (18) months following the date Employee
ceases to be employed by the Company, to the fullest extent authorized by law,
Employee will not engage in, directly or indirectly, or have any interest in any
person, firm, corporation or business (whether as an employee, officer,
director, agent, security holder, creditor, consultant shareholder or otherwise)
in the United States of America that engages in any business competitive with
the business of the Company; PROVIDED, HOWEVER, that Employee may own, solely as
an investment, not more than one percent (1%) of any class of securities of any
publicly held corporation in competition with the Company, whose securities are
traded on any national securities exchange in the United States, and may retain
ownership interest in such entities. The covenants in this Section 8 are
severable and separate, and the unenforceability of any specific covenant will
not affect the provisions of any other covenant.
9. AGREEMENT NOT TO DIVULGE CONFIDENTIAL INFORMATION. Employee
recognizes that by reason of Employee's interest in the Company and its
affiliates and employment or engagement (as an agent, independent contractor,
consultant, director or otherwise) by the Company or its affiliates, Employee
has acquired and will acquire Confidential Information concerning the operations
and business of the Company and its affiliates, the use or disclosure of which
would cause substantial loss and damages that could not be readily calculated
and for which no remedy at law would be adequate. Employee acknowledges and
agrees that any such Confidential Information acquired was and will be received
in confidence from the Company and its respective affiliates, and that all of
such information is the property of the Company and its affiliates.
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Accordingly, Employee covenants and agrees with the Company and its affiliates
that except in performance of the Employee's obligations to the Company, or its
affiliates or with the prior written consent of the Company, Employee will not,
at any time, directly or indirectly, (i) disclose any Confidential Information
learned by reason of Employee's past affiliation with the Company or its
affiliates or employment or engagement (as an agent, independent contractor,
consultant, director or otherwise) by the Company or its affiliates; or (ii) use
such information in a manner detrimental to the interest of the Company or its
affiliates unless (x) such information becomes known to the public generally
through no fault of Employee, (y) disclosure is required by law or the order of
any governmental authority or (z) Employee must disclose such information
pursuant to court order in connection with the defense of a lawsuit against the
Employee. Notwithstanding the foregoing, prior to disclosing any information
pursuant to clauses (x), (y) or (z) above, Employee will give prior written
notice thereof to the Company and provide the Company with the opportunity to
contest such disclosure and will cooperate with its efforts to prevent such
disclosure. The term "Confidential Information" includes, without limitation,
information not previously disclosed to the public or to the trade by the
Company or its respective affiliates with respect to their businesses or any
products, product elements, data sources, facilities, trade dress, methods,
software, source code, systems, procedures, manuals, confidential reports,
product price list, supplier arrangement or lists, marketing information,
financial information, business plans, prospects or opportunities or other trade
secrets or intellectual property of any kind or nature.
10. AGREEMENT NOT TO SOLICIT OR INTERFERE WITH EMPLOYEES, SUPPLIERS,
AND Customers. During the term of Employees' employment with the Company and for
a period of eighteen (18) months thereafter, to the fullest extent authorized by
law, Employee will not, directly or indirectly, or by acting in concert with
others, hire, solicit to hire, or induce or influence any person who is engaged
as an employee, agent, independent contractor, supplier, consultant, director or
otherwise by the Company or any of its affiliates to leave the employ of the
Company or its affiliates (including, without limitation Company and its
subsidiaries) or modify, in any manner adverse to the Company or any of its
affiliates, or to terminate his engagement with the Company or any of its
affiliates or to induce or influence any customer of the Company or any of its
affiliates to terminate or modify his, her or its relationship as a customer of
the Company or any of its affiliates; PROVIDED, HOWEVER, that if requested by
any employee or former employee of the Company or any of its subsidiaries,
Employee may, following written notice to the Vice President of Human Resources
of DBT, provide a reference with respect to such employee.
11. TERMINATION OF TERM.
(a) DISABILITY. If Employee becomes totally disabled (as
defined below), the Company may terminate the Term and the Company will have no
further liability or obligation to Employee under this Agreement except the
Employee will receive (i) any unpaid Salary that has accrued through the date of
termination and (ii)
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a pro rata portion of any bonus otherwise payable in accordance with the
provisions of Section 4 for the calendar year in which the Employee becomes
totally disabled. Employee will be deemed to be "totally disabled" if Employee
is considered totally disabled under the Company's group disability plan in
effect at that time, if any, or in the absence of any such plan, under
applicable Social Security regulations.
(b) Death. If Employee dies during the Term, this Agreement
will automatically terminate, and thereafter the Company will not have any
further liability or obligation under this Agreement to Employee, his executors,
administrators, heirs, assigns or any other person claiming under or through him
except that Employee's estate shall receive any unpaid Salary that has accrued
through the date of termination.
(c) TERMINATION BY THE COMPANY AND EFFECT OF SUCH TERMINATION.
The Company may terminate this Agreement at any time upon delivery of written
notice to Employee, with the following effects:
(i) If Employee's employment hereunder has been
terminated without Cause, as hereafter defined, then Employee
shall receive the severance amount set forth below (the
"Severance Amount"):
Termination Date Severance Amount
---------------- ----------------
From August 10, 1999 to August 9, 2002 100% of one year's Salary
From August 10, 2002 to August 9, 2003 Remainder of Salary for the
Term.
(ii) In the event that Employee's employment
hereunder is terminated for Cause, as hereafter defined, this
Agreement and rights of Employee shall be terminated
immediately. For these purposes, "Cause" shall mean
dishonesty, willful insubordination, habitual absence from
work, habitual insobriety or drug addiction, failure to
perform Employee's duties, or material breach of this
Agreement.
12. FRINGE BENEFITS. During the term hereof, the Company will provide
to Employee such fringe benefits, including medical and dental benefits, as are
accorded to other executive officers of the Company.
13. GOVERNING Law. The terms of this Agreement will be governed by the
laws of the State of Florida, without reference to its principles of conflicts
of law.
14. WAIVER. No waiver of any of the provisions of this Agreement will
be deemed, or will constitute a waiver of any other provision, whether or not
similar, nor will any waiver constitute a continuing waiver. No waiver will be
binding unless executed in writing by the party making the waiver.
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15. NOTICES. Any notices to be given hereunder by either party to the
other will be in writing and may be given either by personal delivery or by
certified mail, postage prepaid with return receipt requested, or by documented
overnight courier service such as FedEx to the following addresses:
If to the Company:
DBT Online, Inc.
4530 Blue Lake Drive
Boca Raton, FL 33431
Attention: Thomas J. Hoolihan, Esq.
If to Employee:
1035 Vista Del Mar North
Delray Beach, FL 33483
or such other address as either party may specify in writing to the other, in
accordance with this Section 15. Notices delivered personally will be deemed
received as of actual receipt; mailed notices will be deemed received as of five
(5) days after mailing; notices sent by overnight courier service will be deemed
received on the business day following the date of delivery to the courier
service.
16. ARBITRATION. Employee and the Company agree that all disputes
concerning the terms of this Agreement or Employee's employment with the Company
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.
17. NO PRIOR AGREEMENT. Employee hereby represents and warrants to the
Company that Employee's execution of this Agreement, employment by the Company,
and performance of duties under this Agreement will not violate or be a breach
of any agreement with a former employer, client, or any other person or entity,
and Employee will indemnify, defend and hold the Company and its officers and
directors harmless from and against any claim to the contrary.
18. ENTIRE AGREEMENT. This Agreement, and its referenced
attachments, constitute the entire agreement of the parties hereto with respect
to the subject matter hereof and supersedes any prior oral or written agreement.
This Agreement may not be modified or amended in any way except in writing by
the parties hereto.
19. DURATION AND SURVIVAL. Notwithstanding the termination of
the Term and of the Employee's employment by the Company, this Agreement will
continue to bind the parties for so long as any obligations (including, without
limitation,
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Employee's obligations under Sections 8, 9, and 10 remain to be performed under
the terms of this Agreement.
20. SEVERABILITY. If any portion of this Agreement is held invalid or
inoperative, the other portions of this Agreement shall be deemed valid and
operative and, so far as is reasonable and possible, effect shall be given to
the intent manifested by the portion held invalid or inoperative. This
severability provision will be in addition to, and not in place of, the
provisions of Section 8 above.
IN WITNESS WHEREOF, the parties have caused this Employment Agreement
to be executed as of the date first set forth above.
DATABASE TECHNOLOGIES, INC. EMPLOYEE
By: /s/ Frank Borman By: /s/ Ron Fournet
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Ron Fournet
Name: Frank Borman
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Title: Chairman
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