Separation of Employment Agreement and General Release and Consulting Agreement - DBT Online Inc. and Thomas J. Hoolihan
SEPARATION OF EMPLOYMENT AGREEMENT AND
GENERAL RELEASE AND CONSULTING AGREEMENT
WHEREAS Thomas J. Hoolihan (hereinafter "Hoolihan") 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 Hoolihan's employment and desire to assure the
continued service of Hoolihan 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. Hoolihan shall be employed by the
Company from the date hereof until March 1, 2000, upon which Hoolihan's
employment with the Company shall be terminated (the "Termination Date").
Through the Termination Date Hoolihan agrees to perform his assignment in a
professional manner and in the best interests of the Company. The Company and
Hoolihan acknowledge that the employment of Hoolihan by the Company, and all
rights and obligations of any nature of the Company and Hoolihan with respect to
such employment, will be duly terminated effective the Termination Date.
Hoolihan 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 Hoolihan under any
other agreement or arrangement (whether written or oral) between or binding upon
the Company and Hoolihan.
2. CONSULTING ARRANGEMENT. In consideration of Hoolihan's
execution of this Agreement and his agreement to be legally bound by its terms,
the
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Company desires to enter into a consulting relationship with Hoolihan, in
accordance with the terms and conditions hereinafter set forth.
2.1 CONSULTING TERM. Hoolihan shall perform consulting services
for the Company for the term beginning on the Termination Date and ending on
December 31, 2000. In addition, provided Hoolihan has performed his employment
and consulting duties in a professional manner and comported himself in the best
interest of the Company, Hoolihan will perform consulting services for an
additional nine month consulting term, on such terms and conditions as the Chief
Executive Officer and the Board of Directors shall determine. If Hoolihan is not
so performing or comporting, the Company shall provide him with written notice
thereof and reasonable time to cure. The aforementioned consulting terms shall
collectively be referred to as the "Consulting Term." During the Consulting
Tenn, Hoolihan 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,
Hoolihan shall provide consulting services to the Company as an independent
contractor and not as an employee of the Company. Hoolihan 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 Hoolihan. Hoolihan shall provide
consultation as requested by the Company, at the times and on the occasions
reasonably requested by the Company and reasonably convenient to Hoolihan.
During the Consulting Term, Hoolihan 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, Hoolihan 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
Hoolihan's 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 Hoolihan 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 Hoolihan on the same basis as Hoolihan is
compensated on the date hereof.
(b) For all services rendered by Hoolihan as a consultant to the
Company during the Consulting Term, the Company shall pay
Hoolihan $12,500.00 per month for the period beginning on the
Termination Date and ending on December 31, 2000, payable on
the first of each month beginning on March 1, 2000 (until a
total of $125,000 is paid), and for any period after December
31, 2000 such compensation in such form as the Chief Executive
Officer and the Board of Directors shall determine.
(c) Hoolihan will receive his bonus for 1999 payable in 2000,
provided that the Board authorizes a bonus for any officer of
the Company. Hoolihan will receive no bonus paid for any years
after
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1999. He will also receive a special $10,000.00 net transition
payment, on or before February 18, 2000.
(d) During the Consulting Term, Hoolihan 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 Hoolihan for his
performance of consulting services.
(e) Hoolihan agrees that, to the extent there are any taxes to
Hoolihan or DBT 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 Hoolihan to the extent
that he does not have coverage under another plan from the
Termination Date through December 31, 2000, at which time
Hoolihan will be offered standard COBRA coverage on the same
basis and for the same period as other participants and
beneficiaries. Hoolihan will notify the Company at the
commencement of any coverage under another health and/or
dental insurance plan. To the extent that Hoolihan does not
have coverage under another plan, and remains covered under
the Company's medical and dental plan, the Company further
agrees to reimburse Hoolihan for medical
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expense accrued from the Termination Date through December 31,
2000, that are not covered by the Company's insured health and
dental plan, including participant premium costs, co-payments
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 Hoolihan's automobile lease at Company's
expense, including Hoolihan's personal guarantee of the lease,
but Hoolihan will have use of this automobile through July 31,
2000, and the Company will pay for all insurance, maintenance,
and repairs in this period. At Hoolihan's option, Hoolihan
will either return the automobile to the Company at the end of
that period or assume the obligations under the lease through
the end of the lease period in February 2001.
(h) With respect to stock options granted to Hoolihan on November
24, 1997, the parties agree that, provided Hoolihan 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 provision provided in Section 2.1 hereof), Hoolihan will
vest on the vesting dates in those options that are first
exercisable on or before November 24, 2000, and the remainder
of such stock options shall be forfeited and terminated as of
the date of this Agreement. If Hoolihan is not so performing
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or competing the Company shall provide him with written
notice and reasonable time to cure. The terms governing these
options are set forth in the Amended Nonqualified Stock Option
Grant letters executed contemporaneously with this Agreement
and attached hereto as Exhibit 1. The parties futher agree
that Hoolihan will not be entitled to exercise or vest in any
further options (including any options that might have been
exercisable on November 24, 2001) as this Agreement terminates
those options as of the date of this Agreement.
(i) The Company shall provide Hoolihan a relocation allowance for
all reasonable out-of-pocket moving expenses and expenses of
selling his primary residence in Parkland, Florida, including
any brokerage commissions and any loss on the sale, that are
not reimbursed from another source, in a total amount not to
exceed $35,000.00.
(j) The Company shall pay Hoolihan's Florida Bar application fee
and the cost of a Florida Bar preparation course, in a total
amount not to exceed $3,500.00.
(k) The Company will provide executive level outplacement services
of the Company's choice to Hoolihan. Ron Fournet and Kevin
Barr or their respective successors will, upon request,
provide positive recommendations to prospective employers on
behalf of Hoolihan.
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(l) Hoolihan 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 November 1997, to the extent that
those terms are not inconsistent with this Agreement. Hoolihan
further 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 Hoolihan 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 Hoolihan could maintain a claim.
5. RELEASE. In consideration of and in exchange for the
promises of Company set forth above, Hoolihan 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
Hoolihan 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
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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. Hoolihan's 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 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. Hoolihan 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. In addition to the Stipulation of
Paragraph 5, Hoolihan agrees to promptly return all Company property, excluding
the property contained on the itemized list attached hereto as Exhibit 2, to
Kevin Barr, 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. Hoolihan 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. Hoolihan 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.
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10. CERTIFICATION. Hoolihan 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. Hoolihan further
certifies that Company has not made any representations to Hoolihan concerning
this Separation of Employment Agreement and General Release and Consulting
Agreement other than those contained in this Agreement.
11. NON-DISPARAGEMENT. Hoolihan 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 Hoolihan 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. Hoolihan 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, Kevin Barr at 4530 Blue Lake Drive, Boca Raton, Florida 33431.
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
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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.
15. ARBITRATION. Hoolihan 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/ Thomas J. Hoolihan By: /s/
------------------------- -----------------------
Thomas J. Hoolihan
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EXHIBIT 2
1. Laptop computer
2. Cellular phone
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DBT ONLINE, INC.
AMENDED AND RESTATED STOCK OPTION PLAN
AMENDED STOCK OPTION GRANT LETTER
DATE OF GRANT: NOVEMBER 24,1997
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 Thomas J. Hoolihan (the "Optionee") evidencing the
grant made to the Optionee on November 24, 1997 under the terms of the DBT
Online, Inc. Amended and Restated 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 new paragraph at the end 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 at the end thereof:
Anything contained herein to the contrary notwithstanding: (i) the
Option shall vest on 11/24/2000 in the number of shares provided above
with respect to such date, if on such vesting date the Optionee
continues to be either an employee of, or Key Advisor to, the Company;
and (ii) the Option shall terminate and be forfeited immediately with
respect to the number of shares that first become exercisable, in
accordance with the above schedule, after 11/24/2000.
3. Section 6 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.
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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
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PARTICIPANT
/s/ Thomas J. Hoolihan
-------------------------------------
Thomas J. Hoolihan
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AMENDMENT
TO
SEPARATION OF EMPLOYMENT AGREEMENT AND
GENERAL RELEASE AND CONSULTING AGREEMENT
WHEREAS, Thomas J. Hoolihan (hereinafter "Hoolihan") 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 12, 2000 (the "Agreement");
WHEREAS, the Company's advisors have determined that certain provisions
of the Agreement could be detrimental to the Company's ability to obtain pooling
of interest accounting treatment in connection with a contemplated business
combination;
WHEREAS, the parties hereto now desire to amend the Agreement to
address the pooling of interest concerns;
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, Hoolihan 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 Hoolihan on November
24, 1997, 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.
DBT ONLINE, INC.
/s/ Thomas J. Hoolihan
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Thomas J. Hoolihan
By:
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