Separation of Employment Agreement and General Release and Consulting Agreement - DBT Online Inc. and Andrew J. Perlmutter
SEPARATION OF EMPLOYMENT AGREEMENT AND
GENERAL RELEASE AND CONSULTING AGREEMENT
WHEREAS Andrew J. Perlmutter (hereinafter "Perlmutter") 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 Perlmutter's employment and desire to assure the
continued service of Perlmutter 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. Perlmutter's employment with
the Company shall be terminated on December 31, 1999 (the "Termination Date").
The Company and Perlmutter acknowledge that the employment of Perlmutter by the
Company, and all rights and obligations of any nature of the Company and
Perlmutter with respect to such employment, will be duly terminated effective
the Termination Date, except as otherwise specifically provided herein.
Perlmutter 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 Perlmutter under any
other agreement or arrangement (whether written or oral) between or binding upon
the Company and Perlmutter existing as of the date hereof.
2. CONSULTING ARRANGEMENT. In consideration of Perlmutter's
execution of this Agreement and his agreement to be legally bound by its terms,
the Company desires to enter into a consulting relationship with Perlmutter, in
accordance with the terms and conditions hereinafter set forth.
2.1 CONSULTING TERM. Perlmutter shall perform consulting services
for the Company for the term beginning on the Termination Date and ending on
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October 31, 2000. Perlmutter agrees to perform up to one day per month of
satisfactory service as required by the Company during this term. In addition,
provided Perlmutter has performed his consulting duties in a professional manner
and comported himself in the best interest of the Company, he may, at his
option, perform consulting services for an additional nine month consulting
term, on such terms and conditions as the Chief Executive Officer of the Company
and Perlmutter agree. If Perlmutter is not so performing or comporting the
Company shall provide him with notice and ten days to cure. The aforementioned
consulting terms shall collectively be referred to as the "Consulting Term."
During the Consulting Term, Perlmutter shall 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, and an "indemnified representative" for purposes of
Article VIII of the Company's Amended Bylaws.
2.2 DUTIES AND RESPONSIBILITIES. During the Consulting Term,
Perlmutter shall provide consulting services to the Company as an independent
contractor and not as an employee of the Company. Perlmutter 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 Perlmutter. Perhmutter shall provide
consultation as requested by the Company, at the times and on the occasions
reasonably requested by the Company and reasonably convenient to Perlmutter.
During the Consulting Term, Perlmutter 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.
Perlmutter shall be reimbursed for the reasonable business expenses incurred by
him in connection with activities performed on behalf of the Company.
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2.3 EXTENT OF SERVICE. During the Consulting Term, Perlmutter
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
Perlmutter'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 Perlmutter with the following payments or
consideration, to which he would not otherwise be entitled:
(a) For all services rendered by Perlmutter as a consultant to the
Company during the Consulting Term, the Company shall pay
Perlmutter $11,250.00 per month for the period beginning on
the Termination Date and ending on October 31, 2000, in
accordance with the Company's regular payroll schedule, and
for any period after October 31, 2000, such compensation in
such form, if any, as the Chief Executive Officer and
Perlmutter shall agree.
(b) Perlmutter will receive his bonus for 1999 payable in 2000,
provided that the Board authorizes a bonus for any officer of
the Company, and on the schedule approved by the Board.
Perlmutter will receive no bonus for any years after 1999.
(c) During the Consulting Term, Perlmutter 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
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or benefits provided to Perlmutter for his performance of
consulting services.
(d) Perlmutter agrees that, to the extent there are any tax
consequences 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.
(e) The Company agrees to provide Perlmutter with extended family
coverage under its insured health and dental plan to the
extent that he does not have coverage under another plan from
the Termination Date through October 31, 2000, at which time
Perlmutter will be offered standard COBRA coverage on the same
basis and for the same period as other participants and
beneficiaries. Perlmutter will notify the Company at the
commencement of any coverage under another insurance health
and/or dental plan. To the extent that Perlmutter does not
have coverage under another plan, and remains covered under
the Company's medical and dental plan, the Company further
agrees to reimburse Perlmutter for medical expenses accrued
from the Termination Date through October 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.
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With respect to stock options granted to Perlmutter on August
4, 1997, October 6, 1997, July 22, 1998, and August 2, 1999,
the parties agree that Perlmutter will vest on the vesting
date in those options that are first exercisable on or before
August 4, 2000, October 6, 2000, July 22, 2000, and August 2,
2000, respectively, and the remainder of such stock options
shall be forfeited and terminated as of the date of this
Agreement. 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 Perlmutter will not
be entitled to any stock options with vesting dates after
October 6, 2000, as this Agreement terminates those options as
of the date of this Agreement.
(g) As consideration for Perlmutter's release in paragraph 5, the
Company shall pay Perlmutter, on the eighth day after his
execution of this Agreement, the net sum of $94,470.00 (i.e.,
net of all withholdings, whether for federal, state or local
tax, Social Security, Medicare, unemployment or otherwise).
(h) Perlmutter agrees that he is still subject to and continues to
be governed by Section 13 of the Reorganization Agreement and
Plan of Merger dated August 4, 1997, entitled COMPETITION AND
CONFIDENTIALITY BY PERLMUTTER. Perlmutter further agrees he
will not
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solicit employees of the Company, with the exception of Seth
Perlmutter, 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 Perlmutter 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 Perlmutter could maintain a claim.
5. RELEASE. In consideration of and in exchange for the
promises of Company set forth above, Perlmutter 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
Perlmutter had, has, or may have had up to and including the effective date of
this Agreement, 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 and health plan, any right Perlmutter has to be indemnified by the Company
under Article VIII of the Company's Amended Bylaws, or disputes concerning the
terms of this Agreement, including Exhibits. Perlmutter'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
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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. Perlmutter 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, Perlmutter agrees to immediately 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. INVENTIONS, DESIGNS AND PRODUCT DEVELOPMENTS. All
inventions, innovations, designs, ideas and product developments (collectively,
the "Developments"), developed or conceived by Perlmutter, solely or jointly
with others, whether or not patentable or copyrightable, at any time that he
provided services to the Company as an employee, independent contractor or
otherwise, and that directly relate to the actual or planned business activities
of the Company and all of Perlmutter's right, title and interest therein, shall
be the exclusive property of the Company. Perlmutter hereby assigns, transfers
and conveys to the Company all of his right, title and interest in and to any
and all such Developments. Perlmutter shall disclose fully, as soon as
practicable and in writing, all developments to the Board. At any time and from
time to time, upon the request of the Company, Perlmutter shall execute and
deliver to the Company any and all instruments, documents and papers, give
evidence and do any and all other acts that, in the opinion of counsel for the
Company, are or may be necessary or desirable to document such transfer or to
enable the Company to file and prosecute applications for and to acquire,
maintain and enforce any and all patents, trademark registrations or copyrights
under United States or foreign law with respect to any such Developments or to
obtain any extension, validation, re-issuance, continuance or renewal of any
such
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patent, trademark or copyright. The Company will be responsible for the
preparation of any such instruments, documents and papers and for the
prosecution of any such proceedings and will reimburse Perlmutter for all
reasonable expenses incurred by him in compliance with the provisions of this
Section.
8. CONFIDENTIAL INFORMATION.
(a) Perlmutter has had and will have possession of or
access to confidential information relating to the business of the Company,
including writings, equipment, processes, drawings, reports, manuals, invention
records, financial information, business plans, customer lists, the identity of,
or other facts relating to, prospective customers, inventory lists, arrangements
with suppliers and customers, computer programs, or other material embodying
trade secrets, customer or product information or technical or business
information of the Company. All such information, other than any information
that is in the public domain through no act or omission of Perlmutter or which
he is authorized to disclose, is referred to collectively as the "Company
Information." During and after the time that he provided services to the Company
as an employee, independent contractor or otherwise, Perlmutter shall not (i)
use or exploit in any manner the Company Information for himself or any person,
partnership, association, corporation or other entity other than the Company,
(ii) remove any Company Information, or any reproduction thereof, from the
possession or control of the Company or (iii) treat Company Information
otherwise than in a confidential manner, without the consent of the Company.
(b) All Company Information developed, created or
maintained by Perlmutter, alone or with others while employed by the Company or
during any other period that he provided services to the Company as an employee,
independent contractor or otherwise, and all Company Information maintained by
Perlmutter thereafter, shall remain at all times the exclusive property of the
Company. Perlmutter shall return to the Company all Company Information, and
reproductions thereof, whether prepared by him
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or others, that are in his possession immediately upon the completion of his
employment by the Company, except to the extent such Information is required to
perform the duties outlined in Section 2.2 of this Agreement.
9. 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.
10. ACKNOWLEDGMENT OF SEPARATION. Perlmutter 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.
11. NON-ADMISSION. Perlmutter 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.
12. CERTIFICATION. Perlmutter 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. Perlmutter
further certifies that Company has not made any representations to Perlmutter
concerning this Separation of Employment Agreement and General Release and
Consulting Agreement other than those contained in this Agreement.
13. NON-DISPARAGEMENT. Perlmutter 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 Perlmutter is
compelled by subpoena process to testify, he will provide, to the extent
possible, written notice to the Company in
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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.
14. EXECUTION. Perlmutter 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.
15. 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.
16. 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, including but not limited to his Employment Agreement
dated August 4, 1997 and Kevin A. Barr's letter of understanding to Perlmutter
dated May 18, 1998, and all amendments thereto, unless they are expressly
incorporated herein. However, Sections 11, 12, and 13 of the Reorganization
Agreement and Plan of Merger dated August 4, 1997, remain in full force and
effect.
17. ARBITRATION. Perlmutter and the Company agree that all
disputes concerning the terms of this Agreement will be subject solely to
binding arbitration except as otherwise specifically provided. The arbitrator
selection and conduct of the
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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, parties
have executed the foregoing Separation of Employment Agreement and General
Release and Consulting Agreement this 7th day of January, 2000.
DBT ONLINE, INC.
/s/ Andrew J. Perlmutter By: /s/ Kevin Barr
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Andrew J. Perlmutter
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EXHIBIT 2
1. Laptop computer during the Consulting Term
2. Use of pager during the Consulting Term
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AMENDMENT
TO
SEPARATION OF EMPLOYMENT AGREEMENT AND
GENERAL RELEASE AND CONSULTING AGREEMENT
WHEREAS, Andrew J. Perlmutter (hereinafter "Perlmutter" 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 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, Perlmutter 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, and
an "indemnified representative" for purposes of Article VIII of the
Company's Amended Bylaws."
2. Subsection (f) of Section 3 of the Agreement is hereby amended, in
its entirety, to read as follows:
"With respect to stock options granted to Perlmutter on August
4, 1997, October 6, 1997, July 22, 1998, 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 13th day of February,
2000.
DBT ONLINE, INC.
/s/ Andrew J. Perlmutter
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Andrew J. Perlmutter
By:
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