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EXHIBIT 10.1
TEMPORARY EMPLOYMENT & SEVERANCE AGREEMENT
This Agreement is made and entered into as of May__, 2000 by and among
LendingTree, Inc. ("the Company") and James F. Bennett, Jr. ("Employee").
RECITALS
WHEREAS, Employee is employed with the Company as Senior Vice President
of Strategy and Corporate Development;
WHEREAS, Employee is resigning from employment with the Company as of
December 31, 2000; and
WHEREAS, the Company has accepted Employee's resignation;
THEREFORE, in consideration of the promises and representations
contained in this Agreement, the parties agree as follows:
AGREEMENTS
1. Basic Employment Provisions.
(a) Employment and Term. The Company hereby agrees to employ
Employee and Employee agrees to remain employed by the Company for a
period beginning on the date of this Agreement and ending on December
31, 2000 (the "Employment Period"), unless terminated by the Company
earlier as provided in Section 3 below.
(b) Duties. Employee will serve as a Senior Vice President of
the Company and will report directly to the Chief Executive Officer of
the Company. Employee will devote at least 75% of his time to
performing his duties and obligations to the Company (or such lesser
percentage as the Company may specifiy), and will comply with the
directions and orders of the Board of Directors and Chief Executive
Officer of the Company with respect to the performance of his duties.
During the Employment Period, the Employee shall continue to be subject
to the Company's policies and restrictions regarding the purchase and
sale of Company stock by executives of the Company.
2. Compensation and Benefits.
(a) Salary. The Company shall continue to pay to the Employee
a salary of $12,500 per month for the services to be rendered by
Employee hereunder. Such salary shall accrue and be payable in
accordance with the payroll practices of the Company. All such payments
shall be subject to deduction and withholding authorized or required by
applicable law.
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(b) Bonus. Employee shall be eligible to receive a bonus of
$25,000 if the Employee remains employed through the end of the
Employment Period and the Chief Executive Officer determines in his
discretion that the Employee's job performance during the Employment
Period was satisfactory. If the Employee becomes entitled to receive
the bonus described above, such bonus shall be paid to the Employee in
a single lump sum within fifteen days of the last day of the Employment
Period. The Employee shall not be entitled to participate in any other
Company bonus plan or program during the Employment Period.
(c) Stock Options. Each of the Employee's outstanding stock
option awards (the "Stock Options") shall remain in effect during the
Employment Period, and the Employee's rights with respect to such Stock
Options shall be determined in accordance with the terms of the Stock
Option agreements, including the Employee's rights to exercise any
portion of the Stock Options which have not yet become exercisable. The
number of shares which may become exercisable under the Stock Options
during the Employment Period, and the dates on which those shares may
become exercisable, are set forth on the attached Exhibit A.
(d) Employee Benefit Plans. During the Employment Period,
Employee (and his family, to the extent applicable) shall be entitled
to participate in the Company's medical, dental and vision plans, life
insurance program, short-term and long-term disability plans,
tax-qualified Section 401(k) retirement plan and employee stock
purchase plan, in accordance with the terms of such plans.
(e) Outplacement Services. The Employee shall be entitled to
receive up to $20,000 of outplacement services, at the Company's
expense, during the Employment Period. Such outplacement services shall
be provided by the Miles-Lehane Group of Leesburg, Virginia, or such
other outplacement organization as the Company may designate.
3. Termination. During the Employment Period, the Company may terminate
the employment of Employee under this Agreement for Cause or on account of his
Disability (as defined below) upon written notice to Employee. Such a
termination shall be subject to the continuing rights of Employee pursuant to
Section 4 below.
4. Termination Benefits.
(a) Upon the Employee's voluntary termination of employment
prior to the last day of the Employment Period, or the Company's
termination of the Employee for Cause (as defined below), the Company
shall, not later than the next regularly scheduled payroll date, pay to
the Employee all salary and accrued vacation earned by the Employee
through the date of such termination. The Employee shall be entitled to
retain his Company-provided laptop computer if his employment
terminates after June 30, 2000 for any reason other than for Cause. For
purposes of this Agreement, "Cause" shall mean the Employee's (i)
commission of an act of fraud, theft or embezzlement or other similar
willful misconduct; (ii) conviction of (or pleas of nolo contendere
with respect to) a felony or other crime involving moral turpitude;
(iii) a serious neglect of his material duties or failure to perform
his material obligations under this Agreement, or (iv) refusal to
follow lawful directives of the Chief Executive Officer or the Board of
Directors.
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(b) Upon termination of the Employee's employment on account
of his death or Disability, the Employee (or his survivors in the event
of his death), shall (i) receive payment of the amounts described in
subsection (a) above, and (ii) be permitted to retain the Employee's
Company-provided laptop computer. For purposes of this Agreement,
"Disability" shall mean the Employee's inability to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period
of not less than twelve months. The Company may require such proof of
disability as the Company in its sole discretion deems appropriate and
the Company's good faith determination as to whether the Employee is
disabled shall be final and binding on all parties concerned.
5. Release of All Claims.
(a) For good and valuable consideration, the receipt of which
is hereby acknowledged, Employee, for himself and his successors in
interest, hereby releases the Company from all claims of every kind
(including without limitation attorneys' fees and costs) which Employee
has ever had or now may have against the Company. These claims include,
but are not limited to, all claims arising out of Employee's employment
with the Company or the termination of his employment, all claims for
breach of express or implied contract or agreement or covenant of good
faith and fair dealing, all claims for retaliation or violation of
public policy, all claims arising under Title VII of the Civil Rights
Act of 1964, as amended, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, the Family and Medical Leave
Act, the Americans with Disabilities Act, or other federal, state or
local laws relating to employment or benefits associated with
employment, claims for emotional distress, mental anguish, personal
injury, and any and all claims that may be asserted on Employee's
behalf by others.
(b) Employee further agrees that if he attempts to avoid or
set aside the terms of this release, or if the Company successfully
asserts this release as a defense or bar to any claim asserted by
Employee, he shall be liable for the costs and attorneys fees of the
Company in defending such claims or asserting such defense based on
this release.
(c) Employee represents and warrants that he will not file any
complaints, charges or lawsuits with any governmental agency or any
court, against the Company arising out of facts, claims or issues
encompassed in this Agreement, or arising from his employment or the
termination thereof. Employee further represents, warrants, and agrees
to refrain from instituting, prosecuting, filing or processing, or
assisting or cooperating with the instituting, prosecuting, filing or
processing of any complaint, charge, or any litigation against the
Company in any way related to or arising out of the facts, claims or
issues encompassed in this Agreement, or any other claims, charges, or
causes of action against the Company.
6. Proprietary Information and Developments.
(a) The Employee will not at any time, whether during or for a
period of one (1) year after the termination of his employment for any
reason, reveal to any person or entity any of the trade secrets or
confidential information concerning the organization, business or
finances of the Company or of any third party which the Company is
under an obligation to keep
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confidential, except as may be required in the ordinary course of
performing his duties as an employee of the Company, and the Employee
shall keep secret such trade secrets and confidential information and
shall not use or attempt to use any such secrets or information in any
manner which is designed to injure or cause loss to the Company. Trade
secrets or confidential information shall include, but not be limited
to, the Company's financial statements and projections, expansion
proposals, customer lists and details of its Internet web site or
business relationships with banks, lenders and other parties not
otherwise publicly available. Further, the Employee agrees that during
the Employment Period he shall not make, use or permit to be used any
notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or other
materials of any nature relating to any matter within the scope of the
business of the Company or concerning any of its dealings or affairs
otherwise than for the benefit of the Company. The Employee further
agrees that be shall not, after the termination of his employment for a
period of one (1) year, use or permit to be used any such notes,
memoranda, reports, lists, records, drawings, sketches, specifications,
software programs, data, documentation or other materials, it being
agreed that all of the foregoing shall be and remain the sole and
exclusive property of the Company and that immediately upon the
termination of his employment, the Employee shall deliver all of the
foregoing, and all copies thereof, to the Company, at its main office,
at the Company's expense.
(b) If at any time or times during the Employee's employment,
he shall (either alone or with others) make, conceive, create,
discover, invent or reduce to practice any invention, modification,
discovery, design, development, improvement, process, software program,
work of authorship, documentation, formula, data technique, know-how,
trade secret or intellectual property right whatsoever or any interest
therein (whether or not patentable or registrable under copyright,
trademark or similar statutes or subject to analogous protection)
(herein called "Developments") that (i) relates to the business of the
Company or any of the products or services being developed,
manufactured or sold by the Company or which may be used in relation
therewith, (ii) results from tasks assigned the Employee by the Company
or (iii) results from the use of premises or personal property (whether
tangible or intangible) owned, leased or contracted for by the Company,
such Developments and the benefits thereof are and shall immediately
become the sole and absolute property of the Company and its assigns,
as works made for hire or otherwise, and the Employee shall promptly
disclose to the Company (or any persons designated by it) each such
Development and, as may be necessary to ensure the Company's ownership
of such Developments. The Employee hereby assigns any rights
(including, but not limited to, any copyrights and trademarks) the
Employee may have or acquire in the Developments and benefits or rights
resulting therefrom to the Company and its assigns without further
compensation and shall communicate, without cost or delay, and without
disclosing to others the same, all available information relating
thereto (with all necessary plans and models) to the Company.
(c) The Employee will, during his employment and at any time
thereafter, at the request and cost (including the Employee's
reasonable attorney's fees) of the Company, promptly sign, execute,
make and do all such deeds, documents, acts and things as the Company
and, its duly authorized agents may reasonably require:
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(i) to apply for, obtain, register and vest in the
name of the Company alone (unless the Company otherwise
directs) letters patent, copyrights, trademarks or other
analogous protection for any Developments in any country
throughout the world and when so obtained or vested to renew
and restore the same; and
(ii) to defend any judicial, opposition or other
proceedings in respect of such applications and any judicial,
opposition or other proceedings or petitions or applications
for revocation of such letters patent, copyright, trademark or
other analogous propose.
(d) In the event the Company is unable, after reasonable
effort, to secure the Employee's signature on any application for
letters patent, copyright or trademark registration or other documents
regarding any legal protection relating to a Development, whether
because of the Employee's physical or mental incapacity or for any
other reason whatsoever, the Employee hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as his
agent and attorney-in-fact, to act for and in his behalf and stead to
execute and file any such application or applications or other
documents and to do all other lawfully permitted acts to further the
prosecution, and issuance of letters patent, copyright or trademark
registrations or any other legal protection thereon with the same legal
force and effect as if executed by the Employee.
7. Non-Compete; Non-Hire.
(a) The Employee agrees that, for a period of one (1) year
following his termination of employment, the Employee will not, without
the Company's consent, directly or alone or as a partner, joint
venturer, officer, director employee, consultant, agent, independent
contractor or stockholder or other owner of any entity or business,
engage in (i) any business involving Internet-based loan origination or
loan brokerage services or (ii) any other line of business that is
engaged in by the Company (or with respect to which the Company has
made preparations to engage) as of June 30, 2000. Notwithstanding the
foregoing; the ownership by the Employee of not more than five percent
(5%) of the shares of any publicly traded class of stock of any
corporation or the Employee's membership on the board of directors of
eMarket Capital LLC ( or any successor thereto) as a non-employee
director shall not be deemed, in and of itself, to violate the
prohibitions of this Section 7(a).
(b) The Employee agrees that, for a period of one (1) year
following his termination of employment, the Employee will not hire or
otherwise employ or retain, or knowingly permit (to the extent
reasonably within his control) any other entity or business which
employs the Employee or in which the Employee has any ownership
interest or is otherwise involved to hire or otherwise employ or
retain, any person who was employed by the Company as of the date of
such termination of employment.
(c) The restrictions in this Section 7, to the extent
applicable, shall be in addition to any restrictions imposed upon the
Employee by statute or at common law.
(d) The parties hereby acknowledge that the restrictions in
this Section 7 have
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been specifically negotiated and agreed to by the parties hereto and
are limited only to those restrictions reasonably necessary to protect
the Company from unfair competition. The parties hereby agree that if
the scope or enforceability of any provision, paragraph or subparagraph
of this Section 7 is in any way disputed at any time, and should a
court find that such restrictions are overly broad, the court may
modify and enforce the covenant to the extent that it believes to be
reasonable under the circumstances. Each provision, paragraph and
subparagraph of this Section 7 is separable from every other provision,
paragraph and subparagraph and constitutes a separate and distinct
covenant.
8. Other Obligations of Employee. The Employee agrees not to discuss or
disclose to any person (other than the Employee's immediate family, legal
counsel or tax advisor) his resignation from employment with the Company, unless
authorized by the Company in writing. The Employee shall cooperate with the
Company in developing a statement for public disclosure announcing the
Employee's resignation. The Employee shall at all times refrain from taking any
action or making any statements, written or oral, which are intended to
disparage the goodwill or reputation of the Company or any of its directors,
officers or employees.
9. Assignment. The rights and obligations of the Company under this
Agreement will inure to the benefit of and will be binding upon the successors
and assigns of the Company. If the Company is consolidated or merged with or
into another corporation, or if another entity purchases all or substantially
all of the Company's assets, the surviving or acquiring corporation will succeed
to the Company's rights and obligations under this Agreement. Employee's rights
under this Agreement may not be assigned or transferred in whole or in part,
except that Employee's personal representative of his estate will receive any
amounts payable under this Agreement after the death of Employee.
10. Notice. For purposes of this Agreement, notices and all other
communications must be in writing and are effective when delivered or mailed by
United States registered mail, return receipt requested, postage prepaid,
addressed to Employee or his personal representative at his last known address.
All notices to the Company must be directed to the attention of the [Chief
Executive Officer]. Such other addresses may be used as either party may have
furnished to the other in writing. Notices of change of address are effective
only upon receipt.
11. Entire Agreement; Amendments. This Agreement contains the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes and replaces all prior employment agreements and understandings with
respect to the employment of the Employee with the Company. This Agreement may
be amended in whole or in part only by an instrument in writing setting forth
the particulars of such amendment and duly executed by all parties.
12. Governing Law. This Agreement shall be construed and enforced
according to the laws of the State of North Carolina, without reference to its
conflict of laws rules.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
LENDINGTREE, INC.
By: _________________________________________________
Douglas R. Lebda,
Chief Executive Officer
By: _________________________________________________
James F. Bennett, Jr.
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