Separation and Settlement Agreement
Exhibit
10.1
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0000 Xxxx Xxxxxx, Xxxxx 000
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Xxxxxxxx, XX 00000
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XXX
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(000) 000-0000 Main
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(803) 000- 0000 Fax
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xxx.xxxxxxxx.xxx
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This Separation and Settlement Agreement (the
“Agreement”) is effective as of June 30, 2008 (the “Separation Date”), by and
among:
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1.
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Collexis
Holdings, Inc.,
with its main office being 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
XX XXX,
hereby legally represented by its CEO Xxxxxxx X. Xxxxxxxx (“CHI”);
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2.
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Collexis
B.V.,
a
private company with limited liability under the laws of The Netherlands,
with its registered office in Woubrugge, The Netherlands, and principal
place of business in The Netherlands (4191 NW) Geldermalsen, at the
Oudenhof 2f (“Collexis BV)(CHI is the sole shareholder of Collexis
B.V.)(
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For
purposes of this agreement, CHI and Collexis BV, together, will be referred
to
as “Collexis”);
and
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3.
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Xxxxx
xxx Xxxxx,
a
citizen and resident of The Netherlands (hereafter referred to
as “Employee”),
residing at Waardenburg (the Netherlands), Heuvelstraat 1 (4181
PT);
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4.
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Van
Praag Informatisering B.V.,
residing in Xxxxxxxxxxxx 0, 0000 XX Xxxxxxxxxxx, Xxx Xxxxxxxxxxx
(“Praag’s
Company”); and
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5.
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Xxxx
Xxxxxxx Xxxxxxxxxx Xxxxxx,
a
citizen and resident of The Netherlands (hereafter referred to
as “Prinse”),
residing at Waardenburg (the Netherlands), Heuvelstraat 1 (4181 PT).
Each
of Employee, Prinse, Praag’s Company and Collexis may also be referred to
hereinafter in the singualar as the “Party” and together as the
“Parties.”
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WHEREAS:
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1.
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Employee
has been employed by Collexis B.V. since the year 2000. Collexis
B.V. and
Employee entered into that certain labor contract having an effective
date
of January 1, 2007 and continuing for a period of thirty-six months
from
that date (the “Employment Agreement”). Pursuant to the terms of the
Employment Agreement, as of the Separation Date, the current position
of
the Employee is CEO of Collexis B.V annex CEO Collexis Europe (“BV CEO”).
The monthly gross salary of Employee amounts to €15.000, 00 excl. holiday
pay, based on a 40-hour work week. As part of the overall compensation
package offered to Employee, certain rights were granted to Praag’s
Company pursuant to that certain agreement entitled “Collexis Option
Agreement Model,” dated as of the 4th
day of April 2007, which agreement has been assumed by CHI (the “Stock
Option Agreement”)
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2.
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As
of the Separation Date hereof, Employee serves as a member of the
Board of
Directors of CHI (the “CHI Board Member”). Finally, Praag’s Company serves
as managing director of Collexis B.V. (the “BV
Director”).
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3.
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During
the month of October 2007, a reorganization began during which time
Collexis B.V. informed the Employee that his position will change.
Both
Collexis and Employee have put in significant effort to find a suitable
solution within the organization for these changing responsibilities,
but
have been unable to locate an alternative suitable position within
Collexis B.V. or Collexis Holdings, Inc. The Parties would like to
stress
that according to their opinion, neither Party is guilty in this
situation, there is no urgent cause and the Separation (as defined
below)
is mutual, with no dispute.
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4.
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On
or about the 28th
day of June 2008, Prinse agreed to sell (the “Prinse Stock Sale”) to CHI
the entirety of her ownership interest in Collexis B.V. pursuant
to that
certain Share Purchase Agreement entered by among CHI, Collexis B.V.
and
Prinse (the “Prinse Stock Purchase Agreement”). However, while it resulted
in the full and complete termination of all of her ownership interest
in
Collexis B.V., the Prinse Stock Purchase Agreement did not result
in the
termination of any Claims (as defined below) Prinse has or may have
against all or any one of the Collexis Released Parties. Inasmuch
as the
Parties desire to have this Agreement result in a settlement of all
such
Claims, Prinse has agreed to join as a party as an inducement to
Collexis
to enter into this Agreement.
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HAVE
AGREED TO THE FOLLOWING:
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1.
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Separation.
The Employment Agreement, along with any and all agreements, policies
and
other terms and conditions relating to the employment of Employee
described thereunder and employment relationship created thereby
(other
than the Stock Option Agreement and Sections 15, 17 and 18 of that
certain
related agreement entitled “Employment Contract: General Provisions,”
which in each case shall survive) between Collexis B.V. and Employee
shall
terminate (the “Separation”) on the Separation Date, and be of no further
force and effect thereafter.
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2
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2.
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Resignations.
As of the Separation Date, Employee hereby tenders his resignation
as the
BV CEO, CHI Board Member and from any and all other positions and
in any
other capacity whatsoever for and on behalf of CHI, Collexis, B.V.
and
each affiliate thereof. Praag’s Company hereby tenders its resignation as
of the Separation Date, as the BV Director and from any and all other
positions and in any other capacity for and on behalf of CHI, Collexis,
B.V. and each affiliate thereof (Together, the resignation referenced
hereunder by Employee and Praag’s Company shall be referred to
collectively as the “Resignations.”). The Resignations are hereby accepted
by Collexis.
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3.
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Severance.
As consideration for Employee, Prinse and Praag’s Company entering into
and abiding by the terms of this Agreement, CHI is willing to pay
the
Employee a gross severance pay of € 7,500 per month for a period of 8
consecutive calendar months starting July 2008 in the context of
the
termination of the employment as a contribution to any loss of income
in
the future (the “Severance Pay”). It is the Employee’s obligation to pay
all appropriate taxes and other necessary amounts to the Dutch government
from such payments. The severance pay will be paid on the last day
of each
month by CHI, less any bank charges, to an account designated by
Employee.
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4.
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Amendment
to Stock Option Agreement.
Each of CHI and Praag’s Company hereby agrees that the Stock Option
Agreement is hereby amended as
follows:
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Sections
5 & 6 of the Stock Option Agreement, along with Schedule 1, entitled
“Vesting Schedule” is hereby deleted in its entirety, and in lieu thereof,
Section 6 shall read as follows: The Option to purchase the Option Shares is
fully vested and may be exercised over the next two years starting 1 August
2008; provided,
however,
that
Praag’s Company and Employee agree to sell no more than 75,000 purchased Option
Shares in any one calendar month; provided,
further,
that
any such sale is not in violation of any securities laws of the United States
of
America.
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CHI
will update the Employee’s account with E*Trade to reflect the 1 million
vested options and activate the account for trading as soon as possible
from the date of signing this agreement.
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5.
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Lock
Up Agreement.
Upon and coincident with the execution of this Agreement, Employee
and
Praag’s Company shall enter into CHI’s usual and customary lock up
agreement, pursuant to which its shares of CHI common stock is restricted
from transfer for a period of twelve months from the Separation Date.
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6.
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Accrued
Holiday Balance.
Employee is expected to have taken all outstanding holidays. Employee’s
accrued holiday balance will be zero per Separation Date and he will
not
be paid for any outstanding or remaining holidays.
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3
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7.
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Return
of Collexis’ Property.
Each of the Employee Released Parties (as defined below) is expected
to
return to CHI all of the property owned by or in or to which rights
are
held by Collexis or any affiliate thereof, including, without limitation,
credit cards, software and any books or records of the CHI or Collexis
B.V. The Employee may retain his Collexis B.V.-provided computer
and cell
phone, but may not retain computer software, whether on such devices
or
otherwise, that is licensed to or owned by Collexis or any affiliate
thereof.
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8.
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Consultation.
Information to the UWV
(Employee
Insurance Administration Agency) and/or the CWI
(Organization
for Work and Income) in connection with an application for unemployment
benefits will only be given after consultation between the
Parties.
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9.
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Confidentiality
and Disclosure.
The Parties will observe confidentiality in respect of the content
of this
settlement and will not submit it to any third parties, unless it
must be
submitted to the UWV
(Employee
Insurance Administration Agency) and/or the CWI
(Organisation
for Work and Income) in connection with an application for unemployment
benefits. In particular, the Parties will not make any statements
regarding the content of this settlement agreement concluded between
the
Parties to other employees or former employees of Collexis B.V.
Notwithstanding any provision to the contrary in this Agreement or
any
other agreement entered into of even date herewith, Collexis shall
have
the sole and exclusive right to make such disclosures of this Agreement,
the Lock Up Agreement and the Stock Option Agreement as it may determine
in its sole and absolute discretion to comply with any and all applicable
United States federal and state securities laws and other disclosure,
contractual or regulatory
requirements.
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10.
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Collexis’
Confidential Information.
Each of the Employee Released Parties, directly and indirectly, shall
maintain the confidentiality and make no disclosure or use whatsoever
of
the trade secrets, operations, technology, financial condition, etc.
of
Collexis and any affiliate thereof.
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11.
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Non-Competition.
Each of the Employee Released Parties agrees not to compete, directly
or
indirectly, with Collexis or any affiliate thereof in the knowledge
discovery and search industry for a period of one (1) year from the
Separation Date.
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12.
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Assignment
of Rights
to Collexis of Intellectual Property.
Each of the Employee Released Parties gives up and assigns to CHI
any and
all rights and claims to any and all intellectual property of or
otherwise
used by Collexis or any affiliate thereof.
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13.
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Permitted
Separation.
The termination of the labor contract does not relate to the existence
of
any termination restriction as mentioned in Article 7:647,648,670
and 670a
BW or any other ban on the termination of the labor
agreement.
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14.
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Termination
of Collexis’ Legal Proceedings.
Collexis agrees and agrees to cause its controlled affiliates to
terminate
any current legal proceedings it may have brought against any Employee
Released Party (as defined below) with prejudice.
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15.
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Termination
of Employee’s Legal Proceedings.
Each of the Employee Released Parties agrees to terminate any current
legal proceedings it may have brought against the Collexis or any
Collexis
Released Party with prejudice.
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4
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16.
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Website.
Included on the Company’s website (xxx.xxxxxxxx.xxx)
will be the following for a period of two (2) years or longer at
the
Company’s sole discretion: “After many consecutive information-sharing
achievements, the company was established in Europe in 1999, among
the
founders were Xxxxx xxx Xxxxx, Xxxx Xxxxxxx and Xxxxx
Nijbroek.”
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17.
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Mutual
Releases.
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| (a) |
Definition.
For purposes of this Agreement, the term “Claim” shall mean any and all
causes of action, actions, affirmative defenses, defenses, counterclaims,
judgments, liens, indebtedness, damages, losses, claims, liabilities
and
demands of every kind and character, whether known or unknown, liquidated
or unliquidated, suspected or unsuspected, existing or prospective,
from
the beginning of time through and including the Separation
Date.
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| (b) |
Employee
Release. Except for the Stock Option Agreement or as otherwise provided
in
this Agreement, as of the Separation Date, Employee, Prinse and Praag’s
Company hereby and forever release and discharge Collexis and each
director, officer, employee, consultant, shareholder, parent, subsidiary,
successor, assign and other affiliate thereof (collectively, the
“Collexis
Released Parties”) from any and all Claims, including, without limitation,
any and all such Claims arising out of or related to, Employee’s
Employment Agreement and any and all rights thereunder or termination
thereof; any rights or promises made or believed to have been made
with
respect to any shares, options or other securities in or issued by
the
Collexis Released Parties; and any and all rights, claims or interests
in,
or in any way related to, any of the assets or properties of or used
by
all or any one of the Collexis Released Parties (the “Employee Release”).
The foregoing Employee Release shall constitute a complete and general
release of all such Claims and a covenant not to xxx all or any one
of the
Collexis Released Parties relating to such Claims. Notwithstanding
any
provision of this Agreement to the contrary, but subject to any other
agreement that may exist between any one of the Employee Released
Parties
and any Collexis Released Party with respect to the Van Praag Stock
Sale
(as defined below), in no event shall this Employee Release constitute
a
release by either Employee or Praag’s Company of Claims for monies (the
“Purchase Price”) due from the private sale (the “Van Praag Stock Sale”)
by either of Collexis B.V.’s shares (the “Van Praag Stock”)(which shares
have since been exchanged for CHI’s common shares via a corporate
reorganization (the “Exchange”)) to any Collexis Released Party (other
than Collexis) who is obligated to pay the Purchase Price or such
person’s
obligation to pay the Purchase Price in connection with the Van Praag
Stock Sale.
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| (c) |
Employer
Release. Except as otherwise provided in this Agreement, the Stock
Option
Agreement or Lock Up Agreement, as of the Separation Date, Collexis
hereby
and forever releases and discharges Employee, Prinse and Praag’s Company
(together, the “Employee Released Parties”) from any and all Claims (the
“Employer Release”). The foregoing Employer Release shall constitute a
complete and general release of such Claims and a covenant not to
xxx the
Employee Released Parties relating to such Claims.
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5
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Informed
Release. Each Party hereto acknowledges that he or it understands
the
significance and potential consequences of the release of unknown
claims
and of the specific waiver of his rights
thereto.
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| (e) |
Covenant
Not to Xxx. Each of Collexis and the Employee Released Parties agree
that
it, he or she will never institute any action for suit-at-law nor
institute, prosecute, or in any way aid in the institution or prosecution
of any Claim for damages, costs, loss of services, expenses, or
compensation for or on account of any damage, loss or injury, either
to
person or property or both, whether developed or undeveloped, resulting
to
or to result, known or unknown, past, present, or future, arising
out of
any Claim that has been released under this Release through, but
not
succeeding the Separation Date.
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18.
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Non-Disparagement.
Each of Collexis and Employee Released Parties hereby covenants and
agrees
to refrain from making any disparaging or derogatory remarks about
the
other Party or Parties to this Agreement or any of the persons released
under Section 17 of this Agreement. Notwithstanding the generality
of the
preceding sentence, it is agreed that Collexis will inform its other
officers and employees of the terms of this nondisparagement provision
and
will urge them to abide by it, but that Collexis cannot and does
not
undertake responsibility for controlling the speech of other
persons.
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19.
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Employer’s
Response to Questions.
Nothing contained herein will be deemed in any way to limit or restrict
Employer from factually responding, without disparaging or derogatory
remarks, to questions from third parties regarding the terms of Employee’s
employment or the Separation or the
Resignations.
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20.
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Employee’s
Response to Questions.
If, but only if, any inquiry is made regarding the financial condition
or
business practices of Collexis or any affiliate thereof, each of
the
Employee Released Parties, as the case may be, will respond to the
effect
that the financial condition and business practices thereof are not
related to the Separation, and any inquiry regarding such financial
condition or business practice should be addressed to CHI, and neither
of
the Employee Released Parties will not comment
further.
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[Agreement
continued on next page]
6
This
agreement will be governed by the laws of the State of South Carolina, USA.
Each
Party hereto agrees that it will not bring any suit, action, or other proceeding
to enforce the provisions of this Agreement in any court other than the state
court situated in Richland County, South Carolina, USA, or if such court does
not have jurisdiction with respect to such proceeding, the federal court sitting
in or nearest to Columbia, South Carolina, USA. Each Party hereto irrevocably
and unconditionally submits to the exclusive jurisdiction of any such state
or
federal court over any such proceeding and agrees that it will not attempt
to
deny or defeat personal jurisdiction by motion or other request for leave from
any such court. Each Party irrevocably and unconditionally waives any objection
to the laying of venue of any such suit, action or proceeding brought in any
such court and any claim that any such suit, action, proceeding has been brought
in an inconvenient forum.
This
Agreement may be duly executed by facsimile and in any number of counterparts,
each of which shall be deemed an original, and all of which together shall
be
deemed to constitute one and the same instrument. Signature pages from separate
identical counterparts may be combined with the same effect as if the parties
signing such signature page had signed the same counterpart. This Agreement
may
be modified or waived only by a separate writing signed by each of the parties
hereto expressly so modifying or waiving such agreement.
Agreed
on
July 31, 2008
7
