SEPARATION AGREEMENT
Exhibit 10.1
This Separation Agreement (this “Agreement”), dated as of , 2008 (the “Effective Date”), is entered into by and between Xxxxxxx.xxx B.V., a private limited liability company (‘besloten vennootschap met beperkte aansprakelyheid’), having its registered office at Xxxxxxxxxxxxxx 00, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx (the “Company”), and Xxxxxxx Anko Xxxxxx, residing at Broekmaatweg 110, 7548 RV Enschede (“Executive”).
RECITALS
WHEREAS, Executive is currently the Managing Director of the Company;
WHEREAS, the Company and Executive are parties to an Employment Contract, dated as of July 14, 2005 (the “Employment Contract”), attached hereto as Exhibit A;
WHEREAS, Executive has voluntarily resigned from his position as the Managing Director of the Company, effective as of the Effective Date; and
WHEREAS, in conjunction with Executive’s termination of his employment, the Company and Executive desire to enter into an agreement setting forth the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the parties agree as follows:
1. Termination of Employment. The effective date of Executive’s voluntary termination of employment is September 1, 2008. Executive recognizes that he will be removed from the Company’s payroll and that his employment relationship with the Company will be terminated for all purposes on the Effective Date. Further, Executive hereby resigns all other positions and offices, if any, that he holds with the Company or any entity that is a subsidiary of, or is otherwise related to or affiliated with, the Company and ceases to serve as a director of the Company and any of its affiliates, excluding xxxxxxxxx.xxx International Limited, as of the same date.
2. Effect of Termination. As of the Effective Date, Executive shall cease to have any rights to salary, expense reimbursements or other benefits to which Executive was entitled under the Employment Contract, except that Executive shall be entitled to (a) any base salary which has accrued but is unpaid as of the Effective Date, (b) any reimbursable expenses which have been incurred but are unpaid as of the Effective Date, (c) subject to the sole discretion of the Compensation Committee of xxxxxxxxx.xxx’s Board of Directors, a pro-rata bonus for the 2008 fiscal year, payable in accordance with the terms of the Company’s 2008 bonus plan, and (d) any unexpired vacation days which have accrued under the Company’s vacation policy but are unused, as of the Effective Date. In addition, Executive acknowledges and agrees that the unvested portions of all equity awards granted to him pursuant to the award agreements listed on Exhibit B and as summarized on Exhibit B shall be forfeited as of the Effective Date. Notwithstanding the foregoing, any nonqualified stock options that have vested,
but have not been exercised as of the Effective Date, will continue to be exercisable for ninety (90) days following the Effective Date pursuant to the terms of the applicable stock option agreement.
3. Affirmation of Non-Competition, Confidentiality and Non-Solicitation Obligations. In executing this Agreement, Executive hereby reaffirms his non-competition, confidentiality, non-solicitation and other obligations set forth in Sections 12 and 13 of the Employment Contract, which shall continue in full force and effect (including any definitions applicable thereto defined elsewhere in the Employment Contract); provided however that Executive and the Company hereby agree that Section 13.1 of the Employment Contract is hereby amended by deleting the phrase “For a period of 12 months after termination,” where it appears therein and replacing it with the phrase “For a period of 12 months after the date on which Employee ceases to be a member of the Board of Directors of xxxxxxxxx.xxx International Limited,”.
4. Assignment. This Agreement shall inure to the benefit of, and shall be binding upon, the Company and its successors and assigns.
5. Modifications. No change or modification of this Agreement shall be valid unless it is in writing specifically referencing this Agreement and signed by all the parties hereto. No waiver of any provision of this Agreement shall be valid unless it is in writing and signed by the party against whom it is sought to be enforced.
6. Entire Agreement. Except as set forth herein, this Agreement embodies the complete agreement and understanding between the parties with respect to the subject matter hereof and effective as of this date supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral (including, without limitation, the Employment Contract), which may have related to the subject matter hereof in any way.
7. Survival. Subject to any limits on applicability contained therein, Paragraph 5 hereof shall survive and continue in full force in accordance with its terms.
8. Severability. If any provision of this Agreement or the application thereof to any party hereto or circumstance is adjudged or ruled to be invalid or unenforceable, the remaining provisions of this Agreement and the application thereof will be unaffected.
9. Governing Law. This Agreement shall in all respects be interpreted, construed and governed by and in accordance with the internal substantive laws of The Netherlands.
10. Headings. The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement.
11. Counterparts. This Agreement may be executed in two or more counterparts, including via facsimile transmission, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.
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XXXXXXX.XXX B.V. |
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By: |
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Name: |
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Title: |
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XXXXXXX ANKO NORDEN, |
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in his individual capacity |
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Exhibit A
Employment Contract
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Exhibit A
EMPLOYMENT CONTRACT
The undersigned:
BOOKINGS EUROPE B.V., a private limited liability company (‘besloten vennootschap met beperkte aansprakelyheid’), having its registered office at Weteringschans 28,1017 SG Amsterdam, the Netherlands (‘Bookings’), duly represented by C.P.H.M. Koolen;
and
Xxxxxxx Anko Xxxxxx, residing at Broekmaatweg 110, 7548 RV Enschede, (‘Employee’);
Whereas:
· Employee has been employed by Bookings as of August 1st 2003.
· Bookings has recently been acquired by a subsidiary of US based Xxxxxxxxx.xxx Incorporated.
· Employee agrees to continue employment with Bookings, subject to the terms and conditions set forth herein.
Hereby agrees as follows:
1. Commencement, Term and Notice
1.1. This employment contract is a continuation of the employment contract referred to in the first recital and is entered into for an indefinite period of time.
1.2. The employment contract may be terminated by either party with due observance of the statutory notice period. Notice may be given in writing only.
1.3. The employment contract will end in any event without notice being required at the end of the month in which Employee reaches the age of 65.
2. Change of Employment Terms
2.1. Bookings may unilaterally amend the employment terms in this contract if it has a weighty reason to do so and provided Employee’s interests, insofar as they are harmed by such change, must yield thereto in accordance with the principle of reasonableness and fairness.
3. Employee Manual
3.1. Employee acknowledges receipt of Bookings’ Employee Manual, the provisions of which form an integral part of this employment contract.
4. Position
4.1. Employee will hold the position of Managing Director and reports to Xxxx Xxxxxxxxx.
4.2. Employee may be assigned to work for a Bookings affiliate and covenants that Employee, to the extent reasonable, will also perform duties other than those considered Employee’s usual duties.
5. Working Hours and Work Place
5.1. The usual workweek is a 5 days, 40 hours week.
5.2. Employee covenants that, at Bookings’ request, Employee will work overtime whenever a proper performance of Employee’s so requires. Overtime is not paid or otherwise compensated for.
6. Salary
6.1. Employee will receive a gross monthly base salary of EUR 14.818,67 on the basis of a 40 hours workweek.
6.2. Employee will be entitled to an annual holiday allowance of 8% of the gross annual base salary, payable in May each year. If Employee was employed during only a part of the calendar year, the holiday allowance will be reduced pro rata.
6.3. Employee’s participation in Bookings’ bonus plans, as applicable from time to time, and any grant of bonuses thereunder is entirely at Bookings’ discretion. The grant of a bonus in any given year or during several years shall not create a precedent for any subsequent years.
7. Expenses
7.1. Bookings will reimburse Employee’s reasonable expenses directly related to the performance of Employee’s work, provided such reimbursement may be made tax and social security premium free and provided itemised expense statements and original receipts are submitted in accordance with company policy.
8. Travel Expenses
8.1. Travel expenses for commuting will be reimbursed in accordance with applicable tax rules up to an amount of EUR 0.18 per kilometre along the most customary route, subject to a maximum of EUR 135 per month (applicable rates in 2005).
8.2. Bookings is entitled to unilaterally change the allowance under Article 8.1 in the event of an adjustment thereof under tax law.
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9. Pension
9.1. For the duration of the employment contract, Employee will be entitled to participate in Bookings’ pension plan, if and as soon as Employee meets the relevant requirements. If and insofar as tax law and/or pension law are amended, Bookings will be entitled to unilaterally adapt the pension plan to bring it into compliance with such amendments.
10. Holidays
10.1. Employee will be entitled to 26 days’ holiday each calendar year. If Employee performed work during only a part of the year, the number of days’ holiday will be reduced pro rata.
10.2. Days’ holidays are set by Bookings after consultation with Employee.
10.3. Days’ holiday must be taken as much as possible in the year in which they are accrued. A maximum of five days may be carried forward to the next year.
11. Illness or Other Incapacity to Work
11.1. If Employee is unable to perform work due to illness or any other medical incapacity, Employee is obliged to inform Bookings thereof before 9arn on the first day of illness or incapacity, stating the reasons, the expected period of such illness or incapacity and the address at which Employee may be reached during that period. As soon as work can be resumed, Employee will inform Bookings thereof immediately.
11.2. If Employee is unable to perform work due to illness or other medical incapacity, Employee will remain entitled to continued payment of 70% of Employee’s most recent gross base salary, but in no case less than the statutory minimum wage, for a maximum period of 104 weeks commencing on the first day of illness or incapacity.
11.3. Periods in which Employee is unable to perform work due to illness or other medical incapacity will be aggregated if they follow one another at intervals of less than four weeks.
11.4. Employee is not entitled to continued payment under the circumstances set out in article 7:629 Dutch Civil Code.
11.5. Employee’s salary during illness or other medical capacity will be reduced by financial benefits that Employee receives under any contractual or statutory insurance and any other income earned by Employee.
11.6. If Employee’s illness or other incapacity to work ensues from an event for which a third party is liable, Employee shall provide Bookings with all relevant information and do everything in Employee’s power to enable Bookings to exercise its right of recourse pursuant to Article 6:107a Dutch Civil Code.
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12. Confidentiality
12.1. Neither during the term of the employment contract nor upon termination thereof, may Employee inform any third party in any form, directly or indirectly, of any particulars concerning or related to the business conducted by Bookings or its affiliated companies, regardless of whether such information includes any reference to its confidential nature or ownership and regardless of how Employee learned of the particulars.
12.2. Notwithstanding the provisions of Article 7:650(3), (4) and (5) Dutch Civil Code, if Employee violates Article 12.1, Employee will forfeit to Bookings an immediately due and payable penalty of EUR 2,500 for each violation, as well as a penalty of EUR 500 for each day the violation continues, without prejudice to Bookings’ right to claim full compensation instead of such penalties.
13. Non Competition
13.1. For a period of 12 months after termination, Employee may not, without Bookings’ prior written consent
(i) engage in any activities that in any way, directly or indirectly, compete with Bookings or its affiliates, including, without limitation, the research into, development or provision of any online or call centre accommodation booking or reservation services, nor establish, conduct (alone or with others) or cause the conduct of any competing business, nor take any interest in or be employed in any way whatsoever by such business, whether or not for consideration;
(ii) directly or indirectly induce employees of Bookings or its affiliates to terminate their employment contracts with Bookings or its affiliates;
(iii) directly or indirectly, solicit, assist in soliciting, accept or facilitate the acceptance of the custom or business of firms that or individuals who were clients, customers or other business relations of Bookings or its affiliates at the time of termination, or at any time during the 2 year period preceding termination;
(iv) in relation to any contract or arrangement which Bookings or it affiliates have with any supplier for the supply of goods and services, for the duration of such contract or arrangement, directly or indirectly, interfere with the supply of such goods or services from any supplier, nor, directly or indirectly, induce any supplier to cease or decline to supply such goods or services to Bookings.
13.2. Notwithstanding the provisions of Article 7:650(3), (4) and (5) Dutch Civil Code, if Employee violates Article 13.1, Employee will forfeit to Bookings an immediately due and payable penalty of EUR 2,500 for each violation, as well as a penalty of EUR 500 for each day the violation continues, without prejudice to Bookings’ right to claim full compensation instead of such penalties.
13.3. Upon each breach of Article 13.1, the period referred to therein will be extended by the duration of such breach.
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14. Sidelines
14.1. Without Bookings’ prior written consent, Employee will not perform any other work for pay during Employee’s employment term, nor will Employee, alone or with others, directly or indirectly, establish or conduct a business that is competitive with Bookings’ business, whatever its form, or take any financial interest in or perform work for such business, whether or not for consideration.
14.2. During the term of the employment contract, Employee must refrain from undertaking or holding any sidelines or additional posts, such as committee work, managerial or other activities for organisations of an idealistic, cultural, sporting, political or other nature, whether or not for consideration, without Bookings’ prior written consent.
15. Return of Property
15.1. Upon termination of the employment contract, Employee shall immediately return to Bookings all property belonging to Bookings, including materials, documents and information copied in any form whatsoever.
16. Intellectual and Industrial Property Rights
16.1. All intellectual property rights, including but not limited to patent rights, design rights, copyrights and neighbouring rights, database rights, trademark rights, chip rights, trade name rights and know how, ensuing, during or after this employment contract, in the Netherlands or abroad, from the work performed by Employee under this employment contract (collectively: ‘Intellectual Property Rights’) will exclusively vest in Bookings.
16.2. Insofar as any Intellectual Property Rights are not vested in Bookings by operation of law, Employee covenants that Employee, at first request of Bookings, will transfer to Bookings and, insofar as possible, hereby transfers those rights to Bookings, which transfer is hereby accepted by Bookings.
16.3. Insofar as any Intellectual Property Rights are not capable of being transferred from Employee to Bookings, Employee hereby grants Bookings the exclusive, royalty free, worldwide, perpetual right, with the right to grant sublicenses, to use the Intellectual Property Rights in the broadest way, which right is hereby accepted by Bookings.
16.4. Insofar as any personal rights vest in Employee, and insofar as permitted by law, Employee hereby waives all of Employee’s personal rights, including, without limitation, the right to have one’s name stated pursuant to the Dutch Copyright Xxx 0000 (‘Auteurswet 1912’).
16.5. Employee shall promptly disclose all works, inventions, information, Intellectual Property Rights and other results from the work performed by Employee under this employment contract to Bookings.
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16.6. Employee shall upon Bookings’ request, during or after this employment contract, perform all acts that may be necessary in order to record the Intellectual Property Rights in the name of Bookings with any competent authority in the world. Reasonable costs thereof will be borne by Bookings.
16.7. In case Employee, for any reason, is unable to provide the cooperation in accordance with article 16.2 and 16.6, Employee hereby grants Bookings irrevocable power of attorney to represent Employee with respect to the assignment and registration of Intellectual Property Rights referred to in article 16.2 and 16.6.
16.8. Employee acknowledges that Employee’s salary includes reasonable compensation for the loss of intellectual and industrial property rights.
17. Applicable Law
17.1. This employment contract and its annexes shall be governed by the laws of the Netherlands.
Drawn up in duplicate originals and signed in on 2005
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Bookings BV |
[employee] |
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[Name] |
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[Position] |
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Exhibit B
Award Agreements
Nonqualified Stock Option Agreement between the Company and Executive, dated July 14, 2005.
Nonqualified Stock Option Agreement between the Company and Executive, dated November 8 2005.
Restricted Stock Unit Agreement between the Company and Executive, dated November 8, 2005.
Restricted Stock Unit Agreement between the Company and Executive, dated March 5, 2007.
Performance Share Unit Agreement between the Company and Executive, dated December 1, 2007.
Performance Share Unit Agreement between the Company and Executive, dated March 5, 2008.
Summary of Awards
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Award Type |
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Date of Grant |
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Unvested Portion of |
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Nonqualified Stock Option |
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July 14, 2005 |
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0 Options |
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Nonqualified Stock Option |
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November 8, 2005 |
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3,334 Options |
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Restricted Stock Units |
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November 8, 2005 |
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3,333 RSUs |
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Restricted Stock Units |
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March 5, 2007 |
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9,000 RSUs |
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Performance Share Units |
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December 1, 2007 |
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25,000 PSUs |
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Performance Share Units |
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March 5, 2008 |
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6,108 PSUs |
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