Exhibit 10.1
Execution Version
Transition
Agreement
This Transition
Agreement (the “ Agreement ”) is entered into by
and between Convera Corporation (the “ Company
”) and Patrick C. Condo (“ Mr. Condo ”) on
May 29, 2009.
Recitals
WHEREAS, the Company and Mr. Condo entered into
an Employment Agreement on October 26, 2005 (the “
Employment Agreement ”) with respect to Mr.
Condo’s employment arrangement as President and Chief
Executive Officer of the Company;
WHEREAS, the Board of Directors of the Company
has determined it to be in the best interests of the Company and
its stockholders: (i) to engage in a transaction in which the
Company’s entire operating business will be contributed to a
wholly owned subsidiary of the Company (“ Sub ”)
by the Company’s assignment of all of the business-related
assets of the Company to Sub and Sub’s assumption of all of
the liabilities of the Company (the “ Contribution
”); and (ii) thereafter, to have Sub enter into a
business combination with Firstlight Online Limited or its
successor and merger subsidiaries and then to distribute all of the
outstanding shares of the common stock in the post-merger company
(“ Newco ”) beneficially owned by the Company to
the holders of all of the outstanding shares of the Company’s
Class A common stock on a pro rata basis, and
WHEREAS, in connection with the strategic plan
of Contribution and the Merger, the Company and Mr. Condo wish to
transit Mr. Condo from the Company to Sub and the Company wishes to
continue to retain Mr. Condo’s service to Sub upon the
Contribution to continue until the time of the closing of the
Merger (the “ Merger Date ”), and the Company
and Mr. Condo wish to promote and support Mr. Condo’s
election or appointment as Chairman of the board of directors of
the Newco, subject to the terms and conditions in this
Agreement.
NOW, THEREFORE, in consideration of the
provisions and promises contained herein, the Company and Mr. Condo
agree as follows:
1. Mr. Condo agrees
to continue in his position as President and Chief Executive
Officer of the Company, and the Company agrees to appoint Mr. Condo
as a director and the Chairman of the board of directors of Sub
immediately following the Contribution. During
this time, including through the Contribution and to the Merger
Date, the Employment Agreement remains in effect.
2. The Company agrees
to promote and support Mr. Condo’s election or appointment as
Chairman of the board of directors of the Newco.
3. Mr. Condo agrees
to resign his position as President and Chief Executive Officer of
the Company effective as of the Merger Date.
4. Effective on the
Merger Date, Mr. Condo’s duties at the Company will cease and
Mr. Condo will return to the Company or its designee all
confidential information and other Company property in his
possession or control.
5. Subject to Mr.
Condo signing and delivering to the Company the general release of
claims in favor of the Company and related persons and entities in
the form of Exhibit A attached hereto (the “
Release ”) within 21 days following the Merger Date
and the expiration of the seven-day revocation period as specified
in the Release, the Company will pay Mr. Condo an aggregate amount
of $480,000 in cash, less applicable withholdings (the “
Transition Fee ”), in a lump sum on the 30th day after
the Merger Date, provided that the Release has become effective
prior to such date. Notwithstanding anything to the
contrary in this Agreement, if Mr. Condo’s employment with
the Company is terminated for Cause (as defined in the Employment
Agreement) or as a result of his death or disability before the
Merger Date, Mr. Condo will not be entitled to any Transition Fee
or any other benefits provided for in this Agreement except the
accrued vacation payments through December 31, 2008 as described in
Paragraph 8 below, and the terms in his Employment Agreement
applicable to such scenarios will apply.
6. All of Mr.
Condo’s stock options (listed on Exhibit B attached
hereto) will vest on the Merger Date. Mr. Condo may
exercise vested stock options for a period of 90 days after the
Merger Date.
7. In accordance with
the Company’s standard policies and practices, the Company
will reimburse Mr. Condo for reasonable, ordinary and necessary
out-of-pocket business expenses incurred by him on behalf of the
Company through the Merger Date.
8. Within 3 days
following the date of the signing of this Transition Agreement, the
Company shall pay Mr. Condo for his accrued but unused vacation
time, if any, due and owing as of December 31, 2008 in accordance
with the Company’s standard policies and practices less
applicable withholdings.
9. On the Merger
Date, the Company shall:
|
|
pay Mr. Condo
for his accrued but unused vacation time accrued between January 1,
2009 and the Merger Date inclusive, if any, in accordance with the
Company’s standard policies and practices (except that Mr.
Condo shall accrue vacation time in excess of the
Company’s maximum permitted accrual under its standard
policies and practices between January 1, 2009 and the Merger Date
inclusive), less applicable withholdings; and
|
|
|
cease Mr.
Condo’s health and dental coverage provided through the
Company; thereafter, Mr. Condo may extend such coverage at his own
expenses through COBRA continuation.
|
10. Mr. Condo hereby
acknowledges that, except as set forth expressly in this Agreement,
he is not entitled to receive any other payments or benefits in
connection with the transition, either under this Agreement or
under any other prior arrangement or agreement. Except
as provided herein, upon completion of the Merger as described
above, this Agreement supersedes, cancels and replaces any other
agreement or arrangement between Mr. Condo and the Company, written
or oral. Any right or entitlement in effect or available
to Mr. Condo under any such other agreement or arrangement is
hereby unconditionally and irrevocably waived by Mr.
Condo. Notwithstanding the foregoing, any employee
confidentiality agreement and any other agreement between Mr. Condo
and the Company by which Mr. Condo has assigned intellectual
property to the Company shall remain in effect. The
Company makes no representation or warranty and shall have no
liability to Mr. Condo, his heirs, executors, administrators or
assigns if any provisions of this Agreement are determined to
constitute deferred compensation subject to Section 409A of the
Code but do not satisfy an exemption from, or the conditions of,
such Section.
11. The Company hereby
represents that the Company has no knowledge of any pending or
threatened claims against Mr. Condo in his capacity as an officer
or director of the Company or of any basis therefore.
12. This Agreement may
not be changed or altered, except by a writing signed by the
Company and Mr. Condo. The parties agree that if any
provision of this Agreement is deemed invalid, the remaining
provisions will still be given full force and effect to the largest
extent permissible under applicable law. Further, any
material breach of this Agreement by Mr. Condo shall excuse the
Company from further performance of this Agreement. The
remedies set forth herein are not intended to exclude any other
remedies available to either party at law or equity.
13. This Agreement
shall be governed by and, for all purposes, construed and enforced
in accordance with the laws of the Commonwealth of Virginia
applicable to contracts made and to be performed in such
state. The Company and Mr. Condo agree that the federal
or state courts of the Commonwealth of Virginia shall have sole and
exclusive jurisdiction over
