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EXHIBIT 10.8
EMPLOYMENT SEPARATION AGREEMENT AND MUTUAL RELEASE
THIS EMPLOYMENT SEPARATION AGREEMENT AND MUTUAL RELEASE (this
"Agreement") is entered into this 12th day of February, 2001, among Childtime
Learning Centers, Inc., a Michigan corporation ("Learning Centers"), Childtime
Childcare, Inc., an Illinois corporation and wholly owned subsidiary of Learning
Centers ("Childcare") (Learning Centers, Childcare and their respective
subsidiaries are referred to herein, collectively, as "Employer") and Xxxxxxx X.
Xxxxxx ("Employee").
Recitals:
A. Employee has worked in the employ of Employer for a period of time.
B. Employee's employment with Employer ceased as of January 29, 2001
(the "Termination Date").
C. Employer has agreed to pay to Employee the termination benefits
described herein and Employee and Employer have agreed to release each other
from certain liabilities upon the terms and conditions contained herein.
Therefore, in consideration of the mutual promises stated in this
Agreement, Employee and Employer agree as follows:
1. Termination of Employment. Employee hereby acknowledges his
resignation, effective as of January 29, 2001, from all of his positions, as an
officer or a director, with Employer and its subsidiaries.
2. Termination Benefits. As Employee's sole and exclusive termination
benefit, Employer will, subject to Employee's compliance with his
Post-Employment Obligations (as defined below), provide Employee the following
(the "Termination Benefits"):
(a) an amount equal to eight months' salary, at the rate in effect
at the Termination Date, payable in accordance with Employer's regularly
scheduled pay periods over the first eight months following the date of this
Agreement, and subject to any applicable tax withholding to the extent required
by applicable law; and
(b) hospitalization, medical, dental, disability and life insurance
benefits to the extent such benefits were provided to Employee immediately prior
to the Termination Date, for the first eight months following the date of this
Agreement.
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In the event Employee breaches his Post-Employment Obligations (as defined in
Section 4 below), Employer will have, in addition to any other rights and
remedies it has under this Agreement or otherwise, the right to discontinue
forever the Termination Benefits. The foregoing Termination Benefits will be in
lieu of any termination or severance payments required by any policy of Employer
or applicable law (other than continued medical or disability coverage to which
Employee or his family are entitled under Employer's then existing employment
policies covering Employer's executives or then applicable law), and will
constitute Employee's sole and exclusive rights and remedies with respect to the
termination of his employment with Employer. In particular, Employee will have
no right to any further perquisites previously provided by Employer, including
country club memberships and automobile allowances, and such perquisites have
been terminated as of the Termination Date.
3. Stock Options. As additional consideration for Employee's execution
and delivery of this Agreement, all outstanding options granted to Employee
pursuant to the terms of Employee's 1995 Stock Incentive plan for Key Employees,
as amended, to the extent vested as of the Termination Date, will remain
outstanding and may be exercised until the original expiration thereof,
notwithstanding that Employee's employment with the Employer has terminated.
4. Confidentiality; Nonsolicitation.
(a) Post-Employment Obligations. Employee acknowledges and agrees
that he will not violate the following covenants (the "Post-Employment
Obligations"):
(i) Employee will not disclose or make accessible to any person
or entity or use in any way for his own personal gain or to Employer's detriment
any confidential information relating to the business of Employer or its
successors and assigns. Information and materials will not be deemed
confidential if already in the public domain or commonly known to others within
the child care industry, through no breach of violation of this covenant by
Employee. Employee will also not be deemed in violation of this covenant if his
disclosures are made in compliance with a subpoena or other order of a court
which Employee reasonably believes to have competent jurisdiction, but only to
the extent necessary to comply with such subpoena or order; provided, however,
that prior to any such disclosure Employee will (A) notify Employer promptly in
writing of any order or request to disclose and of the facts and circumstances
surrounding such order or request so that Employer may seek an appropriate
protective order, and (B) if requested by Employer, cooperate with Employer, at
the Employer's expense, in any proceeding to obtain an appropriate protective
order and/or to quash any such subpoena or request to disclose.
(ii) Employee will not, for a period of one year following the
date of this Agreement, directly or indirectly, induce or solicit (A) any
employee of Employer to leave the employ of Employer, (B) any independent
contractor to terminate any independent contractor relationship with Employer,
or (C) any customer, tenant, lender or other party which transacts business with
Employer to adversely change any relationship with Employer.
(b) Equitable Remedies. Employee acknowledges that the covenants in
this Section 4 are intended to protect trade secrets and other confidential
information of Employer and its affiliates, and
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relate to matters which are of a special and unique character, and their
violation would cause irreparable injury to Employer, the amount of which will
be extremely difficult, if not impossible, to determine and cannot be adequately
compensated by monetary damages alone. Therefore, if Employee breaches or
threatens to breach any covenant in this Section 4, in addition to any other
remedies which may be available to Employer under this Agreement or at law or
equity, Employer may obtain, as a matter of right and without the need to prove
irreparable injury or to post bond, an injunction, restraining order or other
equitable relief against Employee and such other persons and entities as are
appropriate.
(c) Acknowledgement. Employee acknowledges and agrees that any
violation by him of the Post-Employment Obligations will give Employer the right
to discontinue forever the Termination Benefits and that Employer's
discontinuance of the Termination Benefits will not effect Employee's
obligations hereunder which will continue to be enforceable in all respects.
5. Mutual Release. Employer and Employee hereby fully and forever
mutually release, acquit and discharge each other from and for all manner of
claims, counterclaims, causes of action, bonds, bills, debts, sums of money,
commissions, compensation for purported personal services rendered, damages and
rights whatsoever, in law or in equity, now existing in its or his favor by
reason of any facts, known or unknown, except for actions or suits based upon
breaches of this Agreement. Employer and Employee each represents and warrants
to the other that he or it is not aware of any claim, action or proceeding which
could give rise to a claim against the other.
6. No Claims or Suits. Except for actions or suits based upon breaches
of this Agreement, each of Employee and Employer will refrain from commencing
any suit, claim or action, or prosecuting any pending action, claim or suit, in
law or in equity, against the other based upon any facts, whether known or
unknown, including all claims for wrongful discharge, breach of contract,
violation of the penal statutes, negligence of any kind, intentional infliction
of emotional distress, defamation and/or discrimination on account of sex, age,
race, handicap or nationality which has or could have been alleged under the
common law or any federal, state or local statute or ordinance, including: Title
VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act;
the Rehabilitation Act of 1973; the Older Workers Benefit Protection Act; the
Americans With Disabilities Act; the Family and Medical Leave Act of 1993; the
Xxxxxxx-Xxxxxx Civil Rights Act; the Michigan Handicappers Civil Rights Act; the
Michigan Whistleblowers Protection Act; and any and all amendments to any of
same. Employee and Employer agree that, except in response to a lawful subpoena
or court order, neither will in any way, aid or assist any other party in
prosecuting any claim whatsoever against the other.
7. Employer's Confidential Materials and Personal Property. Employee
will immediately return to Employer all Employer confidential materials and
Employer personal property (including security cards, keys, credit cards,
computer laptops, cellular telephones and other hand-held devices furnished by
Employer, etc.) which Employee has in his possession or over which Employee
exercises any control.
8. Non-Disparagement. Employee agrees not to disparage Employer (or any
affiliated party or person of Employer) publicly or in any other way. Employer
agrees to use reasonable efforts to avoid any disparagement of Employee and will
put its officers, employees, advisors and representatives on notice of the
foregoing and will direct them to comply with the foregoing.
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9. Confidentiality of this Agreement. Both the existence and the terms
and conditions of this Agreement, and any and all underlying conversations,
discussions, documents, correspondence or agreements in furtherance thereof or
in connection or leading thereto, will be kept confidential by Employee.
10. Age Discrimination. Employee understands that, in addition to other
rights he is giving up under this Agreement, Employee is specifically waiving
any rights he may presently have under the Age Discrimination in Employment Act.
11. Attorney Consultation; Review Period. Employee has been offered the
opportunity to take 21 days to consider the terms of this Agreement and has been
advised in writing to consult with the attorney of his choice on the terms of
this Agreement. Employee specifically acknowledges that he fully and completely
understands the terms of this Agreement and their significance and that he
accepts those terms and enters into this Agreement freely and without
reservation.
12. Entire Agreement. This Agreement reflects the entire agreement of
Employee and Employer relative to the subject matter this Agreement and
supersedes all prior or contemporaneous oral or written understandings,
statements, representations or promises.
13. Titles. The titles to the sections of this Agreement are for
convenience only and are not to be part of this Agreement.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
15. Governing Law. This Agreement will be governed by and construed in
accordance with the domestic laws of the State of Michigan without giving effect
to any choice or conflict of law provision or rule.
16. Amendments. No amendment of any provision of this Agreement will be
valid unless the same is in writing and signed by Employer and Employee.
17. Severability. Any term or provision of this Agreement that is
invalid or unenforceable will not affect the validity or enforceability of the
remaining terms and provisions hereof.
18. Revocation. Employee understands that he may revoke this Agreement
for a period of seven 7 days after signing it. To be effective, a revocation
must be in writing and delivered to the person who executed this Agreement on
behalf of Employer. If this Agreement is not revoked within the 7 day period, it
will be fully enforceable without any further affirmative action by any party.
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IN WITNESS WHEREOF, this Employment Separation Agreement and Mutual
Release has been executed by Employee and Employer on the date set forth
opposite their respective signatures below, with this Agreement being effective
on the date of Employee's execution of this Agreement.
Dated: February 12, 2001 /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Dated: February 16, 2001 CHILDTIME LEARNING CENTERS, INC.,
a Michigan corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Its: Chairman
Dated: February 16, 2001 CHILDTIME CHILDCARE, INC.,
an Illinois corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Its: Chairman
