Exhibit 10.7
CONSULTING AGREEMENT
--------------------
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as of
________, 2001 by and between S-E Educational Holdings Corp., a Delaware
corporation ("Holdings"), and Xxxxx Xxxxx ("Xxxxx"). Capitalized terms used in
this Agreement and not otherwise defined shall have the meanings ascribed to
them in that certain Contribution Agreement and Plan of Reorganization and
Merger dated as of November -, 2000 by and among Xxxxxxxxxxxxxx.xxx, LLC
("Earlychildhood"), XxxxxxxXxxx.xxx, Inc. ("SmarterKids"), Holdings and S-E
Educational Merger Corp., a wholly-owned subsidiary of Holdings (the "Merger
Agreement").
WHEREAS, effective as of the Effective Time, Holdings wishes to retain the
services of Xxxxx on the terms and conditions set forth herein, and Xxxxx
wishes to provide services to Holdings on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Consulting Services.
-------------------
(a) Immediately after the Effective Time, Xxxxx shall make himself
available to provide independent consulting services upon reasonable advance
notice and for reasonable intervals of time for a period of eighteen (18) months
(the "Consulting Period"), recognizing that Xxxxx may be providing consulting
services to other parties during such period. For such consulting services,
Holdings shall pay Xxxxx at a rate of $18,750 for each month of the Consulting
Period. During the Consulting Period, Holdings shall also continue to provide
Xxxxx his then current employee benefits, including but not limited to health,
dental, short-term disability, life insurance and long-term disability
coverage, regardless of whether Xxxxx has been employed by a subsequent employer
in any capacity during the Consulting Period.
(b) During the Consulting Period, Holdings will reimburse Xxxxx for
his reasonable expenses, in connection with the provisions of the consulting
services, including, but not limited to, travel, accommodations and meals. Such
reimbursement shall include, but not be limited to, the reasonable cost of
travel to and from Boston, Massachusetts to Monterey, California and the other
offices of Holdings and its Subsidiaries and the reasonable cost of all
accommodations and meals, in each case, when traveling at the request of
Holdings on the business of Holdings or any of its Subsidiaries outside of his
residence location. Holdings shall also reimburse Xxxxx for all other reasonable
expenses incurred in the performance of this consulting services including
expenses relating to cellular telephone service and mileage.
(c) All options to purchase common stock of Holdings ("Holdings
Options") held by Xxxxx at the commencement of the Consulting Period shall
continue to vest during the Consulting Period, during the entirety of which time
he shall be deemed to be maintaining a business relationship with Holdings
sufficient to cause his Holdings Options to continue to vest
1
under the terms of Holdings' option plans. Immediately prior to the expiration
of the Consulting Period, however ended, any remaining unvested Holding Options
held by Xxxxx shall vest and become immediately exercisable. Xxxxx shall have
until two (2) years following the last day of the Consulting Period to exercise
any previously unexercised Holdings Options.
2. Severance Payments. Immediately after the expiration of the Consulting
Period, Holdings shall pay Xxxxx $4,166.67 for each subsequent month thereafter
for a period of two (2) years.
3 Termination.
-----------
(a) Xxxxx'x consulting relationship with Holdings may be terminated by
the Holdings' Board of Directors or the chief executive officer of Holdings at
any time for Cause (as defined in Section 3(b) below) upon written notice to
Xxxxx, which notice shall specify the reason for termination. Such notice shall
be given at any time prior to termination in the case of matters described in
clauses 3(b)(ii) or (iii), and shall be given not less than 30 days prior to
the date of termination, in the case of matters described in clauses 3(b)(i) or
(iv), and in the case of matters described in clauses 3(b)(i) or (iv), shall be
rescinded if Xxxxx cures any misconduct, negligent act, breach or failure giving
rise to such notice to the reasonable satisfaction of the Holdings' Board of
Directors, including curing any damage suffered by Holdings as a result thereof.
In addition, Xxxxx'x consulting relationship with Holdings may be terminated by
Holding's Board of Directors or the chief executive officer of Holdings at any
time for any reason other than for Cause (any such termination being referred to
herein as a termination "Without Cause"), subject to the provisions below.
(b) As used herein, "Cause" shall mean (i) willful misconduct or gross
negligence by Xxxxx in respect of his material obligations under this Agreement,
(ii) conviction of a felony involving moral turpitude, (iii) theft of Holdings'
property or other disloyal or dishonest conduct of Xxxxx that materially xxxxx
Holdings, its Subsidiaries or its business or (in the case of dishonest conduct)
undermines the confidence of the Holdings Board of Directors, or (iv) willful
breach of this Agreement.
(c) In the event that Xxxxx'x consulting relationship is terminated
for Cause or he voluntarily ceases to agree to perform consulting services, this
Agreement shall automatically terminate and Holdings shall pay Xxxxx his
consulting fees and severance payments, as the case may be, through the date of
termination.
(d) In the event that Xxxxx'x consulting relationship is terminated by
Holdings Without Cause, or is terminated by reason of Xxxxx'x death or
Disability (as defined below) prior to the expiration of the Consulting Period,
Holdings shall (A) continue to pay to Xxxxx (or Xxxxx'x heirs, assigns or
beneficiaries, in the case of his death) his consulting fees and severance
payments for the period of time between the date of such termination and the
expiration of this Agreement, and (B) either provide continued family medical
and dental insurance coverage in a form substantially similar to such coverage
that Xxxxx received during the Consulting Period, or reimbursement for the
reasonable cost of obtaining any such benefits for any portion of the period
beginning at the commencement of the Consulting Period and
2
ending 18 months thereafter. All Holdings Options held by Xxxxx (or by his
heirs, assigns or beneficiaries) shall accelerate and be fully exercisable for a
period of two (2) years following the date of such termination for whichever
reason. "Disability" shall mean "permanent and total disability" as defined in
Section 22(e)(3) of the Internal Revenue Code or any successor statute.
(e) Termination of this Agreement shall not discharge any liability of
either Holdings or Xxxxx existing at the date of termination. Further,
notwithstanding any termination, the provisions of Sections 4, 5 and 6 hereof
shall survive in accordance with their terms.
4. Term. This Agreement shall continue through the date of the last payment
or benefit provided for hereunder, and remains subject to termination in
accordance with the terms hereof, provided that Sections 5 or 6 shall survive
such expiration in accordance with their terms.
5. Indemnification. During and after the term of this Agreement, Holdings
agrees that if Xxxxx is made a party, or compelled to testify or otherwise
participate in, any action, suit or proceeding (a "Proceeding"), by reason of
the fact that he is or was a director or officer of SmarterKids or Holdings (or
any of its Subsidiaries), Xxxxx shall be indemnified by Holdings to the fullest
extent permitted under Section 145 of the Delaware General Corporation Law or
(but not to any lesser extent) as authorized by Holdings' certificate of
incorporation or bylaws or resolutions of the Holdings Board of Directors
against all costs, expenses, liabilities, damages and losses reasonably incurred
or suffered by Xxxxx in connection therewith, and such indemnification shall
continue as to Xxxxx even if he has ceased to be a director or officer of
Holdings or a Subsidiary of Holdings for the period in which any such Proceeding
which commenced within the period of any such statute of limitations is
pending. Holdings shall advance to Xxxxx all reasonable costs and expenses
incurred by him in connection with a Proceeding within ten (10) days after
receipt by Holdings of a written request for such advance. Such request shall
include an itemized list of the costs and expenses and an undertaking by Xxxxx
to repay the amount of such advance if it shall ultimately be determined, in a
final judgment for which the time to appeal has expired, that, pursuant to
applicable law, he is not entitled to be indemnified against such costs and
expenses.
6. Arbitration. Any claim arising out of or relating to this Agreement
(including disputes regarding the presence or absence of "Cause" in the event of
a termination), or otherwise arising out of or relating to the Xxxxx'x rendering
services to Holdings, will be subject to arbitration in Boston, Massachusetts,
in accordance with the Federal Arbitration Act and the rules of the American
Arbitration Association relating to commercial disputes. The prevailing party in
any such arbitration shall be entitled to recover from the other party its
reasonable expenses incurred in connection with such arbitration, including the
reasonable fees and expenses of counsel.
7. Severability. If any provision of this Agreement is determined to be
invalid or unenforceable, it shall be adjusted rather than voided, to achieve
the intent of the parties to the extent possible, and the remainder of the
Agreement shall be enforced to the maximum extent possible.
3
8. Entire Agreement. This Agreement constitutes the entire agreement
between Xxxxx and Holdings with respect to the terms and conditions of rendering
Xxxxx'x services to Holdings, and, as of the Effective Time, supersedes all
prior or concurrent arrangements, discussions, agreements or understandings with
respect to the Xxxxx'x services.
9. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts without regard to principles of conflicts of law.
10. Amendment. No amendment shall be valid unless in writing and signed by
each of Holdings and Xxxxx.
11. Notice. Any notice, or other written communication to be given pursuant
to this Agreement for whatever reason shall be deemed duly given and received
(a) if delivered personally, from the date of delivery, or (b) by certified
mail, postage pre-paid, return receipt requested, three (3) days after the date
of mailing, addressed to the above parties as follows:
If to Holdings:
S-E Educational Holdings Corp.
__________________________
__________________________
Attn: Board of Directors
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
and
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Xx., Esq.
If to Xxxxx:
_________________________
_________________________
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date and year first above written.
S-E EDUCATIONAL HOLDINGS CORP.
By:____________________________
Name________________________
Title_______________________
_______________________________
Xxxxx Xxxxx
5
AGREEMENT
---------
THIS AGREEMENT (the "Agreement") is made and entered into as of ______,
2001 by and between S-E Educational Holdings Corp., a Delaware corporation
("Holdings"), and Xxxxx Xxxxx ("Xxxxx"), dated as of [DATE].
WHEREAS, contemporaneous with this Agreement, Holdings and Xxxxx have
entered into a certain Consulting Agreement, dated as of [DATE] (the "Consulting
Agreement");
WHEREAS, Holdings and Xxxxx intend that certain amounts otherwise
payable by Holdings to Xxxxx pursuant to the Consulting Agreement or otherwise
shall be limited such that they do not give rise to any "excess parachute
payments" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Reduction of Certain Payments. Notwithstanding anything to the contrary
in the Consulting Agreement, to the extent that any portion of any payment or
distribution by Holdings to or for the benefit of the Xxxxx, whether paid or
payable or distributed or distributable pursuant to the terms of the Consulting
Agreement or otherwise (a "Payment") would be an "excess parachute payment" (as
defined in Section 280G of the Code) but for the application of this Agreement,
then the amount of all such Payments otherwise payable to Xxxxx pursuant to the
Consulting Agreement shall be reduced, subject to the provisions below, to the
minimum extent necessary (but in no event to less than zero) so that no portion
of any Payment, as so reduced, constitutes an excess parachute payment. Such
reduction shall be made from the Payments pursuant to the Consulting Agreement
in the following order: (i) first, to the extent of the severance payments
pursuant to Section 2(a) of the Consulting Agreement; (ii) second, to the extent
of the payments pursuant to Section 1(a) of the Consulting Agreement for
consulting services; (iii) third, to the extent of any other Payments, except
for any option acceleration, pursuant to the Consulting Agreement; and (iv)
fourth, to the extent of the acceleration of any unvested options pursuant to
the Consulting Agreement. Any reduction pursuant to (i), (ii), (iii), or (iv)
shall first be made from payments or acceleration that otherwise occur later in
time. For purposes of any reduction, no portion of any Payment shall be taken
into account to the extent that such Payment, in the opinion of Holdings, after
consultation with its tax and accounting advisors, does not constitute a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code.
2. Disputes. Any dispute regarding any calculation or reduction of payments
pursuant to this Agreement will be subject to a determination by a nationally
respected accounting firm acceptable to both parties. In any such dispute,
Holdings shall pay all reasonable expenses incurred in connection with such
dispute.
3. Severability. If any provision of this Agreement is determined to be
invalid or unenforceable, it shall be adjusted rather than voided, to achieve
the intent of the parties to the
6
extent possible, and the remainder of the Agreement shall be enforced to the
maximum extent possible.
4. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts without regard to principles of conflicts of
law.
5. Amendment. No amendment shall be valid unless in writing and signed by
each of Holdings and Xxxxx.
6. Notice. Any notice, or other written communication to be given pursuant
to this Agreement for whatever reason shall be deemed duly given and received
(a) if delivered personally, from the date of delivery, or (b) by certified
mail, postage pre-paid, return receipt requested, three (3) days after the date
of mailing, addressed to the above parties as follows:
If to Holdings:
S-E Educational Holdings Corp.
____________________________
____________________________
Attn: Board of Directors
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
and
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Xx., Esq.
If to Xxxxx:
_________________________
_________________________
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and
year first above written.
S-E EDUCATIONAL HOLDINGS CORP.
By: _________________________
Name ____________________
Title ___________________
_________________________
Xxxxx Xxxxx
8
