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EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT, is effective January 14, 1998, by and between Xxxxx X.
Xxxxxxx, a resident of Franklin, Tennessee ("Executive"), and CorporateFamily
Solutions, Inc., a Tennessee corporation (the "Company").
WHEREAS, Executive has served as an officer of the Company since 1988
and has made many contributions to the Company during his employment; and
WHEREAS, Executive retired from his employment to pursue other personal
interests and in consideration of his many years of service to the Company, the
Company wishes to provide to Executive certain benefits as set forth below.
NOW, THEREFORE, in consideration of the mutual premises herein
contained and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Retirement as Officer and Employee. Executive acknowledges that as
of January 2, 1998, he retired as an officer and employee of the Company.
Executive shall be paid his current salary through January 2, 1998, and
thereafter shall be entitled to no salary or benefits except as are set forth in
this Agreement.
2. Benefits; Severance. Executive has been provided the opportunity to
continue medical and dental insurance under COBRA, and has rejected such
continuation. Except as specified in this Agreement, all other benefits shall
cease on the date of his retirement. The Company shall pay Executive Severance
in an amount equal to ten (10) weeks base salary commencing on the first payroll
date immediately following the seven (7) day revocation period specified at
Section 7.11 and on regular Company payroll dates thereafter until the ten (10)
weeks is paid.
3. Common Stock Options. Executive is the holder of certain outstanding
options to purchase common stock of the Company, some of which are qualified
incentive stock options pursuant to the Internal Revenue Code of 1986, as
amended (the "Code"), some of which are non-qualified stock options, some of
which were vested at the date of Executive's retirement and some of which were
not vested. The Compensation Committee of the Company in connection with the
effectiveness of this Agreement has on this date and pursuant to the terms of
the Company's stock option and incentive plans, accelerated the vesting of all
nonvested options so that all such options are vested and the exercise period
for such options is through December 31, 2000.
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The following chart reflects the options which are expected to be
outstanding after the exercise of certain vested, outstanding incentive stock
options:
OPTIONS VESTED POST-AGREEMENT
No. of No. of No. of Options No. of Options
Date of Options Options Still Vested Pre- Vested Post- Expiration Exercise
Plan Grant Granted Outstanding Agreement Agreement Date Price
---- ----- ------- ----------- --------- --------- ---- -----
1996 1/1/95 39,000 18,479 10,679 18,479 12/31/2000 7.69
1996 1/1/96 165,100 165,100 66,040 165,100 12/31/2000 7.69
Exercise of options for such number of shares as set forth below are
hereby restricted. Executive agrees that in the event he breaches any of the
covenants contained in this Agreement and such breach is not cured within the
ten (10) day period specified below, specific options as set forth below (the
"Restricted Options") shall be forfeited, be null and void and be of no force
and effect. In the event of a breach of any such covenant, the Company shall
give written notice of said breach and Executive shall have ten (10) days from
receipt of notice to cure the breach. In the event the breach cannot be cured or
is not cured within the ten day period, the Restricted Options shall be
forfeited at such time pursuant to the schedule as set forth below:
Time Period Options
(Measured at the end of 10-day notice period) Subject to Forfeiture
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From the date of this Agreement through December 31, 1998 50,000
January 1, 1999 through December 31, 1999 30,000
January 1, 2000 through July 31, 2000 15,000
In no event shall the number of Restricted Options ever exceed 50,000
regardless of the date of grant.
The new period for exercising the options set forth in the chart
labeled "Options Vested Post-Agreement" shall survive the death of Executive and
such options shall inure to the benefit of the Executive's estate and final
expiration through December 31, 2000.
4. Covenant by Executive. From and after the date hereof, Executive
will take no action which could dissipate the goodwill of the Company or its
relationship with its employees, former employees, customers, colleagues in the
industry, suppliers, competitors, shareholders, lenders or others.
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5. Release.
5.1 By Executive. Effective immediately, Executive releases
and discharges the Company and each parent, subsidiary, affiliate and
shareholder of the company, and each present, former and future director,
officer and employee of the Company or any parent, subsidiary, affiliate and
shareholder of the Company (collectively, "Company Affiliates") from all manner
of claims, actions, causes of action or suits, in law or in equity, which
Executive has or hereafter can, shall or may have against the Company or Company
Affiliates or any of them by reason of any matter, cause of thing whatsoever,
including any action arising from or during his employment with the Company,
resulting from his termination of such employment, or related to his status as a
shareholder (through the date hereof) or after. From and after the date hereof,
Executive agrees and covenants not to xxx, or threaten suit against, or make any
claim against, the Company or any Company Affiliate for or alleging any of the
claims, actions, causes of action or suits released herein. Executive
acknowledges that this release includes but is not limited to all claims arising
under federal, state or local laws prohibiting employment discrimination and all
claims growing out of any legal restrictions on Company's right to terminate its
employees. This Release specifically encompasses all claims of employment
discrimination based on race, color, religion, sex, disability and national
origin, as provided under Title VII of the Civil Rights Act of 1964, as amended,
the 1991 Civil Rights Act, all claims of discrimination based on age, as
provided under the Age Discrimination in Employment Act of 1967, as amended, the
Employee Retirement Income Security Act, the Americans with Disabilities Act and
all claims of employment discrimination under any state law including as
provided under Tennessee Code Annotated Sections 8-50-103 and 4-21-401, et seq.
5.2 By Company and Company Affiliates. Effective immediately,
Company and Company Affiliates (and each of them) release and discharge the
Executive from all manner of claims, actions, causes of action or suits, in law
or in equity, which Company and/or Company Affiliates, or any of them, has or
hereafter can, shall or may have against the Executive by reason of any matter,
cause or thing arising from or during Executive's employment with the Company,
resulting from his termination of such employment, or related to his status as a
shareholder (through the date hereof) or officer. From and after the date
hereof, Company and Company Affiliates, and each of them, agree and covenant not
to xxx, or threaten suit against, or make any claim against, the Executive for
or alleging any of the claims, actions, causes of action or suits released
herein.
6. No Competition; No Disclosure; No Interference. Executive covenants
and agrees that for a period of three years from and after the date hereof,
without the written consent of the Company, neither he nor any person, firm,
organization, company or corporation (whether or not engaged in business for
profit) controlled by him will directly or indirectly own, manage, operate,
join, control or participate in the ownership, management, operation or control
or be connected in any manner with any business within any market for the
Company as such market exists on January 2, 1998, and which as of January 2,
1998 (a) is engaged in the business of providing management or consulting
services for workplace child care, education or family support
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programs, or any organization whose purpose is related to such business or to
another business that has been previously identified as a business opportunity
that is potentially competing or conflicting (b) is engaged in a business that
competes or conflicts with the business of the Company as of the date of this
Agreement.
From and after the date hereof for a period of three years,
Executive agrees that he will keep confidential and not appropriate any (i)
trade and business secrets or other business practices of the Company, (ii)
information relating to the Company's customers and their contracts or business
relationships with the Company, (iii) information related to business and growth
strategy, or contemplated opportunities for mergers and acquisitions, (iv)
personnel policies, (v) business relations information or client lists, (vi)
proprietary designs or specifications, (vii) financial or other performance
data, (viii) pricing policies or strategies, (ix) bid amounts or rate structures
or (x) any other proprietary or confidential information of the Company whether
or not obtained with the knowledge and permission of the Company or any Company
Affiliates and whether or not developed, devised or otherwise created in whole
or in part by his efforts. Notwithstanding the above, the provisions of this
paragraph shall not apply with respect to any information, documents or other
material that either (a) was known by the Executive through sources other than
by virtue of his employment with the Company, or (b) is otherwise public
information.
From and after the date hereof for a period of three years,
Executive agrees that he shall not, directly or indirectly, for whatever reason,
whether for his own account or for the account of any other person, firm,
corporation or other organization: (i) solicit, employ, deal with or otherwise
interfere with the Company's or any of the Company Affiliates' contracts or
relationships with any employee, officer, director or any independent contractor
whether the person is employed by or associated with the Company or a Company
Affiliate on the date hereof or during such three-year period set forth above;
or (ii) solicit, accept, deal with or otherwise interfere with any of the
Company's or Company Affiliates' contracts or relationships with any independent
contractor, customer, client or supplier of the Company or any Company
Affiliate.
Executive acknowledges that the provisions of this Section 6
are essential to the continued goodwill and profitability of the Company and
further acknowledges that the application or operation thereof shall not involve
a substantial hardship upon his future livelihood. Should any court determine
that the provisions of this Section 6 shall be unenforceable with respect to
scope, duration or geographic area, such court shall be empowered to substitute,
to the extent enforceable, provisions similar hereto or other provisions so as
to provide the Company, to the fullest extent permitted by applicable law, the
benefits intended by this Section 6. A court called upon to enforce the terms of
this Agreement and/or to fashion a remedy for any breach thereof by Executive,
may consider the 50,000 restricted share forfeitures in calculation of any
damage award.
Company acknowledges that with respect to all of the subject
matter contained in this Section 6, this Section 6 represents the entire
agreement and understanding among the
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Company, the Company Affiliates and the Executive with respect to the subject
matter hereof, and to the extent there exist any other agreements or
understandings concerning such subject matter, such agreements are extinguished
and null and void.
In the event that the Company experiences a change in control
defined as the acquisition of at least a majority of the stock of the Company by
any person, entity or group; the merger or consolidation of the Company with or
into another entity, or the sale of all or substantially all of the Company's
assets, the provisions of Section 6 of this Agreement shall expire.
7. Miscellaneous.
7.1 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Company, its successors and assigns.
7.2 Survival. All representations and warranties contained in
this Agreement shall survive the execution and delivery hereof.
7.3 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to injunctive relief to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state thereof having jurisdiction, this being in addition to any other
remedy to which they are entitled under this Agreement or at law or in equity.
In addition, a party that is required to enforce the terms and provisions of
this Agreement and is successful therein shall be reimbursed by the other party
for all costs and expenses, including legal fees, that it may incur in bringing
that legal proceeding.
7.4 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and Executive relating to the subject matter
hereof; there are no terms other than those contained herein. This Agreement may
not be modified or amended except in a writing signed by the parties hereto.
7.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Tennessee without giving
effect to principles of conflicts of law.
7.6 Counterparts. This Agreement may be executed in
counterparts, which together shall constitute one and the same Agreement.
7.7 Enforceability. If any provision of this Agreement shall
be held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable as applied in any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions, because it conflicts with any provisions
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of any constitution, statute, rule or public policy, or for any reason, such
circumstances shall not have the effect of rendering the provision in question
invalid, inoperative or unenforceable in any other case or circumstance, or of
rendering any other provision or provisions of this Agreement invalid,
inoperative or unenforceable to any extent whatever. If any provision of this
Agreement shall be held or deemed to impose restrictions which are too broad,
too lengthy or otherwise unreasonable, the parties hereto agree to be bound by a
court's decision as to what restrictions would be reasonable and acknowledge
that such court has the authority and discretion to make such a determination.
7.8 Acknowledgment by Executive. Executive hereby acknowledges
that he has carefully read and fully understands all the provisions of this
Agreement. He further acknowledges that this Agreement sets forth the entire
agreement between himself and the Company. In addition, he acknowledges that he
has been given a period of at least twenty-one (21) days to consider the terms
of this Agreement and that he has consulted with an attorney of his choice.
Finally, Executive hereby acknowledges that, in considering whether to sign this
Agreement, he has not relied upon any representation or statement, written or
oral, not set forth in this document and that he has not been threatened or
coerced into signing this Agreement by an official of the Company and that he
has read, understood and fully and voluntarily accepts the terms of this
Agreement.
7.9 Notices. If a notice is to be sent by a party pursuant to
the terms of this Agreement, such notice shall be sent to the parties at the
following addresses:
If to Company: CorporateFamily Solutions
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to: Xxxxx X. X. Xxxxx
Bass, Xxxxx & Xxxx PLC
000 Xxxxxxxx Xxxxxx
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone: 615/000-0000
Facsimile: 615/742-6233
If to Executive: Xx. Xxxxx X. Xxxxxxx
000 Xx. Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: 615/000-0000
Facsimile: ______________________
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With a copy to: Xxxxxxxxxxx Xxxxxx, Esq.
Xxxxxxxxxx, Xxxxxx & Wood, PLC
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 615-376-3016
Written notice shall be deemed received upon the earlier of actual
receipt or the third day following the date postmarked. Notice may be sent by
facsimile, hand delivery, return receipt requested or via overnight courier.
7.10 Captions. The captions herein are for purposes of
identification only and shall not be considered in construing this Agreement.
7.11 Effective Date. This Agreement may be revoked by
Executive at any time during the seven (7) calendar day period immediately after
being signed. This Agreement shall not become effective until the expiration of
such revocation period.
COMPANY:
CORPORATEFAMILY SOLUTIONS, INC.
(on behalf of Company and Company Affiliates)
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Executive Vice President and CFO
EXECUTIVE:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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