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Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made effective as of this 5th day of March, 1997 by
and between THE LEARNING COMPANY, INC., a Delaware corporation (the
"Corporation"), and Xxxx Xxxxxx (the "Executive").
WHEREAS the Corporation desires to employ the Executive in the position of
President, International or a position with similar responsibilities, and the
Executive wishes to be so employed by the Corporation.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
ARTICLE I
EMPLOYMENT
1.1 EMPLOYMENT AND POSITION. Effective as of the date hereof and for the
Term (as defined in Section 3.1 herein), the Corporation hereby employs the
Executive in the capacity of President, International, and the Executive hereby
accepts such employment, all on and pursuant to the terms and conditions set out
herein.
1.2 DUTIES AND RESPONSIBILITIES. The Executive shall have such powers and
duties as are customarily associated with the office or offices of the
Corporation held by the Executive and as may from time to time be prescribed by
the Board of Directors of the Corporation (the "Board") or the Chief Executive
Officer or such other officer to whom the Executive may then report.
Notwithstanding the foregoing, it is expressly understood and agreed that the
Board may at any time give any other person authority equivalent or superior to
that of the Executive if, in the reasonable judgment of the Board such a change
is advisable under the circumstances.
1.3 FULL TIME AND ATTENTION. The Executive shall well and faithfully
serve the Corporation and its subsidiaries and shall devote his or her full
working time and attention to the business and affairs of the Corporation and
its subsidiaries and the performance of his or her duties and responsibilities
hereunder; provided, however, that the Executive may participate in other
business ventures and activities from time to time which do not interfere with
his or her duties hereunder.
1.4 PROHIBITED INTERESTS. Neither the Executive nor any member of his or
her immediate family shall purchase or hold an interest in any company doing
business with the Corporation (other than as a customer of the Corporation) or
competing with the Corporation other than a two percent or lesser interest in
publicly traded stock or such other interests to which the Corporation has given
its prior written consent.
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ARTICLE II
REMUNERATION AND BENEFITS
2.1 ANNUAL BASE SALARY. Effective as of the date hereof and for each year
of employment during the Term (an "Employment Year"), the Corporation shall pay
to the Executive an annual base salary (the "Annual Base Salary") of not less
than $200,000. The Annual Base Salary shall be payable twice monthly in equal
installments or in such other regular installments as the Corporation may pay
its employees from time to time.
2.2 BENEFITS. The Corporation shall provide to the Executive benefits
consistent with benefits provided under the existing benefit plans, practices,
programs and policies of the Corporation in effect for executive officers from
time to time during the Term.
2.3 VACATION. The Executive shall be entitled to paid vacation in
accordance with the Corporation's vacation policy, as the same may be in effect
from time to time; provided, however that the Executive shall be entitled to at
least four weeks of paid vacation per year.
2.4 BONUS. In addition to the Annual Base Salary, the Executive shall be
eligible to receive a targeted annual cash bonus of $160,000 (the "Bonus"),
payable in quarterly installments, based upon a plan agreed upon by the
Executive and the Chief Executive Officer of the Corporation for each Employment
Year.
2.5 EXPENSES. During the Term the Corporation will reimburse the
Executive for all normal and customary expenses incurred by the Executive in
carrying out his or her duties under this Agreement, provided that the Executive
complies with the policies, practices and procedures of the Corporation for
submission of expense reports, receipts or other similar documentation of such
expenses.
ARTICLE III
TERM AND TERMINATION
3.1 TERM. Unless otherwise terminated in accordance with the provisions
hereof, this Agreement shall have a term of two years from the effective date
hereof, as the same is first set forth above (the "Term"). On the expiration of
the Term and on each anniversary of the expiration of the Term this Agreement
shall automatically renew for an additional one year period (each of which
renewal periods shall form part of the Term) unless the Corporation notifies the
Executive in writing three months in advance of the expiration of the Term, or
any subsequent anniversary thereof, that the Corporation does not wish to
further extend this Agreement.
3.2 TERMINATION FOR JUST CAUSE.
(a) The Corporation may terminate the employment of the Executive
hereunder at any time for Just Cause, such termination to be communicated by the
Corporation to the
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Executive by written notice. For the purposes hereof, "Just Cause" means a
determination by the Board, in the exercise of its reasonable judgment and after
permitting the Executive a reasonable opportunity to be heard, that any of the
following has occurred:
(i) the willful and continued failure by the Executive to
perform his or her duties and responsibilities with the Corporation under
this Agreement (other than any such failure resulting from incapacity due
to physical or mental illness or disability) which is not cured within 30
days of receiving written notice from the Corporation specifying in
reasonable detail the duties and responsibilities which the Corporation
believes are not being adequately performed;
(ii) the willful engaging by the Executive in any act which is
demonstrably and materially injurious to the Corporation;
(iii) the conviction of the Executive of a criminal offense
involving fraud, dishonesty or other moral turpitude;
(iv) any material breach by the Executive of the terms of this
Agreement or any other written agreement between the Executive and the
Corporation relating to proprietary information, confidentiality,
non-competition or non-solicitation which is not cured within 30 days of
receiving written notice from the Corporation specifying in reasonable
detail such breach; or
(v) the engaging by the Executive in any intentional act of
dishonesty resulting or intended to result, directly or indirectly, in
personal gain to the Executive at the Corporation's expense.
(b) Upon the termination of the Executive's employment for Just
Cause, the Executive shall not be entitled to any severance, termination or
other compensation payment other than unpaid base salary earned by the Executive
up to the date of termination, together with any amount to which the Executive
may be entitled under the provisions of applicable employment legislation in
force at the date of termination of the Executive's employment (less any
deductions required by law).
3.3 TERMINATION WITHOUT JUST CAUSE OR FOR GOOD REASON.
(a) The Corporation may terminate the employment of the Executive
hereunder at any time without Just Cause, such termination to be communicated by
the Corporation to the Executive by at least 30 days prior written notice. In
addition, the Executive may terminate his or her employment for Good Reason,
such termination to be communicated by the Executive to the Corporation by at
least 30 days prior written notice. For purposes of this Agreement, "Good
Reason" shall mean (i) a substantial diminution in the Executive's position,
duties, responsibilities or authority with the Corporation, (ii) any purported
termination of the Executive's employment which is not effected in accordance
with this
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Agreement (which purported termination shall not be effective), (iii) the
failure of the Corporation to obtain a satisfactory agreement from any successor
to assume and agree to perform this Agreement, as contemplated in Section 4.8
hereof or (iv) any material breach by the Corporation of this Agreement which is
not cured within 30 days of receiving written notice from the Executive
specifying in reasonable detail such breach. The Executive's right to terminate
his or her employment for Good Reason shall not be affected by his or her
incapacity due to physical or mental illness or disability. The Executive's
continued employment shall not constitute consent to, or a waiver of rights with
respect to, any circumstance constituting Good Reason hereunder.
(b) Upon the termination of the Executive's employment without Just
Cause or for Good Reason, the Corporation shall have the following obligations:
(i) if not theretofore paid, the Corporation shall pay to or
to the order of the Executive within 10 days after the date of termination
of the Executive's employment hereunder any unpaid base salary earned by
the Executive up to the date of termination (less any deductions required
by law); and
(ii) the Corporation shall pay to or to the order of the
Executive, in equal installments in accordance with its normal payroll
practices over a two-year period, as compensation for the Executive's loss
of employment, an amount equal to two times the Annual Base Salary plus
two times the amount of all bonuses pursuant to Section 2.4 hereof paid to
or accrued by the Executive with respect to the twelve month period
immediately preceding such termination (less any deductions required by
law).
3.4 TERMINATION UPON DEATH OR DISABILITY OR BY EXECUTIVE FOR OTHER THAN GOOD
REASON.
(a) The Corporation may terminate the employment of the Executive
hereunder at any time forthwith upon the death or permanent disability of the
Executive, such termination to be communicated by written notice given by the
Corporation to the Executive or, in the event of the death of the Executive, to
his or her personal representative or his or her estate. The Executive shall be
considered to have become permanently disabled if in any period of 12
consecutive months during the Term, because of ill health, physical or mental
disability, or for other causes beyond the control of the Executive, the
Executive has been or is reasonably likely to be continuously unable or
unwilling or has failed to perform his or her duties and responsibilities
hereunder for 120 consecutive days, or if, during any period of 12 consecutive
months during the Term, the Executive has been unable or unwilling or has failed
to perform his or her duties and responsibilities hereunder for a total of 180
days, consecutive or not.
(b) The Executive may, upon three months' prior written notice to
the Corporation, voluntarily terminate his or her employment hereunder for other
than Good Reason.
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(c) On termination of the Executive's employment as a result of the
Executive's death or as a result of the Executive having become permanently
disabled, or upon the termination by the Executive of his or her or her
employment for other than Good Reason, the Corporation shall pay to the
Executive or his or her personal representative on behalf of the estate of the
Executive, within 10 days after date of termination of the Executive's
employment, any unpaid base salary earned by the Executive up to the date of
termination, together with any amount to which the Executive may be entitled
under the provisions of applicable employment legislation in force at the date
of termination of the Executive's employment (less any deductions required by
law).
(d) The several payments and other obligations of the Corporation
described in this Section 3.4 are the only severance, compensation or
termination payments or benefits that the Executive will receive in the event of
any termination of employment set forth in this Section 3.4.
3.6 RETURN OF PROPERTY. Upon the termination of the employment of the Executive
hereunder, regardless of the reason therefor, the Executive will immediately
deliver or cause to be delivered to the Corporation all books, documents,
effects, money, securities, equipment or other property (including manuals,
computer disks and software products) belonging to the Corporation, or for which
the Corporation is liable to others, which are in the possession, charge or
custody of the Executive. The Executive agrees not to make for personal or
business use or for the use of any other party any reproductions or copies of
any such books, documents, effects or other property belonging to the
Corporation or for which the Corporation is liable to others.
ARTICLE IV
GENERAL
4.1 CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary capacity
for the benefit of the Corporation all secret or confidential information,
knowledge or data relating to the Corporation and its subsidiaries and their
respective businesses which shall have been obtained by the Executive during the
Executive's employment by the Corporation and which shall not be or become
public knowledge (other than by acts of the Executive or representatives of the
Executive in violation of this Agreement). If the employment of the Executive
hereunder is terminated for any reason, the Executive shall not, without the
prior written consent of the Corporation or as may otherwise be required by law
or legal process, communicate or divulge any such information, knowledge or data
to any person other than the Corporation and those persons designated by it.
4.2 NON-INTERFERENCE WITH PERSONNEL RELATIONS. During the Executive's employment
with the Corporation and for a period of twelve months thereafter, the Executive
will not, directly or indirectly, solicit, entice or persuade any employee of
the Corporation or any of its subsidiaries to leave the services of the
Corporation for any reason.
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4.3 EQUITABLE RELIEF. The Executive acknowledges that a breach of the
restrictions contained in Sections 4.1 and 4.2 hereof will cause irreparable
damage to the Corporation, the exact amount of which will be difficult to
ascertain, and that the remedies at law for any such breach will be inadequate.
Accordingly, the Executive and the Corporation agree that if the Executive
breaches or attempts to breach any of the restrictions contained in Sections 4.1
and 4.2 hereof, then the Corporation shall be entitled to temporary or permanent
injunctive relief with respect to any such breach or attempted breach (in
addition to any other remedies, at law or in equity, as may be available to the
Corporation), without posting bond or other security.
4.4 RESIGNATIONS. If the employment of the Executive hereunder is terminated in
accordance with the terms of this Agreement, the Executive shall tender his or
her resignation from all positions he may hold as an officer or director of the
Corporation or any of its subsidiaries.
4.5 MITIGATION. The Executive shall have no duty to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
nor shall the amount of any payment provided for in this Agreement be reduced by
any compensation earned by the Executive as the result of employment by another
employer after the date of termination of the Employee's employment with the
Corporation, or otherwise.
4.6 NOTICES. Any notice required or permitted to be given under this Agreement
shall be in writing and shall be properly given if delivered personally or
mailed by prepaid registered mail addressed as follows:
(a) in the case of the Corporation, to:
The Learning Company, Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
(b) in the case of the Executive, to:
Xxxx Xxxxxx
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
or to such other address as the parties may from time to time specify by notice
given in accordance herewith. Any notice so given shall be conclusively deemed
to have been given or made on the day of delivery, if delivered, or, if mailed
by registered mail, upon the date shown on the postal return receipt as the date
upon which the envelope containing such notice was actually received by the
addressee.
4.7 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the
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parties with respect to the employment relationship contemplated hereby and
cancels and supersedes all prior understandings and agreements between the
parties with respect thereto, and no agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
4.8 SUCCESSORS AND ASSIGNS. Neither the Executive nor the Corporation may assign
its rights hereunder to another person without the consent of the other;
provided, however, that the Corporation may assign its rights hereunder to a
successor corporation which acquires (whether directly or indirectly, by
purchase, arrangement, merger, consolidation, dissolution or otherwise) all or
substantially all of the business or assets of the Corporation and expressly
assumes and agrees to perform this Agreement in the same manner and to the same
extent that the Corporation would be required to perform it if no such
succession had taken place and provided that such successor shall reasonably be
able to perform all of its obligations under this Agreement. As used in this
Agreement, the term "Corporation" shall mean the Corporation (as herein defined)
and any successor to its business or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law or otherwise.
4.9 ENUREMENT. This Agreement shall enure to the benefit of and be binding upon
the Executive and his or her personal representatives and upon the Corporation
and its successors and permitted assigns.
4.10 FURTHER ASSURANCES. Each of the Corporation and the Executive agrees to
execute all such documents and to do all such acts and things as the other party
may reasonably request and as may be lawful and within its power to do or to
cause to be done in order to carry out or implement in full the provisions and
intent of this Agreement.
4.11 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts and the federal
laws of the United States of America applicable therein. Each of the parties
assents to the jurisdiction of the courts of the Commonwealth of Massachusetts
to hear any action, suit or proceeding arising in connection with this
Agreement.
4.12 WAIVER OF RIGHTS. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
by the party against whom the same is sought to be enforced and no failure by
any party to enforce any of its rights hereunder shall, except as aforesaid, be
deemed to be a waiver of such right. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
provision of this Agreement to be performed by such other party shall be deemed
to be a waiver of a similar or dissimilar provision hereof at the same or at any
prior or subsequent time.
4.13 MANDATORY ARBITRATION. Except as expressly stated below, any dispute,
controversy or claim arising out of or relating to my employment by the
Corporation or its termination, including but not limited to claims of unlawful
discrimination or harassment
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(collectively, the "Arbitrable Claims"), will be settled by binding arbitration
in (a) Boston or Cambridge, Massachusetts (if the Executive's primary place of
work is in Massachusetts), or (b) Fremont or San Francisco, California (if the
Executive's primary place of work is in California) or (c) in such city as is
located the office of the Corporation in which constitutes the Executive's
primary place of work (if the Executive's primary place of work is not in
Massachusetts or California), in accordance with the then current rules of the
American Arbitration Association (the "AAA"), before an experienced employment
arbitrator licensed to practice law in the state in which the arbitration is
conducted (the "Arbitration Site") and selected in accordance with the Model
Employment Arbitration Procedures of the AAA. Notwithstanding the foregoing, and
for purposes of clarity, each of the Corporation and the Executive acknowledges
and agrees that any Arbitrable Claim shall be governed by the internal laws of
the Commonwealth of Massachusetts (regardless of the Arbitration Site) without
regard to the laws that might otherwise apply under applicable principles of
conflicts of laws. The Corporation and the Executive each knowingly waive the
right to a jury trial in a court of law with respect to the Arbitrable Claims.
For purposes of any arbitration under this Section 4.13, the Corporation and the
Executive hereby incorporate by reference, and adopt all of the discovery rights
and procedures referenced in, the Massachusetts Code of Civil Procedure, and
agree that each of the Corporation and the Executive shall pay the fees of its,
his or her own attorneys, the expenses of its, his or her own witnesses and any
other expenses connected with presenting its, his or her own claims. The fees of
the arbitrator will be paid half by the Executive and half by the Corporation,
provided that the Corporation will pay 100% of any portion of the arbitrator's
fee that exceeds $1000. The Arbitrator shall have the power to summarily
adjudicate claims and/or enter summary judgment in appropriate cases.
Notwithstanding any of the foregoing, any claim or counterclaim brought for
infringement or misappropriation of any patent, copyright, trade secret,
trademark or other proprietary right shall not be subject to arbitration, and
neither the Executive nor the Corporation waive any right to submit any such
claim, or any factual or legal issues relating to such a claim, to a court of
competent jurisdiction.
IN WITNESS WHEREOF the parties hereto have executed this Agreement
on the date and year first above written.
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
THE LEARNING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Chief Executive Officer
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