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EXHIBIT 10.12
CONSULTING AGREEMENT
THIS AGREEMENT is dated September 22, 2000 by and between BEACON
EDUCATION MANAGEMENT, INC., a Delaware corporation (the "Company"), and Xxxxx
Xxxxxxxxx ("Consultant").
W I T N E S S E T H:
WHEREAS, Consultant serves on the Company's board of directors; and
WHEREAS, the Company desires to retain Consultant to perform the
services set forth in this Agreement under the terms herein provided and
Consultant is agreeable to performing such services under such terms.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree as follows:
1. Engagement as Consultant. The Company hereby retains and engages
Consultant to render to the Company consulting and advisory services as set
forth on Schedule I hereto from time to time as reasonably requested by the
Company during the term hereinafter set forth. Consultant hereby accepts such
engagement and agrees to render such services upon the terms and conditions
hereinafter set forth. Consultant's services are as enumerated herein and shall
not include the authority of Consultant to execute contracts or agreements on
behalf of the Company.
2. Extent of Consulting
(a) During the Term of Consulting, Consultant shall perform his
obligations hereunder faithfully and to the best of his ability.
(b) During the Term of Consulting, Consultant shall use such time,
energy and skill as may be reasonably necessary for the performance of his
duties, responsibilities and obligations hereunder.
(c) Consultant shall act in accordance with laws, ordinances,
regulations or rules of any governmental, regulatory or administrative body,
agent or authority, any court or judicial authority, or any public, private or
industry regulatory authority. Nothing contained herein shall require Consultant
to perform any act which would violate any laws, ordinances, regulations or
rules of any governmental, regulatory or administrative body, agent or
authority, any court or judicial authority, or any public, private or industry
regulatory authority.
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3. Relationship of Parties. It is the express intention and
understanding of the Company and Consultant that the relationship of Consultant
to the Company shall be at all times that of an independent contractor, with
Consultant having full and complete liberty to use its own free and uncontrolled
will, judgment, and discretion as to the method and manner of performing the
obligations of Consultant hereunder. Nothing herein contained or done pursuant
to this Agreement shall constitute Consultant, its agents or employees a
partner, joint venturer, or employee of the Company.
4. Term. The term of this Agreement shall commence on the date hereof
and shall continue for a period of twelve (12) months and shall automatically be
extended for successive twelve (12) month periods unless notice of termination
is given not less than sixty (60) days prior to the end of the initial twelve
(12) month period or any successive twelve (12) month period, as applicable,
unless otherwise earlier terminated in accordance with Section 5 hereof.
5. Termination. This Agreement shall be terminated:
(a) by the Company or Consultant without Cause at any
time upon sixty (60) days' written notice thereof to the other party;
(b) by the Company for Cause at any time immediately upon
written notice to Consultant. For the purposes of this Agreement,
termination by the Company of this Agreement for "Cause" shall mean
termination due to (i) Consultant's commission of any act or omission
involving dishonesty or fraud with respect to the Company, any of its
affiliates or any of their respective customers or suppliers, (ii)
Consultant's conduct tending to bring the Company or any of its
affiliates into public disgrace or disrepute, (iii) Consultant's
substantial and repeated failure to perform his duties as set forth in
this Agreement or as reasonably directed by the Board of Directors of
the Company, or (iv) Consultant's willful misconduct with respect to
the Company or any of its affiliates.
(c) Upon any such termination of this Agreement, all
rights and duties of the parties toward each other shall cease except
Sections 3, 6, 8 and 9 of this Agreement shall survive termination of
this Agreement.
6. Return of Records. Upon termination of this Agreement for any
reason, Consultant shall return to the Company all records, documents,
information, and data (including data stored in computers), and all copies of
the foregoing, that relate to the Company or its business.
7. Compensation. As compensation for the performance by Consultant of
its obligations under this Agreement, the Company agrees to pay to Consultant a
consulting fee through the Term hereof of $35,000 payable in monthly
installments.
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8. Indemnification. Each party agrees to indemnify, defend and hold the
other harmless from any and all claims, actions, damages, liabilities, costs,
and expenses, including reasonable attorneys' fees and expenses and including
claims of third parties, arising out of or relating to such indemnitor's
performance under this Agreement, except for actual or threatened claims,
actions, damages, liabilities, costs, and expenses which arise from such
indemnities' negligence or willful misconduct. This indemnity shall not apply
unless the party claiming indemnification informs the indemnitor as soon as
practicable of any claim or action giving rise to such indemnity and gives the
indemnitor full opportunity to control the response to, and the defense and
settlement of, such claim or action. The indemnification rights provided under
this Section 8 are in addition to all other rights or remedies that an
indemnified party may have at law, in equity or otherwise.
9. Confidentiality. Consultant agrees that all information communicated
to him by the Company, whether before or after the date of this Agreement, was
and shall be received in strict confidence and shall be used only for purposes
of this Agreement or in Consultant's role as a director, and that no such
information including, without limitation, the provisions of this Agreement,
shall be disclosed by Consultant, without the prior written consent of the
Company, except as may be necessary by reason of legal, accounting, or
regulatory requirements applicable to Consultant. If Consultant breaches, or
threatens to commit a breach of the covenant contained in this Section 9, the
Company shall have the following rights and remedies, each of which shall be
independent of the other and severally enforceable, and all of which shall be in
addition to, and not in lieu of, any other rights and remedies available to the
Company: (a) the right and remedy to have the rights and obligations of this
Section 9 specifically enforced by any court having jurisdiction, it being
hereby acknowledged and agreed by Consultant that any such breach or threatened
breach will cause irreparable injury to the Company and that money damages will
not provide an adequate remedy to the Company; and (b) the right and remedy to
require Consultant to account for and pay over to the Company all compensation,
profits, monies, accruals, increments or other benefits derived or received by
Consultant as a result of any transactions constituting a breach of the covenant
contained in this Section 9, and Consultant shall account for and pay over such
benefits to the Company.
10. General Provisions.
(a) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered or mailed (registered or certified mail, postage
prepaid, return receipt requested or by overnight courier service) as follows:
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If to Consultant:
Xxxxx Xxxxxxxxx
000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
If to the Company:
Beacon Education Management, Inc.
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
ATTN: Xxxxxxx XxXxxxxx, Xx.
with a copy to:
Bass, Xxxxx & Xxxx PLC
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx III
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address only
shall be effective upon receipt.
(b) Attorneys' Fees and Costs. In the event that attorneys' fees or
other costs are incurred to secure performance of any of the obligations set
forth in this Agreement, to establish damages for the breach hereof or to obtain
any other appropriate relief, whether by way of prosecution or defense, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
costs incurred therein.
(c) Counterparts. This Agreement may be executed in one or more
counterparts for the convenience of the parties hereto, all of which together
shall constitute one and the same instrument.
(d) Binding Agreement; Assignment. This Agreement shall be binding on,
and inure to the benefit of, the parties hereto and their respective
representatives, successors, and assigns, but neither this Agreement nor any of
the rights, interests, or obligations hereunder shall be assigned or delegated
by the parties hereto, whether by operation of law or otherwise, without the
prior written consent of the other parties, nor is this Agreement intended to
confer upon any other person other than the parties hereto any rights or
remedies hereunder. Any assignment or delegation in violation of this Agreement
shall be null and void.
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(e) Payment of Taxes. Consultant shall indemnify and hold harmless the
Company from and against and shall assume full responsibility for payment of all
federal, state and local taxes or contributions imposed or required under
employment insurance, social security and income tax laws with respect to
Consultant's compensation under this Agreement.
(f) Governing Law. This Agreement, and all obligations or rights of the
parties under this Agreement, shall be governed by, construed and interpreted
under the laws of the State of Tennessee.
(g) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(h) Amendment. This Agreement may not be changed or modified in any way
subsequent to the date of execution except by an instrument in writing executed
on behalf of each of the parties hereto.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
THE COMPANY:
BEACON EDUCATION
MANAGEMENT, INC.
By: /s/ Xxxxxxx X. XxXxxxxx, Xx.
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Name: Xxxxxxx X. XxXxxxxx, Xx.
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Title: Chairman
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CONSULTANT:
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
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SCHEDULE I
Consultant shall provide services from time to time as mutually agreed to by the
Consultant and Company regarding marketing, recruitment, government relations
and such other services as agreed upon. Marketing services shall include, among
other things, meeting with charter and school district boards (or their
representatives), selected vendors, potential investors, and third party
consultants or advisors. Recruitment services shall include assisting the
Company in hiring officers of the Company and selected principals for charter
and/or contract schools under management. Government relations services shall
include, among other things, meeting with various local, state and/or federal
governmental officials regarding specific issues and general policy matters
associated with the Company's business.
The Company and Consultant shall work together to maximize the utilization of
Consultant's time on behalf of the Company, while acknowledging consultant's
desire to avoid unnecessary or excess travel in the delivery of services
hereunder.
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