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EXHIBIT 10.7
EMPLOYMENT SEPARATION AGREEMENT AND MUTUAL RELEASE
THIS EMPLOYMENT SEPARATION AGREEMENT AND MUTUAL RELEASE (this
"Agreement") is entered into this 14th 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 Xxxxxx X.
Xxxxx ("Employee").
Recitals:
A. Employee has worked in the employ of Employer for a period of time
pursuant to a Letter Agreement dated as of January 8, 1996 between Employee and
Childcare (the "Employment Agreement").
B. Employee's employment with Employer ceased as of January 29, 2001
(the "Termination Date").
C. Employee and Employer have agreed to make certain covenants and
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 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 through
February 8, 2002, the applicable termination benefits pursuant to Paragraph 6(c)
of the Employment Agreement (the "Termination Benefits"). Included as a
Termination Benefit will be the annual bonus payable to Employee with respect to
Employer's 2001 fiscal year, which will be determined on a pro rata basis to the
Termination Date and will be paid to Employee within 30 days after completion of
Employer's audited financial statements for such fiscal year. 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, the Employment 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. Subject to the
foregoing, Employer
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acknowledges that the release provisions contained in this Agreement do not
release Employer from the obligation to provide Employee the Termination
Benefits as set forth in the Employment Agreement or any rights Employee may
have under the Company's 401(k) Plan or under COBRA. Without limitation on the
foregoing, Employer agrees that Employee is owed and will be compensated in cash
for 31.5 days of accrued vacation.
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. The
Board of Directors of Childtime Learning Centers, Inc. has adopted the
resolutions set forth on the attached Exhibit A to effectuate the foregoing.
4. Noncompetition; Confidentiality; Nonsolicitation. Employee
acknowledges that he continues to be bound by the noncompetition,
confidentiality and nonsolicitation provisions set forth in Paragraph 7 of the
Employment Agreement (the "Post-Employment Obligations"). Employee further
acknowledges that the release provisions contained in this Agreement do not
release Employee from the Post-Employment Obligations and that such obligations
will remain in full force and effect for the applicable duration as set forth in
the Employment Agreement. Employee understands 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 or
under the Employment Agreement 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 or based upon breaches of Paragraphs 6 or 7 of the
Employment 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 or based upon breaches of Paragraphs 6 or 7 of the Employment
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
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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) whether publicly or in any other way.
Employer agrees not to publicly disparage Employee and to use reasonable efforts
to cause its officers, employees, advisors and representatives to comply with
the foregoing.
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.
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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.
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 14, 2001 /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Dated: February 19, 2001 CHILDTIME LEARNING CENTERS, INC.,
a Michigan corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Its: Treasurer and Chief Financial Officer
Dated: February 19, 2001 CHILDTIME CHILDCARE, INC.,
an Illinois corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Its: Treasurer and Chief Financial Officer
