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EXHIBIT 10.5
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is entered
into between Bright Horizons Family Solutions, Inc., a Delaware corporation
("Company"), and Xxxxxxxxxx X. Xxxxxx ("Employee"), entered into as of July 1,
1999 (the "Effective Date"). The Company and the Employee are sometimes referred
to herein as the "Parties".
WHEREAS, Employee has served as the Chief Executive Officer of the
Company since the merger of CorporateFamily Solutions, Inc. and Bright Horizons,
Inc., pursuant to the terms and conditions set forth in the Employment
Agreement, dated July 24, 1998 (the "Original Agreement"), between the Company
and Employee;
WHEREAS, Employee retired as Chief Executive Officer of the Company
effective May 20, 1999 but has otherwise continued to serve as an employee of
the Company pursuant to the Original Agreement as mutually agreed by the Company
and Employee through June 30, 1999, and she desires to continue to serve the
Company as described herein and the Company desires to have the Employee serve
the Company as described herein; and
WHEREAS, Employee and the Company desire to amend and restate in its
entirety the Original Agreement to set forth the terms and conditions of the
Employee's position and duties with the Company;
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound,
the parties hereby agree as follows:
1. Employment and Term of Employment. For the period commencing on July 1, 1999
and expiring on December 31, 1999 (the "Employment Term"), the Company hereby
employs the Employee and the Employee hereby accepts employment with the Company
upon the terms and conditions set forth herein.
2. Board Service and Term of Board Service. For the period commencing on January
1, 2000 and expiring on December 31, 2005 and for such additional period as may
be approved by the Board of Directors (the "Board Service Term"), the Company
hereby agrees that Employee shall be nominated to serve on the Board of
Directors in the capacity as Co-Chairman of the Board and the Employee agrees
that during the Board Service Term that she will serve as a consultant to the
Company to the extent and on the terms and conditions that may be mutually
agreed upon by the Company and the Employee.
3. Duties and Responsibilities. During the Employment Term, Employee shall be
employed by the Company as Co-Chairman of the Board whereby Employee agrees to
devote up to half of her working time to the services and functions relating to
such office or otherwise reasonably incident to such office as may be designated
from time to time by the Board of
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Directors or the Chief Executive Officer of the Company, provided however the
Employee at her discretion in agreement with the Chief Executive Officer of the
Company may increase or decrease the amount of her working time by notice to the
Chief Executive Officer of the Company. During the Board Service Term, Employee
shall serve as Co-Chairman of the Board, subject to her being elected to the
Board by the stockholders, with such duties and responsibilities as shall be
designated from time to time by the Board of Directors or the Chief Executive
Officer of the Company and to the extent mutually agreed upon by the Company and
Employee she shall serve as a consultant to the Company.
4. Salary and Other Benefits.
4.1 Salary. During the Employment Term, the Employee shall be paid a
prorated annual salary ("Base Salary") of not less than $87,500, payable in
accordance with the then current payroll policies of the Company. Such salary
shall be subject to increase or decrease on a pro rata basis in the event that
the Employee provides notice to the Chief Executive Officer that she plans to
increase or decrease her working time pursuant to provisions of paragraph 3
hereof. During the Board Service Term, the Employee shall receive compensation
as may be mutually agreed upon by the Company and the Employee.
4.2 Other Benefits. During the Employment Term, the Employee shall be
entitled to receive the following benefits in addition to her Base Salary:
(a) The Employee shall have the right to participate in all group
benefit plans of the Company (including without limitation, disability,
accident, medical, life insurance and Section 401(k) plan) available to
senior executives of the Company.
(b) The Employee shall be entitled to reimbursement from the Company
for reasonable out-of-pocket expenses incurred by her in the course of the
performance of her duties hereunder, including all expenses associated with
travel to the Company's offices in Boston.
(c) Employee shall be entitled to participate in incentive
compensation programs available to senior executives of the Company,
including stock option and restricted stock plans and annual bonus
incentive programs and plans, to the extent deemed appropriate by the Board
of Directors (or any appropriate committee thereof).
(d) The Employee shall be entitled to such vacation, holidays and
other paid or unpaid leaves of absence as are available to senior
executives of the Company.
(e) The Employee shall be provided with an office and secretary during
her employment hereunder in Nashville and appropriate work space and
assistance in Boston.
5. Termination and Resignation. The Company shall have the right to terminate
the Employee's position and duties hereunder at any time and for any reason.
Upon any termination by the Company without Cause as defined in paragraph 6
hereof, the Employee shall be entitled
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to receive from the Company prompt payment of an amount equal to her Base Salary
through December 31, 1999 plus any incentive compensation determined to be due
to her. Upon any termination by the Company for Cause or by the Employee by
voluntary resignation, Employee shall thereupon be entitled to receive from the
Company prompt payment of an amount equal to her Base Salary only on a pro rata
basis to the date of termination.
6. Definition of "Cause". Termination by the Company of the Employee's position
and duties hereunder for "Cause" shall mean termination due to (a) Employee's
willful dishonesty, fraud, or misconduct with respect to the business or affairs
of the Company which is directly and materially harmful to the Company; or (b)
Employee's conviction of a felony or other crime involving moral turpitude. For
purposes of this definition, no act, or failure to act, on the Employee's part
shall be considered "willful" unless done, or omitted to be done, by the
Employee not in good faith and without reasonable belief that the Employee's
action or omission was in the best interest of the Company.
7. Restrictive Covenants.
7.1 Covenants Against Competition. Employee acknowledges that (a) the
business of the Company and its affiliates is as described in the annual report
of the Company on Form 10-K as filed with the Securities and Exchange Commission
for its fiscal year ended December 31, 1998, and thereafter as described in each
successive annual report on Form 10-K filed by the Company (the "Company
Business"); and (b) Employee's work relating to Company Business will bring her
into close contact with many confidential matters not readily available to the
public.
7.2 Non-Compete. During the Employment Term and the Board Service Term and
for a period of twenty-four (24) months following the termination of the
Employment Term and the termination of the Employee's service on the Board of
Directors (collectively, the "Restricted Period"), Employee covenants and agrees
that she will not, without the express approval of the Company, anywhere in the
continental United States engage in any business directly or indirectly, as an
individual, partner, shareholder, officer, director, principal, agent, employee,
trustee, consultant or in any other relationship or capacity, if such business
is competitive with the Company Business; provided, however, that Employee may
own, directly or indirectly, solely as an investment, securities of any entity
if Employee (a) is not a controlling person with respect to such entity and (b)
does not, directly or indirectly, own five percent or more of any class of the
securities of such entity.
7.3 Trade Secrets; Confidential Information. Employee covenants and agrees
that at all times during and after the Restricted Period, she shall keep secret
and not disclose to others or appropriate to her own use or the use of others,
without the express approval of the Company, any trade secrets, or secret or
confidential information or knowledge pertaining to the Company Business or the
affairs of the Company, including without limitation trade know-how, trade
secrets, consultant contracts, customer lists, pricing policies, operational
methods, marketing plans or strategies, product development techniques or plans,
business acquisition plans, new personnel acquisition plans, technical
processes, designs and design projects, inventions and
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research projects. Information shall not be deemed confidential or secret for
purposes of this Agreement if it is generally known in the industry.
7.4 Employees of the Company. During the Restricted Period, Employee
shall not, without the express approval of the Company, directly or indirectly
hire away or solicit to hire away from the Company any employee of the Company.
7.5 Property of the Company. All memoranda, notes, lists, records and
other documents (and all copies thereof) made or compiled by Employee relating
to the Company Business or made available to Employee during the term of this
Agreement by the Company concerning the business or affairs of the Company
Business other than any of such which may also pertain personally to Employee,
shall be the exclusive property of the Company and shall be delivered to the
Company promptly upon the termination of Employee's position and duties with the
Company or at any other time on request by the Board of Directors of the
Company.
7.6 Rights and Remedies Upon Breach. If Employee breaches, or threatens
to commit a breach of, any of the provisions of Paragraphs 7.2 through 7.5 of
this Agreement (collectively, the "Restrictive Covenants"), 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 any of the Restrictive Covenants specifically
enforced by any court having jurisdiction, it being hereby acknowledged and
agreed by Employee 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 Employee
to account for and pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits derived or received by Employee as a
result of any transactions constituting a breach of any of the Restrictive
Covenants, and Employee shall account for and pay over such benefits to the
Company.
7.7 Severability of Restrictive Covenants. If it is determined that any
of the Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full effect, without regard to the invalid portions. If it is
determined that any of the Restrictive Covenants, or any part thereof, is
unenforceable because of the duration of such provision, the geographical area
covered thereby, or any other determination of unreasonableness of the
provision, the court making such determination shall have the power to reduce
the duration, area or scope of such provision and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
8. Notice. All notices, requests, demands and other communications given under
or by reason of this Agreement shall be in writing and shall be deemed given
when delivered in person, by facsimile or other electronic transmission or when
mailed, by certified mail (return receipt requested), postage prepaid, addressed
as follows (or to such other address as a party may specify by notice pursuant
to this provision):
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(a) To the Company:
Bright Horizons Family Solutions, Inc.
Xxx Xxxxxxx Xxxxxx, Xxxxxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
(b) To Employee:
Xxxxxxxxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
9. Controlling Law and Performability. The execution, validity, interpretation
and performance of this Agreement shall be governed by the laws of the State of
Tennessee.
10. Payment of Legal Fees. In the event of any litigation instituted by the
Company or the Employee to enforce any rights or obligations hereunder, each
Party to this Agreement shall bear all of its or her expenses incurred in
connection therewith, including counsel fees.
11. Additional Instruments.. The Parties shall execute and deliver any and all
additional instruments and agreements that may be necessary or proper to carry
out the purposes of this Agreement.
12. Entire Agreement and Amendments. This Agreement contains the entire
agreement of the Parties relating to the matters contained herein and supersedes
all prior agreements, including the Original Agreement, and understandings, oral
or written, between the Parties with respect to the subject matter hereof. This
Agreement may be changed only by an agreement in writing signed by the Party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
13. Severability. If any provision of the Agreement is rendered or declared
illegal or unenforceable by reason of any existing or subsequently enacted
legislation or by the decision of or decree of a court of last resort, the
Parties shall promptly meet and negotiate substitute provisions for those
rendered or declared illegal or unenforceable to preserve the original intent of
this Agreement to the extent legally possible, but all other provisions of this
Agreement shall remain in full force and effect.
14. Assignments. The Company may assign (whether by operation of law or
otherwise) this Agreement only with the written consent of the Employee, which
consent shall not be withheld unreasonably, and in the event of an assignment of
this Agreement, all covenants, conditions and provisions hereunder shall inure
to the benefit of and be enforceable against the Company's successors and
assigns. The rights and obligations of Employee under this Agreement are
personal to her, and no such rights, benefits or obligations shall be subject to
voluntary or involuntary alienation, assignment or transfer.
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15. Effect of Agreement. Subject to the provisions of Paragraph 14 with respect
to assignments, this Agreement shall be binding upon the Employee and her heirs,
executors, administrators, legal representatives and assigns and upon the
Company and its respective successors and assigns.
16. Execution. This Agreement may be executed in multiple counterparts each of
which shall be deemed an original and all of which shall constitute one and the
same instrument.
17. Waiver of Breach. The waiver by either Party of a breach of any provision of
the Agreement by the other Party shall not operate or be construed as a waiver
by such Party of any subsequent breach by such other Party.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
1st day of July, 1999.
BRIGHT HORIZONS FAMILY SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx Xxxxx
Title: President
EMPLOYEE:
XXXXXXXXXX X. XXXXXX
/s/ Xxxxxxxxxx X. Xxxxxx
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