Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Kindercare Learning Centers, Inc. Form 10-K 61 291K
2: EX-10.(F5) Fifth Amendment to Credit Agreement 7 26K
3: EX-10.(F6) Sixth Amendment to Credit Agreement 6 24K
4: EX-10.(P) Employment Resignation Agreement 6 32K
5: EX-10.(Q) Employment Resignation Agreement 6 31K
6: EX-10.(R) Employment Resignation Agreement 6 32K
7: EX-10.(S) Employment Resignation Agreement 5 29K
8: EX-10.(T) Employment Resignation Agreement 6 31K
9: EX-10.(U) Employment Resignation Agreement 6 30K
10: EX-10.(V) Employment Resigantion Agreement 6 30K
11: EX-10.(W) Employment Resignation Agreement 6 29K
12: EX-10.(X) Employment Resignation Agreement 6 29K
13: EX-10.(Y) Employment Resignation Agreement 6 29K
14: EX-23 Consent 1 8K
EX-10.(W) — Employment Resignation Agreement
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EXHIBIT 10(w)
EMPLOYMENT RESIGNATION AGREEMENT, WAIVER AND RELEASE
THIS EMPLOYMENT RESIGNATION AGREEMENT, WAIVER AND RELEASE (hereinafter
"Agreement") is made and entered into as of 12th day of February, 1996 by and
between KINDERCARE LEARNING CENTERS, INC. (hereinafter referred to as
"KinderCare"), which term KinderCare shall include its subsidiaries,
affiliates, directors, officers, employees, attorneys, representatives and
agents, and GAYNELLE HENGER and her heirs, assigns, executors, administrators,
attorneys representatives and agent (collectively referred to herein as
"Employee").
WHEREAS, KinderCare and Employee desire to end their employment
relationship and fully and finally settle all existing or potential claims and
disputes between them, whether known or unknown as of this date, the parties
agree as follows:
1. Obligations of KinderCare: In consideration of Employee's
agreement to the terms herein, KinderCare shall provide to Employee the
following, which KinderCare is not otherwise legally obligated to provide:
A. Employee shall receive a salary continuation (no
vacation or personal leave will be accrued) from
KinderCare, beginning seven (7) days after signing
this Agreement and continuing for a six- (6) month
period, and receive bi-weekly paychecks for gross pay
of $3,230.77 per two-week period (based on an annual
salary of $84,000.00) (hereinafter referred to as
"Salary Continuation Period") except that if Employee
commences full-time employment elsewhere during the
Salary Continuation Period, her Salary Continuation
Period hereunder will be terminated upon such
employment.
B. Employee can continue participating in KinderCare's
group health, dental and life insurance policies,
long-term disability plan, and travel accident
insurance for the Salary Continuation Period as set
forth above under the same terms and conditions as if
she were employed by KinderCare, except that if
Employee obtains employment elsewhere, her benefits
(excluding Salary Continuance) will be terminated and
she will instead be entitled to her health and dental
insurance rights under the Consolidated Omnibus
Budget Reconciliation Act (COBRA).
C. KinderCare will allow Employee to continue using her
company car during the Salary Continuation Period
under the same term and conditions as if she were
employed by KinderCare, excluding the use of the
Company's gas card and, except (1) if Employee
obtains full-time employment elsewhere, Employee will
discontinue the use of said Company car and
immediately return the same to KinderCare or (2) if
KinderCare hires an officer level employee during the
Salary Continuation Period and needs the use of the
vehicle prior to the end of the Salary Continuation
Period, KinderCare agrees to give the Employee a
30-day written notice to return the vehicle.
D. KinderCare will pay to Employee all unused vacation
time at the end of the Salary Continuation Period.
KinderCare will pay seven (7) days of personal time
if available during the seven (7) day revocation
period referenced in Paragraph 12.
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E. KinderCare will offer to Employee outplacement
services at a cost not to exceed $15,000.00 or if
Employee chooses not to use outplacement services,
KinderCare agrees to pay Employee $7,500.00.
F. KinderCare will provide to Employee an available
laptop computer for her use during the Salary
Continuation Period with the option to purchase the
same at their book value at the conclusion of the
Salary Continuation Period.
G. KinderCare waives and releases Employee from any
claims, demands, damages, lawsuits, obligations,
promises, administrative actions, charges, and causes
of action, both known and unknown, in law or equity,
of any kind whatsoever, including, but not limited
to, all matters relating to or arising out of
KinderCare's employment of Employee as long as
Employee was acting within line and scope of
Employment at the time. KinderCare agrees to
indemnify and hold harmless Employee for any claim,
demand, lawsuit or other action or charge made
against Employee by a third party in connection with
her job duties and employment with KinderCare as long
as acting within line and scope of employment.
2. Obligations of Employee: In consideration of the foregoing
special severance arrangements provided by KinderCare, Employee agrees as
follows:
A. Employee shall resign her employment immediately from
KinderCare and its subsidiaries and agrees not to
reapply for employment with KinderCare.
B. Employee waives and releases KinderCare from any
claims, demands, damages, lawsuits, obligations,
promises, administrative actions, charges, and causes
of action, both known and unknown, in law or in
equity, of any kind whatsoever, including, but not
limited to, all matters relating to or arising out of
Employee's employment with KinderCare, compensation
by KinderCare, or separation of employment by
KinderCare. This Waiver and Release covers any
causes of action or claims under Title VII of the
Civil Rights Act of 1964, as amended; the Employee
Retirement Security Act of 1974 (ERISA), as amended;
the Rehabilitation Act of 1973, as amended; the Age
Discrimination in Employment Act of 1967, as amended;
the Older Worker's Benefit Protection Act; the Civil
Rights Act of 1991; Section 1981 of the Civil Rights
Act of 1866, as amended; the Americans with
Disabilities Act of 1990; Executive Orders 11246 and
11478; the National Labor Relations Act, as amended;
the Fair Labor Standards Act; the Equal Pay Act of
1963, as amended; the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA), as amended, and
any other federal or state law or municipal
ordinance, including any lawsuits founded in tort
(including negligence), contract (oral, written or
implied), or any other common law or equitable basis
of action.
C. Employee represents that she has not and will not
file a charge of discrimination against KinderCare
with any federal, state or municipal agency, and
KinderCare has reasonably relied on this
representation in agreeing to perform those
obligations set forth in paragraph 1 of this
Agreement.
Page 2 of 6
D. Employee shall not disclose, either directly or
indirectly, any information whatsoever regarding any
of the terms or the existence of this Agreement or of
any other claim that Employee has or may have against
KinderCare, to any person or organization, including,
but not limited to, members of the press and media,
present and former employees of KinderCare, clients
of KinderCare, companies who do business with
KinderCare, or other members of the public. The only
exceptions to Employee's promise of confidentiality
herein is that Employee may reveal such terms of this
Agreement as are necessary to comply with a request
by the Internal Revenue Service, as otherwise
compelled by a court or agency of competent
jurisdiction, her spouse, or as necessary to comply
with requests from Employee's accountants or
attorneys for legitimate business purposes. Each
party to whom this information is revealed should be
advised that the information is confidential and
should not be disclosed to any other party. Each
breach by Employee of this promise of confidentiality
shall be a material breach of this Agreement for
which these parties agree that KinderCare would
suffer irreparable damages to its reputation.
E. Employee shall refrain from expressing (or causing
others to express) to any third party, any derogatory
or negative opinions concerning KinderCare's
officers, and/or operations, services, or employees.
Employee further agrees not to discuss the manner in
which KinderCare conducts its business or its
business practices with any local, state, or federal
government agency, unless requested to do so by the
president of KinderCare. Each breach by Employee of
this promise of confidentiality shall be a material
breach of this Agreement for which these parties
agree that KinderCare would suffer irreparable damage
to its reputation.
F. Employee shall immediately, unless otherwise set
forth herein, return any and all "Company
information" and "Company property" in her possession
or control, including, but not limited to, business
reports and records, clients reports and records,
customer information contracts or proposals, files,
Rolodex, index card or telephone listing records of
customers, any other customer lists, internal
memoranda concerning any of the above, and all door,
desk and file drawer keys and access cards, computer
access codes, software, computers, portable
telephones, and any other physical or personal
property which Employee received, prepared or helped
prepare in connection with her employment with
KinderCare; and Employee shall not make or retain any
copies, duplicates, reproductions, or excerpts
thereof, and shall not request any of said materials
from any current or former employees of KinderCare.
The term "Company information" as used in this
Agreement means (1) confidential information received
from third parties under confidential conditions; and
(2) other technical, business or financial
information, the use or disclosure of which might
reasonably be construed to be contrary to the best
interest of KinderCare. The term "Company property"
as used in this Agreement means (1) all "Company
property", whether physical or personal, belonging
to, supplied by, or purchased by KinderCare; and (2)
any equipment, materials, vehicles and the like used
by Employee during her employment with KinderCare.
G. Employee acknowledges that in the course of her
employment with KinderCare,
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she has acquired Company information as defined above
and that such Company information has been disclosed
to Employee in confidence and for KinderCare's use
only. Employee shall: (1) keep such Company
information confidential at all times after her
employment with KinderCare; (2) not disclose or
communicate any Company information to any third
party; and (3) not make use of any Company
information on Employee's own behalf, or on behalf of
any third party. In view of the nature of Employee's
employment and the nature of Company information
which Employee has received during the course of her
employment, Employee agrees that any unauthorized
disclosure to third parties of Company information or
other violation, or threatened violation of this
Agreement would cause irreparable damage to the trade
secret status of Company information and to
KinderCare, and that, therefore, KinderCare shall be
entitled to an injunction prohibiting Employee from
any such disclosure, attempted disclosure, violation
or threatened violation, along with monetary damages.
H. Employee agrees to fully cooperate with KinderCare on
all matters pending at the time during her employment
or which may subsequently arise as a result of
occurrences during her employment, including
providing whatever information she has available to
her to KinderCare or to KinderCare's attorneys, along
with meeting with KinderCare's officials and
KinderCare's lawyers, if requested to do so. In the
event that Employee is employed at the time her
services are needed, Employee agrees to make herself
available outside of her regular working hours. If
Employee's services are needed beyond the Salary
Continuation Period, KinderCare agrees to reimburse
Employee for all reasonable expenses incurred as a
result of said consultation, upon written
verification, including, but not limited to, hotel
bills, meals, phone expenses, copy expenses and other
related travel expenses.
I. Employee agrees that during the term of this
Agreement she will not engage in or have a
controlling equity or profit in a company or facility
which provides child care services for children.
J. Employee further agrees that during the term of this
Agreement she shall not engage in employment with a
national or regional child care company which is
further defined as any company owning or operating
ten (10) or more child care centers. Employee
further agrees that she will not directly or
indirectly for herself, or on behalf of or in
conjunction with any other persons or entity, employ,
or seek to employ, any person who is employed with
KinderCare (or any person who is paid by KinderCare
as a consultant), or who has not thereafter ceased to
be employed by KinderCare (either as an employee or
as a consultant).
3. Stock Options:
A. Employee will be entitled to exercise those stock
options which have vested pursuant to and in
accordance with KinderCare's 1993 Employee Stock
Option Plan and the 1993 Stock Option Agreement with
Employee. "Date of Termination" as defined in the
1993 Employee Stock Option Plan shall be the
conclusion of the Salary Continuation Period as set
forth herein.
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DEDUCTIONS MAY BE REQUIRED UNDER APPLICABLE FEDERAL
AND STATE WITHHOLDING LAWS.
4. Termination and Recovery of Benefits: The benefits contained
in this Agreement which flow to Employee from KinderCare, and vice versa, may
be immediately terminated by KinderCare or Employee if either breaches this
Agreement by engaging in any conduct which violates any provision of this
Agreement. Moreover, KinderCare is entitled to recover any benefits paid to
Employee under this Agreement if KinderCare reasonably relied upon any
misrepresentation of Employee in agreeing to undertake these obligations, or if
at any time hereafter, KinderCare becomes aware of any misfeasance or
wrongdoing of Employee while employed by KinderCare.
5. Non-Admission: Neither this Agreement, nor anything contained
herein, is to be construed as an admission by KinderCare or Employee of any
liability, wrongdoing or unlawful conduct whatsoever.
6. Severability: If any provision of this Agreement is
invalidated by a court of competent jurisdiction, then all of the remaining
provisions of this Agreement shall continue unabated and in full force and
effect.
7. Entire Agreement: This Agreement contains the entire
understanding and agreement between the parties and shall not be modified or
superseded except upon written consent of the parties to this Agreement.
Employee represents and acknowledges that in executing this Agreement, she does
not rely and has not relied upon any representation or statement made by
KinderCare or its agents, representatives, or attorneys which is not set forth
in this Agreement.
8. Supersedes Past Agreements: Except as expressly provided
herein, this Agreement supersedes and renders null and void any previous
employment agreements or contracts, whether written or oral, express or
implied, between Employee and KinderCare.
9. Governing Law: This Agreement shall be governed by the laws
of the State of Alabama.
10. Attorneys' Fees: KinderCare shall be entitled to an award of
its costs and attorneys' fees expended in any action to enforce the terms of
this Agreement (including seeking injunctive relief or recision), or to defend
a claim, lawsuit or other type of action which has been waived herein if it
prevails. Likewise, Employee shall be entitled to an award of her costs and
attorneys' fees expended in any action to enforce the terms of this Agreement
against KinderCare.
11. Opportunity to Consider and Confer: KinderCare has advised
Employee to consult an attorney prior to executing this Agreement and Employee
acknowledges that she has been given a period of at least 21 days within which
to consider this Agreement. Employee and KinderCare acknowledge that each has
had the opportunity to consult with counsel or an otherwise competent
representative, and both parties fully understand and are in complete agreement
with all of the terms of this Agreement. Employee and KinderCare acknowledge
that each has had the opportunity to consult with counsel or an otherwise
competent representative, and both parties fully understand and are in complete
agreement with all of the terms of this Agreement against KinderCare.
12. Effective Date: This Agreement may be revoked by either party
for a period of seven (7) days following the execution date of the Agreement,
and the Agreement shall not become effective or
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enforceable until the revocation period has expired.
IN WITNESS WHEREOF, and intending to be legally bound, KinderCare, by
its authorized representative, and Employee execute this Employment Resignation
Agreement, Waiver and Release, consisting of six (6) pages and including 12
enumerated paragraphs, by signing below freely and voluntarily and with full
knowledge of the significance of all its provisions.
PLEASE READ CAREFULLY. THIS EMPLOYMENT RESIGNATION AGREEMENT, WAIVER AND
RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Executed at Montgomery, Alabama as of 9th day of February, 1996.
/s/ Ms. Angela Bain /s/ Gaynelle Henger
------------------------- ---------------------------------
Witness as to Employee Gaynelle Henger
Executed at Montgomery, Alabama as of 8th day of February, 1996.
KinderCare Learning Centers, Inc.
/s/ Malinda M. Hough By: /s/ Rebecca Bryan
------------------------- ------------------------------
Witness as to KinderCare Name: Rebecca Bryan
Title: Vice President and General
Counsel
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