Exhibit 2.4
RETENTION AGREEMENT
-------------------
THIS RETENTION AGREEMENT (the "Agreement") is made and entered into as of
this 30th day of April, 2001 by and between LearningStar Corp., a Delaware
corporation ("LearningStar" or the "Company"), and Al Noyes ("Noyes").
WHEREAS, in connection with the transactions contemplated by the
Contribution Agreement and Plan of Reorganization and Merger, dated as of
November 14, 2000, as amended on March 14, 2001, by and among Earlychildhood LLC
("Earlychildhood"), SmarterKids.com, Inc. ("SmarterKids"), LearningStar and S-E
Educational Merger Corp., a wholly-owned subsidiary of LearningStar (the "Merger
Agreement"), SmarterKids and Earlychildhood consummated the combination of their
respective companies and each became a wholly owned subsidiary of LearningStar;
and
WHEREAS, effective as of the date hereof, LearningStar wishes to engage the
services of Noyes on the terms described herein, and Noyes wishes to accept such
engagement in exchange for the consideration provided herein;
NOW, THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Election as Chairman of the Board. LearningStar agrees that it shall
---------------------------------
nominate and shall use its commercially reasonable best efforts to cause Noyes
to be elected as chairman of LearningStar's Board of Directors (the "Chairman")
as of the date of this Agreement. Noyes agrees to accept such appointment and
to serve as Chairman of LearningStar until the earlier of (i) Noyes' resignation
as Chairman, or (ii) Noyes' removal as Chairman by a vote of LearningStar's
Board of Directors, in exchange for the compensation and benefits detailed in
his Agreement, including without limitation Section 4.
2. Employment. Effective as of the date hereof, LearningStar offers and
-----------
Noyes accepts employment with LearningStar. LearningStar shall pay Noyes a base
salary of $18,750 per month to be paid in accordance with the Company's normal
payroll practice as may be modified from time to time. Noyes shall be eligible
to participate in the Company's benefit programs to the same extent as, and
subject to the same terms, conditions and limitations applicable to, other
employees of similar rank and tenure. Noyes' employment with LearningStar shall
terminate on July 31, 2001.
3. Lump Sum Payment and Accelerated Vesting. In exchange for Noyes'
----------------------------------------
execution of this Agreement and the promises contained herein, including, but
not limited to, his agreement to provide services to LearningStar as an employee
and Chairman, LearningStar agrees as follows:
(a) LearningStar shall pay Noyes a gross lump sum payment of $250,000
on July 31, 2001 upon the parties' execution of a release in the
form attached hereto as Exhibit A; and
(b) All options to purchase common stock of LearningStar
("LearningStar Options") held by Noyes as of the date of this
Agreement shall be vested and immediately exercisable as of July
31, 2001. Noyes shall have until December 31, 2002 to exercise
such LearningStar Options.
(c) LearningStar's obligation to make payments under this Section
3(a) and to accelerate Noyes' options under Section 3(b) shall be
contingent upon Noyes' compliance with his obligations under the
Employee Nondisclosure and Developments Agreement between Noyes
and Smarterkids.
4. Indemnification. From the date of this Agreement up to and through
----------------
December 31, 2002, LearningStar agrees that if Noyes is made a party, or
compelled to testify or otherwise participate in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that (i) he was a director or officer of SmarterKids (or any
of its Subsidiaries) or (ii) he is or was Chairman or an employee of
LearningStar, Noyes shall be indemnified by LearningStar to the fullest extent
permitted under Section 145 of the Delaware General Corporation Law or (but not
to any lesser extent) as authorized by LearningStar's certificate of
incorporation or bylaws or resolutions of the LearningStar Board of Directors
against all costs, expenses, liabilities, damages and losses reasonably incurred
or suffered by Noyes in connection therewith, and such indemnification shall
continue as to Noyes for the period of any applicable statute of limitations or,
if longer, for the period in which any such Proceeding which commenced within
the period of any such statute of limitations is pending. LearningStar shall
advance to Noyes all reasonable costs and expenses incurred by him in connection
with a Proceeding within ten (10) days after receipt by LearningStar of a
written request for such advance. Such request shall include an itemized list of
the costs and expenses and an undertaking by Noyes to repay the amount of such
advance if it shall ultimately be determined, in a final judgment for which the
time to appeal has expired, that, pursuant to applicable law, he is not entitled
to be indemnified against such costs and expenses.
5. Confidentiality and Noncompetition.
-----------------------------------
(a) For a period of five (5) years from the Termination Date, Noyes agrees
not to use or disclose LearningStar's, SmarterKids' or Earlychildhood's trade
secrets and confidential business information, and expressly acknowledges that
this obligation survives the termination of his employment. Trade secrets and
confidential business information include, without limitation, items such as
business, marketing and sales plans and strategies; analyses of competition and
competitors; pricing information (including profit margins, discounts, and
pricing strategies); customer information (including the identity, addresses and
phone numbers of existing or prospective customers, customer contacts, customer
lists, profit margins for particular customers, customer data such as load
profiles, customer contracts and terms such as pricing and expiration dates, and
information about the particular desires and needs of customers); supply
information (including equipment specifications and capabilities, production
problems and progress, and terms such as payment, pricing and expiration dates),
supply contracts, and the identity, addresses and phone numbers of key
suppliers; specialized software and related applications and data; and
employment information (including the identity and performance of key employees
and salary history) (hereafter collectively "Proprietary Information").
(b) Noyes agrees that during the period of his employment by LearningStar
and for six (6) months thereafter, he shall not, directly or indirectly, alone
or as a consultant, partner, officer, director, employee, joint venturer, lender
or stockholder of any entity, engage in any business or activity that is in
competition with the products or services being planned, created, developed,
manufactured, marketed, distributed or sold by LearningStar.
6. Arbitration. Any claim arising out of or relating to this Agreement will
------------
be subject to arbitration in Boston, Massachusetts, in accordance with the
Federal Arbitration Act and the Employment Dispute rules of the American
Arbitration Association. The prevailing party in any such arbitration shall be
entitled to recover from the other party its reasonable expenses incurred in
connection with such arbitration, including the reasonable fees and expenses of
counsel.
7. Excess Parachute Payment. Notwithstanding anything to the contrary in
-------------------------
this Agreement, if the Company determines in its sole discretion after
consultation with its tax and accounting advisors that Noyes is a Disqualified
Individual (as defined in Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code")) and that any portion of any payment or distribution by the
Company to or for the benefit of Noyes, whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or otherwise (a
"Payment") would be an Excess Parachute Payment (as defined in Section 280G of
the Code) but for the application of this sentence, then the amount of all such
Payments otherwise payable to Noyes pursuant to this Agreement shall be reduced
to the minimum extent necessary (but in no event to less than zero) so that no
portion of any Payment, as so reduced, constitutes an Excess Parachute Payment.
For purposes of this reduction, no portion of any Payment shall be taken into
account to the extent that such Payment, in the opinion of the Company, after
consultation with its tax and accounting advisors, does not constitute a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code.
8. Entire Agreement. This Agreement constitutes the entire agreement between
-----------------
Noyes and LearningStar with respect to the subject matter herein and supersedes
all prior or concurrent arrangements, discussions, agreements or understandings
between Noyes and the Company on the subject matters herein; provided, however,
that nothing herein shall supercede the Employee Nondisclosure and Developments
Agreement between Smarterkids and Noyes, which shall remain in full force and
effect in accordance with its terms.
9. Voiding of Change of Control Agreement. LearningStar and Noyes agree that
---------------------------------------
this Agreement shall supercede and void the Change of Control Agreement between
Smarterkids.com and Noyes effective as of the date of execution of this
Agreement.
10. Governing Law. This Agreement shall be governed by the laws of the
--------------
Commonwealth of Massachusetts without regard to principles of conflicts of law.
11. No Mitigation or Set Off. The amounts payable to Noyes under this
-------------------------
Agreement shall not be subject to set off or mitigation. No claim for failure
to perform services under this Agreement shall relieve LearningStar of its
obligations under Section 4 hereof.
12. Waivers and Modifications. This Agreement may be modified, and the
--------------------------
rights, remedies and obligations contained in any provision hereof may be
waived, only in accordance with this Section 12. No waiver by either party of
any breach by the other or any provision hereof shall be deemed to be a waiver
of any later or other breach thereof or as a waiver of any other provision of
this Agreement. This Agreement may not be waived, changed, discharged or
terminated orally or by any course of dealing between the parties, but only by
an instrument in writing signed by the party against whom any waiver, change,
discharge or termination is sought. No modification or waiver by LearningStar
shall be effective without the consent of at least a majority of the members of
the Board of Directors (excluding Noyes) then in office at the time of such
modification or waiver.
13. Assignment. Neither of the parties hereto shall, without the other
-----------
parties' prior written consent, assign or transfer this Agreement or any rights
or obligations hereunder. This Agreement shall be binding upon and inure to the
benefit of LearningStar and any successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) of LearningStar.
14. Notice. Any notice, or other written communication to be given pursuant
-------
to this Agreement for whatever reason shall be deemed duly given and received
(a) if delivered personally, from the date of delivery, or (b) by certified
mail, postage pre-paid, return receipt requested, three (3) days after the date
of mailing, addressed to the above parties as follows:
If to LearningStar:
LearningStar Corp.
2 Lower Ragsdale Drive, Suite 200
Monterey, California 93940
Attn: Board of Directors
with a copy to:
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
Attn: Jeffrey L. Kateman, Esq.
If to Noyes:
237 Varick Road
Newton, MA 02468
and
with a copy to:
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, Massachusetts 02110
Attn: Gordon H. Hayes, Jr., Esq.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date and year first above written.
LEARNINGSTAR CORP.
By: /s/ Ronald Elliott
---------------------------
Name Ronald Elliott
--------------------
Title:
--------------------
/s/ Al Noyes
------------------------------
Al Noyes
EXHIBIT A
---------
RELEASE
-------
This RELEASE (the "Release") dated this ___ day of ________, by and
between Al Noyes ("Noyes") and LearningStar Corp. (the "Company").
WHEREAS, Noyes and the Company entered into a Retention Agreement dated
April 30, 2001; and
WHEREAS, Section 3 of the Retention Agreement provides that Noyes shall
execute and deliver the following release in consideration for the payments set
forth therein;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. LUMP SUM PAYMENT AND ACCELERATED VESTING. Upon expiration of the
-----------------------------------------
seven (7) day revocation period described in Section 2(b) below, the Company
agrees as follows:
(a) LearningStar shall pay Noyes a gross lump sum payment of $250,000
on July 31, 2001; and
(b) All options to purchase common stock of LearningStar
("LearningStar Options") held by Noyes shall be vested and
immediately exercisable as of July 31, 2001. Noyes shall have
until December 31, 2002 to exercise such LearningStar Options.
2. RELEASE.
-------
(a) Noyes hereby releases, discharges and covenants not to sue
LearningStar, SmarterKids, Earlychildhood or, as applicable, their respective
divisions, subsidiaries, parent(s), affiliated corporations, partnerships or
limited liability companies, past and present, and each of them, as well as
their directors, officers, shareholders, members, representatives, assignees,
successors, agents and employees, past and present, and each of them
(individually and collectively, "Releasees") from any and all actions or causes
of action, suits, claims, complaints, contracts, liabilities, obligations,
agreements, promises, debts, damages, judgments, rights and demands, whether
existing or contingent, known or unknown, including, but not limited to: (i) any
and all claims arising out of or in connection with Noyes's employment, change
in employment status and/or termination of employment from LearningStar; (ii)
any and all claims based on any federal, state or local law, constitution or
regulation dealing with either employment or employment discrimination such as
those laws or regulations concerning discrimination on the basis of age, race,
color, creed, religion, sex, sexual harassment, sexual orientation, national
origin, ancestry and disability; and/or (iii) any and all claims arising out of
or in connection with any contract, whether oral or written, express or implied,
any tort, and/or any other statutory or common law claim of any nature
whatsoever. This provision is intended by the parties hereto to be all
encompassing and to act as a full and total release of any claims, whether
specifically enumerated herein or not, that Noyes has, may have or has had
against the Releasees prior to the date of execution of this Release.
(b) Since Noyes is 40 years of age or older, he has been informed that he
has or might have specific rights and/or claims under the Age Discrimination in
Employment Act of 1967 (the "ADEA"), and he agrees and understands that: (i) in
consideration for the payments described in Section 3, he specifically waives
his rights and/or claims under the ADEA to the extent that such rights and/or
claims arose prior to or on the date this Release is executed; (ii) he is
advised of his right to consult with an attorney of his choice or any other
person of his choosing prior to executing this Release and that he has not been
subject to any undue or improper influence interfering with the exercise of his
free will in deciding whether to execute this Release; and (iii) he is hereby
informed that he has at least 21 days from the date he is presented with this
Release within which to consider the terms of this Release, and seven days after
execution of this Agreement within which to revoke this Agreement.
3. GOVERNING LAW: This Agreement shall be governed by and construed
--------------
in accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to the principles of conflicts of law thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Release to be executed
as of the date set forth above.
LEARNINGSTAR CORP.
By:
----------------------------
Name
---------------------
Title:
---------------------
-------------------------------
Al Noyes