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EXHIBIT 10(b)
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SENIOR ADVISOR AGREEMENT
------------------------
This Senior Advisor Agreement (the "Agreement"), dated as of July 1,
2002 (the "Effective Date"), is entered into by and among _____________ (the
"Executive"), DeVry Inc., a Delaware corporation (the "Company"), and DeVry
University, Inc., an Illinois corporation (the "School");
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the employment of the Executive by the Company and the School
is currently subject to an Employment Agreement, dated June 1, 1991 (the
"Prior Employment Agreement"); and
WHEREAS, the Company, the School and the Executive are entering into an
Employment Agreement, dated as of July 1, 2002 (the "2002 Employment
Agreement"), and the Company and the School wish to obtain the future
services of the Executive for the Company and the School after the Executive
ceases to be employed during the "Term of Employment" in accordance with the
2002 Employment Agreement; and
WHEREAS, the Executive has made significant contributions to the
success of the Company and the School through his many years of service to
each organization, and such service was provided without full adequate
compensation; and
WHEREAS, the Company and the School wish to provide for an orderly
transition to successor management; and
WHEREAS, the Executive is willing, upon the terms and conditions herein
set forth and under the 2002 Employment Agreement, to provide services
hereunder and thereunder.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound hereby, the parties
hereto agree as follows:
Section 1
Performance of Services
-----------------------
1.1 Generally. During the Senior Advisor Period (as defined in
subsection 1.5), subject to the terms of this Agreement, the Company hereby
agrees to employ the Executive as a senior advisor to and employee of the
Company and the School, with such responsibilities and duties and at such
times and places, as shall be mutually and reasonably convenient to the
parties (taking appropriate consideration of Executive's prior performance of
services from locations outside of the Company), it being understood and
agreed that the Executive shall not be required to devote in excess of 120
hours per fiscal year of the Company (exclusive of time served as a director)
to the performance of such responsibilities and duties hereunder.
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1.2 Location. During the Senior Advisor Period, and consistent with
past practices, the Executive shall be provided, at Company expense, with a
suitable office at a mutually agreeable location within 20 miles of the
Company's headquarters (as of the Effective Date) and with appropriate
secretarial support.
1.3 Responsibilities and Reporting. The Executive's employment shall
be subject to the following:
(a) During the Senior Advisor Period, while the Executive is employed by
the Company and the School pursuant to this Agreement, the Executive
agrees that he shall perform his duties faithfully and to the best of
his ability, subject to the directions of the Board of Directors of the
Company (the "Board"), consistent with past practices.
(b) During the Senior Advisor Period, the Executive's responsibilities and
duties shall include focusing on the strategy of and investor relations
for the Company and serving as a senior advisor to the Board.
(c) Nothing contained in this Agreement shall require the Executive to
follow any directive or 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.
(d) The foregoing provisions of this section 1.3 to the contrary
notwithstanding, if at any time Executive is not paid or reimbursed the
amounts owed to Executive when due, or is not provided with other
fringe benefits due him, pursuant to Section 2 of this Agreement, then
after ten (10) days notice thereof to the Company in which the Company
may cure such deficiency and which deficiency is not so cured, the
Executive shall not be required to perform any services for the
Company.
1.4 Disability.
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(a) Subject to the terms of this Agreement, the Executive shall not be
required to perform services under this Agreement during any period
that he is Disabled.
(b) The Executive shall be considered "Disabled" during any period in which
he has a physical or mental disability which renders him incapable,
after reasonable accommodation, of performing his duties under this
Agreement.
(c) The Executive shall be considered "Permanently Disabled" if he is then
Disabled and, for a continuous period of 180 days, the Executive, as a
result of a physical or mental disability, has been incapable, after
reasonable accommodation, of performing the Executive's
responsibilities and duties under this Agreement.
1.5 Agreement Periods and Senior Advisor Period. This Agreement
shall commence and apply to the Executive's employment as of the first day
following the termination of the Term of Employment of Executive as
determined in accordance with the 2002 Employment Agreement, provided that
the Executive shall become employed in accordance with this Agreement only to
the extent provided in Section 4 of the 2002 Employment Agreement. The date,
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if any, on which the Executive becomes employed in accordance with this
Agreement, as described in the preceding two sentences, shall be the "Senior
Advisor Employment Date" under this Agreement. The "Senior Advisor Period"
shall be the period beginning on the Senior Advisor Employment Date and
ending on the 15 year anniversary of the Senior Advisor Employment Date. The
"Senior Advisor Period" shall consist of the "Initial Senior Advisor Period",
which begins on the Senior Advisor Employment Date and ends on the five-year
anniversary of the Senior Advisor Employment Date, and the "Final Ten Years"
of the Senior Advisor Period, which begins immediately after the end of the
Initial Senior Advisor Period, and ends on the fifteen year anniversary of
the Senior Advisor Employment Date. If the Executive becomes employed by an
entity into which the Company is merged, or the purchaser of substantially
all of the assets of the Company, or a successor to such entity or purchaser,
the Executive shall not be treated as having terminated employment for
purposes of this Agreement until such time as the Executive terminates
employment with the successor (including, without limitation, the merged
entity or purchaser), provided that the new employer agrees to assume this
Agreement and be substituted for the Company under this Agreement.
Section 2
Compensation
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Subject to the terms of this Agreement, during the Senior Advisor
Period, while the Executive is employed by the Company, the Company shall
compensate him for his services as follows:
(a) Salary.
------
(i) Initial Senior Advisor Period. The Executive shall receive
during the Initial Senior Advisor Period, in substantially equal
monthly or more frequent installments, a "Salary" at an annual
rate equal to $420,000.
(ii) Final Ten Years. The Executive shall receive during the Final
Ten Years of the Senior Advisor Period, in substantially equal
monthly or more frequent installments, a "Salary" at an annual
rate of $50,000, increased annually at a rate equal to the
budgeted annual average percentage increase for all employees of
the Company from the Effective Date to the beginning of the
fiscal year for which such Salary is to be paid.
(b) Bonus. The Salary under paragraph (a) above shall be in lieu of any
form of annual incentive or performance bonus or other salary payments
for the Senior Advisor Period.
(c) Other Fringe Benefits. Except as otherwise specifically provided to
the contrary in this Agreement, during the Senior Advisor Period the
Executive shall be provided with the health, welfare, and pension
(pursuant to the Company's qualified pension plan or plans) benefits
consistent with past practice, or as increased from time to time, and
other fringe benefits to the same extent and on the same terms as those
benefits are provided by the Company from time to time to the Company's
senior management employees. For purposes of this paragraph (c), the
health, welfare and other fringe benefits shall not include deferred
compensation (except for deferred compensation provided under deferred
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compensation plans that are qualified under section 401(a) of the
Internal Revenue Code of 1986, as amended (the "Code")), shall not
include club fees and dues, shall not include financial and tax
planning reimbursement, and shall not include any bonuses, stock
options, or other incentive compensation. Nothing in this
paragraph (c) shall be construed to prevent the Company from revising
the welfare benefits or fringe benefits or perquisites generally
provided to executives from time to time. The Company shall not be
required to provide an automobile to the Executive during the Senior
Advisor Period.
(d) Director's Fees. The Executive shall receive director's fees for the
period he is serving as a member of the Board.
(e) Life Insurance. At the request of the Executive, during the Initial
Senior Advisor Period, the Company shall obtain and maintain term life
insurance coverage on the Executive's life providing $1,000,000 in
death benefits payable to the beneficiary named by the Executive, and
the Company shall pay the premiums with respect to such policy or, at
Executive's option the Executive may obtain such coverage in lieu of
the Company, and the Company shall reimburse Executive for the premium
cost to maintain such coverage; provided, however, that if the cost for
term life insurance coverage providing for $1,000,000 in death benefits
exceeds $30,000 per year, the Company shall pay (or reimburse Executive
for) premiums of $30,000 per year for life insurance coverage providing
for a lesser death benefit; and further provided that the Company shall
have no obligation to provide life insurance coverage under this
paragraph (e) if the Company, after reasonable investigation, is unable
to obtain such coverage from a life insurance company or if the
Executive fails to submit to a medical examination or provide
information reasonably necessary for obtaining and maintaining such
insurance. The Executive agrees that, in addition to the foregoing
obligation to provide life insurance coverage with the benefits payable
to the beneficiary named by the Executive, the Board, in its sole
discretion, may direct the Company to obtain life insurance on the life
of the Executive in any amount the Board determines to be appropriate,
with the benefits payable to the Company or such other beneficiary
determined by the Board, and the Executive and his beneficiaries shall
have no rights with respect to the coverage or benefits described in
this sentence.
(f) Expenses. During the Senior Advisor Period and consistent with past
practices, the Company shall reimburse Executive for documented travel,
entertainment and other expenses reasonably incurred by Executive in
connection with the performance of his duties hereunder and in
accordance with the past practices of the Company with regard to
Executive during the Term of Employment under the Employment Agreement,
and the rules, customs and usages of the Company from time to time in
effect.
Section 3
Termination
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The Executive's employment hereunder will terminate upon his death.
The Executive's employment with the Company during the Senior Advisor Period
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may be terminated by the Company or the Executive without any breach of this
Agreement only under the circumstances described in paragraph 3(a) through
3(b):
(a) The Company may terminate the Executive's employment hereunder at any
time during any period in which he is Permanently Disabled. The
Company may terminate the Executive's employment hereunder at any time
for Cause. For purposes of this Agreement, the term "Cause" shall mean
any of the following: (i) the Executive's conviction of any crime or
criminal offense involving any felony, or (ii) the Executive's
conviction of fraud or embezzlement. Except as expressly provided in
this Section 3(a) the Company shall not terminate the Executive's
employment under this Agreement.
(b) The Executive may terminate his employment hereunder at any time for
any reason by giving the Company prior written Notice of Termination
(as defined in paragraph (c) below), which Notice of Termination,
however, shall be effective no earlier than ninety (90) days following
such notice, provided that nothing in this Agreement shall require the
Executive to specify a reason for such termination. Failure by the
Executive to give a ninety (90) day prior written notice of his
termination of employment shall be a material breach of this section
3(b) for purposes of section 4.1(f).
(c) Any permitted termination of the Executive's employment by the Company
or the Executive (other than a termination pursuant to Executive's
death) must be communicated by a written "Notice of Termination" to the
other party hereto. For purposes of this Agreement, a "Notice of
Termination" means a dated notice which indicates the date of
termination of employment (not earlier than the date on which the
notice is provided, or if termination of employment occurs under
Section 3(b) not earlier than ninety (90) days after the date on which
the notice is provided). For purposes of this Agreement, the "Date of
Termination" means the last day the Executive is employed by the
Company, subject to such notice. If the Executive becomes employed by
an entity into which the Company is merged, or the purchaser of
substantially all of the assets of the Company, or a successor to such
entity or purchaser, the Executive shall not be treated as having
terminated employment for purposes of this Agreement until such time as
the Executive terminates employment with the successor (including,
without limitation, the merged entity or purchaser), provided that the
new employer agrees to assume this Agreement and be substituted for the
Company under this Agreement.
Section 4
Rights and Duties on Termination
--------------------------------
The Executive's right to payment and benefits under this Agreement for
periods after his Date of Termination shall be determined in accordance with
the following provisions of this section 4.
4.1 General. If the Executive's Date of Termination occurs during
the Senior Advisor Period for any reason except Cause, the Company shall pay
to the Executive:
(a) If the Date of Termination occurs during the Initial Senior Advisor
Period, the Company shall make payments through the end of the Initial
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Senior Advisor Period at the Salary rate in effect on such Date of
Termination in accordance with paragraph 2.1(a)(i), and the Company
shall make payments for the Final Ten Years of the Senior Advisor
Period at the Salary rate determined in accordance with
paragraph 2.1(a)(ii). If the Date of Termination occurs during the
Final Ten Years of the Senior Advisor Period, the Company shall make
payments for the remainder of the Final Ten Years of the Senior Advisor
Period at the Salary rate determined in accordance with
paragraph 2.1(a)(ii).
(b) Irrespective of when the Date of Termination occurs, the Executive and
any of his dependents shall be eligible for COBRA continuation coverage
(as described in section 4980B of the Code) to the extent required by
applicable law.
(c) Subject to the right to receive continuing payments or benefits in
accordance with the provisions of sections 4.1 and 4.2, or as may
otherwise be expressly provided to the contrary in this Agreement,
nothing in this Agreement shall be construed as requiring the Executive
to be treated as employed by the Company for purposes of any employee
benefit plan or arrangement following the Executive's Date of
Termination.
(d) In the event payments are made under this section 4.1 due to
Executive's death, such payments shall be made to the beneficiary
determined in accordance with section 6.8.
(e) In the event the Company alleges a material breach by the Executive of
the provisions of any of sections 3(b), 5.1, 5.2, or 5.3, and there is
a final and unappealable determination by a court or mutually agreed
arbitrator that such material breach occurred, then all benefits and
payments pursuant to section 4.1 shall thereupon cease and the Company
may seek in addition to obtain appropriate and provable damages and
other recoveries and relief from the appropriate court or arbitrator as
a result of such material breach (including, without limitation,
recovery or cessation of payments or benefits under sections 4.1(a) and
4.1(b) of this Agreement), subject to the determination by such court
or arbitrator, after taking into account all appropriate precedent,
considerations and circumstances; provided, that the Company shall
continue to provide payments under section 4.1(a) and benefits pursuant
to section 4.1(b) pending such final determination of material breach,
recoveries and relief.
4.2 Continuation of Medical Coverage. Anything in section 4.1(e) to
the contrary notwithstanding, the Company shall provide the benefits
described in this section 4.2 for the period following the Date of
Termination (regardless of whether such Date of Termination occurs during the
Senior Advisor Period or after the end of the Senior Advisor Period);
provided, that the Company shall not be required to provide the benefits
under this section 4.2 after the Executive's Date of Termination if such Date
of Termination occurs due to a termination by the Company for Cause. The
Company shall continue health insurance benefits ("Health Benefits") for the
Executive and, if she survives the Executive, the Executive's wife which are
concurrently being provided to senior executives then employed by the Company
during that period; provided, that the Executive shall not be required to
make contributions toward premiums for such coverage that are required of
executives of the Company for such coverage from time to time. Such coverage
with respect to the Executive shall continue for the remainder of the
Executive's life, and such coverage with respect to the Executive's wife
shall continue for the remainder of the life of the Executive's wife.
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However, during any period after the Executive's Date of Termination during
which he is eligible to obtain medical benefit coverage (with respect to the
Executive or his wife) from his employer, or other person to whom he provides
service, or from Medicare or other similar government sponsored program, he
will file such an application, and take such other steps as may be necessary
to obtain such coverage (including the payment of premiums), and to the
extent permitted by applicable law, coverage obtained in accordance with this
sentence shall be primary. For the period beginning on the Date of
Termination, to the extent that the value of the Health Benefits provided to
the Executive under this section 4.2 are determined to be includible in his
income for income tax (and employment tax) purposes, and such benefits would
not have been includible in his income for income tax (and employment tax)
purposes if he continued in the employ of the Company, the Company will make
a Tax Gross-Up Payment (as described below) to the Executive with respect to
such coverage. For purposes of this section 4.2, the term "Tax Gross-Up
Payment" with respect to any benefit shall mean an amount which shall be
equal to the aggregate amount of additional Federal, state and local income
and employment taxes payable by the Executive from time to time as a result
of the receipt of such benefit and the receipt of such additional payment.
4.3 Other Severance Benefits.
------------------------
(a) Except as may be otherwise specifically provided in an amendment of
this section 4 adopted in accordance with section 6.9, the Executive's
rights under this section 4 shall be in lieu of any benefits that may
be otherwise payable to or on behalf of the Executive pursuant to the
terms of any severance pay arrangement of the Company, the School or
any Subsidiary or any other, similar arrangement of the Company, the
School or any Subsidiary providing benefits upon involuntary
termination of employment.
(b) For purposes of this Agreement, the term "Subsidiary" shall mean any
corporation, partnership, joint venture or other entity during any
period in which at least a fifty percent interest in such entity is
owned, directly or indirectly, by the Company or the School (or a
successor to the Company or the School).
Section 5
Covenants
---------
5.1 Confidential Information. The Executive agrees that during the
Senior Advisor Period while he is employed by the Company and all times
thereafter:
(a) Except as may be required by the lawful order of a court or agency of
competent jurisdiction, except as necessary to carry out his duties to
the Company, the School and the Subsidiaries, or except to the extent
that the Executive has express authorization from the Company, the
Executive agrees to take all reasonable steps and actions to keep
secret and confidential indefinitely, all Confidential Information, and
not to disclose the same, either directly or indirectly, to any other
person, firm, or business entity. The Executive shall, during the
continuance of the Executive's employment, use the Executive's best
endeavors to prevent the unauthorized publication or misuse of any
Confidential Information.
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(b) To the extent that any court or agency seeks to have the Executive
disclose Confidential Information, he shall promptly inform the
Company, and he shall take reasonable steps to prevent disclosure of
Confidential Information until the Company has been informed of such
requested disclosure, and the Company has an opportunity to respond to
such court or agency. To the extent that the Executive obtains
information on behalf of the Company, the School, or any of the
Subsidiaries that may be subject to attorney-client privilege as to the
Company's attorneys, the Executive shall take reasonable steps to
maintain the confidentiality of such information and to preserve such
privilege.
(c) Nothing in the foregoing provisions of this section 5.1 shall be
construed so as to prevent the Executive from using, in connection with
his employment for himself or an employer other than the Company, the
School, or any of the Subsidiaries, knowledge which was acquired by him
during the course of his employment with the Company, the School and
the Subsidiaries, and which is generally known to persons of his
experiene in other companies in the same industry.
(d) For purposes of this Agreement, the term "Confidential Information"
shall include all non-public information (including, without
limitation, information regarding litigation and pending litigation)
concerning the Company, the School and the Subsidiaries which was
acquired by or disclosed to the Executive during the course of his
employment with the Company under this Agreement. For purposes of this
Agreement, the term "Confidential Information" shall also include all
non-public information concerning any other company that was shared
with the Company or the School or a Subsidiary subject to an agreement
to maintain the confidentiality of such information.
(e) This section 5.1 shall not be construed to unreasonably restrict the
Executive's ability to disclose Confidential Information in an
arbitration proceeding or a court proceeding in connection with the
assertion of, or defense against any claim of breach of this Agreement.
If there is a dispute between the Company and the Executive as to
whether information may be disclosed in accordance with this
paragraph (e), the matter shall be submitted to the arbitrators or the
court (whichever is applicable) for decision.
5.2 Non-Disparagement. The Executive agrees that, while he is
employed by the Company, and thereafter, he shall not make any false,
defamatory or disparaging statements about the Company, the School, any of
the Subsidiaries, or the officers or directors of the Company, the School, or
the Subsidiaries that are reasonably likely to cause material damage to the
Company, the School or any of the Subsidiaries, or the officers or directors
of the Company, the School or any of the Subsidiaries. While the Executive
is employed by the Company, and after his Date of Termination, the Company
agrees, on behalf of itself, the School and the Subsidiaries, that neither
the respective officers nor the respective directors of the Company, the
School or any of the Subsidiaries shall make any false, defamatory or
disparaging statements about the Executive that are reasonably likely to
cause material damage to the Executive.
5.3 Noncompetition. The Executive agrees that (i) during the Senior
Advisor Period while he is employed by the Company; and (ii) for a period of
24 months after the termination of Executive's employment under this
Agreement for any reason (and which period shall be extended for an
additional period equal in duration to the period during which the breach or
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breaches of the following covenants occurred including the period of any
litigation or arbitration regarding such breach (but only if a final
nonappealable ruling holds that such a breach occurred)):
(a) The Executive shall not, without the prior written consent of the Board
(or duly authorized committee thereof) which consent shall not be
unreasonably withheld, be employed by, serve as a consultant to, or
otherwise assist or directly or indirectly provide services to a
Competitor (defined below) if: (i) the services are to be provided
with respect to any location in which the Company, the School or a
Subsidiary had material operations during the 24-month period prior to
the Date of Termination, or with respect to any location in which the
Company, the School or a Subsidiary had devoted material resources to
establishing operations during the 24-month period prior to the Date of
Termination; or (ii) the trade secrets, Confidential Information, or
proprietary information (including, without limitation, confidential or
proprietary methods) of the Company, the School and any of the
Subsidiaries to which the Executive had access could reasonably be
expected to benefit the Competitor if the Competitor were to obtain
access to such secrets or information. For purposes of this
paragraph (a), services provided by others shall be deemed to have been
provided by the Executive if the Executive had material supervisory
responsibilities with respect to the provision of such services. The
foregoing provisions of this paragraph (a) to the contrary
notwithstanding, the Executive may from time to time serve, without
compensation, as a member of the board of directors (and any committee
thereof) of one or more not-for-profit institutions that are
Competitors.
(b) The Executive shall not solicit or attempt to solicit any party who is
then or, during the 24-month period prior to such solicitation or
attempt by the Executive was (or was solicited to become), a customer
or supplier of the Company, the School or a subsidiary of the Company,
provided that the restriction in this paragraph (b) shall not apply to
any activity on behalf of a business that is not a Competitor; and
further provided that this paragraph (b) shall not apply to the
solicitation of a supplier of the Company, the School or a subsidiary
of the Company if such solicitation would not reasonably be expected to
result in furthering material competition with the Company, the School
or a subsidiary of the Company.
(c) The Executive shall not solicit, entice, persuade or induce any
individual who is employed by the Company, the School or any of the
Subsidiaries (or was so employed within 90 days prior to the
Executive's action) to terminate or refrain from renewing or extending
such employment or to become employed by or enter into contractual
relations with any other individual or entity other than the Company,
the School or any of the Subsidiaries, and the Executive shall not
approach any such employee for any such purpose or authorize or
knowingly cooperate with the taking of any such actions by any other
individual or entity.
(d) The Executive shall not directly or indirectly own an equity interest
in any Competitor (other than ownership of 1% or less of the
outstanding stock of any corporation listed on a national stock
exchange or included in the NASDAQ System).
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The term "Competitor" means any enterprise (including a person, firm or
business, whether or not incorporated, and whether for profit or not
for profit) during any period in which a material portion of its
business is (and during any period in which it intends to enter into
business activities that would be) materially competitive in any way
with any business in which the Company, the School or any of the
Subsidiaries was engaged during the 24-month period prior to the
Executive's Date of Termination (including, without limitation, any
business if the Company, the School or any Subsidiary devoted material
resources to entering into such business during such 24-month period).
Nothing in this subsection 5.3 or subsections 5.1 or 5.2 shall be
construed as limiting the Executive's duty of loyalty to the Company,
the School and the Subsidiaries or any other duty he may otherwise have
to the Company, the School and the Subsidiaries while he is employed by
the Company.
5.4 Assistance with Claims. The Executive agrees that, for the
period beginning on the Effective Date, and continuing for a reasonable
period after the Executive's Date of Termination, the Executive will assist
the Company, the School and the Subsidiaries in the defense of any claims
that may be made against any of the Company, the School and the Subsidiaries,
and will assist the Company, the School and the Subsidiaries in the
prosecution of any claims that may be made by the Company, the School or any
of the Subsidiaries, to the extent that such claims may relate to services
performed by the Executive for the Company, the School and the Subsidiaries.
The Executive agrees to promptly inform the Company if he becomes aware of
any lawsuits involving such claims that may be filed against the Company, the
School or any subsidiary of the Company. The Company agrees to provide legal
counsel to the Executive in connection with such assistance (to the extent
legally permitted), and to reimburse the Executive for all of the Executive's
reasonable out-of-pocket expenses associated with such assistance, including
travel expenses. For periods after the Executive's employment with the
Company terminates, the Company agrees to provide reasonable compensation to
the Executive for such assistance. The Executive also agrees to promptly
inform the Company if he is asked to assist in any investigation of the
Company, the School or any of the Subsidiaries (or their actions) that may
relate to services performed by the Executive for the Company, the School or
any of the Subsidiaries, regardless of whether a lawsuit has then been filed
against the Company, the School or any of the Subsidiaries with respect to
such investigation.
5.5 Equitable Remedies. The Executive acknowledges that the Company,
the School and the Subsidiaries would, for purposes of establishing the basis
of equitable remedies hereunder, be irreparably injured by a violation of
subsections 5.1, 5.2, or 5.3, and he agrees that the Company, the School and
the Subsidiaries, in addition to any other remedies available to them for
such breach or threatened breach, shall be entitled to a preliminary
injunction, temporary restraining order, or other equivalent relief,
restraining the Executive from any actual or threatened breach of
subsections 5.1, 5.2, or 5.3. The Company acknowledges that the Executive
would, for purposes of establishing the basis of equitable remedies
hereunder, be irreparably injured by a violation of subsections 5.2, and
agrees that the Executive, in addition to any other remedies available to him
for such breach or threatened breach, shall be entitled to a preliminary
injunction, temporary restraining order, or other equivalent relief,
restraining the Company, the School and Subsidiaries from any actual or
threatened breach of subsections 5.2. If a bond is required to be posted in
order for the Company or Executive to secure an injunction or other equitable
remedy, the parties agree that said bond need not be more than a nominal sum.
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Section 6
Miscellaneous
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6.1 Notice. Any notice, request, demand or other communication
required or permitted to be given under this Agreement shall be given in
writing and delivered personally, or sent by certified or registered mail,
return receipt requested, as follows (or to such other addressee or address
as shall be set forth in a notice given in the same manner):
If to Executive:
------------------------
------------------------
With a copy to:
------------------------
------------------------
------------------------
If to Company: DeVry Inc.
Xxx Xxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Any such notices shall be deemed to be given on the date personally delivered
or such return receipt is issued.
6.2 Company Representations. The Company hereby represents and
warrants to Executive that it has the authorization, power and right to
deliver, execute and fully perform its obligations under this Agreement in
accordance with its terms.
6.3 Validity. If, for any reason, any provision hereof shall be
determined to be invalid or unenforceable, the validity and effect of the
other provisions hereof shall not be affected thereby.
6.4 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. If any court determines that any provision hereof is unenforceable
because of the power to reduce the scope or duration of such provision, as
the case may be and, in its reduced form, such provision shall then be
enforceable.
6.5 Waiver of Breach; Specific Performance. The waiver by the
Company or the Executive of a breach of any provision of this Agreement by
the other party shall not operate or be construed as a waiver of any other
breach of such other party. Each of the parties (and third party
beneficiaries) to this Agreement will be entitled to enforce its rights under
this breach of any provision of this Agreement and to exercise all other
rights existing in its favor.
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6.6 Indemnity.
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(a) Unless Executive's employment under this Agreement is terminated
for Cause, the Company shall promptly reimburse Executive for any reasonable
legal fees and expenses incurred or sustained by Executive in connection with
(i) enforcing his rights and interests hereunder, or (ii) any dispute with
regard to his rights and interests hereunder; provided, however, that to the
extent that the court or arbitrator shall determine that under the
circumstances recovery by the Executive of all or a part of any such fees and
costs and expenses would be unjust or inappropriate, the Executive shall not
be entitled to such recovery and to the extent that such amounts have been
recovered by the Executive previously, the Executive shall repay such amounts
to the Company.
(b) Unless Executive's employment under this Agreement is terminated
for Cause, and irrespective of when Executive's employment under this
Agreement terminates, any payments or benefits to be provided to the
Executive by the Company or the School or a Subsidiary pursuant to any
employee benefit plans or arrangements established or adopted by the Company
or the School or a Subsidiary (including, without limitation except as
provided in subsection 6.6(c), any rights to indemnification from the Company
or from a third-party insurer for directors and officers liability coverage
with respect to any costs, losses, claims, suits, proceedings, damages or
liabilities to which the Executive may become subject which arise out of, are
based upon or relate to the Executive's employment by the Company or the
School or a Subsidiary, the Executive's service as an officer or member of
the Board, the Board of Directors of the School, or the Board of Directors of
any Subsidiary), shall be paid to Executive to the extent such amounts are
due from the Company or the School or Subsidiary in accordance with the terms
of such plans or arrangements.
(c) The Company shall also indemnify Executive, during and after his
employment under this Agreement, to the fullest amount provided by the
Certificates of Incorporation and Bylaws of the Company and any Director
Indemnity Agreements of the Company, and nothing herein will be construed as
modifying those separate Agreements.
6.7 Mitigation and Set-Off. Unless the Executive's employment under
this Agreement is terminated for Cause, (a) the Executive shall not be
required to mitigate the amount of any payment provided for in this Agreement
by seeking employment or otherwise, and (b) neither the Company, nor the
School, nor any Subsidiary shall be entitled to any set-off against the
amounts payable by Company, the School or any Subsidiary to Executive any
amounts owed to the Company, School or any Subsidiary by the Executive.
6.8 Assignment. This Agreement shall be binding upon, and inure to
the benefit of, the Company and its successors and assigns and upon any
person acquiring, whether by merger, consolidation, purchase of assets or
otherwise, all or substantially all of the Company's assets and business, and
the successor shall be substituted for the Company under this Agreement. The
Executive may dispose of his rights under this Agreement by will or limit the
power or rights of any executor or any administrator. If any benefits
deliverable to the Executive under this Agreement have not been delivered at
the time of the Executive's death, such benefits shall be delivered to the
Designated Beneficiary, in accordance with the provisions of this Agreement.
The "Designated Beneficiary" shall be the beneficiary or beneficiaries
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designated by the Executive in a writing filed with the Company in accordance
with subsection 6.1 in such form and at such time as the Company shall
require. If the Executive fails to designate a beneficiary, or if the
Designated Beneficiary does not survive the Executive, any benefits
distributable to the Executive shall be distributed to the legal
representative of the estate of the Executive. If the Executive designates a
beneficiary and the Designated Beneficiary survives the Executive but dies
before the complete distribution of benefits to the Designated Beneficiary
under this Agreement, then any benefits distributable to the Designated
Beneficiary shall be distributed to the legal representative of the estate of
the Designated Beneficiary. Except as otherwise provided in the foregoing
provisions of this subsection 6.7, neither the Executive nor the Company (or
the School) may assign, transfer, pledge, encumber or otherwise dispose of
this Agreement or any of his or its respective rights or obligations
hereunder, without the prior written consent of the other.
6.9 Amendment; Entire Agreement. This Agreement may not be changed
orally, but only by an agreement in writing agreed to by the party against
whom enforcement of any waiver, change, modification, extension or discharge
is sought. This Agreement embodies the entire agreement and understanding of
the parties hereto in respect of the subject matter of the agreements, and
supersede and replace all prior agreements (including, without limitation,
the Prior Employment Agreement), understandings and commitments with respect
to such subject matter.
6.10 Litigation. This Agreement shall be governed by, construed,
applied and enforced in accordance with the laws of the State of Illinois,
except that no doctrine of choice of law shall be used to apply any law other
than that of Illinois, and no defense, counterclaim or right of set-off given
or allowed by the laws of any other state or jurisdiction, or arising out of
the enactment, modification or repeal of any law, regulation, ordinance or
decree of any foreign jurisdiction, be interposed in any action hereon.
Executive and the Company agree that any action or proceeding to enforce or
arising out of this Agreement may be commenced in the state courts, or in the
United States District courts in Chicago, Illinois. Executive and the
Company consent to such jurisdiction, agree that venue will be proper in such
courts and waive any objections based upon forum non conveniens. The choice
of forum set forth in this section 6.10 shall not be deemed to preclude the
enforcement of any judgment obtained in such forum or the taking of any
action under this Agreement to enforce same in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the
Effective Date.
EXECUTIVE
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Print Name:
DEVRY INC.
By:
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Its:
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DEVRY UNIVERSITY, INC.
By:
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Its:
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