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Exhibit 10.18
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and is effective as
of March 3, 1997 (the "Effective date"), by and between Education Technology
Consulting Holding, L.L.C., a Delaware limited liability company ("Company")
and Xxxxxxx X. Xxxxxxx, Xx. ("Executive"), with reference to the following:
RECITALS
A. Company has been formed for the purpose of engaging in the
business of providing strategic consulting services, including but not limited
to performance innovations, to organizations seeking applications and solutions
to improve productivity and effectiveness of human capital.
B. Company and Executive desire to enter into this Agreement
pursuant to which Executive will be employed by Company in the capacity of
President and Chief Executive Officer of Education Technology Consulting,
L.L.C. ("Consulting"), a subsidiary of Company and will otherwise be engaged to
render valuable services for the benefit of the Company and Consulting, all on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants set forth herein and other good and valuable consideration, the
receipt and sufficiency of which the parties hereby acknowledge, the parties
agree as follows:
1. Employment. Company hereby agrees to employ Executive as
President and Chief Executive Officer of Consulting
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for the term and under the terms and conditions set forth in this Agreement
below.
2. Duties. Executive shall render and perform such services and
functions as such shall be assigned to him from time to time by the Board of
Directors of Company, which duties shall include generally, though not
exclusively, assisting the Company in the building of a business consistent
with Recital A above, including but not limited to consulting with
organizations in information intensive businesses on the use of knowledge and
technology to support individual and organizational performance gain. Neither
Company nor Consulting will engage in any activities that would result in
Company or Consulting being associated with (a) a "broker", as defined in
Section 3(a)(4) of the Securities Exchange of 1934, as amended (the "Exchange
Act"), Section 202(a)(3) of the Investment Advisers Act of 1940, as amended
(the "Investment Advisers Act"), or Section 2(a)(6) of the Investment Company
Act of 1940, as amended (the "Investment Company Act"), (b) a "dealer", as
defined in Section 3(a)(5) of the Exchange Act, Section 202(a)(7) of the
Investment Advisers Act or Section 2(a)(11) of the Investment Company Act, (c)
an "investment adviser", as defined in Section 202(a)(11) of the Investment
Advisers Act or Section 2(a)(20) of the Investment Company Act, (d) an
"investment company", as defined in Section 3(a) of the Investment Company Act,
(e) a "municipal securities dealer", as defined in Section 3(a)(30) of the
Exchange Act, (f) in the case of each of the terms specified in the foregoing
clauses (a) through (e), as each such term is defined under any similar state
law, or
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(g) a "real estate broker" or "business opportunity broker" as each such term
is defined under any federal or state law.
3. Standard of Performance. Executive agrees that at all times during
the Employment Term (as defined below) he will perform all of the services and
duties that are required of Executive under this Agreement faithfully and
efficiently, to the best of Executive's ability. Executive shall devote his
full time and attention consistent with paragraph 4 below, to the business of
Company as shall be required to perform the required services and duties.
4. Exclusive Employment.
4.1 Full Time and Energy; Exceptions.
During the Employment Term (as defined below), Executive shall
perform his duties and functions under this Agreement in a competent and
efficient manner, and shall devote his entire time, attention, and energies to
the affairs of the Company and use his best efforts to promote the Company's
interests and perform the duties assigned to Executive, subject to the ultimate
authority and direction of the Board of the Company; provided that nothing
contained herein shall prevent Executive from (a) serving on community or
charitable boards which do not interfere with the performance of his
responsibilities hereunder; (b) managing his personal investments and affairs
consistent with his duties and responsibilities hereunder; and (c) taking
vacations or sick leave to which he is entitled hereunder.
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4.2 Other Business Activities.
Executive may not render services of any kind to others for
compensation, or engage in any other business activity that would interfere
with the performance of Executive's duties under this Agreement unless
otherwise expressly authorized by the Board, which authorization will not be
unreasonably withheld.
5. Place of Employment. Executive's performance of services under this
Agreement shall be rendered in Boston, Massachusetts. In addition, Executive
shall make himself available from time to time in Los Angeles, California as
requested by the Board.
6. Term of Employment. The "Employment Term" for purposes hereof shall
commence on the Effective Date and, unless terminated earlier as provided in
this Agreement, shall continue for a period of three (3) years following the
Effective Date. Company shall have the option to extend the Employment Term for
an additional period of two years, by giving written notice thereof ninety (90)
days prior to the expiration of the initial term hereof.
7. Compensation. In consideration of Executive's employment and the
covenants and agreements provided in this Agreement, and except as otherwise
provided herein, Executive shall receive from Company the compensation and
benefits described in Sections 7, 8, 9 and 13 hereof, in full and complete
satisfaction of all of Company's obligations to Executive arising from
Executive's employment. The compensation and benefits payable to
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Executive pursuant to this Agreement may be changed only by the written
agreement of the parties. Executive authorizes the Company to deduct and
withhold from all compensation to be paid to him any and all sums required to
be deducted or withheld by Company pursuant to the provisions of any federal,
state, or local law, regulation, ruling, or ordinance, including, but not
limited to, income tax withholding and payroll taxes.
7.1 Salary. Company shall pay Executive an annual base salary
payable at the rate of Five Hundred Thousand Dollars ($500,000.00) per year, in
semi-monthly installments and otherwise in accordance with Company's payroll
methods and procedures. For the initial year of the Employment Term, Company
shall pay Executive $325,000 of his base salary within thirty (30) days of
commencement of the Employment Term and the balance of $175,000 shall be paid
in semi-monthly installments as provided in the preceding sentence.
7.2 Guaranteed Bonus. Company shall pay Executive during the
Employment Term and annual bonus of $150,000 per year, payable in semi-monthly
installments and otherwise in accordance with Company's payroll methods and
procedures.
7.3 Bonus Compensation. In addition to the guaranteed bonus,
provided in Section 7.2 above, the Board shall meet and review Executive's
performance each year and consider at its sole and absolute discretion the
payment of bonus compensation to Executive in an amount not to exceed one-third
of Executive's base salary. Executive acknowledges that there is no obligation
to
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him whatsoever with respect to any bonus, except as provided in Section 7.2
above.
7.4 Other Interests. (a) The Company and Executive acknowledge that
the Executive holds certain Options pursuant to the provisions of a Unit Option
Agreement. Executive's rights and obligations with respect to said Options are
covered by agreements separate and apart herefrom. During the Employment Term,
Executive shall participate in any additional option, retirement or similar
incentive plans which the Company shall have in effect from time to time for the
benefit of all of the executive employees.
(b) The Company and Executive agree that Executive shall have the
right to purchase 4% of the initial common equity of Company. The initial
capitalization of the Company shall be $1 million in common equity and $24
million in straight preferred equity. Executive shall purchase his common equity
for $40,000 on or before March 31, 1997. Company and Executive agree that
Company shall have the right to repurchase a portion of any common equity
Executive purchases pursuant to this Section 7.4(b) at the original cost thereof
in the event this agreement terminates or Executive otherwise leaves the employ
of Company ("termination event") prior to four years from the commencement of
the Employment Term. The portion of Executive's common equity which Company has
a right to repurchase pursuant to this Section 7.4(b) shall equal (i) 80%, if
the termination event is prior to one year from the commencement of employment,
(ii) 60%, if the termination event is after one year but prior to two years the
commencement of employment; (iii) 40% if the termination event is after two
years but prior to
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three years from the commencement of employment; and (iv) 20% if the
termination event is after three years but prior to four years from the
commencement of employment. Company's right to repurchase a portion of
Executive's common equity shall terminate if Executive leaves the employ of
company prior to the end of three years for any reason other than Executive's
death, disability, cause (as defined below), voluntary termination of
employment by Executive, or in event Company does not elect to extend the
Employment Term past the initial three years.
8. Benefits.
8.1 Office Facilities and Secretary. Company shall provide
Executive with suitable office space at such applicable place of employment
described in paragraph 5 above.
8.2 Vacation. During the Employment Term, Executive shall be
entitled to twenty days of vacation at full salary for every period of twelve
months during the Employment Term. Unused vacation time will not accrue in
excess of twenty days unless such accrual is approved in advance by the Board.
Said vacation days shall be planned consistent with Executive's duties and
obligations hereunder.
8.3 Medical, Etc. Executive shall be entitled to specific and
applicable executive benefits, such as group medical and dental for Executive,
Executive's spouse and minor dependent children, life and disability insurance
coverage, and sic leave all as granted to the Company's executives in
accordance with the Company's policies and guidelines as approved by the Board.
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9. Business Expenses. Company shall pay for or reimburse
Executive for all reasonable business expenses incurred by Executive in the
performance of his duties hereunder, upon submission to the Company in
accordance with Company policy of a written accounting of such expenses, which
accounting shall include an itemized list of all expenses incurred, the business
purposes for which such expenses were incurred, and such receipts as Executive
reasonably has been able to obtain. Without limiting the preceding sentence,
Company shall reimburse Executive for the cost of housing in Los Angeles as
necessary to accommodate Executive during the time he is required to be in Los
Angeles.
10. Termination. Except as otherwise expressly provided herein,
this Agreement and all rights and obligations hereunder shall terminate prior
to the end of the Employment Term upon the occurrence of any of the following
events:
10.1 Death. Upon the death of Executive;
10.2 Personal Disability. Upon the ninetieth (90th) day after
receipt by Executive of notice from the Company of its intention to terminate
Executive's employment as a result of the "permanent disability" of Executive.
As used herein, the term "permanent disability" shall mean a physical or mental
disability that renders Executive unable to perform his normal duties for the
Company for a period of 120 consecutive days as determined by a licensed
physician. The Company and Executive or his legal representative shall use
their best efforts to agree on the physician to determine total disability. If
they cannot agree within three (3) days after the first party makes a written
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proposal stating the name of a physician, then the other party shall select a
physician within three (3) days and within three (3) days thereafter the two
physicians shall select a third physician. All such physicians must be board
certified in the medical area giving rise to the alleged permanent disability.
The determination of a majority of the three physicians shall be final and
binding;
10.3 Cessation of Business. Upon the termination or cessation of the
business operation of Company; and
10.4 Cause. Upon a termination by the Company for cause pursuant to
paragraph 11 below.
The effect of any such termination under this paragraph 10 is set forth in
paragraph 13 below.
11. Termination for Cause. The Company may terminate this Agreement for
cause at any time. For purposes of this Agreement, the term "cause" shall be
defined as disloyalty or dishonesty which results or is intended to result in
personal enrichment to Executive at the expense of Company; acts of moral
turpitude or illegal or unprofessional conduct which may adversely affect the
reputation of the Company and/or its relationship with its customers, partners
or suppliers; fraudulent conduct in connection with the business or affairs of
Company without regard to the intent of any such conduct; or material and
intentional violation by Executive of his duties and obligations set forth in
paragraphs 2 through 4 above which results in material injury to Company.
12. Notice of Termination. Except as expressly provided above, any
termination hereunder shall occur upon notification by
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one party to the other in accordance with paragraph 20.3 below. Any such notice
shall refer to the specific termination provision of this Agreement setting
forth in reasonable detail the facts and circumstances claimed as the basis for
such termination. The date of termination shall be either the date of receipt
of the notice or, if the reason for termination is the Executive's death or
Executive's permanent disability, the date of termination shall be as set forth
in paragraph 10 above.
13. Effect of Termination. In the event of termination of Executive's
employment hereunder, the rights and obligations of the parties shall be as
follows:
13.1 In Event of Death. In the event of termination as a result of
Executive's death, the Company shall have no further obligation to the
Executive's representatives and heirs hereunder except as follows:
(a) The Company shall pay to Executive's spouse or estate an
amount equal to Executive's base salary and guaranteed bonus for one year.
(b) To the extent not already 60% vested, Executive's options
referred to in paragraph 7.4(a) above that have not vested shall vest as
provided in the Unit Option Agreement referred to in paragraph 7.4(a).
(c) In the event Executive had not been employed for at least
two (2) years, for purposes of calculating the Company's right to repurchase a
portion of Executive's common equity referred to in paragraph 7.4(b) above,
Executive shall be deemed to have been employed for not less than 2 years.
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13.2 In Event of Permanent Disability. In the event of termination
as a result of permanent disability, Executive shall be entitled to receive
disability and other benefits not less than those provided to disabled
employees and/or other families in accordance with any plans or policies of the
Company in effect at that time.
13.3 In Event Company Terminates Without Cause. In the event the
Company terminates the Executive's employment for any reason other than the
death or disability of Executive, or cause, the Company shall pay Executive (i)
in a lump sum within thirty (30) days of the effective date of termination, any
base salary due through the date of termination; (ii) the balance of
Executive's base salary which he would have been entitled to receive through
the end of the then applicable Employment Term; (iii) continuation of benefits
upon the same terms and conditions then in effect on the date of termination
under all medical, dental and life insurance plans through the end of the then
applicable Employment Term or Executive's commencement of employment elsewhere,
whichever is first to occur, provided that Executive at his own expense shall
be entitled to continue appropriate benefits under any applicable Cobra
program; and (iv) the Company shall reimburse Executive for costs and expenses
which he has incurred and which would otherwise have been payable under
paragraph 9 above had the employment not been so terminated.
13.4 In the event the Company terminates the Executive's
employment for cause or the Executive terminates his employment, the Company's
sole obligation shall be to pay Executive
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his full base salary through the date of termination, and Company shall have no
further obligations to the Executive pursuant to this Agreement.
14. Sale or Dissolution of Business. In the event of voluntary or
involuntary dissolution of the Company or a sale, merger, consolidation or
similar transaction involving the Company in which the Company is not the
surviving entity, or a transfer of all or substantially all of the assets of
the Company, the Company on behalf of it and its successors and assigns agrees
that such transaction or event will not adversely affect the Executive's
financial interests in, or otherwise result in a dilution of Executive's
rights, whether vested or contingent, with regard to, any of Executive's
options or similar programs in which the Executive is then participating.
15. Approval of Publicity. Company and Executive shall mutually approve
all press releases and other items of publicity with respect to Executive's
employment hereunder.
16. Covenants of Executive.
16.1 Confidential Information. "Confidential Information" shall
mean information and compilations of information relating to Company's
business, Company's owners and Company's non-institutional lenders, provided to
Executive during his employment with Company or to which Executive had access
or which he compiled while an executive, including, but not limited to,
information regarding any operating procedures, finances, financial condition,
organization, executives, agents, and other personnel, business activities,
budgets, plans, objectives, or strategies of Company.
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16.2 Covenant as to Nondisclosure or Use of Confidential
Information. Executive agrees that at all times during the Employment Term
hereunder and for a period of two (2) years thereafter, he will not, unless
required to do so pursuant to legal process such as subpoena, disclose to any
individual or business enterprise of any nature, or use for his own personal
use or financial gain, whether individually or on behalf of another person,
firm, corporation or entity, any Confidential Information which Executive has
obtained or will obtain in connection with his employment with Company. Such
restrictions shall not apply to information which has become public prior to
such disclosure by Executive. In the event Executive is required by legal
process to disclose any Confidential Information, he shall give prompt notice
thereof to Company to allow Company to object to such process, obtain a
protective order, or take any other action it deems necessary.
16.3 Return of Business Records. Upon termination of Executive's
employment, Executive shall promptly, if so requested by Company, return all
documents, records, procedures, books, notebooks, and any other documentation
containing any information pertaining to the Company which includes
Confidential Information, including any and all copies of such documentation,
then in Executive's possession or control regardless of whether such
documentation was prepared or compiled by Executive, Company, other executives
of Company, representatives, agents, or independent contractors. Executive
acknowledges that all such
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documentation and copies of such documentation is and shall at all times remain
the sole and exclusive property of Company.
16.4 Additional Covenants Protecting the Interests of Company.
Executive agrees that during his employment hereunder, and (a) for a period of
one year thereafter if the Employment Term ends for reasons other than either
cause, permanent disability, death or Executive terminating his employment
hereunder, or (b) for a period of five years from the date hereof, if the
Employment Term ends for any reason other than as stated in (a) above, Executive
shall not directly or indirectly, individually, or together through any other
person, firm, corporation or entity, without the prior written consent of
Company, engage in any business with any person or entity which is a customer or
client of Company, or approach, counsel, or attempt to induce any person who is
then in the employ of Company, to leave their employ, other than Executive's
secretary, or employ or attempt to employ any such person, other than
Executive's secretary, or aid or counsel any other person, firm, corporation, or
entity to do any of the above.
16.5 Post-Employment Cooperation. Executive agrees that, for a period
of two (2) years following his termination of employment under this Agreement,
he shall, upon Company's reasonable request and in good faith and with his best
efforts, subject to his reasonable availability, cooperate and assist Company in
any dispute, controversy, or litigation in which Company may be involved and
with respect to which Executive obtained knowledge while employed by the Company
or any of its affiliates, successors, or assigns, including, but not limited to,
his
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participation in any court or arbitration proceedings, giving of testimony,
signing of affidavits, or such other personal cooperation as counsel for Company
shall request. Any such activities shall be scheduled, to the extent reasonably
possible, to accommodate Executive's business and personal obligations at the
time. Company shall pay Executive's travel and incidental out-of-pocket expenses
incurred in connection with any such cooperation, as well as the costs of any
attorney Executive engages to advise him in connection with the foregoing.
16.6 Remedies. In view of the position of confidence which Executive
will enjoy with Company and the anticipated relationship with the clients,
customers, and executives of Company pursuant to his employment hereunder, and
recognizing both the access to confidential financial and other information
which Executive will have pursuant to his employment, Executive expressly
acknowledges that the restrictive covenants set forth in this Section 16 are
reasonable and necessary in order to protect and maintain the proprietary
interests and other legitimate business interests of Company. Executive further
acknowledges that (a) it would be difficult to calculate damages to Company from
any breach of his obligations under this Section 16, (b) that injury to Company
from any such breach would be irreparable and impossible to measure, and (c)
that the remedy at law for any breach or threatened breach of this Section 16
would therefore be an inadequate remedy and, accordingly, Company shall, in
addition to all other available remedies, be entitled to injunctive and other
similar equitable remedies.
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17. Dispute Resolution. If a dispute arises between the parties
concerning the interpretation of this Agreement or whether a party is in
violation of this Agreement, including but not limited to claims relating to
termination of this Agreement and definition of "cause", then either party may
deliver a written notice of such dispute to the other party (a "Dispute
Notice"). If such dispute is not resolved by the parties within ten (10) days
of the Dispute Notice, then the resolution of the dispute described in the
Dispute Notice shall be determined by an expedited arbitration proceeding
conducted under California law and the labor arbitration rules of the American
Arbitration Association (the "Arbitration") with discovery conducted pursuant
to the provisions of California Code of Civil Procedure Sections 2016 et seq.
Any arbitration proceeding determinations shall be binding on the parties. The
arbitration shall not be used to modify any provision of this Agreement and
shall merely interpret the provisions hereof.
17.1 Selection and Conduct of Arbitrators. The Arbitration
proceeding shall be conducted by each of the parties appointing a qualified
arbitrator within twenty (20) days of the Dispute Notice. A qualified
arbitrator means a person who has had substantial experience in connection with
matters involving the interpretation of employment agreements and the
operations of companies similar to Company and who is unaffiliated with and
otherwise independent of the parties and their affiliates. The two arbitrators
so selected shall within the succeeding twenty (20) day period after their
selection attempt to reach agreement on the dispute submitted after considering
all of the evidence submitted
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by the parties. If the arbitrators fail to reach an agreement within such
twenty (20) day period, they shall within five (5) days thereafter select a
third qualified arbitrator. In the event the two arbitrators are unable to
reach agreement on the third arbitrator, then the parties shall select a third
arbitrator from a list of seven arbitrators provided by the Los Angeles County
Office of the American Arbitration Association with each party having the right
to strike names in order until they either agree on an arbitrator from the
list, or until one arbitrator's name remains on the list. The party with the
right to strike the first name shall be determined by the flip of a coin. Such
third arbitrator shall determine the resolution of the dispute within the
succeeding twenty (20) day period and such decision shall be final and binding
on the parties.
17.2 Sole and Exclusive Remedy. In consideration of the parties
agreement to submit all disputes hereunder to arbitration, and in further
consideration of minimizing the time and expense of resolving any dispute
pursuant hereto, the arbitration provisions shall be the sole and exclusive
remedy of the parties, and each party expressly waives the right to seek
resolution by any other means or in any other forum.
17.3 Expiration of Claims. All claims that any other party has
against the other must be presented in writing within one (1) year of the date
the claiming party knew or should have known of the facts giving rise to the
claim, or, with respect to claims related to termination of Executive's
employment, within one (1) year of the date of termination hereunder. Any claim
not
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brought within said time period shall be waived and forever barred unless the
party against whom such claim is made agrees to waive such time period.
17.4 Enforceability and Costs. Upon completion of the arbitration,
either party may thereafter unilaterally and immediately cause the other to
comply with the decision made by the arbitration proceeding, and any such
decision may be entered in the Superior Court of the State of California or any
other court having jurisdiction. All arbitration costs during the arbitration
shall be paid equally by the parties until such time as a final decision is
made. Likewise, until such time as a final decision is made, each party shall
bear their own attorneys fees. The prevailing party shall receive a complete
reimbursement from the non-prevailing party upon completion of the arbitration
for all costs incurred by the prevailing party, including, but not limited to,
direct arbitration costs paid by the prevailing party and the prevailing
party's reasonable attorneys' fees and other costs.
18. Representations by Executive. Executive represents and warrants
that he is free to enter into and perform each of the terms and conditions of
this Agreement; and that his execution and/or performance of all his
obligations under this Agreement does not and will not violate or breach any
other agreement between Executive and any other person or entity.
19. Indemnification. Company shall, to the maximum extent permitted
by law, indemnify, defend, and hold Executive harmless for all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries, and
deficiencies,
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including reasonable attorneys' fees, that Executive shall incur or suffer that
arise from, result from, or relate to the discharge of Executive's duties under
this Agreement, except to the extent that Executive has acted in bad faith or
shall be guilty of willful misconduct, fraud, gross negligence, or a wrongful
taking.
20. General Provisions.
20.1 Further Assurance. The parties agree that, at any time and
from time to time during the Employment Term, they will take any action and
execute and deliver any document which any other party reasonably requests in
order to carry out the purposes of this Agreement.
20.2 Amendment of Agreement. This Agreement may be amended or
supplemented only in writing, and no amendment or supplement will be effective
unless executed by all of the parties.
20.3 Notices. Any notice, consent, waiver, demand, or other
communication required or permitted to be given by or to any person pursuant to
this Agreement (collectively "Notice") will be in writing, and will be given
either by personal service, facsimile transmission, by certified mail, return
receipt requested, or by Federal Express or similar commercial overnight
courier service, to a party at the address set forth below:
If to Company:
Education Technology Consulting Holdings, L.L.C.
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
If to Executive:
Xxxxxxx X. Xxxxxxx, Xx.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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In the case of personal service, Notice will be deemed effective on the
date of service. In all other cases, Notice will be deemed effective on the
date of delivery, as shown on the return receipt or other written evidence of
delivery, if any, or five (5) days after dispatch if there is no return receipt
or written evidence of delivery. A party may change the address at which Notice
is to be given, at any time and from time to time, by giving Notice of the new
address to the other parties in accordance with this Section.
20.4 Entire Agreement. This Agreement contains the entire
understanding between the parties, and supersedes all prior understandings and
agreements between them, regarding its subject matter. There are no oral or
written representations, agreements, arrangements, or understandings between
the parties relating to the subject matter of this Agreement which are not
fully set forth herein.
20.5 Binding Effect and Assignment. This Agreement is binding upon
and inures to the benefit of the parties and their respective heirs, executors,
administrators, personal representatives, successors, and assigns. Company may
assign its rights or delegate its duties under this Agreement at any time and
from time to time. However, the parties acknowledge that the availability of
Executive to perform services was a material consideration for Company to enter
into this Agreement. Accordingly, Executive may not assign any of his rights or
delegate any of his duties under this Agreement, either voluntarily or by
operation of law, without the prior written consent of Company.
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which may be given or withheld by Company in its sole and absolute discretion.
Company agrees to require any successor to all or substantially all of its
business and/or assets, whether direct or indirect, by agreement in form and
substance reasonably satisfactory to Executive, to assume and agree to perform
this Agreement in the same manner and extent as Company would be required to
perform had no such succession taken place.
20.6 Applicable Law; Choice of Forum. This Agreement has been made
and executed under, and will be construed and interpreted in accordance with,
the laws of the State of California. Subject to paragraph 17 above regarding
Dispute Resolution, the parties consent to the jurisdiction of the courts of
the State of California located in Los Angeles County and the United States
District Courts located in the Central District of the State of California in
any action or proceeding arising out of this Agreement, and agree that in those
actions or proceedings, venue will be proper in Los Angeles County (if the
action or proceeding is brought in the Superior Court of California) or in the
Central District of California (if the action or proceeding is brought in the
United States District Court).
20.7 Attorneys' Fees. In any action or proceeding to enforce or
interpret this Agreement, or arising out of this Agreement, the prevailing
party or parties are entitled to recover a reasonable allowance for fees and
disbursements of counsel and costs of arbitration or suit, to be determined by
the arbitrator or court to which the action or proceeding is brought.
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20.8 Provisions Severable. Every provision of this Agreement is
intended to be severable from every other provision of this Agreement. If any
provision of this Agreement is held to be void or unenforceable, in whole or in
part, the remaining provisions will remain in full force and effect, unless the
remaining provisions are so eviscerated by such holding that they do not
reflect the intent of the parties in entering into this Agreement. If any
provision of this Agreement is held to be unreasonable or excessive in scope or
duration, that provision will be enforced to the maximum extent permitted by
law.
20.9 Non-Waiver of Rights and Breaches. Any waiver by a party of
any breach of any provision of this Agreement will not be deemed to be a waiver
of any subsequent breach of that provision, or of any breach of any other
provision of this Agreement. No failure or delay in exercising any right,
power, or privilege granted to a party under any provision of this Agreement
will be deemed a waiver of that or any other right, power, or privilege. No
single or partial exercise of any right, power, or privilege granted to a party
under any provision of this Agreement will preclude any other or further
exercise of that or any other right, power, or privilege.
20.10 Interpretation of Agreement. Each of the parties has been
represented by counsel in the negotiation and preparation of this Agreement.
The parties agree that this Agreement is to be construed as jointly drafted.
Accordingly, this Agreement will be construed according to the fair meaning of
its
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language, and the rule of construction that ambiguities are to be resolved
against the drafting party will not be employed in the interpretation of this
Agreement.
20.11 Headings. The headings of the Sections and Paragraphs of this
Agreement are inserted for ease of reference only, and will have no effect in
the construction or interpretation of this Agreement.
20.12 Counterparts. This Agreement and any amendment or supplement
to this Agreement may be executed in two or more counterparts, each of which
will constitute an original but all of which will together constitute a single
instrument.
"COMPANY"
Education Technology Consulting
Holdings, L.L.C., a Delaware
limited liability company
By: /s/ XXXXXXX XXXXXX
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"Executive"
/s/ XXXXXXX X. XXXXXXX, XX.
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Xxxxxxx X. Xxxxxxx, Xx.
