EXHIBIT 10.62
FORM OF EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of November 15,
2001, by and between Corinthian Colleges, Inc., a Delaware corporation (the
"Company"), and _______________________ ("Employee").
WITNESSETH:
WHEREAS, the Company and Employee desire to enter into this Agreement to assure
the Company of the continuing and exclusive service of Employee and to set forth
the terms and conditions of Employee's employment with the Company.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the parties agree as follows:
1. TERM. The Company agrees to employ Employee and Employee hereby accepts
such employment, in accordance with the terms of this Agreement, commencing
on the date of this Agreement (the "Effective Date") and continuing for a
period of two (2) years hereafter (the "Term"), subject to earlier
termination under Section 5 or extension of such term as described in the
next sentence. Unless either party has given advanced written notice to the
other party that the Term shall not be extended (or further extended, as
the case may be), then (1) upon the first anniversary of the Effective Date
the Term shall automatically be extended by an additional year (such that
the Term shall be scheduled to terminate on the third anniversary of the
Effective Date), and (2) upon the second and each successive anniversary of
the Effective Date the Term shall automatically be extended by an
additional year; provided, however, that in no event shall the Term exceed
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a period of five (5) years. Provision of notice that this Agreement shall
not be extended or further extended, as the case may be, shall not
constitute breach of this Agreement or entitle the Employee to any benefits
described in Section 5.
2. SERVICES AND EXCLUSIVITY OF SERVICES. During the Term of this Agreement,
Employee shall devote Employee's full business time, energy and ability
exclusively to the business, affairs and interests of the Company and
matters related thereto, shall use Employee's best efforts and abilities to
promote the Company's interests and shall perform the services contemplated
by this Agreement in accordance with policies established by and under the
direction of [the Board of Directors of the Company (the "Board")] [or]
[the chief executive officer of the Company (the "Senior Officer")].
Employee shall not, directly or indirectly, during the term of this
Agreement render services to any other person or firm for compensation or
engage in any activity competitive with or adverse to the Company's
business. Employee may serve as a director or in any other capacity of any
business enterprise or any nonprofit or governmental entity or trade
association, provided in each case that such service is approved by the
Board or the Senior Officer. Notwithstanding the foregoing, Employee may
make and manage personal business investments of Employee's choice and
serve in any capacity with any civic, educational or charitable
organization (other than as a director of such organization, approval for
which may be sought under the immediately preceding sentence of this
Section 2) without seeking the approval of the [Board] [or] [the Senior
Officer], provided that such activities and services do not interfere or
conflict with the performance of the duties hereunder or create any
conflict of interest with such duties.
3. DUTIES AND RESPONSIBILITIES. Employee shall serve as _________________
[Insert Title] of the Company for the Term of this Agreement. In the
performance of Employee's duties, Employee shall report
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directly to the [Board] [Senior Officer] of the Company and shall be
subject to the direction of the [Board] [Senior Officer] and to such limits
on Employee's authority as the [Board] [Senior Officer] may from time to
time impose. During the term of this Agreement, Employee shall be based at
the Company's principal executive offices in Orange County, California.
Employee agrees to observe and comply with the rules and regulations of the
Company and agrees to carry out and perform orders, directions and policies
of the Company and its Board as they may be, from time to time, stated
either orally or in writing. The Company agrees that the duties which may
be assigned to Employee shall be usual and customary duties of the
office(s) or position(s) to which Employee may from time to time be
appointed or elected and shall not be inconsistent with the provisions of
the charter documents of the Company or applicable law. Employee shall have
such corporate power and authority as shall reasonably be required to
enable Employee to perform the duties required in any office that may be
held.
4. COMPENSATION.
(a) Base Compensation. During the term of this Agreement, the Company
agrees to pay Employee a base salary at the annual rate of not less than
$_______________, payable in accordance with the Company's practices in
effect from time to time (the "Base Salary").
(b) Additional Benefits. Employee shall also be entitled to all rights and
benefits for which Employee is otherwise eligible under any bonus plan,
incentive agreement (including stock options and/or other awards granted
pursuant to the Company's 1998 Performance Award Plan), participation or
extra compensation plan, pension plan, profit-sharing plan, life, medical,
dental, disability, or insurance plan (including, except as otherwise
prohibited therein, the Company's Employee Stock Purchase Plan) or policy
or other plan or benefit that the Company may provide for Employee or
(provided Employee is eligible to participate therein) for Peer Employees
(defined as the original founders of the Company, consisting of Xxxxx
Xxxxx, Xxxx St. Pierre and Xxxxxx Xxxxxxxx) or for employees of the Company
generally, as from time to time in effect, during the term of this
Agreement (collectively, all of the above shall be referred to as the
"Additional Benefits").
(c) Periodic Review. The Compensation Committee of the Board shall review
Employee's Base Salary and Additional Benefits then being paid to Employee
not less frequently than every twelve months. Following such review, the
Company may in its discretion increase (but shall not be required to
increase) the Base Salary or any other benefits, but may not decrease the
Base Salary during the time Employee serves as ___________________________
[insert title]; provided, however, that if the Company undertakes any
generalized salary reductions of employees of the Company, the Company may
reduce Employee's Base Salary by a percentage equal to the percentage base
salary reductions effected for all other Peer Employees of the Company.
(d) Perquisites. Employee shall be entitled to not less than three weeks
paid vacation each twelve-month period (or such larger amount of paid
vacation as is generally granted to employees of the Company based on time
of service with the Company), which shall accrue on a pro rata basis from
the Effective Date of this Agreement. Vacation time will continue to accrue
so long as Employee's total accrued vacation does not exceed two times (2x)
the then-current rate of annual vacation accrual of the Employee (the
"Vacation Accrual Cap"). Should Employee's accrued vacation time reach the
Vacation Accrual Cap, Employee will cease to accrue additional vacation
until Employee's accrued vacation time falls below the Vacation Accrual
Cap. Except with respect to the rate of vacation accrual set forth above,
all vacation time shall be subject to the plans, policies, programs and
practices as in effect generally with respect to other Peer Employees of
the Company.
5. TERMINATION. This Agreement and all obligations hereunder (except the
obligations contained in Sections 8, 9, 10 and 11 (Confidential
Information, Non-Competition, Non Solicitation of Employees and Indemnity)
which shall survive any termination hereunder) shall terminate upon the
earliest to occur of any of the following:
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(a) Voluntary Termination. Subject to Section 5(e) below, the voluntary
termination by Employee or retirement from the Company in accordance with
the normal retirement policies of the Company.
(b) Death or Disability of Employee. Employee's employment shall be
terminated upon the death or Disability (as defined below) of Employee. In
such instance, except as set forth below, all obligations hereunder to
Employee (or Employee's heirs or legal representatives) shall cease, other
than for payment of the sum of (A) Employee's Base Salary through the date
of termination to the extent not theretofore paid, (B) any bonus or other
cash compensation agreement for the pro rata amount earned through the date
of termination, (C) compensation previously deferred by Employee (together
with any accrued interest or earnings thereon), and (D) any accrued
vacation pay, in each case to the extent not theretofore paid (the sum of
the amounts described in clauses (A), (B), (C) and (D) shall be hereinafter
referred to as the "Accrued Obligations"), which shall be paid to Employee
or Employee's estate or beneficiary, as applicable, in a lump sum in cash
within 30 days after the date of termination or any earlier time required
by applicable law. For the purposes of this Agreement, Disability shall
mean the absence of Employee performing Employee's duties with the Company
on a full-time basis for a period of six months, as a result of incapacity
due to mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and
acceptable to Employee or Employee's legal representative (such agreement
as to acceptability not to be withheld unreasonably). The termination of
this Agreement due to the death or Disability of Employee shall have no
effect on the rights and obligations of Employee (or [his][her] personal
representative or beneficiary, as the case may be) with respect to stock
options or other rights granted under the Company's 1998 Performance Award
Plan, as amended, or the Company's Employee Stock Purchase Plan, all of
which rights and obligations shall be governed solely and exclusively by
the applicable terms and conditions of such plans and the agreements issued
thereunder.
(c) Cause. The Company may terminate Employee's employment and all of
Employee's rights to receive Base Salary and any Additional Benefits
hereunder for Cause. For purposes of this Agreement, the term "Cause" shall
be defined as any of the following; provided, however, that the Company
must determine the presence of such Cause in good faith:
(i) Willful misconduct by Employee which materially and demonstrably
injures the Company, including (1) Employee's material breach of any
material duties and responsibilities under this Agreement (other than
as a result of incapacity due to Employee's Disability), (2) Employee's
commission of a material act of fraud upon the Company or (3)
Employee's immoderate use of alcoholic beverages or narcotics or other
substance abuse;
(ii) Employee willfully engaging in conduct specifically prohibited by
the Company's written policies, including, without limitation, unlawful
harassment of any other Company employee.
(iii) Employee's conviction by, or entry of a plea of guilty or nolo
contendere in, a court of competent and final jurisdiction for a felony
or any crime which materially adversely affects the Company and/or its
reputation in the community and which involves moral turpitude or is
punishable by imprisonment in the jurisdiction involved.
For purposes of this Section 5, no act or failure to act on the part of
Employee shall be considered "willful" unless done, or omitted to be
done, by Employee in bad faith and without reasonable belief by
Employee that such action or omission was in the best interest of the
Company. Notwithstanding the foregoing, Employee shall not be
terminated for Cause pursuant to clauses (i), (ii) and (iii) of this
Section 5(c) unless and until Employee has received notice of a
proposed termination for Cause and Employee has had an opportunity to
be heard before at least a majority of members of the Board.
(d) Without Cause. Notwithstanding any other provision of this Section 5,
the Company shall have the right to terminate Employee's employment with
the Company without Cause at any time, but in the event of such termination
without Cause, Employee shall be entitled to receive a lump sum payment
equal to the following:
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(A) two times (2x) the value of Employee's Base Salary provided under this
Agreement for the most recent twelve (12) month period prior to the date of
such termination, plus (B) two times (2x) the average annual bonus paid or
payable under any bonus plan or agreement between the Company and the
Employee for the most recent two (2) full fiscal years (determined by
annualizing the bonus paid or payable with respect to any partial fiscal
year) (the "Lump Sum Payment"). Such Lump Sum Payment to Employee shall be
paid to Employee within 30 days of the date of such termination.
(e) Good Reason. Employee's employment may be terminated at any time by
Employee for Good Reason. Regardless of whether a resignation occurs prior
to, coincident with or after a "Change in Control," Good Reason" shall mean
any one or more of the following:
(i) The material failure by the Company to fulfil its obligations under
this Agreement, to the extent not remedied in a reasonable period of
time after the receipt of written notice by the Employee specifying the
material failure by the Company. Any reduction or attempted reduction
by the Company (to the extent such reduction is not made equally to all
employees of a substantially equal level or position) in Employee's
Base Salary as in effect on the date hereof or as the same may be
increased from time-to-time or the taking of any action by the Company
that would substantially diminish the aggregate value of Employee's
compensation, including any bonus, incentive or other compensation
awards, retirement benefits and other fringe benefits from the levels
in effect prior to the date hereof is deemed material.
(ii) the reassignment of Employee to a position that is not an
executive officer level position or the assignment of duties to
Employee that are not consistent with such position.
(iii) The Company's requiring Employee to be based at any office or
location which increases the distance from Employee's home to the
office or location by more than 30 miles from the distance in effect at
the Effective Date of this Agreement, unless the Company's corporate
headquarters moves to another location and all Peer Employees
(including the Employee) are required to report to such new location.
If Employee terminates his or her employment with the Company for Good
Reason, then Employee shall be entitled to receive a Lump Sum Payment
equal to that paid to Employee under Section 5(d) hereof.
6. BUSINESS EXPENSES. During the Term of this Agreement, to the extent that
such expenditures satisfy the criteria under the Internal Revenue Code for
deductibility by the Company (whether or not fully deductible by the
Company) for federal income tax purposes as ordinary and necessary business
expenses, the Company shall reimburse Employee promptly for reasonable
business expenditures, including travel, entertainment, parking, business
meetings, and professional dues, made and substantiated in accordance with
the reasonable policies, practices and procedures established from time to
time by the Company generally with respect to other Peer Employees and
incurred in the pursuit and furtherance of the Company's business and good
will.
7. CHANGE IN CONTROL. If, (A) "In Anticipation Of," as defined below, or
within twelve (12) months after a "Change in Control" of the Company (or
any successor), as defined below, the Company involuntarily terminates
Employee's employment without Cause, or (B) within twelve (12) months after
receiving notice (which notice may be oral) of a Change in Control, the
Employee voluntarily elects to retire from full-time service to the
Company, then Employee shall receive a lump sum payment equal to the amount
that would be required to be paid to Employee as a Lump Sum Payment under
Section 5(d) upon Employee's termination other than for Cause. If Employee
voluntarily resigns following a Change of Control, the Employee may
continue to render, on a non-exclusive basis, such consulting and advisory
services to the Company as Employee may in his sole discretion accept;
provided, however, that any such consulting and advisory services, and the
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conditions under which they shall be performed, shall be fully in keeping
with the position or positions Employee held under this Agreement.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any
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economic benefit, payment or distribution by the Company to or for the benefit
of the Employee, whether paid, payable, distributed or distributable pursuant to
the terms of this Agreement or otherwise (a "Payment"), would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any interest or penalties with respect to such excise
tax (such excise tax and any applicable interest and penalties, collectively
referred to in this Agreement as the "Excise Tax"), then the Employee shall be
entitled to receive an additional payment (a "Gross-Up-Payment") in an amount
such that after payment by the Employee of all applicable taxes (including any
interest or penalties imposed with respect to such taxes), the Employee retains
an amount equal to the amount he would have retained had no Excise Tax been
imposed upon the Payment.
(b) Subject to the provisions of Section 7(c), all determinations required to be
made under this Section 7, including whether a Gross-Up Payment is required and
the amount of such Gross-Up Payment, shall be made by the Company's regular
outside independent public accounting firm (the "Accounting Firm") which shall
provide detailed supporting calculations both to the Company and the Employee
within 15 business days of the date of termination, if applicable, or such
earlier time as is requested by the Company. The initial Gross-Up Payment, if
any, as determined pursuant to this Section 7, shall be paid to the Employee
within 5 business days of the receipt of the Accounting Firm's determination. If
the Accounting Firm determines that no Excise Tax is payable by Employee, it
shall furnish Employee with an opinion that [he][she] has substantial authority
not to report any Excise Tax on [his][her] federal income tax return. Any
determination by the Accounting Firm shall be binding upon the Company and the
Employee. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm, it is
possible that Gross-Up Payments that have not been made by the Company should
have been made ("Underpayment"), consistent with the calculations required to be
made under this Section 7. In the event that the Company exhausts its remedies
pursuant to Section 7(c) and the Employee thereafter is required to make a
payment of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Company to or for the benefit of Employee.
(c) Employee shall notify the Company of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Company of the
Gross-Up Payment under the terms of this Section 7. This notice shall be given
as soon as practicable after the later of either (i) the date the Employee has
actual knowledge of the claim, or (ii) ten days after the Internal Revenue
Service issues to the Employee either a written report proposing imposition of
the Excise Tax or a statutory notice of deficiency with respect to the Excise
Tax, and shall apprise the Company of the nature of the claim and the date on
which the claim is requested to be paid. The Employee shall not pay the claim
prior to the expiration of a thirty (30) day period following the date on which
Employee gives such notice to the Company (or such shorter period ending on the
date that any payment of taxes with respect to the claim is due). If the Company
notifies the Employee prior to the expiration of the above period that it
desires to contest the claim, the Employee shall: (A) give the Company any
information reasonably requested by the Company relating to the claim, (B) take
such action in connection with contesting the claim as the Company shall
reasonably request in writing from time to time, including accepting legal
representation with respect to the claim by an attorney reasonably selected by
the Company, (C) cooperate with the Company in good faith in order to
effectively contest the claim, (D) permit the Company to participate in any
proceedings relating to the claim; provided, however, that the Company shall
bear and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify, defend
and hold the Employee harmless, on an after-tax basis, for any Excise Tax or
income tax, including interest and penalties with respect thereto, imposed as a
result of such representation and payment of costs and expenses. Without
limitation of the foregoing provisions of this Section 7(c), the Company shall
control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of the claim and
may, at its sole option, either direct the Employee to request or accede to a
request for an extension of the statute of limitations with respect only to the
tax claimed, or pay the tax claimed and xxx for a refund or contest the claim in
any permissible manner, and the Employee agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate
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courts, as the Company shall determine; provided, however, that if the
Company directs the Employee to pay the claim and xxx for a refund, the
Company shall advance the amount of the required payment to the Executive,
on an interest-free basis and shall indemnify and hold the Employee
harmless, on an after-tax basis, from any Excise Tax or income tax,
including interest or penalties with respect thereto, imposed with respect
to any advance or with respect to any imputed income in relation to any
advance; and further provided that any extension of the statute of
limitations requested or acceded to by the Employee at the Company's
request and relating to payment of taxes for the taxable year of the
Employee with respect to which the contested amount is claimed to be due is
limited solely to the contested amount. Furthermore, the Company's control
of the contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable under the Agreement and the Employee shall be
entitled to settle or contest, as the case may be, any other issue raised
by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Employee of an amount advanced by the
Company pursuant to Section 7(c), the Employee becomes entitled to receive
any refund with respect to the claim, the Employee shall (subject to the
Company's complying with the requirements of Section 7(c)) promptly pay to
the Company the amount of that refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by
the Employee of an amount advanced by the Company pursuant to Section 7(c),
a determination is made that the Employee shall not be entitled to any
refund with respect to the claim and the Company does not notify the
Employee of its intent to contest such denial of refund prior to the
expiration of thirty (30) days after the determination, then the advance
shall be forgiven and shall not be required to be repaid and the amount of
the advance shall offset, to the extent thereof, against the amount of
Gross-Up Payment required to be paid.
Definition of "Change in Control": For purposes of this Section 7, a
"Change in Control" means, and shall be deemed to have taken place, if (1)
any person or entity or group of affiliated persons or entities, including
a group which is deemed a "person" by Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after the date
hereof is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 40% or more of the combined voting power of the Company's then
outstanding securities; (2) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board cease
for any reason to constitute at least a majority thereof, unless the
election, or the nomination for election by the Company's stockholders, of
each new Board member was approved by a vote of at least three-fourths
(3/4) of the Board members then still in office who were Board members at
the beginning of such period; (3) any reorganization, consolidation, merger
or similar transaction involving the Company in which the Company is not
the continuing or surviving corporation or pursuant to which the Company's
securities would be converted into cash, securities or other property
(other than a merger of the Company in which the holders of the Company's
voting securities immediately prior to the merger have more than 50% of the
combined voting power of the securities of the corporation or other entity
resulting from or surviving such merger, calculated on a fully-diluted
basis in accordance with generally accepted accounting principles after
giving effect to such merger, immediately after such merger); or (4) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the
Company.
Definition of "In Anticipation Of": For purposes of this Section 7, the
involuntary termination by the Company of the Employee's employment
(including by way of the Company giving written notice to the Employee
pursuant to Section 1 that the Company intends to permit the Agreement to
expire without automatic extension after the next succeeding Expiration
Date) shall be deemed to have been "In Anticipation Of" a Change in Control
if such termination (A) was at the request of an unrelated third party who
has taken steps reasonably calculated to effect a Change in Control, or (B)
otherwise arose in connection with a Change in Control.
8. CONFIDENTIAL INFORMATION. Employee acknowledges that the nature of
Employee's engagement by the Company is such that Employee shall have
access to information of a confidential and/or trade secret nature which
has great value to the Company and which constitutes a substantial basis
and foundation upon which the business of the Company is based. Such
information includes financial, manufacturing and marketing data,
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techniques, processes, formulas, developmental or experimental work, work
in process, methods, trade secrets (including, without limitation, customer
lists and lists of customer sources), or any other secret or confidential
information relating to the products, services, customers, sales or
business affairs of the Company (the "Confidential Information"). Employee
shall keep all such Confidential Information in confidence during the term
of this Agreement and at any time thereafter and shall not disclose any of
such Confidential Information to any other person, except to the extent
such disclosure is (i) necessary to the performance of this Agreement and
in furtherance of the Company's best interests, (ii) required by applicable
law, (iii) lawfully obtainable from other sources, or (iv) authorized by
the Company. Upon termination of Employee's employment with the Company,
Employee shall deliver to the Company, or certify to the Company of the
destruction of, all documents, records, notebooks, work papers, and all
similar material containing any of the foregoing information, whether
prepared by Employee, the Company or anyone else.
9. NON-COMPETITION. In order to protect the Confidential Information, Employee
agrees that during the term of Employee's employment, and for a period of
one (1) year thereafter, Employee shall not, directly or indirectly,
whether as an owner, partner, shareholder, agent, employee, creditor, or
otherwise, promote, participate or engage in any activity or other business
competitive with the Company's business in any jurisdiction in which the
Company operates at the time of such termination if such activity or other
business involves any use by the Employee of any of the Confidential
Information.
10. NONINTERFERENCE WITH EMPLOYEES. In order to protect the Confidential
Information, Employee agrees that during the term hereof and for a period
of one (1) year thereafter, Employee will not, directly or indirectly,
solicit any employee of the Company to leave such employment.
11. INDEMNITY. In addition to any other separate agreement with the Company
concerning indemnification, to the fullest extent permitted by applicable
law and the bylaws of the Company, as from time to time in effect, the
Company shall indemnify Employee and hold Employee harmless for any acts or
decisions made in good faith while performing services for the Company, and
the Company shall use its best efforts to obtain coverage for Employee
(provided the same may be obtained at reasonable cost) under any liability
insurance policy or policies now in force or hereafter obtained during the
term of this Agreement that cover other officers of the Company having
comparable or lesser status and responsibility. To the same extent, the
Company will pay and, subject to any legal limitations, advance all
expenses, including reasonable attorneys' fees and costs of court approved
settlements, actually and necessarily incurred by Employee in connection
with the defense of any action, suit or proceeding and in connection with
any appeal thereon, which has been brought against Employee by reason of
Employee's service as an officer or agent of the Company.
12. REMEDIES. The parties hereto agree that the services to be rendered by
Employee pursuant to this Agreement, and the rights and privileges granted
to the Company pursuant to this Agreement, are of a special, unique,
extraordinary and intellectual character, which gives them a peculiar
value, the loss of which cannot be reasonably or adequately compensated in
damages in any action at law, and that a breach by Employee of any of the
terms of this Agreement will cause the Company great and irreparable injury
and damage. Employee hereby expressly agrees that the Company shall be
entitled to the remedies of injunction, specific performance and other
equitable relief to prevent a breach of this Agreement by Employee. This
Section 12 shall not be construed as a waiver of any other rights or
remedies which the Company may have for damages or otherwise.
13. SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, to achieve the intent of the parties to the extent possible. In
any event, all other provisions of this Agreement shall be deemed valid and
enforceable to the extent possible.
14. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns and any such
successor or assignee shall be deemed substituted for the Company under the
terms of this Agreement for all purposes. As used herein, "successor" and
"assignee" shall include any person, firm, corporation or other business
entity which at any time, whether by purchase, merger
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or otherwise, directly or indirectly acquires the stock of the Company or
to which the Company assigns this Agreement by operation of law or
otherwise. The obligations and duties of Employee hereunder are personal
and otherwise not assignable. Employee's obligations and representations
under this Agreement will survive the termination of Employee's employment,
regardless of the manner of such termination.
15. NOTICES. Any notice or other communication provided for in this Agreement
shall be in writing and sent if to the Company to its principal executive
office at:
Corinthian Colleges, Inc.
0 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000; Facsimile: (000) 000-0000
Attention: General Counsel
or at such other address as the Company may from time to time in writing
designate, and if to Employee at such address as Employee may from time to
time in writing designate (or, if not so designated, at the last address
for such Employee on the employment records of the Company). Each such
notice or other communication shall be effective (i) if given by
telecommunication, when transmitted to the applicable number so specified
in (or pursuant to) this Section 15 and a verification of receipt is
received, (ii) if given by mail, three days after such communication is
deposited in the mails with first class postage prepaid, addressed as
aforesaid or (iii) if given by any other means, when actually delivered at
such address.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof and supersedes any prior
agreements, undertakings, commitments and practices relating to Employee's
employment by the Company.
17. AMENDMENTS. No amendment or modification of the terms of this Agreement
shall be valid unless made in writing and duly executed by both parties.
18. WAIVER. No failure on the part of any party to exercise or delay in
exercising any right hereunder shall be deemed a waiver thereof or of any
other right, nor shall any single or partial exercise preclude any further
or other exercise of such right or any other right.
19. GOVERNING LAW. This Agreement, and the legal relations between the parties,
shall be governed by and construed in accordance with the laws of the State
of California without regard to conflicts of law doctrines and any court
action arising out of this Agreement shall be brought in any court of
competent jurisdiction within the State of California, County of Orange.
20. WAIVER OF JURY TRIAL. THE COMPANY AND EMPLOYEE HEREBY AGREE TO WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE EMPLOYMENT
RELATIONSHIP BETWEEN THEM OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT OR SUCH RELATIONSHIP. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may
be filed in any court or that relate to the subject matter of this
Agreement, including without limitation, contract claims, tort claims,
breach of duty claims, wrongful termination claims, claims for discharge in
violation of public policy, claims of discrimination and all other common
law and statutory claims, to the maximum extent permitted by law. The
Company and Employee each acknowledge that this waiver is a material
inducement to enter into this Agreement, that each has already relied on
the waiver in entering into this Agreement, and that each will continue to
rely on the waiver in their related future dealings. THE COMPANY AND
EMPLOYEE FURTHER WARRANT AND REPRESENT THAT EACH HAS HAD AN OPPORTUNITY TO
REVIEW THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
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SUCH OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL. THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT MODIFICATIONS TO OR EXTENSIONS OF THIS AGREEMENT. In the
event of arbitration or litigation, this Agreement may be filed as a
written consent to arbitration or to a trial by the court.
21. ARBITRATION. As a material inducement to enter into this Agreement,
Employee and the Company each hereby agree that any "Claims" or
"Controversies" (as defined below) arising out of or in respect to this
Agreement (or its validity, interpretation or enforcement), or Employee's
employment or termination, that Employee may have against the Company or it
officers, directors, employees, or agents, in their capacity as such, or
that the Company may have against Employee, shall be resolved solely
through binding arbitration. EMPLOYEE AND THE COMPANY EACH HEREBY
ACKNOWLEDGE THAT THIS AGREEMENT TO ARBITRATE MEANS THAT EMPLOYEE AND THE
COMPANY ARE RELINQUISHING HIS/HER/ITS RIGHTS TO EITHER A JURY TRIAL OR
COURT TRIAL FOR THE RESOLUTION OF ANY CLAIMS THAT EMPLOYEE AND THE COMPANY
MAY HAVE AGAINST THE OTHER.
The Terms "Claims" or "Controversies" arising out of this Agreement or
Employee's employment or termination means and includes all claims for
breach of this Agreement, harassment and/or discrimination (including
sexual harassment and harassment or discrimination based on race, color,
religion, age, sex, sexual orientation, ancestry, national origin, marital
status, military service, pregnancy, physical or mental disability, medical
condition or any other protected class or condition), breach of any
contract or covenant (express or implied), tort claims, wrongful
termination, whistle-blowing and all other claims relating to this
Agreement or Employee's employment or termination, except that claims
covered by the Workers' Compensation Act and claims for unemployment
benefits are not covered by this agreement to arbitrate. All Claims or
Controversies shall be submitted to a single neutral arbitrator. The
arbitration shall take place in Orange County, California, unless otherwise
mutually agreed. The arbitrator shall be mutually agreed-upon by Employee
and the Company. If Employee and the Company cannot agree upon an
arbitrator, the selection process shall be governed by the employment
arbitration rules and procedures of the American Arbitration Association
("AAA"). Regardless of the arbitrator chosen, the arbitration proceedings
shall be governed by the then current AAA procedural rules, except that if
a contrary rule exists: (1) all monetary or provisional remedies available
under applicable state or federal statutory law or common law will remain
available to both parties, (2) except as mutually agreed upon by the
parties, there will be no limitation on discovery beyond that which exists
in cases litigated in Orange County Superior Court and (3) the California
Rules of Evidence shall apply to the arbitration hearing.
In connection with any arbitration proceeding commenced hereby, the
prevailing party shall be entitled to reimbursement of its reasonable
attorney's fees and costs, including arbitrator fees. This agreement to
arbitrate and arbitration procedure is intended to be the exclusive method
of resolving all Claims or Controversies as described above between
Employee and the Company and judgment upon the award rendered by the
arbitrator hereunder may be entered in any court having jurisdiction
thereof.
22. WITHHOLDING. All compensation payable hereunder, including salary and other
benefits, shall be subject to applicable taxes, withholding and other
required, normal or elected employee deductions.
23. COUNTERPARTS. This Agreement and any amendment hereto may be executed in
one or more counterparts. All of such counterparts shall constitute one and
the same agreement and shall become effective when a copy signed by each
party has been delivered to the other party.
24. HEADINGS. Section and other headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning
or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written
CORINTHIAN COLLEGES, INC.
By:
-------------------------------
Name:
-----------------------------
Its:
------------------------------
EMPLOYEE
-----------------------------------
[Name of Employee]
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