CONSULTING AGREEMENT
Exhibit 10.17
THIS
CONSULTING AGREEMENT (this “Agreement”) made this
13th day of February
2007, by and between Apollo Group, Inc, an Arizona Corporation, (the “Company”), and Xxxxx
X. Xxxxxx having a mailing address at 0000 Xxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000 (“the
Consultant”).
1.
Engagement. Effective as of December 15, 2006, (the “Effective Date”) the Company
has engaged Consultant as an independent contractor to assist the Company’s Senior
Management in financial and accounting related projects. The Consultant’s work will be
prioritized by the Company’s CFO and will require travel as necessary to the Company’s various
locations outside of Phoenix. As part of his consulting services pursuant to this Agreement,
Consultant may be required to perform duties on a temporary basis as the Company’s chief accounting
officer. In such capacity, Consultant will have officer responsibilities and will be
designated an officer under Section 16 of the Securities Exchange Act. However, Consultant
shall at all time remain an independent consultant with respect to the duties performed
pursuant to this Agreement. The Consultant shall devote 100% of his working time to the Company
during this contract term, but the Consultant shall not be subject to the control or direction of
the Company with respect to the method or manner by which he performs the duties required of him
pursuant to this Agreement, but shall be responsible for completing all assigned tasks and duties
within the time frame established by the Company.
2. Compensation. Consultant shall be paid $55,000 per month. The Company will pay the
Consultant in arrears two (2) times a month on the 15th and the last day of each month. For any
partial months worked, the Consultant’s daily rate shall be
calculated as 1/20th of the monthly
retainer above. In addition, Consultant shall be reimbursed for all reasonable travel,
entertainment and other business expenses, in accordance with policies established by the Company.
Other than as provided in this Paragraph 2, and Paragraph 6, the Consultant shall not
be entitled to any other compensation, benefits or payments from the Company
3. Term; Termination. The term of this Agreement shall not exceed six months, unless
otherwise extended by mutual agreement, measured from the Effective Date. This Agreement
may be terminated at any time during that six-month period by the Company by giving 60 days
advance notice, but in no event shall this Agreement expire prior to April 30, 2007. In the
event this Agreement is terminated by the Company prior to April 30, 2007 without the consent of
the Consultant, the Consultant shall be entitled to the amounts due under this Agreement through
April 30, 2007, unless such termination is due to the Consultant’s willful misconduct.
4. Compliance. In performing services hereunder, Consultant shall comply with all
applicable laws and regulations and with all written policies and procedures of the Company.
5. Independent Contractor. Consultant shall at all times serve as an independent
contractor and not as an employee of the Company. It is the express intention of the parties to
this Agreement that the Consultant is an independent contractor, and the Consultant shall be
classified by the Company as such for all employee benefit and other employee purposes, and he
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shall not be treated as, or hold himself out as, an employee, agent, joint venturer, or partner of
the Company. Accordingly, nothing in this Agreement shall be interpreted or construed as creating
or establishing an employment relationship between the Company and the Consultant. Without limiting
the generality of the foregoing, Consultant hereby agrees and confirms that his
compensation as a consultant pursuant to this Agreement takes into account the fact that he
shall not be entitled to participate in any employee benefit plans, policies or programs of the
Company or any of its affiliates, including (without limitation) group insurance or health benefit
plans, workers’ compensation, disability insurance, vacation, sick pay, profit-sharing, stock
options, stock purchase or other stock-based compensation plans, retirement benefits or 401(k) plan
participation. Consultant shall be solely responsible for paying any and all federal, state and
local taxes, including but not limited to self-employment taxes, or payments which may be due
incident to payments made by the Company for services rendered under this Agreement.
6. Indemnification. For any duties the Consultant performs pursuant to this Agreement,
including (without limitation) duties performed in his capacity as an officer of the Company, he
shall be entitled to indemnification in accordance with the terms of the Indemnification
Agreement in the form attached hereto as Exhibit A.
7. Confidential Information. Consultant shall hold all Confidential Information (as
defined below) in strict confidence and not disclose any Confidential Information except as
expressly provided herein and shall not use any Confidential Information for his own benefit or
otherwise against the best interests of the Company or any of its Affiliates during the term of
this Agreement or thereafter. If Consultant shall be required by subpoena or similar government
order or other legal process (“Legal Process”) to disclose any Confidential Information, then
Consultant shall provide the Company with prompt written notice of such requirement and
cooperate if requested with the Company in efforts to resist disclosure or to obtain a protective
order or similar remedy. Subject to the foregoing, if Confidential Information is required by Legal
Process to be disclosed, then Consultant may disclose such Confidential Information but shall not
disclose any Confidential Information for a reasonable period of time, unless compelled
under imminent threat of penalty, sanction, contempt citation or other violation of law, in order
to allow the Company time to resist disclosure or to obtain a protective order or similar remedy.
If Consultant discloses any Confidential Information, then Consultant shall disclose only that
portion of the Confidential Information which, in the opinion of counsel, is required by such
Legal Process to be disclosed. Upon termination of this Agreement, Consultant shall return to
the Company all Confidential Information in tangible form (including but not limited to
electronic files) in his possession.
As
used herein, “Confidential Information” shall mean any information regarding the
Company and/or its affiliates (whether written, oral or otherwise), received or obtained
before, on or after the date hereof, which the Company or its affiliates do not make generally
publicly available, including but not limited to product design, specification or other technical
information, manufacturing or other process information, financial information, customer
information, general business information, or market information,
whether or not marked or
designated as “Confidential,” “Proprietary” or the like, in any form, including electronic or
optical data storage and retrieval mechanisms, and including all forms of communication, including
but not limited to physical demonstrations, in-person conversations and telephone conversations,
email and other means of information transfer such as facility tours, regardless of
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whether any such information is protected by applicable trade secret or similar laws, and
including any work product of Consultant. The term “Confidential
Information” shall not include information which: (i) is or becomes generally available to the public other than as a
result of the disclosure by Consultant or another person bound by a
confidentiality agreement with, or other legal or fiduciary or other obligation of secrecy or confidentiality to, the Company
or another party with respect to such information; or (ii) becomes available to Consultant from a
source other than the Company or any of its directors, officers, employees, agents, affiliates,
representatives, or advisors, provided that such source is not bound by a confidentiality agreement
with, or other legal or fiduciary or other obligation of secrecy or confidentiality to, the
Company or another party with respect to such information.
8. Not Used.
9. Copyrights. All material produced by Consultant relating to the Company or its
business during or subsequent to the term of this Agreement, whether produced by Consultant alone
or with others and whether or not produced on the Company’s premises or otherwise, shall be considered
work made for hire and the property of the Company (“Company Copyrights”). Consultant shall execute
and deliver such documentation as may be requested by the Company to
evidence its ownership of all Company Copyrights. Consultant shall also execute and deliver
such documentation and provide the Company, at the Company’s expense, all proper assistance to
secure for the Company and maintain for the Company’s benefit all copyrights, including any
registrations and any extensions or renewals thereof, on all Company Copyrights, including any
translations.
10. Not Used.
11. Use and Disclosure of Ideas, Etc. Consultant shall not use or disclose to the Company
any subject matter in the course of performing this Agreement, including ideas, processes,
designs and methods, unless he has the right to so use or disclose.
12. Miscellaneous. (a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Arizona and the United States without regard to the conflicts of law
principles thereof. (b) This Agreement supersedes any and all other agreements, either oral or
written, between the parties hereto with respect to the subject matter hereof and contains all of
the covenants and agreements between the parties with respect to the subject matter hereof. (c)
The provisions of Paragraphs 4 through 12 of this Agreement shall survive its termination. (d)
This Agreement may not be altered, amended or modified except by written instrument signed by
the parties hereto. (e) Neither party shall be deemed the drafter of this Agreement and it shall
not be construed or interpreted in favor of or against either party. (f) Section headings are for
the convenience of the parties only and shall not be used in interpreting this Agreement. (g) If
any provision of this Agreement shall be found by a court of competent jurisdiction to be
unenforceable in any respect, then (i) the court shall revise such provision the least amount
necessary in order to make it enforceable, and (ii) the enforceability of any other provision of
this Agreement shall not be affected thereby. (h) Consultant may not assign this Agreement. The
Company may assign with the Consultant permission this Agreement to any affiliate of the Company.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on
the date first indicated above.
CONSULTANT
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
APOLLO GROUP, INC.
/s/ Xxxxxx X. X’Xxxxx
Printed Name: Xxxxxx X. X’Xxxxx
Title: Chief Financial Officer
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INDEMNIFICATION AGREEMENT
This Indemnification Agreement (“Agreement”) is dated 13th of February, 2007,
and is by and between Apollo Group, Inc., an Arizona corporation (the “Corporation”) and the
undersigned
consultant and, from time to time, officer of the Corporation (“Consultant”).
WHEREAS, Consultant proposes to serve as an independent contractor to the
Corporation and may from time to time serve as an officer of the Corporation, as that term is
defined in A.R.S. § 10-850.5; and
WHEREAS, pursuant to the Corporation’s Bylaws and A.R.S. § 10-856, an officer may
be indemnified to the maximum extent permitted by Arizona law;
NOW, THEREFORE, in consideration of Consultant’s service as an independent
contractor and an officer, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows.
1. Definitions. For purposes of this Agreement, the following definitions shall
apply:
(a) “Expenses” means all costs and expenses, including attorney fees, reasonably
related to a Proceeding;
(b) “Liability” means the obligation to pay a judgment, settlement, penalty, or fine,
including an excise tax assessed with respect to an employee benefit
plan, or reasonable Expenses incurred with respect to a Proceeding, and includes obligations and Expenses that have not
yet been paid but that have been or may be incurred; and
(c) “Proceeding” means any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative and whether formal or informal.
2. Indemnification of Consultant. The Corporation shall indemnify Consultant to the
maximum extent permitted by Arizona law. Without limiting the foregoing and subject to Section 4
below, the Corporation shall indemnify Consultant against any Liability incurred with respect to
any Proceeding or claim arising from the status of Consultant as an individual who is or was an
officer of the Corporation or who is or was serving at the Corporation’s request with respect to
any subsidiary, affiliate, or employee benefit plan of the Corporation. The foregoing
indemnification is expressly intended to, and shall, apply to any and all such Liability and
Expenses arising on or after the date Consultant became an officer of the Corporation, even
if prior to the date hereof. The term of this Agreement shall be perpetual.
3. Changes in Law. Notwithstanding any other provision of this Agreement, any
modification to the Corporation’s Articles of Incorporation or Bylaws from and after the date of
this Agreement shall not impair, impede, or limit the rights of Consultant under this Agreement.
In the event of any change after the date of this Agreement to any applicable law, statute, or rule
that expands the right of an Arizona corporation to indemnify an officer, or a former officer, such
changes shall be, ipso facto within the purview of
Consultant’s rights and the Corporation’s
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obligations under this Agreement. In the event of any change in applicable law,
statute, or rule that narrows the right of an Arizona corporation to indemnify an officer, or a
former officer, the rights and obligations of the parties hereunder shall be modified only to the
extent such law, statute, or rule requires that any such modification be applied in a retroactive manner.
4. Limitations on Indemnification. No indemnity pursuant to Section 2
hereof shall be paid by the Corporation with respect to any Liability:
(a) in
connection with a proceeding by or in the right of the Corporation other
than for reasonable expenses incurred in connection with the proceeding; or
(b) arising out of conduct that constitutes: (i) receipt by Consultant of a financial
benefit to which Consultant is not entitled; (ii) an intentional infliction of harm on the
Corporation or its shareholders; or (iii) an intentional violation of criminal law.
5. Advancement of Expenses. The Corporation shall pay Consultant’s
reasonable Expenses in advance of a final disposition of any Proceeding if Consultant furnishes the
Corporation with a written undertaking executed personally, or on Consultant’s behalf, to repay the
advance if it is ultimately determined that Consultant was not entitled to indemnification under
Arizona law; provided, however, that the Corporation shall not provide the advancement of Expenses
described herein if a court of competent jurisdiction has determined before payment
that Consultant is not entitled to such advancement of Expenses under Arizona law and a court of
competent jurisdiction does not otherwise authorize payment. The undertaking required by this
paragraph shall be the unlimited general obligation of Consultant but need not be secured and shall
be accepted by the Corporation without reference to Consultant’s financial ability to make
repayment. The Corporation shall not delay payment of Expenses under this Section for more than 60
days after a request is made unless ordered to do so by a court of competent jurisdiction.
6. Notification and Defense of Claim. Consultant agrees promptly to notify
Corporation in writing upon being served with any summons, citation, subpoena, complaint,
indictment, information, or other document relating to any proceeding or matter that may be
subject to indemnification or advancement of Expenses covered under this Agreement. With respect
to any such matter:
(a) The Corporation will be entitled to participate therein at its own expense;
(b) Except as otherwise provided below, to the extent that it may wish, the
Corporation jointly with any other indemnifying party may assume the defense thereof, with counsel
reasonably satisfactory to Consultant. After notice from the Corporation to Consultant
of its election so to assume the defense thereof, the Corporation will not be liable to Consultant
for any legal or other expenses subsequently incurred by Consultant in connection with the
defense thereof other than reasonable costs of investigation or as otherwise provided below.
Consultant shall have the right to employ counsel in such action, suit, or proceeding, but the fees
and expenses of such counsel incurred after notice from the Corporation of its assumption of the
defense thereof shall be at the expense of Consultant unless (i) the employment of counsel by
Consultant has been authorized by the Corporation, (ii) Consultant shall have reasonably
concluded that there may be a material conflict of interest between the Corporation and Consultant
in the conduct of the defense of such action, or (iii) the Corporation shall not in fact
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have employed counsel to assume the defense of such action, in each of which cases the fees and
expenses of counsel shall be borne by the Corporation. The Corporation shall not be entitled to
assume the defense of any action, suit, or proceeding brought by or on behalf of the Corporation
or as to which Consultant shall have made the determination provided for in (ii) above. In the
event Consultant makes the determination (ii) above, Consultant shall select counsel to defend
said interests.
(c) The Corporation shall not be obligated to indemnify Consultant under this
Agreement for any amounts paid in settlement of any action or claim effected without its written
consent. The Corporation shall not settle any action or claim in any manner which would impose
any penalty or limitation on Consultant without Consultant’s written consent. Neither the
Corporation nor Consultant will unreasonably withhold its or his consent to any
settlement proposed by the other of any matter for which indemnity is provided hereunder.
7. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be effective when received as follows:
(a) If to Consultant, at the address indicated on the signature page of this
Agreement or such other address as Consultant shall provide to the Corporation, and
(b) If to the Corporation: Apollo Group, Inc., 0000 X. Xxxxxx Xx., Xxxxxxx,
XX 00000, Attn: President, or to such other address as may have been furnished to Consultant
by the Corporation.
8. Governing Law and Severability. This Agreement is pursuant to, and subject to,
Arizona law. If any provision of this Agreement is determined to be invalid, illegal, or
unenforceable for any reason, such invalidity, illegality, or unenforceability shall not affect the
validity or enforceability of any other provision hereof. If this Agreement or any portion thereof
shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation
shall nevertheless indemnify Consultant to the fullest extent permitted by any applicable portion
of this Agreement that shall not have been invalidated, or under any applicable law, and the
balance of this Agreement not so invalidated shall be enforceable in accordance with its terms.
If Consultant is entitled under any provision of this Agreement to indemnification by the
Corporation for some or any portion of any Expenses or Liability but not, however, for the total
amount thereof, the Corporation shall nevertheless indemnify Consultant for that portion of such
Expenses or Liability for which Consultant is entitled to be indemnified.
9. Contribution. The parties acknowledge and agree that, in the event that
Consultant is not entitled to indemnification pursuant to the terms of this Agreement, the
Corporation shall contribute to any Liability with respect to which Consultant would otherwise
have been entitled to indemnification under this Agreement, in such proportion as is appropriate to
reflect the relative economic interest of the Corporation on one hand, and Consultant in the
other, as to the matters giving rise to such indemnification claims, as well as the relative fault
of the Corporation and Consultant with respect to such matters, and any other relevant equitable
considerations.
10. Benefit. This Agreement shall inure to the benefit of Consultant and his or her
heirs, personal representatives, and estate.
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11. Attorney Fees. In any contested action arising out of this Agreement, the court
may award the successful party attorney fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
Apollo
Group, Inc.
| By: | /s/ Xxxxxx X. X’Xxxxx |
Title: CFO
/s/ Xxxxx Xxxxxx
Consultant
| Address: | Xxxxx Xxxxxx 0000 X. Xxxxxx Xx Xxxxxxxxxx, XX 00000 |
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