EXHIBIT 10.11
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS EMPLOYMENT AND NON-COMPETITION AGREEMENT (this "Agreement") is
entered into as of this 9th day of October, 1997 by and between XXXX X. XXXXXX,
("Xxxxxx"), and CAREER EDUCATION CORPORATION, a Delaware corporation (the
"Company").
RECITALS
WHEREAS, Xxxxxx has experience and expertise in the acquisition and
management of private post-secondary vocational schools, and has served as the
Company's President and Chief Executive Officer since its founding;
WHEREAS, the Company is engaged in the ownership, management,
operation and acquisition of post-secondary vocational schools (collectively,
the "Schools"); and
WHEREAS, Xxxxxx has agreed to act as President and Chief Executive
Officer of the Company and not to engage in certain activities competitive with
the Company or its subsidiaries or to disclose certain confidential or
proprietary information, on the terms and subject to the conditions set forth
below.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed that:
1. Employment. The Company hereby employs Xxxxxx, and Xxxxxx hereby
accepts employment with the Company, as President and Chief Executive Officer,
with authority over the day to day operations of the Company and its operating
subsidiaries. Xxxxxx shall devote all of his business time and services to the
business and affairs of the Company. Xxxxxx shall also perform such other
executive-level duties consistent with his position as President and Chief
Executive Officer as may be assigned to him from time to time by the Board of
Directors of the Company, including, without limitation, serving as chief
executive officer and/or director of the Company's operating subsidiaries. The
duties and services to be performed by Xxxxxx hereunder shall be substantially
rendered at the Company's principal offices as determined by the Board of
Directors, except for reasonable travel on the Company's business incident to
the performance of Xxxxxx'x duties.
2. Compensation. As compensation for Xxxxxx'x services provided
hereunder, the Company agrees to provide the following compensation:
2.1. Base Salary. During the term of this Agreement, the Company
agrees to pay to Xxxxxx a base salary at the rate of $250,000 per annum
commencing on the date hereof ("Base Salary"). The Base Salary shall be subject
to annual review by the Board of
Directors and may be increased by the Board of Directors in their sole and
absolute discretion. Such salary shall be payable to Xxxxxx in such equal
periodic payments as the Company generally pays its employees, but in no event
less frequently than monthly. In addition to the foregoing, the Company agrees
that Xxxxxx'x base salary under the terms and conditions of his prior employment
arrangements with the Company shall be deemed increased to $250,000 per annum
effective June 1, 1997, and the Company shall promptly pay to Xxxxxx all past
due amounts resulting from such increase.
2.2. Cash Bonus. Xxxxxx shall be eligible for an annual achievement
based cash bonus based upon annual quantitative and qualitative performance
targets as established by the Company's Board of Directors ("Cash Bonus");
provided, that there will be no guaranteed minimum Cash Bonus, and that the
bonus plan will permit Xxxxxx to earn a Cash Bonus based on an increasing scale
of targets with a maximum bonus of up to sixty percent (60%) of the Base Salary.
Bonuses shall be payable, if at all, after the date of the delivery of the
audited financial statements for the applicable fiscal year. The Board of
Directors shall establish a bonus plan for the each fiscal year of the Company.
2.3. Fringe Benefits. The Company shall, during the term of Xxxxxx'x
employment under this Agreement: (i) provide Xxxxxx with health and
hospitalization, dental and disability insurance under the Company's or its
subsidiaries group policy on terms comparable to those provided to other
executive officers of the Company ("Insurance"); (ii) provide Xxxxxx with such
pension, profit sharing, paid vacations, non-contributory term life insurance
and other fringe benefits as the Company provides to its executive officers in
accordance with the usual and ordinary practices of the Company (provided, that
notwithstanding and in lieu of Company policy with respect to provision of life
insurance to executive officers, during the term of this Agreement the Company
shall provide Xxxxxx, at the Company's expense, a $5,000,000 term life insurance
policy and such policy shall be deemed included in Insurance for the purposes of
Section 2.4 below); (iii) pay, upon submission of appropriate vouchers and
supporting documentation, all ordinary and necessary expenses of Xxxxxx incurred
in the performance of his duties, including, without limitation, travel, lodging
and entertainment expenses; and (iv) provide such other benefits as are
generally made available to executive officers of the Company. The Company and
Xxxxxx hereby further agree and acknowledge that as of June 30, 1997 the Company
issued additional options to Xxxxxx to purchase one-quarter percent (0.25%) of
the outstanding common stock of the Company pursuant to the Company's Management
Stock Option Plan as additional consideration for Xxxxxx'x continued employment
by the Company.
2.4. Severance Benefits. In the event Xxxxxx'x employment is
terminated pursuant to Sections 3.3, 3.4 or 3.6 the Company shall be relieved of
any further duties or obligations hereunder, except the Company shall remain
obligated to pay or provide to Xxxxxx the lesser of (i) the balance of Base
Salary and Insurance (or the after tax economic equivalent thereof) payable
through the end of the Initial Term (as defined below) and (ii) Base Salary and
Insurance (or the after tax economic equivalent thereof) from the date of such
termination to the date which is twelve (12) months after such termination,
payable in
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twelve (12) equal monthly installments without interest; in either case, plus a
portion of the Cash Bonus, if any, Xxxxxx would have received had he been
employed through the end of the fiscal year in which he was terminated pro rated
based upon the months (or fractions thereof) actually worked by Xxxxxx during
such fiscal year. In the event this Agreement or Xxxxxx'x employment are
terminated for any other reason, the Company shall be relieved of any further
duties or obligations to Xxxxxx hereunder, except to pay accrued and unpaid Base
Salary and Insurance through such termination date and the Company shall have no
obligation for any salary or benefit accruing thereafter.
3. Term; Termination.
3.1. Unless this Agreement is terminated earlier pursuant to the
provisions of this Section 3, the Company, its successors and assigns, shall
employ Xxxxxx, and Xxxxxx shall remain employed by the Company, for a period
ending on July 31, 2000 (the "Initial Term"); provided, that the Company shall
have the option at the end of the Initial Term or subsequent renewal term to
continue this Agreement for successive periods of one (1) year by delivery of
written notice to Xxxxxx to such effect at least ninety (90) days prior to the
end of the then current term.
3.2. Termination by the Company for Cause. The Company may terminate
Xxxxxx'x employment under this Agreement at any time for Cause (as hereinafter
defined). The termination shall be evidenced by written notice thereof to
Xxxxxx, which shall specify the cause for termination. For purposes of this
Section 3.2, the term "Cause" shall be limited to the following: (i) commission
of any act of fraud by Xxxxxx with respect to which there is an admission of
guilt or an indictment, conviction or civil judgment; (ii) misappropriation of
funds or embezzlement by Xxxxxx with respect to which there is an admission of
guilt or an indictment, conviction or civil judgment; (iii) Xxxxxx'x indictment
or conviction on any felony criminal charges (excluding vehicular crimes unless
a prison term of thirty (30) days or more is actually imposed); (iv) willful
misconduct or malfeasance in the performance of Xxxxxx'x duties in any material
respect; (v) any willful misrepresentation or willful series of
misrepresentations made by Xxxxxx to the Company or its Board of Directors in
connection with the performance of his duties hereunder which individually or in
the aggregate are material; (vi) cessation of the Company due to bankruptcy or
insolvency; (vii) any material breach by Xxxxxx of any of the provisions of
Sections 4 or 5 of this Agreement; or (viii) any other material breach by Xxxxxx
of this Agreement (including, without limitation, any willful failure to adhere
to instructions given by the Board of Directors) which is not cured by Xxxxxx
within thirty (30) days after his receipt of written notice thereof; provided,
that if such failure is curable but is incapable of cure within thirty (30) days
after such written notice, Xxxxxx shall have ninety (90) days after such notice
to cure the failure, so long as Xxxxxx commences action to cure such failure
within such thirty (30) day period and thereafter diligently and continuously
takes action to cure such failure during the remainder of such ninety (90) days.
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3.3. Termination by Xxxxxx for Good Reason. Xxxxxx may terminate his
employment for Good Reason (as hereinafter defined) at any time, by written
notice to the Company. As used herein, the term "Good Reason" shall mean any of
the following: (a) any material breach by the Company of the terms of this
Agreement, (b) any material change by the Company in Xxxxxx'x duties or
responsibilities inconsistent with the terms hereof or the assignment to Xxxxxx
by the Company of duties or responsibilities inconsistent with Xxxxxx'x position
as President and Chief Executive Officer of the Company, (c) a relocation of the
principal offices of the Company which requires Xxxxxx to relocate his current
residence to an area outside of the greater Chicago metropolitan area, or (d) a
Change of Control; provided, that clause (d) above shall be effective only from
and after the date of the consummation of an initial public offering by the
Company, and that Xxxxxx'x termination right following a Change of Control event
may only be exercised during a period commencing thirty (30) days following such
Change of Control event and terminating ninety (90) days following such Change
of Control event. For purposes of this Agreement, "Change of Control" shall
mean:
(i) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of twenty percent (20%) or more of either (A) the then-outstanding
shares of common stock of the Company (the "Outstanding Company Common
Stock") or (B) the combined voting power of the then-outstanding
voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (i), the
following acquisitions shall not constitute a Change of Control; (A)
any acquisition by an individual, entity or group who immediately
prior to such acquisition beneficially owned twenty percent (20%) or
more of the Outstanding Common Stock or twenty percent (20%) or more
of the Outstanding Company Voting Securities, as the case may be, (B)
any acquisition by (1) Xxxxxx Equity Capital Corporation or any of its
Affiliates (as defined in Section 5.2), or (2) Electra Investment
Trust P.L.C., Electra Associates, Inc. or any of their respective
Affiliates, (C) any acquisition by the Company, (D) any acquisition by
any employee benefit plan (or related trust) sponsored or maintained
by the Company or any corporation controlled by the Company, or (E)
any acquisition by any corporation pursuant to a transaction which
complies with clauses (A), (B) and (C) of subsection (iii) of this
Section 3.3;
(ii) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual
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becoming a director subsequent to the date hereof whose appointment or
election, or nomination for election by the Company's stockholders,
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest (as
such terms are used in Rule 14a-11 or Regulation 14A under the
Exchange Act, including any successor to such Rule) with respect to
the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of an individual,
entity or group other than the Board;
(iii) Consummation of a reorganization, merger, consolidation,
sale or other disposition of all or substantially all of the assets of
the Company, or similar corporate transaction (a "Business
Combination"), in each case, unless, following such Business
Combination, (A) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than fifty percent (50%) of,
respectively, the then-outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of
such transaction owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership immediately
prior to such Business Combination of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be,
(B) no individual, entity or group (excluding any corporation
resulting from such Business Combination or any employee benefit plan
(or related trust) of the Company or such corporation resulting from
such Business Combination) beneficially owns, directly or indirectly,
twenty percent (20%) or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination, or the combined voting power of the then outstanding
voting securities of such corporation, except to the extent that such
ownership existed prior to the Business Combination and (C) at least a
majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent
Board at the
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time of the execution of the initial agreement, or of the action of
the Board, providing for such Business Combination; or
(iv) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
3.4. Termination by the Company Without Cause. Immediately upon
delivery of written notice to Xxxxxx, the Company shall be entitled to terminate
Xxxxxx'x employment without Cause, as defined in Section 3.2 hereof, in which
event Xxxxxx shall be entitled to severance benefits under Section 2.4 hereof.
3.5. Termination by Xxxxxx Without Good Reason. Upon sixty (60) days
prior written notice to the Company, Xxxxxx shall be entitled to terminate his
employment without Good Reason, as defined in Section 3.3 hereof.
3.6. Death or Disability. The employment of Xxxxxx may be terminated
by the Company upon Xxxxxx'x death or Disability (as defined herein). For
purposes hereof, "Disability" shall mean the substantial inability of Xxxxxx, by
reason of physical or mental illness or accident, to perform his regular
responsibilities hereunder for a period of sixty (60) consecutive days or ninety
(90) days in any three hundred sixty (360) day period. The determination that a
Disability exists shall be made by a physician reasonably selected by the Board
of Directors of the Company whose determination shall be binding on the parties
hereto.
4. Inventions and Creations. Xxxxxx agrees that all inventions,
discoveries, improvements, ideas and other contributions (herein called
collectively "Inventions") whether or not copyrighted or copyrightable, patented
or patentable, or otherwise protectable in law, which are conceived, made,
developed or acquired by Xxxxxx, either individually or jointly, during his
employment with the Company or any of its subsidiaries, and which relate in any
manner to the business of the Company or any of its subsidiaries, shall belong
to the Company and Xxxxxx does hereby assign and transfer to the Company his
entire right, title and interest in the Inventions. Xxxxxx agrees to promptly
and fully disclose the Inventions to the Company, in writing if requested by the
Company, and to execute and deliver any and all lawful application, assignment
and other documents which the Company requests for protecting the Inventions in
the United States or any other country. The Company shall have the full and
sole power to prosecute such applications and to take all other action
concerning the Inventions, and Xxxxxx will cooperate fully within a lawful
manner, at the expense of the Company, in the preparation and prosecution of all
such applications and in any legal actions and proceedings concerning the
Inventions. The provisions of this Section 4 shall survive the termination of
this Agreement.
5. Non-Competition; Non-Solicitation; Confidential Information.
5.1. Non-Competition Agreement. Xxxxxx agrees that during the Non-
Competition Period (as defined below), he shall not own or engage in, either
directly or
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indirectly, as an officer, manager, employee, independent contractor,
consultant, director, partner, sole proprietor or stockholder, any business
operating any post-secondary, private trade or vocational schools, that offers
classes, courses or instruction in or is otherwise engaged in any curriculum or
field of study offered by any of the Schools or any other curriculum or field of
study which the Company has expressed an interest in offering whether through
the Schools or through a potential acquisition (the "Competitive Activities").
Xxxxxx hereby acknowledges that the Company intends to promote the Schools on an
international basis and that the geographical scope of this Agreement is
intended to encompass all Competitive Activities engaged in anywhere in the
United States, its possessions and territories and any other country where the
Company and its subsidiaries are promoting the Schools at the time of Xxxxxx'x
termination of employment or resignation or removal of Xxxxxx as a director, as
applicable. Nothing herein shall prevent Xxxxxx from owning less than 2% of the
capital stock of a company whose stock is publicly traded and which is engaged
in Competitive Activities. For purposes hereof, "Non-Competition period" shall
mean the period commencing on the date hereof and ending two (2) years after the
later of the termination of Xxxxxx'x employment hereunder (including the
expiration of the term of this Agreement) or the resignation or removal of
Xxxxxx as a director of the Company; provided, (a) that if Xxxxxx'x employment
is terminated pursuant to Sections 3.3 or 3.4 the Non-Competition Period shall
expire on the later of the resignation or removal of Xxxxxx as a director the
Company or six (6) months after the termination of his employment; provided,
that the Company may, at its sole option which option must be exercised by the
later of sixty (60) days after termination of Xxxxxx'x employment pursuant to
Sections 3.3 or 3.4 or sixty (60) days after the Company receives notice of
Xxxxxx'x resignation or termination as a director, extend such six (6) month
period by up to an additional eighteen (18) months as specified in the notice
exercising such option if it notifies Xxxxxx in writing of such extension and
the Company pays Xxxxxx his Base Salary in equal monthly installments (plus,
beginning on the twelfth (12th) month of the extended portion of the Non-
Competition Period, if any, one twelfth of an amount equal to seventy-five
percent (75%) of the Cash Bonus paid to Xxxxxx with respect to his last full
year of employment hereunder (the "Bonus Payment")) during the period of such
extension and, to the extent comparable benefits are not available to Xxxxxx
from another employer, insurance (or the after tax economic equivalent thereof);
or (b) that if Xxxxxx'x employment is terminated upon expiration of the term of
this Agreement and the Company refuses to renew this Agreement or Xxxxxx refuses
the renewal of this Agreement for Good Reason, the Non-Competition Period shall
expire on the later of the resignation or removal of Xxxxxx as a director of the
Company or the termination of his employment provided, that the Company may, at
its sole option, which option must be exercised by the later of sixty (60) days
after the termination of Xxxxxx'x employment hereunder or sixty (60) days after
the Company receives notice of Xxxxxx'x resignation or termination as a
director, extend the Non-Competition Period up to twenty-four (24) months as
specified in the notice to Xxxxxx exercising such option if the Company pays
Xxxxxx his Base Salary in equal monthly installments (plus the Bonus Payment)
during the period of such extension and, to the extent comparable benefits are
not
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available to Xxxxxx from another employer, Insurance (or the after tax economic
equivalent thereof).
5.2. Non-Solicitation Agreement. During the term of this Agreement
and for two (2) years thereafter, Xxxxxx shall not, directly or indirectly,
individually or on behalf of any Person (as defined below) solicit, aid or
induce (a) any then current employee of the Company or its Affiliates (as
defined below) to leave the Company or its Affiliates in order to accept
employment with or render services for Xxxxxx or such Person or (b) any student,
customer, client, vendor, lender, supplier or sales representative of the
Company or its Affiliates or similar persons engaged in business with the
Company or its Affiliates to discontinue the relationship or reduce the amount
of business done with the Company or its Affiliates. "Person" means any
individual, a partnership, a corporation, an association, a limited liability
company, a joint stock company, a trust, a joint venture, an unincorporated
organization, a governmental entity, or any department, agency or political
subdivision thereof, or an accrediting body. "Affiliate" means with respect to
any Person, any individual related by blood or marriage to such Person or any
Person controlling, controlled by or under common control with such Person.
5.3. Confidential Information. Xxxxxx acknowledges and agrees that
he is in possession of and will be exposed to during the course of, and incident
to, his employment by and affiliations with the Company, Confidential
Information (as defined herein) relating to the Company, its Affiliates and each
School. For purposes hereof, "Confidential Information" shall mean all
proprietary or confidential information concerning the business, finances,
financial statements, curricula, properties and operations of the Company, its
Affiliates and each School, including, without limitation, all student and
prospective student and supplier lists, know-how, trade secrets, business and
marketing plans, techniques, forecasts, projections, budgets, unpublished
financial statements, price lists, costs, computer programs, source and object
codes, algorithms, data, and other original works of authorship, along with all
information received from third parties and held in confidence by the Company,
its Affiliates and each School (including, without limitation, personnel files
and student records). During the Non-Competition Period and at all times
thereafter, Xxxxxx will hold the Confidential Information in the strictest
confidence and will not disclose or make use of (directly or indirectly) the
Confidential Information or any portion thereof to or on behalf of himself or
any third party except (a) as required in the performance of his duties as an
employee, director or stockholder of the Company, (b) as required by the order
of any court or similar tribunal or any other governmental body or agency of
appropriate jurisdiction; provided, that Xxxxxx shall, to the extent
practicable, give the Company prior written notice of any such disclosure and
shall cooperate with the Company in obtaining a protective order or such similar
protection as the Company may deem appropriate to preserve the confidential
nature of such information. The foregoing obligations to maintain the
Confidential Information shall not apply to any Confidential Information which
is or, without any action by Xxxxxx, becomes generally available to the public.
Upon termination of any employment or consulting relationship between the
Company and Xxxxxx (including any Affiliate of Xxxxxx), Xxxxxx shall promptly
return to the Company all physical embodiments
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of the Confidential Information (regardless of form or medium) in the possession
of or under the control of Xxxxxx.
5.4. Scope of Restriction. The parties have attempted to limit the
scope of the covenants set forth in Section 5 to the extent necessary to provide
the Company with the benefit of its purchase of each School. The parties
recognize, however, that reasonable people may differ in making such
determination. Consequently, the parties hereby agree that if the scope and
duration of such covenants would, but for this provision, be deemed by a court
of competent authority to be unreasonable or otherwise unenforceable, such court
may modify such covenants to the extent that such court determines to be
necessary in order to grant enforcement thereof as so modified.
5.5. Remedies. The parties hereto recognize that the Company will
suffer irreparable injury in the event of a breach of the terms of Section 5 by
Xxxxxx. In the event of a breach of the terms of Section 5, the Company shall be
entitled, in addition to any other remedies and damages available and without
proof of monetary or immediate damage, to a temporary and/or permanent
injunction, without bond, to restrain the violation of Section 5 by Xxxxxx or
any Persons acting for or in concert with him. Such remedy, however, shall be
cumulative and nonexclusive and shall be in addition to any other remedy which
the parties may have.
5.6. Common Law of Torts or Trade Secrets. The parties agree that
nothing in this Agreement shall be construed to limit or negate the common law
of torts or trade secrets where it provides the Company with broader protection
than that provided herein.
5.7. Survival of Section 5. The provisions of Section 5 shall
survive the termination of Xxxxxx'x employment and the termination of this
Agreement.
6. General Provisions.
6.1. Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable express courier service
(charges prepaid), sent by facsimile or mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid. Such notices,
demands and other communications shall be sent to the Company and to Xxxxxx at
the addresses indicated below:
If to the Company: Career Education Corporation
0000 Xxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President
Facsimile: (000) 000-0000
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With copies to: Goldberg, Kohn, Bell, Black,
Xxxxxxxxxx & Moritz, Ltd.
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
and Katten, Muchin & Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to Xxxxxx: Xxxx X. Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxxxx, Xxxxxxxx 00000
With copies to: Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
6.2. Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement and the other agreements executed in connection here
embody the complete agreement and understanding among the parties and supersede
and preempt any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
6.3. Successors and Assigns. All covenants and agreements contained
in this Agreement by or on behalf of either party hereto shall bind such party
and its heirs, legal representatives, successors and assigns and inure to the
benefit of the other party hereto and their heirs, legal representatives,
successors and assigns.
6.4. Governing Law. This Agreement shall be construed and enforced
in accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by the laws
of the State of Illinois without giving effect to the provisions thereof
regarding conflict of laws.
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6.5. Consent to Jurisdiction and Service of Process. EACH PARTY
HERETO HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
WITHIN THE COUNTY OF XXXX, STATE OF ILLINOIS AND IRREVOCABLY AGREES THAT SUBJECT
TO COMPANY'S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE OTHER RELATED DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS.
EACH PARTY HERETO ACCEPTS FOR ITSELF AND HIMSELF, GENERALLY AND UNCONDITIONALLY,
THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. XXXXXX DESIGNATES AND
APPOINTS CT CORPORATION SYSTEM AND SUCH OTHER PERSONS AS MAY HEREINAFTER BE
SELECTED BY THE COMPANY WHO IRREVOCABLY AGREE IN WRITING TO SO SERVE AS AGENT TO
RECEIVE ON XXXXXX'X BEHALF SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY
SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY XXXXXX TO BE EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT. A COPY OF ANY SUCH PROCESS SO SERVED SHALL BE
MAILED BY REGISTERED MAIL TO EACH PARTY AS PROVIDED HEREIN, EXCEPT THAT UNLESS
OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT
AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY A PARTY
REFUSES TO ACCEPT SERVICE, SUCH PARTY HEREBY AGREES THAT SERVICE UPON IT OR HIM
BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF THE COMPANY TO BRING PROCEEDINGS AGAINST XXXXXX IN ANY OTHER COURT
HAVING JURISDICTION OVER XXXXXX.
6.6. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS TRANSACTION AND THE RELATIONSHIP THAT IS BEING
ESTABLISHED. EACH PARTY HERETO ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON
SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE OTHER PARTY. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT
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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. EACH
PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS OR
HIS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
6.7. Representations of Xxxxxx. Xxxxxx hereby represents and
warrants to the Company that his execution, delivery and performance of this
Agreement will not violate or result in any breach of any agreement, contract,
understanding or written policy to which Xxxxxx is subject as a result of any
prior employment, any investment or otherwise. Xxxxxx is not subject to any
agreement, contract or understanding which in any way restricts or limits his
ability to accept employment with the Company or perform services with respect
to Schools of any type.
6.8. Descriptive Headings; Interpretation. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
6.9. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
6.10. Amendments and Waivers. No modification, amendment or waiver
of any provisions of this Agreement shall be effective unless approved in
writing by each of the parties hereto. The Company's failure at any time to
enforce any of the provisions of this Agreement shall in no way be construed as
a waiver of such provisions and will not affect the right of the Company to
enforce each and every provision hereof in accordance with its terms.
6.11. Non-Assignment. This Agreement shall not be assigned by Xxxxxx
without the prior written consent of the Company.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
CAREER EDUCATION CORPORATION
By /s/ Xxxx X. Xxxxxx
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Its President /CEO
/s/ Xxxx X. Xxxxxx
--------------------
Xxxx X. Xxxxxx
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