AMENDED AND RESTATED SENIOR MANAGEMENT AGREEMENT
Exhibit 10.3
AMENDED AND RESTATED
This Amended and Restated Senior Management Agreement (“Agreement”) is entered into
September 10, 2008, between Grand Canyon Education, Inc., a Delaware corporation (the
“Company”), and Xxxx Xxxxxxx (“Executive”). Terms used in this Agreement and not
otherwise defined shall have the meanings set forth in Article 4 of this Agreement.
WHEREAS, the Company and Executive previously entered into an agreement to provide for the
terms and conditions of Executive’s at will employment with the Company;
WHEREAS, the success of the business of the Company is dependent on the goodwill established
by Executive and the Company’s directors, executive officers and employees with the Company’s
customers and the public generally; and
WHEREAS, the Company and Executive desire to amend and restate the agreement on the terms set
forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and
Executive hereby agree as follows:
ARTICLE 1
EMPLOYMENT
1.1 Employment. The Company hereby engages Executive to serve as Chief Operating
Officer and Executive Vice President of the Company, and Executive agrees to serve the Company as
such at the direction of the Board of Directors (“Board”), for the period beginning on the
date hereof and until Separation, in the capacities, and subject to the terms and conditions, set
forth in this Agreement (such period to be referred to as the “Service Term”). The Company
and Executive agree that this Agreement supersedes any employment agreement previously existing
between Executive and Company or any of its predecessors (including Significant Education, LLC),
and such employment agreement(s) shall be deemed to terminate as of the date of this Agreement.
1.2 Services. During the Service Term, Executive shall have all of the duties and
responsibilities customarily rendered by senior management of companies of similar size and nature,
with similar title and responsibility and as are provided in the Company’s Bylaws and/or may be
delegated from time to time by the Chief Executive Officer or the Board; provided, however, the
following actions of the Company must be approved in advance by the Board:
(a) Acquisitions or dispositions of the assets or Capital Stock of any entity (other than
inventory or transactions entered into in the ordinary course of business);
(b) Agreements to borrow money on behalf of the Corporation;
(c) Senior management agreements or employment agreements (other than standard confidentiality
and non-competition agreements with employees), including any amendments thereof;
(d) Appointment, separation and remuneration of senior management;
(e) Bonus or other incentive plans for senior management or other employees;
(f) Increase the compensation of any of the Company’s employees in excess of that compensation
customarily paid to employees in companies of similar size, or similar maturity, and in a similar
business;
(g) Make, enter into or amend any joint venture agreement or contract, agreement or
arrangement with any consultant providing for gross compensation in excess of $50,000 over the term
of the agreement;
(h) Issuances of Capital Stock, stock options, warrants or other securities or plans or
agreements relating to the same;
(i) The establishment of annual corporate objectives;
(j) The establishment of annual operating and capital expenditure budgets;
(k) Enter into any agreement or arrangement with any governmental authority;
(l) Dividends, distributions and redemptions of Capital Stock; and
(m) All actions involving statutory corporate matters, including but not limited to,
amendments to the Company’s Certificate of Incorporation or Bylaws or qualifying to do business in
other jurisdictions.
Executive will devote substantially all of his business time and attention (except for
vacation periods and periods of illness or other incapacity) to the business of the Company.
Notwithstanding the foregoing, and provided that such activities do not unreasonably interfere with
the fulfillment of Executive’s obligations hereunder, including the non-compete provisions below,
Executive may serve as a director or trustee of any charitable or non-profit entity with the
consent of the Board, acquire investment interests in one or more entities which are not, directly
or indirectly, in competition with the Company or are customers or suppliers of the Company, own up
to 5% of the outstanding voting securities of any publicly-held company, and from time to time,
consult with other non-competing businesses (including Xxxxxxx Transportation Systems, LLC).
Executive will perform his services for the Company at the Company’s principal place of business in
Phoenix, Arizona (“Current Location”) or any other location mutually agreed by Executive
and the Company. Executive will travel to such other locations as may be reasonably necessary in
order to discharge his duties hereunder. In the event that the Company proposes a location for
Executive to perform services hereunder that is more than fifty (50) miles from the Current
Location and Executive agrees to relocate, the Company will reimburse Executive for all reasonable
relocation expenses incurred by Executive, including but
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not limited to moving expenses and real estate brokerage commissions. In all other events,
relocation expenses shall be borne by Executive, provided, however, that Executive will be provided
with all applicable moving and relocation benefits in accordance with the Company’s policies in
existence at the time of the relocations.
1.3 Salary, Bonus and Benefits. During the Service Term, the Company will pay
Executive a base salary (the “Annual Base Salary”) as the Board may designate from time to
time, at the rate of not less than Two Hundred Ninety Seven Thousand Five Hundred Dollars
($297,500) per annum. The Annual Base Salary shall be subject to review annually by the Board;
provided, however, that the Annual Base Salary shall not be reduced during the Service Term.
Executive will be eligible to receive performance bonuses as determined by the Board based upon the
Company’s achievement of performance, budgetary and other objectives set by the Board. In
addition, during the Service Term, Executive will be entitled to the insurance, vacation, holidays
and other benefits consistent with the Company’s past practice for its employees generally and as
approved by the Board.
1.4 Separation.
(a) Events of Separation. Executive’s employment with the Company shall cease upon
the occurrence of any of the following (a “Separation”):
(i) Executive’s death.
(ii) Executive’s disability, which means his incapacity due to physical or mental
illness or condition such that he is unable to perform his previously assigned duties where
(1) such incapacity has been determined to exist by either (x) the Company’s disability
insurance carrier or (y) by the concurring opinions of two licensed physicians (one selected
by the Company and one by Executive), and (2) the Board has determined, based on competent
medical advice, that such incapacity will continue for such period of time of at least three
(3) continuous months and that it would have a material adverse effect on the Company;
provided, however, that in the event Executive is insured pursuant to any disability
insurance coverage maintained or paid for by the Company, any such Separation shall occur
only upon eligibility of Executive to receive payment of such disability insurance benefits,
subject to compliance with the terms and requirements of such disability insurance. Any
such Separation for disability shall be only as expressly permitted by the Americans with
Disabilities Act.
(iii) Separation by the Company upon the Board’s determination, in its good faith
judgment, that such separation is in the best interests of the Company. Such Separation
will require delivery to Executive of a written notice from the Board that Executive has
been terminated (“Notice of Separation”) with or without Cause.
(iv) Executive’s voluntary resignation by the delivery to the Board of a written notice
from Executive that Executive has resigned with or without Good Reason.
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(b) Rights on Separation.
(i) In the event that Separation is by Executive with Good Reason or a termination by
the Company without Cause, the Company will continue to pay to Executive a monthly portion
of the Annual Base Salary for a period equal to six (6) months commencing on the date of
Separation, subject, however, to Section 1.4(c) below. In addition, the Company shall have
the option, in its sole discretion, exercisable by delivering written notice to Executive
within thirty (30) days after the date of Separation by Executive with Good Reason or by the
Company without Cause, to pay to Executive a monthly portion of the Annual Base Salary for
an additional period of six (6) months commencing on the date which is six (6) months after
the date of Separation (the “Extension Severance”), in which case the Non-compete
Period (as defined in Section 3.1) shall be extended as provided by Section 3.1. Executive
and the Company agree that the amounts payable pursuant to this subparagraph (i) shall, for
all purposes of Section 409A (as defined below), be treated as a right to a series of
separate payments.
(ii) If the Company terminates Executive’s employment for Cause, if Executive dies or
is disabled, if Executive resigns without Good Reason or in the event of a Sale of the
Company (as defined in the Stockholders Agreement), the Company’s obligations to pay any
compensation or benefits under this Agreement will cease effective the date of Separation.
Executive’s right to receive any other benefits will be determined under the provisions of
applicable plans, programs or other coverages.
(iii) Notwithstanding the foregoing, the Company’s obligation to Executive for
severance pay or other rights under either subparagraphs (i) or (ii) above (the “Severance
Pay”) shall cease if Executive is in violation of the provisions of Articles 2 or 3 hereof.
The Severance Pay, if any, shall be paid by the Company to Executive in equal installments
payable commencing on the Company’s regularly scheduled payroll date next following the date
of Executive’s Separation, subject, however, to Section 1.4(c) below.
(iv) Until such time as Executive has received all of his Severance Pay, he will be
entitled to continue to receive the benefits to which he is entitled or is participating in
accordance with the provisions of Section 1.3 of this Agreement, subject, however, to
Section 1.4(c) below.
(c) Compliance with Section 409A of the Internal Revenue Code (“Section 409A”).
Notwithstanding any other provision of this Agreement to the contrary, the provision, time and
manner of payment or distribution of all compensation and benefits provided by this Agreement that
constitute deferred compensation subject to and not exempted from the requirements of Section 409A
(“Section 409A Deferred Compensation”) shall be subject to, limited by and construed in
accordance with the requirements of Section 409A, including the following:
(i) Payments and benefits constituting Section 409A Deferred Compensation otherwise
payable or provided pursuant to Section 1.4(b) shall be paid or
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provided only at or following the time that Executive has experienced a “separation
from service” within the meaning of Section 409A (“Separation from Service”).
(ii) Payments and benefits constituting Section 409A Deferred Compensation to be paid
or provided pursuant to Section 1.4(b) at a time when Executive is a “specified employee”
within the meaning of Section 409A shall be paid or provided commencing on the later of
(1) the date that is six (6) months and one (1) day after the date of Executive’s Separation
from Service or, if earlier, the date of death of Executive (in either case, the
“Delayed Payment Date”), or (2) the date or dates on which such Section 409A
Deferred Compensation would otherwise be paid or provided in accordance with Section 1.4(b).
All such amounts that would, but for this subparagraph (ii), become payable prior to the
Delayed Payment Date shall be accumulated and paid on the Delayed Payment Date.
(iii) To the extent that all or any portion of the Company’s payment or reimbursement
to Executive for the cost of the Company’s obligation to provide benefits pursuant to
Section 1.4(b)(iv) (the “Company-Provided Benefits”) would exceed an amount for
which, or continue for a period of time in excess of which, such Company Provided Benefits
would qualify for an exemption from treatment as Section 409A Deferred Compensation, the
Company shall, for the duration of the applicable period, pay or reimburse Executive for the
applicable Company-Provided Benefits in an amount not to exceed $3,800 per calendar year or
any portion thereof included in the applicable period. The amount of Company-Provided
Benefits furnished in any taxable year of Executive shall not affect the amount of
Company-Provided Benefits furnished in any other taxable year of Executive. Any right of
Executive to Company-Provided Benefits shall not be subject to liquidation or exchange for
another benefit. Any reimbursement for Company-Provided Benefits to which Executive is
entitled shall be paid no later than the last day of Executive’s taxable year following the
taxable year in which Executive’s expense for such Company-Provided Benefits was incurred.
ARTICLE 2
CONFIDENTIAL INFORMATION
Executive acknowledges that the information, observations and data obtained by him as an
employee and owner of the Company, or during the course of his performance under this Agreement,
concerning the business and affairs of the Company and its Affiliates or acquisition opportunities
in or reasonably related to the Company’s business or industry (“Confidential Information”)
are the confidential and proprietary trade secrets and other property of the Company. Therefore,
except as may be required by the lawful order of a court or agency of competent jurisdiction,
Executive agrees that he will not disclose to any unauthorized Person or use for his own account
any Confidential Information without the Board’s written consent unless and to the extent that the
aforementioned matters become generally known to and available for use by the public other than as
a result of Executive’s acts or omissions. Executive agrees to deliver to the Company on the date
of Separation, or at any other time the Company may request in writing after the date of
Separation, all memoranda, notes, plans, records, reports and other
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documents (and copies thereof) relating to the business of the Company and its Affiliates, or
their acquisition prospects which he may then possess or have under his control.
ARTICLE 3
NONCOMPETITION, NONSOLICITATION AND NON-DISPARAGEMENT
3.1 Noncompetition and Nonsolicitation. Executive acknowledges that in the course of
his employment with the Company he will serve as a member of the Company’s senior management and
will become familiar with the Company’s trade secrets and with other Confidential Information and
that his services will be of special, unique and extraordinary value to the Company. Therefore,
Executive agrees that, during the Service Term, and during the twelve (12) month period following
the Service Term, or if the Company elects to pay Extension Severance, the twenty-four (24) month
period following the Service Term (collectively, the “Non-compete Period”), he shall not
directly or indirectly (A) own (except ownership of less than 5% of any class of securities which
are listed for trading on any securities which are listed for trading on any securities exchange or
which are traded in the over-the-counter market), manage, control, participate in, consult with,
render services for, or in any manner engage in the operation of a regionally accredited higher
education institution or any business in which Executive had significant involvement in the
Company’s or any of its predecessors’ business prior to Executive’s Separation; (B) solicit funds
on behalf of, or for the benefit of, any regionally accredited higher education institution other
than the Company or any other entity that competes with the Company; (C) solicit individuals who
are current or prospective students of the Company to be students for any other regionally
accredited higher education institution; (D) induce or attempt to induce any employee of the
Company to leave the employ of the Company, or in any way interfere with the relationship between
the Company and any employee thereof, or (E) induce or attempt to induce any student, customer,
supplier, licensee or other business relation of the Company to cease doing business with, or
modify its business relationship with, the Company, or in any way interfere with or hinder the
relationship between any such student, customer, supplier, licensee or business relation and the
Company.
3.2 Non-Disparagement. Following Separation, Executive agrees not to make to any
Person, including but not limited to customers of the Company, any statement that disparages the
Company or which reflects negatively upon the Company or the Investors, including but not limited
to statements regarding the Company’s financial condition, its officers, directors, stockholders,
employees and affiliates.
3.3 Enforcement. If, at the time of enforcement of Articles 2 or 3 of this Agreement,
a court holds that the restrictions stated herein are unreasonable under circumstances then
existing, the parties hereto agree that the maximum duration, scope or geographical area reasonable
under such circumstances shall be substituted for the stated period, scope or area and that the
court shall be allowed to revise the restrictions contained herein to cover the maximum duration,
scope and area permitted by law. Because Executive’s services are unique and because Executive has
access to Confidential Information, the parties hereto agree that money damages would be an
inadequate remedy for any breach of this Agreement. Therefore, in the event a breach or threatened
breach of this Agreement, the Company or its successors or assigns may, in
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addition to other rights and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or
prevent any violations of, the provisions hereof (without posting a bond or other security).
ARTICLE 4
DEFINITIONS
“Affiliate” means any other person, entity or investment fund controlling, controlled by or
under common control with the Company, including without limitation, any of its Subsidiaries.
“Capital Stock” shall mean all shares of all classes of the Company’s capital stock,
including, without limitation, the Company’s preferred stock and common stock.
“Cause” shall mean:
| (1) | Executive’s (i) commission of a felony or a crime involving moral turpitude, or the commission of any other willful act or omission involving dishonesty or fraud with respect to the Company or any of its customers or suppliers, or (ii) misappropriation of any funds or assets of the Company for personal use, or (iii) engaging in any conduct bringing the Company into substantial public disgrace or disrepute; | ||
| (2) | Executive’s (i) continued and repeated neglect of his duties in breach of this Agreement following notice of such breach and a failure to cure such breach following a reasonable opportunity to cure, (ii) gross misconduct in the performance of his duties hereunder, or (iii) his material and repeated failure to perform his duties in breach of this Agreement as directed by the Board following notice of such breach and failure to cure such breach following a reasonable opportunity to cure; or | ||
| (3) | Executives engaging in conduct constituting cause for Separation under applicable law; or | ||
| (4) | Executive’s engaging in conduct constituting a breach of Article 2 or 3 of this Agreement. |
“Good Reason” shall mean Executive’s resignation from employment with the Company within
ninety (90) days after the occurrence of any one of the following conditions, provided that
Executive has given written notice to the Company of such condition within thirty (30) days of its
first occurrence and the Company has failed to remedy such condition within fifteen (15) days of
the delivery of such written notice:
| (1) | The failure of the Company to pay a material amount owing to Executive hereunder; |
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| (2) | The assignment to Executive by the Company of duties materially and adversely inconsistent with Executive’s title or duties from those set forth in this Agreement or the failure to elect or reelect Executive to such position, except in the event of a termination for Cause, death, disability or by Executive other than for Good Reason; or | ||
| (3) | The Company’s requirement that Executive perform services under this Agreement at a location that is more than fifty (50) miles from the Current Location, and Executive’s failure to do so. |
“Investors” means Endeavour Capital Fund IV, L.P., Endeavour Associates Fund IV, L.P.,
Endeavour Capital Parallel Fund IV, L.P. and 220 GCU, L.P.
“Person” means an individual, a partnership, a limited liability company, a corporation, an
association, a joint stock company, an investment fund, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political subdivision thereof.
“Stockholders Agreement” means the Stockholders Agreement, dated August 24, 2005, by and among
the Company, Significant Education Holding, LLC, and the Investors, as amended or restated from
time to time.
ARTICLE 5
NOTICES
Any notice provided for in this Agreement must be in writing and must be either personally
delivered, mailed by first class United States mail (postage prepaid) or sent by reputable
overnight courier service (charges prepaid) or by facsimile to the recipient at the address below
indicated:
If to the Company:
Grand Canyon Education, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to each of:
Endeavour Capital IV, LLC
000 XX Xxxxx Xxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: D. Xxxx Xxxxxx and Xxxx X. Xxxxx
Telephone: (000) 000-0000
000 XX Xxxxx Xxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: D. Xxxx Xxxxxx and Xxxx X. Xxxxx
Telephone: (000) 000-0000
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Facsimile: (000) 000-0000
Xxxxx Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, XX
Telephone: 000-000-0000
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, XX
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Executive:
Xxxx Xxxxxxx
0000 Xxx xx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
0000 Xxx xx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
or such other address or to the attention of such other person as the recipient party shall have
specified by prior written notice to the sending party.
ARTICLE 6
GENERAL PROVISIONS
6.1 Expenses. The Company shall reimburse Executive for all reasonable business,
promotional, travel and entertainment expenses incurred or paid by him during the Service Term and
the performance of his services under this Agreement, provided that Executive furnishes to the
Company in a timely fashion appropriate documentation required by the Internal Revenue Code in
connection with such expenses and shall furnish such other reasonable documentation and accounting
as the Company, from time to time, may reasonably request. Any reimbursement Executive is entitled
to receive shall (a) be paid no later than the last day of Executive’s taxable year following the
taxable year in which the expense was incurred, (b) not be affected by the amount of expenses
eligible for reimbursement in any other taxable year and (c) not be subject to liquidation or
exchange for another benefit.
6.2 Complete Agreement. This Agreement, those documents expressly referred to herein
and other documents of even date herewith 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 Counterparts. This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement.
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6.4 Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or any other jurisdiction, but this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.
6.5 Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by the Company, and its successors and assigns. Executive may not
assign any of its rights or obligations under this Agreement.
6.6 Choice of Law. The construction, validity and interpretation of this Agreement
and the exhibit hereto will be governed by and construed in accordance with the internal laws of
the State of Arizona, without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of Arizona or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Arizona.
6.7 Remedies. Each of the parties to this Agreement will be entitled to enforce its
rights under this Agreement specifically, to recover damages and costs (including attorney’s fees)
caused by any breach of any provision of this Agreement and to exercise all other rights existing
in its favor. The parties hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that any party may in its sole
discretion apply to any court of law or equity of competent jurisdiction (without posting any bond
or deposit) for specific performance and/or other injunctive relief in order to enforce or prevent
any violations of the provisions of this Agreement.
6.8 Amendment and Waiver. The provisions of this Agreement may be amended and waived
only with the prior written consent of the Company and Executive.
6.9 Business Days. If any time period for giving notice or taking action hereunder
expires on a day which is a Saturday, Sunday or holiday in the state in which the Company’s chief
executive office is located, the time period shall be automatically extended to the business day
immediately following such Saturday, Sunday or holiday.
6.10 Termination. All of the provisions of this Agreement shall terminate after the
expiration of the Service Term or upon the Separation of Executive’s employment with the Company,
except Article 2 and Section 3.2 shall survive indefinitely, and Section 3.1 shall terminate upon
expiration of the Non-compete Period.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Senior
Management Agreement on the date first written above.
| GRAND CANYON EDUCATION, INC., a Delaware corporation |
||||||
| By: | /s/ Xxxxx Xxxxxxx | |||||
| Name: | Xxxxx Xxxxxxx | |||||
| Title: | Chief Executive Officer | |||||
| EXECUTIVE: | ||||||
| /s/ Xxxx Xxxxxxx | ||||||
| Xxxx Xxxxxxx | ||||||
Signature Page — Amended and Restated Senior Management Agreement (X. Xxxxxxx)
