Exhibit 10.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered in to as of
the 2nd day of November, 2009, by and between American Public Education, Inc., a
Delaware Corporation (the "Company") having its principal place of business at
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxx Xxxxxxxx 00000, and Xxxx Xxxxx (the
"Consultant") having a place of business at 0000 Xxxxxx Xxxxxx Xxxxxx, Xxxxxxxx
Xxxx, XX 00000.
WHEREAS, the Consultant has expertise in technology matters related to the
for-profit education industry, and
WHEREAS, the Company desires to obtain the benefits of the Consultant's
expertise and knowledge as a consultant and the Consultant desires to provide
consulting services to the Company on the terms provided herein.
NOW, THEREFORE, the consideration of the premises and mutual covenants and
agreements contained herein, the parties agree as follows:
Section 1: Services to be provided by the Consultant
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1.01 Consulting Services. Contemporaneous with this Agreement,
Consultant and the Company are entering into a Separation
Agreement and General Release (the "Separation Agreement") that
provides for the Consultant to make himself available as an
independent consultant, and not as an employee. This Agreement
sets forth the terms by which the Consultant will provide the
services referenced in the Separation Agreement. The Consultant
agrees to provide technology consulting services (the "Services")
on a non-exclusive basis to the Company, related to technology
and other matters relevant to the Company's business as
reasonably agreed to by the Company and the Consultant from time
to time from December 4, 2009 through May 31, 2010. The
Consultant shall report to the Chief Operations Officer of the
Company.
1.02 Equity Awards. Consultant is a former employee of the
Company and as such, Consultant received various stock option
grants pursuant to the Company equity incentive plans. The
Services provided under this Agreement qualify as Services as
defined in the Company's 2002 Incentive Stock Plan (the "Plan")
and Consultant shall be a Service Provider as defined in the
Plan. Consultant's change in responsibilities from an employee to
a consultant shall not result in interrupted or terminated
Service (as defined by the Plan). Therefore, upon the Consultant
ceasing to be an employee and becoming a consultant on December
4, 2009 pursuant to the terms of this Agreement, the Incentive
Stock Option No. 28 granted on January 24, 2005 and the Incentive
Stock Option No. 47 granted on May 4, 2007 shall remain in full
force and effect pursuant to the terms thereof, provided that
they will no longer qualify as "incentive stock options."
Provided the consultant continues in service, and subject to the
other terms of the Plan and the applicable awards, the Consultant
shall vest: (a) in the remaining 20% of Option No. 28 on January
24, 2010, and (b) in the remaining 20% of Option No. 47 on May 4,
2010.
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Section 2. Compensation
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2.01 Fees and Expenses. In consideration for the Consultant's
services and the agreements contained herein, the Company agrees
to pay the Consultant a retainer fee of $100,000 for services
from December 4, 2009 through May 31, 2010 payable upon receipt
of invoice. During the term of this agreement, the Consultant
will be responsible for all reasonable and customary expenses
incurred by the Consultant in performing services for the Company
pursuant to this Agreement.
2.02 Indemnification. As additional consideration for the
Services performed by the Consultant hereunder, the Company
agrees to indemnify and hold harmless the Consultant from and
against any losses, claims, damages or liabilities arising from
or based on his performance of Services hereunder. However, the
Company shall not be liable in and such case to the extent that
any loss, claim, damage or liability arises out of or is based
upon the gross negligence of willful misconduct of an indemnified
party.
Promptly after receipt by the Consultant of notice of the
commencement of any action, it shall, if a claim in respect
thereof is to be made against the Company under this
indemnification provision, notify the Company in writing of
the commencement thereof. Upon the Company having notice of
the pendency of any such action, the Company shall be
entitled in its discretion to participate therein and/or to
assume the defense thereof.
Section 3. Relationship of the Parties
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3.01 Independent Contractor. The Consultant is an independent
contractor and is not an agent or employee of, and has no
authority to bind, the Company by contract or otherwise. The
Consultant will perform the Services under the general direction
of the Company, but the Consultant will determine, in the
Consultant's sole discretion, the manner and means by which the
Services are accomplished, subject to the requirement that the
Consultant shall at all times comply with applicable law. The
Company has no right or authority to control the manner or means
by which the Services are accomplished.
3.02 Employment Taxes and Benefits. The Consultant will report as
self-employment income all compensation received by the
Consultant pursuant to this Agreement. The Consultant will
indemnify the Company and hold it harmless from and against all
claims, damages, losses and expenses, including reasonable fees
and expenses of attorneys and other professionals, relating to
any obligation imposed by law on the Company to pay any
withholding taxes, social security, unemployment or disability
insurance, or similar items in connection with compensation
received by the Consultant pursuant to this Agreement. The
Consultant will not be entitled to receive any vacation or
illness payments, or to participate in any plans, arrangements,
or distributions by the Company pertaining to any bonus, profit
sharing or similar benefits for the Company's employees.
Section 4. Confidential Information.
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The Consultant agrees that any sensitive, proprietary or confidential
information or data relating to the University or any of its affiliates,
including without limitation trade secrets, customer lists, customer contacts,
customer relationships, the University's financial data, long range or short
range plans, and other data and information of a competition-sensitive nature,
or any confidential or proprietary information of others licensed to the
University, that the Consultant acquired or may acquire while an employee of the
University or as an independent consultant to the University shall not be
disclosed or used for the Consultant's own purposes or in a manner detrimental
to the University's interests. The Consultant agrees to use his best efforts to
prevent disclosure of such confidential information and data. In the event that
the Consultant receives a subpoena that calls or may call for the disclosure of
any such confidential information or data, the Consultant will provide at least
five (5) business days advance notice to the University before responding to
such subpoena (unless five days notice is not possible, in which case the
Consultant will provide as much notice as is possible) and the Consultant will
reasonably cooperate with the University in allowing the University an
opportunity to object to disclosure of such confidential information or data.
Section 5. Term
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The Initial Term of this Agreement shall be December 4, 2009 through May
31, 2010. Notwithstanding any termination of this Agreement by the Consultant,
in consideration of payments received hereunder, the Consultant shall remain
bound by the provisions of this Agreement that specifically relate to periods,
activities or obligations upon or subsequent to the termination of this
Agreement.
Section 6. Termination and Expiration
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6.01 Breach. Either party may terminate this Agreement in the
event of a breach by the other party of this Agreement or the
Separation Agreement if such breach continues uncured for a
period of thirty (30) days after written notice.
6.02 Expiration. Unless terminated earlier, this Agreement will
expire at the end of the Initial Term.
Section 7. Effect of Expiration or Termination
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7.01 Survival of Obligations.Upon expiration or termination of
this Agreement for any reason, each party will be released from
all obligations to the other arising after the date of expiration
or termination, except that expiration or termination of this
Agreement will not relieve either party of its obligations under
Sections 3.02, 4, 7, 8 and 9, nor will expiration or termination
relieve the Consultant or the Company from any liability arising
from any breach of this Agreement; and
7.02 Return of Confidential Information. Each receiving party
will promptly notify the disclosing party of all Confidential
Information in the receiving party's possession and, at the
expense of the receiving party and in accordance with the
disclosing party's instructions, will promptly deliver to the
disclosing party, or destroy at the disclosing party's request,
all such Confidential Information.
Section 8. Limitation of Liability
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IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN
CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN INFORMED
IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
Section 9. General
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9.01 Assignment. The Consultant may not assign this Agreement or
any of the Consultant's rights or delegate the Consultant's
duties under this Agreement either in whole or in part, whether
by operation of law or otherwise, without the prior written
consent of the Company. Any attempted assignment or delegation
without such consent will be void and of no force and effect.
9.02 Governing Law; Severability. This Agreement shall be
governed by, and construed in accordance with, the laws of
Virginia (excluding the choice of law rules thereof). The
language of all parts of this Agreement shall in all cases be
construed as a whole, according to its fair meaning, and not
strictly for or against either party.
9.03 Notices. Any notices under this Agreement will be sent by
certified or registered mail, return receipt requested, or a
nationally recognized overnight courier to the address set forth
above or such other address as the party specifies in writing.
Such notice will be effective upon its mailing.
9.04 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same document.
9.05 Complete Understanding; Modification This Agreement
constitutes the complete and exclusive understanding and
agreement of the parties and supersedes all prior understandings
and agreements, whether written or oral, with respect to the
subject matter hereof. Any waiver, modification or amendment of
any provision of this Agreement will be effective only if in
writing and signed by the parties hereto.
COMPANY CONSULTANT
By: /s/ Xxxxxx van Wyk /s/ Xxxx Xxxxx
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Xxxxxx van Wyk Xxxx Xxxxx
Title: EVP/COO
