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EXHIBIT 10(q)
EMPLOYMENT AGREEMENT
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This Agreement, dated as of November 11, 2002 by and between
Xxxxxx Xxxxxxxxx ("Executive"), and DeVry Inc., a Delaware
corporation and DeVry University, Inc., an Illinois corporation
(collectively, the "Company");
W I T N E S S E T H:
-------------------
WHEREAS, the Company wishes to obtain the future services of the
Executive for the Company; and
WHEREAS, the Executive is willing, upon the terms and conditions
herein set forth, to provide services hereunder; and
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Nature of Employment
--------------------
The Company hereby employs Executive, and Executive agrees to
accept such employment, during the Term of Employment (as defined
in Section 3(a)), as Executive Vice President to undertake such
duties and responsibilities, consistent with the authority,
duties and obligations in respect of such executive positions as
set forth in the By-laws of the Company. Executive will be
accorded such authority, duties and obligations, and the
prerogatives generally associated with such executive position,
during the Term of Employment. Such duties will be performed at
a location within 20 miles of Oakbrook Terrace, Illinois.
2. Extent of Employment
--------------------
(a) During the Term of Employment, the Executive shall
perform his obligations hereunder faithfully and to the best of
his ability, under the direction of the Board of Directors of the
Company, and shall abide by the rules, customs and usages from
time to time established by the Company.
(b) During the Term of Employment, the Executive shall
devote substantially all of his business time, energy and skill
as may be reasonably necessary for the performance of his duties,
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responsibilities and obligations hereunder (except for vacation
periods and reasonable periods of illness or other incapacity),
consistent with past practices.
(c) Nothing contained herein shall require Executive to
follow any directive or to perform any act which would violate
any laws, ordinances, regulations or rules of any governmental,
regulatory or administrative body, agent or authority, any court
or judicial authority, or any public, private or industry
regulatory authority.
3. Term of Employment; Termination
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(a) The "Term of Employment" shall commence on the date
hereof and shall continue through November 10, 2005; provided,
that such term will be continued after November 10, 2005, until
such time as either the Executive or the Company provides at
least 180 days notice to the other of its decision not to
continue such term, in which case, the Term of Employment will be
terminated 180 days after the date of delivery of such notice.
However, should the Executive's employment by the Company be
earlier terminated pursuant to Sections 3(b) or 3(d), the Term of
Employment shall end of the date of such earlier termination.
(b) The Term of Employment may be terminated at any time by
the Company; (i) upon the death of Executive; (ii) in the event
that because of physical or mental disability the Executive is
unable to perform, and does not perform, his duties here under
for a continuous period of 180 days; or (iii) for Cause (as
defined in Section 3(c)). Except as expressly provided in
Section 3(a) and this Section 3(b), the Company may not terminate
the Term of Employment.
(c) For the purposes of this Section 3, "Cause" shall mean
any of the following: (i) Executive's conviction of any crime or
criminal offense involving monies or other property or involving
any felony, or (ii) Executive's conviction of fraud or
embezzlement.
(d) The Term of Employment may be terminated at any time by
the Executive in the event: (i) Executive is not accorded the
authority, duties, obligations and prerogatives set forth in
Section 1, (ii) the authority, duties, obligation and
prerogatives of Executive are materially or substantially
reduced, (iii) the Executive is not paid or reimbursed the
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amounts owed to Executive under this agreement after 10 days'
notice thereof to the Company, or (iv) the Company otherwise does
not observe its obligations under this Agreement.
(e) In the event that the Term of Employment is terminated
by the Company for any reason or no reason, other than pursuant
to Section 3(b)(iii) or as a result of retirement at 65 or more
years of age, or (ii) is terminated by the Executive for any
reason pursuant to Section 3(d), then the Company, effective
immediately upon such termination or scheduled expiration date,
will pay Executive an amount equal to the 12 times the
Executive's monthly base salary at the time of termination. Such
payment will be in addition to any other amounts otherwise owed
by the Company to Executive. In the event of a "change of
control" of the company, defined as a sale of substantially all
of the company's assets or the acquisition by another entity of a
majority of the company's common stock, and the Executive is
subsequently terminated by the successor company, then any
unvested stock options held by the Executive shall immediately
vest, and the payment to the Executive on termination will be 24
times the Executive's monthly base salary, plus pro rated bonus,
calculated based on the average of the previous 2 years' bonus
payments.
4. Compensation
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During the Term of Employment, the Company shall pay to
Executive:
(a) As base compensation for his services hereunder, in
monthly installments, a base salary at a rate of $300,000 per
annum. Such amounts shall be increased (but not decreased)
annually as determined by the Board of Directors in its sole
discretion.
(b) An annual bonus as determined under the Executive's
senior management incentive cash compensation program and
approved by the Board of Directors.
5. Reimbursement of Expenses
-------------------------
During the Term of Employment, the Company shall reimburse
Executive for documented travel, entertainment and other expenses
reasonably incurred by Executive in connection with the
performance of his duties hereunder and in accordance with the
rules, customs and usages of the Company from time to time in
effect.
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6. Benefits
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During the term of Employment, the Executive shall be entitled to
perquisites and benefits (including automobile, health,
disability, pension and life insurance benefits consistent with
past practice, or as increased from time to time) established
from time to time, by the Board of Directors for senior managers
of the Company.
7. Notice
------
Any notice, request, demand or other communication required or
permitted to be given under this Agreement shall be given in
writing and if delivered personally, or sent by certified or
registered mail, return receipt requested, as follows or to such
other addressee or address as shall be set forth in a notice
given in the same manner):
If to Executive: Xxxxxx Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
If to Company: DeVry Inc.
Xxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxx Xxxxxxx, XX 00000
Any such notices shall be deemed to be given on the date
personally delivered or such return receipt is issued.
8. Executive's Representation
--------------------------
Executive hereby warrants and represents to the Company that
Executive is not subject to any covenants, agreements or
restrictions, including without limitation any covenants,
agreements or restrictions arising out of Executive's prior
employment, which would be breached or violated by Executive's
execution of this Agreement or by Executive's performance of his
duties hereunder.
9. Validity
--------
If, for any reason, any provision hereof shall be determined to
be invalid or unenforceable, the validity and effect of the other
provisions hereof shall not be affected thereby.
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10. 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
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. If any court determines that any provision
hereof is unenforceable because of being overly broad in scope or
duration than the court shall have the power to reduce the scope
or duration of such provision, as the case may be and, in its
reduced form, such provision shall then be enforceable.
11. Waiver of Breach; Specific Performance
--------------------------------------
The waiver by the Company or Executive of a breach of any
provision of this Agreement by the other party shall not operate
or be construed as a waiver of any other breach by such other
party. Each of the parties (and third party beneficiaries) to
this Agreement will be entitled to enforce its rights under this
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
(and third party beneficiaries) may in its sole discretion apply
to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief in order to enforce
or prevent any violations of the provisions of this Agreement.
12. Indemnity
---------
The Company shall indemnify and hold harmless Executive, and
promptly reimburse Executive for any liabilities, damages, losses
and expenses during and after the Term of Employment, arising
from the services performed by the Executive for the Company, to
the fullest amount provided by the Certificates of Incorporation
and Bylaws of the Company.
13. Mitigation and Set-Off
----------------------
The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking employment or
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otherwise. The Company shall not be entitled to any set-off
against the amounts payable by Company to Executive for any
claims or other reason.
14. Assignment
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Neither the Executive nor the Company may assign, transfer,
pledge, encumber or otherwise dispose of this Agreement or any of
his or its respective rights or obligations hereunder, without
the prior written consent of the other. Nothing in this Section
14 will limit, however, Executive's rights or power to dispose of
his property by will or limit the power or rights of any executor
or any administrator, nor will it prevent the successor company
in a "change of control" from being bound by and benefiting from
the rights and duties of this agreement.
15. Amendment; Entire Agreement
---------------------------
This Agreement may not be changed orally but only by an agreement
in writing agreed to by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
This Agreement embodies the entire agreement and understanding of
the parties hereto in respect of the subject matter of this
Agreement, and supersedes and replaces all prior agreements,
understandings and commitments with respect to such subject
matter.
16. Litigation
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THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS,
EXCEPT THAT NO DOCTRINE OF CHOICE OF LAW SHALL BE USED TO APPLY
ANY LAW OTHER THAN THAT OF ILLINOIS, AND NO DEFENSE, COUNTERCLAIM
OR RIGHT OF SET-OFF GIVEN OR ALLOWED BY THE LAWS OF ANY OTHER
STATE OR JURISDICTION, OR ARISING OUT OF THE ENACTMENT,
MODIFICATION OR REPEAL OF ANY LAW, REGULATION, ORDINANCE OR
DECREE OF ANY FOREIGN JURISDICTION, SHALL BE INTERPOSED IN ANY
ACTION HEREON. EXECUTIVE AND THE COMPANY AGREE THAT ANY ACTION
OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS AGREEMENT MAY BE
COMMENCED IN THE STATE COURTS, OR IN THE UNITED STATES DISTRICT
COURTS IN CHICAGO, ILLINOIS. EXECUTIVE AND THE COMPANY CONSENT
TO SUCH JURISDICTION, AGREE THAT VENUE WILL BE PROPER IN SUCH
COURTS AND WAIVE ANY OBJECTIONS BASED UPON FORUM NON CONVENIENS.
THE CHOICE OF FORUM SET FORTH IN THIS SECTION 16 SHALL NOT BE
DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN
SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO
ENFORCE SAME IN ANY OTHER JURISDICTION.
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IN WITNESS WHEREOF, the parties hereto have set their hands as of
the day and year first above written.
EXECUTIVE: COMPANY:
DeVry Inc.
DeVry University, Inc.
________________________ By: ________________________
Print name: _____________ Its: _______________________
