-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NSF47DnHsxbqGF65fnPRS9GyrF/0mAjPiLgpGuZJtH8LeKZ5GL056wGVjsZ90wN9 VHAbO1GmkGt3+ll5AadMEg== 0001157523-09-008751.txt : 20091228 0001157523-09-008751.hdr.sgml : 20091225 20091228160133 ACCESSION NUMBER: 0001157523-09-008751 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20091103 ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20091228 DATE AS OF CHANGE: 20091228 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN PUBLIC EDUCATION INC CENTRAL INDEX KEY: 0001201792 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-EDUCATIONAL SERVICES [8200] IRS NUMBER: 010724376 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-33810 FILM NUMBER: 091261944 BUSINESS ADDRESS: STREET 1: 111 W CONGRESS STREET CITY: CHARLES TOWN STATE: WV ZIP: 25414 BUSINESS PHONE: 3047243700 MAIL ADDRESS: STREET 1: 111 W CONGRESS STREET CITY: CHARLES TOWN STATE: WV ZIP: 25414 8-K 1 a6127287.txt AMERICAN PUBLIC EDUCATION, INC. 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 November 3, 2009 ---------------- (Date of earliest event reported) American Public Education, Inc. - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in its Charter) Delaware 001-33810 01-0724376 - ------------------------------- -------------- ------------------------- (State or other jurisdiction (Commission (I.R.S. Employer of Incorporation) File Number) Identification No.) 111 W. Congress Street Charles Town, West Virginia 25414 304-724-3700 - ------------------------------ -------------- ------------------------- (Address of principal (Zip Code) (Registrant's telephone number executive offices) including area code) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) - -------------------------------------------------------------------------------- Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. (b) Mark Leuba, Senior Vice President, Information Technology of American Public University System, Inc. (the "University"), a wholly-owned subsidiary of American Public Education, Inc. (the "Company"), ceased to serve as an executive officer of the Company in connection with the execution of the Separation Agreement and General Release described below and resigned his position effective December 4, 2009. (e) On November 3, 2009, the University and Mark Leuba executed a Separation Agreement and General Release in connection with Mr. Leuba's expected departure from the University. The Separation Agreement provides, among other things, that Mr. Leuba would resign from his position on or before December 4, 2009, will be entitled to receive executive placement services for three months, will be reimbursed for COBRA expenses through May 31, 2010 and would execute a Consulting Agreement for which he will receive a $100,000 retainer. The Separation Agreement and General Release also contains a general release by Mr. Leuba in favor of the University. The Consulting Agreement provides that in consideration of the retainer, Mr. Leuba will provide technology consulting services to the Company through May 31, 2010. As an independent consultant to the Company, Mr. Leuba will continue to vest in equity awards previously granted to him during the term he serves as a consultant. The foregoing descriptions of the Separation Agreement and General Release and the Consulting Agreement are qualified in their entirety by reference to the actual agreements, copies of which are attached to this current report as Exhibits 10.1 and 10.2, respectively, and are incorporated by reference herein. Item 9.01. Financial Statements and Exhibits. (d) Exhibits Exhibit 10.1 Separation Agreement and General Release between American Public University System, Inc. and Mark Leuba. Exhibit 10.2 Consulting Agreement between American Public Education, Inc. and Mark Leuba. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. American Public Education, Inc. Date: December 28, 2009 By: /s/ Harry T. Wilkins -------------------------------------- Harry T. Wilkins, Executive Vice President and Chief Financial Officer 3 INDEX TO EXHIBITS Exhibit No. Description - ---------- ----------- Exhibit 10.1 Separation Agreement and General Release between American Public University System, Inc. and Mark Leuba. Exhibit 10.2 Consulting Agreement between American Public Education, Inc. and Mark Leuba. EX-10.1 2 a6127287ex10_1.txt EXHIBIT 10.1 Exhibit 10.1 SEPARATION AGREEMENT AND GENERAL RELEASE ---------------------------------------- This Separation Agreement and General Release (the "Agreement") is being entered into between American Public University System (the "University") and Mark Leuba, the undersigned. For and in consideration of the mutual promises contained herein, and for other good and sufficient consideration, receipt of which is hereby acknowledged, the University and I (sometimes hereafter referred to as the "Parties") agree as follows: 1. Separation from Employment (a) My employment with the University shall end on the earlier of: (1) December 4, 2009; or (2) such earlier date as I may tender my resignation or commence other employment (the "Separation Date"). The Parties agree that my separation shall be treated as a resignation and I agree that I will not seek employment with the University or any of its affiliates in the future. (b) I shall be paid at my current base salary rate through the Separation Date and will be paid for all accrued unused vacation leave as of that date. (c) Additionally, as consideration for my promises in this Agreement, the University agrees to provide me three months of executive placement services, at a total cost not to exceed $10,000.00. (d) As of the Separation Date, I shall not be eligible and am not eligible to participate in any University benefits plan, including, but not limited to, dental and medical insurance, 401(k) plan, vacation leave, sick leave, long term disability insurance, or life insurance, except to any extent provided by applicable law. However, if I elect to continue medical insurance pursuant to the federal law commonly referred to as COBRA, the University will incur the expense of my medical coverage by making my COBRA payments for up to five months unless coverage is obtained through another employer's plan prior to May 31, 2010. If I obtain other employment prior to May 31, 2010, I will notify Amy Panzarella, Director HR and such medical insurance shall cease as of the date of my new employment. As of December 5, 2009, I am not eligible to continue participation in the company's 401(k) plan, disability insurance or life insurance. I will be entitled to continued vesting under the equity incentive plans of the University to the extent provided in the applicable award agreements. (e) Between the Separation Date and May 31, 2010 I will make myself available as an independent consultant, and not as an employee, for the purposes set forth in, and pursuant to the form of, the consulting agreement attached hereto as Exhibit A (the "Consulting Agreement"). I will be compensated for such consulting services through the payment of a retainer fee of $100,000, as more fully described in the Consulting Agreement. (f) Once all of the payments referred to in this paragraph 1 of this Agreement have been made, I shall have been paid all compensation due and owing to me under this Agreement and under any contract I have or may have had with the University or from any other source of entitlement, including all wages, salary, commissions, bonuses, incentive payments, profit-sharing payments, leave, severance pay or other benefits. I specifically acknowledge that I am not entitled to any separate payment for unused vacation or other leave. I further acknowledge and agree that the payments referred to in this paragraph 1, in addition to compensating me fully for time worked and services rendered through the end of my employment, include consideration for my promises contained in this Agreement, and that such consideration is above and beyond any wages, salary, or other sums to which I am entitled from the University under the terms of my employment or under any other contract or law. 2 2. General Release. On behalf of myself and my agents, heirs, executors, administrators, successors and assigns, I hereby release and forever discharge the University, American Public Education, Inc., and any and all of their respective affiliates, officers, directors, employees, agents, counsel, and successors and assigns, from any and all complaints, claims, demands, damages, lawsuits, actions, and causes of action, whether known, unknown or unforeseen, arising out of or in connection with any event, transaction or matter occurring or existing prior to or at the time of my execution of the Agreement, which I have or may have against any of them for any reason whatsoever in law or in equity, under federal, state, local, or other law, whether the same be upon statutory claim, contract, tort or other basis, including without limitation any and all claims arising from or relating to my employment or the termination of my employment and any and all claims relating to any employment agreement, any employment statute or regulation, or any employment discrimination law, including without limitation Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act ("ADEA"), the Older Workers Benefit Protection Act, the Civil Rights Act of 1866, the Equal Pay Act of 1963, all as amended, all state and local laws, regulations and ordinances prohibiting discrimination in employment (including without limitation the Virginia Human Rights Act and the West Virginia Human Rights Act), and other laws and regulations relating to employment, including but not limited to the Family and Medical Leave Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974, and the West Virginia Wage Payment and Collection Act, all as amended. I agree, 3 without limiting the generality of the above release, not to file any claim or lawsuit seeking damages and asserting any claims that are lawfully released in this paragraph. I further hereby irrevocably and unconditionally waive any and all rights to recover any damages concerning the claims that are lawfully released in this paragraph. I represent and warrant that I have not previously filed or joined in any such claims against the University or any of its affiliates, and that I have not given or sold any portion of any claims released herein to anyone else, and that I will indemnify and hold harmless the persons and entities released herein from all liabilities, claims, demands, costs, expenses and/or attorneys' fees incurred as a result of any such assignment or transfer. Notwithstanding the foregoing, neither party is releasing any right to enforce this Agreement, and I am not releasing: (a) any claims for unemployment compensation or workers compensation benefits or other rights that may not be released as a matter of law; (b) any claims solely relating to the validity of this General Release under the ADEA, as amended; (c) any non-waivable right to file a charge with the U.S. Equal Employment Opportunity Commission ("EEOC"); or (d) any rights I may have with respect to vesting of equity awards through May 31, 2010 to the extent I continue as an independent consultant and the terms of the applicable awards so provide. If the EEOC were to pursue any matters that are released herein, I agree that this Agreement will control as the exclusive remedy and full settlement of all such claims by me for money damages. I HEREBY ACKNOWLEDGE AND AGREE THAT THIS RELEASE IS A GENERAL RELEASE AND THAT BY SIGNING THIS AGREEMENT, I AM SIGNING AND AGREEING TO THIS RELEASE. 4 3. No Admission. The Parties agree that nothing contained in this Agreement shall constitute or be treated as an admission of liability or wrongdoing by either of them. 4. Proprietary and/or Confidential Information. I agree 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 I 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 my own purposes or in a manner detrimental to the University's interests. I agree to use my best efforts to prevent disclosure of such confidential information and data. In the event that I receive a subpoena that calls or may call for the disclosure of any such confidential information or data, I 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 I will provide as much notice as is possible) and I will reasonably cooperate with the University in allowing the University an opportunity to object to disclosure of such confidential information or data. 5. Return of Information and Property. On or prior to the Separation Date, I will return all records or copies of University information, documents or files and no copies of the same will be retained by me. In addition, on or prior to the Separation Date, I will return all University property to the University, including but not limited to, keys, access cards, credit cards, and any other computer hardware or software issued by the University to me. I shall immediately file any and all outstanding expense reports. 5 6. Duties and Transition Assistance. During the period until the Separation Date, I will transition my CIO responsibilities to others as directed by the University, will perform specific tasks as assigned by the University, and will work from such locations as are specified by the University. I agree to cooperate fully with and provide information to the University to assist in the transition process during the balance of my employment and during the consulting period. 7. I agree to direct all prospective employers and others seeking references regarding me to Wallace Boston, CEO or Amy Panzarella, Director HR, and no one else. 8. Breach or Violation. I agree that in the event of any violation of the provisions of this Agreement, in addition to any damages allowed by law, the University shall be entitled to injunctive relief and to terminate my service as an independent consultant. 9. Modification; Severability. The Parties agree that if a Court of competent jurisdiction finds that any term of this Agreement is for any reason excessively broad in scope, duration, or otherwise, such term shall be construed or modified in a manner to enable it to be enforced to the maximum extent possible. Further, the covenants in this Agreement shall be deemed to be a series of separate covenants and agreements. If, in any judicial proceeding, a Court of competent jurisdiction shall refuse to enforce any of the separate covenants deemed included herein, then at the option of the University, wholly unenforceable covenants shall be deemed eliminated from the Agreement for the purpose of such proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such proceeding. 10. Certain Representations. The Parties represent and acknowledge that in executing this Agreement such party does not rely and has not relied upon any representation or statement made by the other party or the other party's agents, representatives or attorneys with regard to the subject matter, basis or effect of this Agreement or otherwise. 6 11. Entire Agreement. This Agreement contains the entire agreement between the Parties relating to the subject matter of this Agreement, and may not be altered or amended except by an instrument in writing signed by both Parties hereto. 12. Assignment. This Agreement and the rights and obligations of the Parties hereunder may not be assigned by either party without the prior written consent of the other party. 13. Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective representatives, successors and permitted assigns. 14. Waiver. Neither the waiver by either party of a breach of or default under any of the provisions of the Agreement, nor the failure of such party, on one or more occasions, to enforce any of the provisions of the Agreement or to exercise any right or privilege hereunder shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any provisions, rights or privileges hereunder. 15. Further Assurances. The Parties agree to take or cause to be taken such further actions as may be necessary or as may be reasonably requested in order to fully effectuate the purposes, terms, and conditions of this Agreement. 16. Governing Law. 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. 7 17. Acknowledgment. I acknowledge that I have read and understand the foregoing Agreement and execute it voluntarily and without coercion. I further acknowledge that the University has advised me to consult with an attorney prior to executing this Agreement. I understand that I have 21 days to consider, execute and deliver this Agreement to the University, unless I voluntarily choose to execute the Agreement before the end of the 21-day period. I further understand that I can revoke my acceptance of this Agreement within seven (7) days of signing it by providing written notice of my revocation to Sharon van Wyk at the University on or before the end of the seventh calendar day after I sign this Agreement. IN WITNESS HEREOF, THE PARTIES HAVE AFFIXED THEIR SIGNATURES BELOW: Mark Leuba American Public University System /s/ Mark Leuba /s/ Sharon van Wyk - -------------------- ------------------------ By: Mark Leuba By: Sharon van Wyk, EVP/COO Date: November 3, 2009 Date: November 3, 2009 8 EX-10.2 3 a6127287ex10_2.txt EXHIBIT 10.2 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 111 West Congress Street, Charles Town, West Virginia 25414, and Mark Leuba (the "Consultant") having a place of business at 3788 Dorsey Search Circle, Ellicott City, MD 21042. 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 ----------------------------------------- 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. 1 of 5 Section 2. Compensation ------------ 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 --------------------------- 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. ------------------------- 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 ---- 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 -------------------------- 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 ---------------------------------------- 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 ----------------------- 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 ------- 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/ Sharon van Wyk /s/ Mark Leuba ----------------------- ------------------- Sharon van Wyk Mark Leuba Title: EVP/COO -----END PRIVACY-ENHANCED MESSAGE-----