UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
þþ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended: April 30, 2015
Or
¨¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to __________
ASPEN GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or Other Jurisdiction
of Incorporation or Organization)
000-55107
(Commission
File Number)
27-1933597
(I.R.S. Employer
Identification No.)
720 South Colorado Boulevard, Suite 1150N, Denver, CO 80246
(Address of Principal Executive Office) (Zip Code)
(303) 333-4224
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock, par value $0.001
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ¨ Yes þ No
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. ¨ Yes þ No
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days. þ Yes ¨ No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive
Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232-405 of this chapter) during the preceding
12 months (or for such shorter period that the registrant was required to submit and post such files.) þ Yes ¨ No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained
herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by
reference in Part III of this Form 10-K or any amendment to this Form 10-K. þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company.
Large accelerated filer o Accelerated filer o Non-accelerated file o Smaller reporting company þ
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). ¨ Yes þ No
The aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the closing price
as of the last business day of the registrant’s most recently completed second fiscal quarter was approximately $19.9 million ($0.245 price).
The number of shares outstanding of the registrant’s classes of common stock, as of July 28, 2015 was 128,253,605 shares.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's Proxy Statement for the 2015 Annual Meeting of Shareholders are incorporated herein by reference in Part III of
this Annual Report on Form 10-K to the extent stated herein. Such Proxy Statement will be filed with the Securities and Exchange
Commission within 120 days of the registrant's fiscal year ended April 30, 2015.
Item 1.
Item 1A.
Item 1B.
Item 2.
Item 3.
Item 4.
Business.
Risk Factors.
Unresolved Staff Comments.
Properties.
Legal Proceedings.
Mine Safety Disclosures.
INDEX
PART I
PART II
Item 5.
Item 6.
Item 7.
Item 7A.
Item 8.
Item 9.
Item 9A.
Item 9B.
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
Selected Financial Data.
Management’s Discussion and Analysis of Financial Condition and Results of Operations.
Quantitative and Qualitative Disclosures About Market Risk.
Financial Statements and Supplementary Data.
Changes in and Disagreements With Accountants on Accounting and Financial Disclosure.
Controls and Procedures.
Other Information.
PART III
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
Directors, Executive Officers and Corporate Governance.
Executive Compensation.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
Certain Relationships and Related Transactions, and Director Independence.
Principal Accounting Fees and Services.
Item 15.
Exhibits, Financial Statement Schedules.
PART IV
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ITEM 1. BUSINESS.
PART I
Aspen Group, Inc., or Aspen Group, owns 100% of Aspen University Inc., a Delaware corporation, or Aspen. All references to “we,”
“our” and “us” refer to Aspen Group, unless the context otherwise indicates. In referring to academic matters, these words refer solely to
Aspen University Inc. On March 13, 2012, Aspen Group acquired Aspen in a transaction we refer to as the Reverse Merger.
Description of Business
Founded in 1987, Aspen’s mission is to offer any motivated college-worthy student the opportunity to receive a high quality, responsibly
priced distance-learning education for the purpose of achieving sustainable economic and social benefits for themselves and their families.
Aspen is dedicated to providing the highest quality education experiences taught by top-tier professors - 60% of our adjunct professors hold
doctorate degrees.
Because we believe higher education should be a catalyst to our students’ long-term economic success, we exert financial prudence by
offering affordable tuition that is one of the greatest values in online higher education. Last year, Aspen University unveiled a monthly
payment plan aimed at reversing the college-debt sentence plaguing working-class Americans. The monthly payment plan offers bachelor
students (except nursing) the opportunity to pay $250/month for 72 months ($18,000), nursing bachelor students (RN to BSN) $250/month
for 39 months ($9,750), master students $325/month for 36 months ($11,700) and doctoral students $375 per month for 72 months
($27,000), interest free, thereby giving students the ability to earn a degree debt free.
In the 16 months since the announcement, 45% of courses are now paid through monthly payment methods (based on courses started in
June, 2015). Aspen offers two monthly payment methods, a monthly payment plan described above in which students make payments
every month over a fixed period (36, 39 or 72 months depending on the degree program), and a monthly installment plan in which students
pay three monthly installments only while active in a 10-week course. As of July 10, 2015, Aspen has over 1,000 students paying tuition
through monthly payment methods, which today equates to approximately $200,000 of monthly recurring tuition revenue.
Aspen offers certificate programs and associate, bachelor, master and doctoral degree programs in a broad range of areas, including nursing,
business, education, technology, and professional studies. In terms of enrollment growth during fiscal year 2015, Aspen’s full time, degree-
seeking student body grew by 824 students, from 2,485 to 3,309 students. Aspen’s School of Nursing grew by 546 students, from 828 to
1,374 students, which represented 66% of Aspen’s fiscal year 2015 full-time degree-seeking student body growth.
One of the key differences between Aspen and other publicly-traded, exclusively online, for-profit universities is that approximately 42%
of our full-time degree-seeking students (as of April 30, 2015) were enrolled in Aspen’s School of Nursing.
On November 10, 2014, Aspen University announced that the Commission on Collegiate Nursing Education (“CCNE”) had awarded
accreditation to its Bachelor of Science in Nursing program (RN to BSN) through December 31, 2019. CCNE is officially recognized by
the U.S. Department of Education (“DOE”) and is a nongovernmental accrediting agency, which provides specialized accreditation for
nursing programs by ensuring the quality and integrity of nursing education in preparing effective nurses. This newly CCNE-accredited
undergraduate RN to BSN degree program is expected to grow rapidly given Aspen’s debtless education approach, which allows nurses to
pay the $9,750 tuition for the 10-course RN to BSN completion program at $250 per month for 39 months. In fact, Aspen projects the BSN
program to be the largest growth driver in the next 12 months, which we estimate will result in over 50% or the majority of Aspen’s
degree-seeking student body to be enrolled in the School of Nursing by early 2016.
Since 2008, Aspen’s Master of Science in Nursing Program has held CCNE accreditation. The Master of Science in Nursing program most
recently underwent accreditation review by CCNE in March 2011. At that time, the program’s accreditation was reaffirmed, with a new
accreditation term to expire December 30, 2021. We currently offer a variety of nursing degrees including: Master of Science in Nursing,
Master of Science in Nursing - Nursing Education, Master of Science in Nursing – Nursing Administration and Management and Bachelor
of Science in Nursing.
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In addition to the specialized CCNE nursing program accreditation, since 1993 Aspen University has been accredited by the Distance
Education Accrediting Commission (“DEAC”), a national institutional accrediting agency recognized by the DOE.1 On February 25, 2015,
the DEAC informed Aspen University that it had renewed its accreditation for five years through January 2019. Aspen University’s
accreditation is further discussed in the Accreditation Section of this Form 10-K.
Aspen University also maintains approvals from professional associations, such as its approval as a Global Charter Education Provider
from the Project Management Institute (“PMI”), and as a Registered Education Provider (R.E.P.) of the PMI. The PMI recognizes select
Aspen Project Management Courses as Professional Development Units. These courses help prepare individuals to sit for the Project
Management Professional (“PMP”), certification examination. PMP certification is the project management profession’s most recognized
and respected certification credential. Project management professionals may take the PMI approved Aspen courses to fulfill continuing
education requirements for maintaining their PMP certification.
Similarly, in connection with our Bachelor and Master degrees in Psychology of Addiction and Counseling, the National Association of
Alcoholism and Drug Abuse Counselors, (“NAADAC”), has approved Aspen as an “academic education provider.” NAADAC-approved
education providers offer training and education for those who are seeking to become certified, and those who want to maintain their
certification, as alcohol and drug counselors. In connection with the approval process, NAADAC reviews all educational training programs
for content applicability to state and national certification standards.
Aspen also is a participant in the U.S. DOE federal student aid programs. Beginning in 2009, and following Aspen’s change of control in
2012, Aspen was provisionally certified to participate in the federal student aid programs authorized under Title IV Higher Education Act,
or HEA. In order for Aspen to continue to participate in these programs, on February 9, 2015, based on DOE financial responsibility
requirements, the DOE provided Aspen the option of posting a letter of credit equal to 50% of all Title IV funds received by Aspen in the
last program year, $2,244,971, to remain permanently certified, or remain provisionally certified by increasing Aspen’s existing 25% letter
of credit to $1,122,485. Aspen informed the DOE on March 3, 2015 of its decision to remain provisionally certified and posted the
$1,122,485 letter of credit for the DOE on April 29, 2015. The DOE permits institutions that are provisionally certified pursuant to DOE
financial responsibility requirements to participate in federal financial aid programs under provisional certification for up to three years.
This is further discussed in the Regulation of Federal Student Financial Aid Programs Section of this Form 10-K.
Competitive Strengths - We believe that we have the following competitive strengths:
Exclusively Online Education - We have designed our courses and programs specifically for online delivery, and we recruit and train
faculty exclusively for online instruction. We provide students the flexibility to study and interact at times that suits their schedules. We
design our online sessions and materials to be interactive, dynamic and user friendly.
Debt Minimization - We are committed to offering among the lowest tuition rates in the sector, which to date has alleviated the need for a
significant majority of our students to borrow money to fund Aspen’s tuition requirements. Aspen’s course-by-course tuition rates are
$150/credit hour for degree-seeking undergraduate programs, $325/credit hour for all master programs and the Bachelor of Science in
Nursing (BSN) program and $450/credit hour for all doctoral degree programs. These tuition rates are designed to allow students to pay
their tuition through monthly payment plans, thereby having the opportunity to earn their degree debt free.
Commitment to Academic Excellence - We are committed to continuously improving our academic programs and services, as evidenced
by the level of attention and resources we apply to instruction and educational support. We are committed to achieving high course
completion and graduation rates compared to competitive distance learning, for-profit schools. 60% of our adjunct faculty members hold a
doctorate degree. One-on-one contact with our highly experienced faculty brings knowledge and great perspective to the learning
experience. Faculty members are available by telephone and email to answer questions, discuss assignments and provide help and
encouragement to our students.
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1 DEAC was formerly known as the Distance Education and Training Council or DETC.
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Highly Scalable and Profitable Business Model - We believe our online education model, our relatively low student acquisition costs,
and our variable faculty cost model will enable us to expand our operating margins. If we increase student enrollments we will be able to
scale on a variable basis the number of adjunct faculty members after we reach certain enrollment metrics (not before). A single adjunct
faculty member can work with as little as two students or as many as 30 at any given time.
“One Student at a Time” personal care - We are committed to providing our students with highly responsive and personal individualized
support. Every student is assigned an Academic Advisor who becomes an advocate for the student’s success. Our one-on-one approach
assures contact with faculty members when a student needs it and monitoring to keep them on course. Our administrative staff is readily
available to answer any questions and works with a student from initial interest through the application process and enrollment, and most
importantly while the student is pursuing a degree or studies.
Admissions
In considering candidates for acceptance into any of our certificate or degree programs, we look for those who are serious about pursuing –
or advancing in – a professional career, and who want to be both prepared and academically challenged in the process. We strive to
maintain the highest standards of academic excellence, while maintaining a friendly learning environment designed for educational,
personal and professional success. A desire to meet those standards is a prerequisite. Because our programs are designed for self-directed
learners who know how to manage their time, successful students have a basic understanding of management principles and practices, as
well as good writing and research skills. Admission to Aspen is based on thorough assessment of each applicant’s potential to complete
successfully the program. Additionally, we require students to complete an essay as part of their admission process – as we are looking for
students not only with the potential to succeed but also with the motivation to succeed.
Industry Overview
The U.S. market for postsecondary education is a large, growing market. According to a 2012 publication by the National Center for
Education Statistics, (“NCES”), the number of postsecondary learners enrolled as of Fall 2010 in U.S. institutions that participate in Title
IV programs was approximately 21 million (including both undergraduate and graduate students), up from 18.2 million in the Fall of 2007.
We believe the growth in postsecondary enrollment is a result of a number of factors, including the significant and measurable personal
income premium that is attributable to postsecondary education, and an increase in demand by employers for professional and skilled
workers.
According to the Integrated Postsecondary Education Data System (“IPEDS”) data managed by the DOE, the number of students that took
at least one online course in fall 2012 was about 5.5 million -- roughly one-quarter of the total enrollment. Among those 5.5 million
students, about 2.6 million were enrolled in fully online programs -- the rest took some traditional courses, some online. Additionally, the
share of graduate students enrolled in fully online programs was twice as high as the share of undergraduates -- 22 to 11 percent.
Competition
There are more than 4,200 U.S. colleges and universities serving traditional college age students and adult students. Any reference to
universities herein also includes colleges. Competition is highly fragmented and varies by geography, program offerings, delivery method,
ownership, quality level, and selectivity of admissions. No one institution has a significant share of the total postsecondary market. While
we compete in a sense with traditional “brick and mortar” universities, our primary competitors are with online universities. Our online
university competitors that are publicly traded include: Apollo Group, Inc. (Nasdaq: APOL), American Public Education, Inc. (Nasdaq:
APEI), DeVry Inc. (NYSE: DV), Grand Canyon Education, Inc. (Nasdaq: LOPE), ITT Educational Services, Inc. (NYSE: ESI), Capella
Education Company (Nasdaq: CPLA), Career Education Corporation (Nasdaq: CECO) and Bridgepoint Education, Inc. (NYSE: BPI).
American Public Education, Inc. and Capella Education Company are wholly online while the others are not. Based upon public
information, Apollo Group, which includes University of Phoenix, is the market leader with University of Phoenix having degree
enrollments exceeding 200,000 students (based upon APOL’s Form 10-Q filed on June 29, 2015). As of April 30, 2015, Aspen had 3,309
degree-seeking students enrolled. These competitors have substantially more financial and other resources.
The primary mission of most accredited four-year universities is to serve generally full-time students and conduct research. Aspen
acknowledges the differences in the educational needs between working and full-time students at “brick and mortar” schools and provides
programs and services that allow our students to earn their degrees without major disruption to their personal and professional lives.
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We also compete with public and private degree-granting regionally and nationally accredited universities. An increasing number of
universities enroll working students in addition to the traditional 18 to 24 year-old students, and we expect that these universities will
continue to modify their existing programs to serve working learners more effectively, including by offering more distance learning
programs. We believe that the primary factors on which we compete are the following:
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active and relevant curriculum development that considers the needs of employers;
the ability to provide flexible and convenient access to programs and classes;
high-quality courses and services;
comprehensive student support services;
breadth of programs offered;
the time necessary to earn a degree;
qualified and experienced faculty;
reputation of the institution and its programs;
the variety of geographic locations of campuses;
regulatory approvals;
cost of the program;
name recognition; and
convenience.
Curricula
Certificates
Certificate in Project Management
Associates Degrees
Associate of Applied Science Early Childhood Education
Bachelor’s Degrees
Bachelor of Arts in Psychology and Addiction Counseling
Bachelor of Science in Business Administration
Bachelor of Science in Business Administration, (Completion Program)
Bachelor of Science in Criminal Justice
Bachelor of Science in Criminal Justice, (Completion Program)
Bachelor of Science in Criminal Justice with specializations in Criminal Justice Administration and
Major Crime Investigation Procedure
Bachelor of Science in Early Childhood Education
Bachelor of Science in Early Childhood Education, (Completion Program)
Bachelor of Science in Medical Management
Bachelor of Science in Nursing
Master’s Degrees
Master of Arts Psychology and Addiction Counseling
Master of Science in Criminal Justice
Master of Science in Criminal Justice with specializations in Forensic Sciences, Law Enforcement Management, and
Terrorism and Homeland Security
Master of Science in Information Management
Master of Science in Information Systems with a specializations in Enterprise Application Development and
Web Development
Master of Science in Information Technology
Master of Science in Nursing with a specialization in Administration and Management and
Administration and Management (RN to MSN Bridge Program)
Master of Science in Nursing with a specialization in Nursing Education and
Nursing Education (RN to MSN Bridge Program)
Master of Science in Technology and Innovation Master in Business Administration
Master in Business Administration with specializations in:
Entrepreneurship,
Finance,
Information Management,
Pharmaceutical Marketing and Management, and
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Project Management
Master in Education with specializations in:
Curriculum Development and Outcomes Assessment,
Education Technology, and
Transformational Leadership
Doctorate Degrees
Doctorate of Science in Computer Science
Doctorate in Education Leadership and Learning
Independent online classes start on alternating Tuesday’s every month.
Sales and Marketing
Following Mr. Michael Mathews becoming Aspen’s Chief Executive Officer in May 2011, Mr. Mathews and his team has made significant
changes to Aspen’s sales and marketing program, specifically spending a significant amount of time, money and resources on our
proprietary Internet marketing program. What is unique about Aspen’s internet marketing program is that we have no plans in the near
future to utilize third-party online lead generation companies to attract prospective students. To our knowledge, most if not all for-profit
online universities utilize multiple third-party online lead generation companies to obtain a meaningful percentage of their prospective
student leads. Aspen’s executive officers have many years of expertise in the online lead generation and internet advertising industry,
which for the foreseeable future will allow Aspen to cost-effectively drive all prospective student leads internally. This is a competitive
advantage for Aspen because third-party leads are typically unbranded and non-exclusive (lead generation firms typically sell prospective
student leads to multiple universities), therefore the conversion rate for those leads tends to be appreciably lower than internally generated,
Aspen branded, proprietary leads.
New Student Enrollment
Aspen has updated its definition of a new student enrollment to only report those new students that complete their first seven day
assignment of their first course in their degree program. Based on that definition, below is a quarterly analysis of new student enrollments
for the past five quarters, including the recent quarter ending April 30, 2015. Note that in the recent quarter ending April 30, 2015, new
student enrollments were up 89% year-over-year, from 235 to 444.
New Student Enrollments
Fiscal Quarter End April 30, 2014
Fiscal Quarter End July 31, 2014
Fiscal Quarter End October 31, 2014
Fiscal Quarter End January 31, 2015
Fiscal Quarter End April 30, 2015
235
226
265
315
444
Employees
As of July 28, 2015, we had 53 full-time employees, and 71 adjunct professors. None of our employees are parties to any collective
bargaining arrangement. We believe our relationships with our employees are good.
Corporate History
Aspen Group was incorporated on February 23, 2010 in Florida as a home improvement company intending to develop products and sell
them on a wholesale basis to home improvement retailers. In June 2011, Aspen Group changed its name to Elite Nutritional Brands, Inc.
and terminated all operations. In February 2012, Aspen Group reincorporated in Delaware under the name Aspen Group, Inc.
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Aspen was incorporated on September 30, 2004 in Delaware. Its predecessor was a Delaware limited liability company organized in
Delaware in 1999. In May 2011, Aspen merged with Education Growth Corporation, or EGC. Aspen survived the EGC merger. EGC was a
start-up company controlled by Mr. Michael Mathews. Mr. Mathews became Aspen’s Chief Executive Officer upon closing the EGC
merger. On March 13, 2012, Aspen Group acquired Aspen in the Reverse Merger.
Regulation
Students attending Aspen finance their education through a combination of individual resources, corporate reimbursement programs and
federal financial aid programs. The discussion which follows outlines the extensive regulations that affect our business. Complying with
these regulations entails significant effort from our executives and other employees. Our Chief Academic Officer has two unique roles:
overseeing our accreditation and regulatory compliance and seeking to improve our academic performance. Accreditation and regulatory
compliance is also expensive. Beyond the internal costs, we began using education regulatory counsel in the summer of 2011, as our
current Chief Executive Officer focused his attention on compliance. Aspen participates in the federal student financial aid programs
authorized under Title IV. For the fiscal year ended April 30, 2015, approximately 33% of our cash-basis revenues for eligible tuition and
fees were derived from Title IV programs. In connection with a student’s receipt of Title IV aid, we are subject to extensive regulation by
the DOE, state education agencies and the DEAC. In particular, the Title IV programs, and the regulations issued thereunder by the DOE,
subject us to significant regulatory scrutiny in the form of numerous standards that we must satisfy. To participate in Title IV programs, a
school must, among other things, be:
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authorized to offer its programs of instruction by the applicable state education agencies in the states in which it is physically
located (in our case, Colorado);
accredited by an accrediting agency recognized by the Secretary of the DOE; and
certified as an eligible institution by the DOE.
The DOE enacted regulations relating to the Title IV programs which became effective July 1, 2011. Under these new regulations, an
institution, like ours, that offers postsecondary education through distance education to students in a state in which the institution is not
physically located or in which it is otherwise subject to state jurisdiction as determined by that state, must meet any state requirements to
offer legally postsecondary education to students in that state. The institution must be able to document state approval for distance
education if requested by the DOE.
This regulation has been recognized as a significant departure from the state authorization procedures followed by most, if not all,
institutions before its enactment. Although these new rules became effective July 1, 2011, the DOE indicated in an April 20, 2011 guidance
letter that it would not initiate any action to establish repayment liabilities or limit student eligibility for distance education activities
undertaken before July 1, 2014, provided the institution was making a good faith effort to identify and obtain necessary state authorization
before that date. However, on July 12, 2011, a federal judge for the U.S. District Court for the District of Columbia vacated the portion of
the DOE’s state authorization regulation that requires online education providers to obtain any required authorization from all states in
which their students reside, finding that the DOE had failed to provide sufficient notice and opportunity to comment on the requirement. An
appellate court affirmed that ruling on June 5, 2012 and therefore this new regulation is currently invalid. On April 16, 2013, the DOE
announced its intention to revisit the state authorization requirements for postsecondary distance education in a new negotiated rulemaking
process which began in the fall of 2013. However, the rulemaking process failed to reach consensus on the rule in May 2014.
Subsequently, in June 2014, the DOE announced it will “pause” on issuing a new state authorization for distance education regulation. As
a result, there currently is no federal regulation or federal deadline for state authorization, but a new proposal is expected during 2015. If the
DOE reinstates the federal regulation, educational institutions without state authorization may be asked to reimburse federal financial aid
funds.
In addition, a state may impose penalties on an institution for failure to comply with state requirements related to an institution’s activities
in a state, including the delivery of distance education to persons in that state.
Because we are subject to extensive regulations by the states in which we become authorized or licensed to operate, we must abide by state
laws that typically establish standards for instruction, qualifications of faculty, administrative procedures, marketing, recruiting, financial
operations and other operational matters. State laws and regulations may limit our ability to offer educational programs and to award
degrees. Some states may also prescribe financial regulations that are different from those of the DOE. If we fail to comply with state
licensing requirements, we may lose our state licensure or authorizations. Failure to comply with state requirements could result in Aspen
losing its authorization from the Colorado Commission on Higher Education, a department of the Colorado Department of Higher
Education, (“CDHE”), its eligibility to participate in Title IV programs, or its ability to offer certain programs, any of which may force us
to cease operations.
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Additionally, Aspen is a Delaware corporation. Delaware law requires an institution to obtain approval from the Delaware Department of
Education, or Delaware DOE, before it may incorporate with the power to confer degrees. In July 2012, Aspen received notice from the
Delaware DOE that it is granted provisional approval status effective until June 30, 2015 and is currently in the process of applying for
either an extension of its provisional approval status or permanent approval status.
Accreditation
Aspen is accredited by the DEAC, an accrediting agency recognized by the DOE. Accreditation is a non-governmental system for
recognizing educational institutions and their programs for student performance, governance, integrity, educational quality, faculty,
physical resources, administrative capability and resources, and financial stability. In the U.S., this recognition comes primarily through
private voluntary associations that accredit institutions and programs. To be recognized by the DOE, accrediting agencies must adopt
specific standards for their review of educational institutions. Accrediting agencies establish criteria for accreditation, conduct peer-review
evaluations of institutions and programs for accreditation, and publicly designate those institutions or programs that meet their criteria.
Accredited institutions are subject to periodic review by accrediting agencies to determine whether such institutions maintain the
performance, integrity and quality required for accreditation.
Accreditation by the DEAC is important. Accreditation is a reliable indicator of an institution’s quality and is an expression of peer
institution confidence. Universities depend, in part, on accreditation in evaluating transfers of credit and applications to graduate schools.
Accreditation also provides external recognition and status. Employers rely on the accredited status of institutions when evaluating an
employment candidate’s credentials. Corporate and government sponsors under tuition reimbursement programs look to accreditation for
assurance that an institution maintains quality educational standards. Moreover, institutional accreditation awarded from an accrediting
agency recognized by the DOE is necessary for eligibility to participate in Title IV programs. From time to time, DEAC adopts or makes
changes to its policies, procedures and standards. If we fail to comply with any of DEAC’s requirements, our accreditation status and,
therefore, our eligibility to participate in Title IV programs could be at risk. In 2012, the National Advisory Committee on Institutional
Quality and Integrity (the panel charged with advising DOE on whether to recognize accrediting agencies for federal purposes, including
Title IV program purposes) recommended that DEAC receive recognition through 2017. On February 25, 2015, the DEAC informed
Aspen University that it had renewed its accreditation for five years to January, 2019.
Nature of Federal, State and Private Financial Support for Postsecondary Education
An institution that applies to participate in Title IV programs for the first time, if approved, will be provisionally certified for no more than
one complete award year. Furthermore, an institution that undergoes a change in ownership resulting in a change of control must apply to
the DOE in order to reestablish its eligibility to participate in Title IV programs. If the DOE determines to approve the application, it issues
a provisional certification, which extends for a period expiring not later than the end of the third complete award year following the date of
the provisional certification. A provisionally certified institution, such as Aspen, must apply for and receive DOE approval of substantial
changes and must comply with any additional conditions included in its program participation agreement. If the DOE determines that a
provisionally certified institution is unable to meet its responsibilities under its program participation agreement, the DOE may seek to
revoke the institution's certification to participate in Title IV programs with fewer due process protections for the institution than if it were
fully certified.
The federal government provides a substantial part of its support for postsecondary education through the Title IV programs, in the form of
grants and loans to students. Students can use those funds at any institution that has been certified by the DOE to participate in the Title IV
programs. Aid under Title IV programs is primarily awarded on the basis of financial need, generally defined as the difference between the
cost of attending the institution and the amount a student can reasonably contribute to that cost. All recipients of Title IV program funds
must maintain satisfactory academic progress and must progress in a timely manner toward completion of their program of study. In
addition, each school must ensure that Title IV program funds are properly accounted for and disbursed in the correct amounts to eligible
students.
Aspen’s mission is to offer students the opportunity to fund their education without relying on student loans. Last year, Aspen launched a
$325 monthly payment plan for master students, a $250 monthly payment plan for bachelor students, and subsequently a $375 monthly
payment plan for doctoral students. In the month of June 2015, 45% of class starts were paid through monthly payment methods.
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When our students borrow from the federal government, they receive loans and grants to fund their education under the following Title IV
programs: (1) the Federal Direct Loan program, or Direct Loan and (2) the Federal Pell Grant program, or Pell. For the fiscal year ended
April 30, 2015, approximately 33% of our cash-basis revenues for eligible tuition and fees were derived from Title IV programs. Therefore,
the majority of Aspen students self-finance all or a portion of their education. Additionally, students may receive full or partial tuition
reimbursement from their employers. Eligible students can also access private loans through a number of different lenders for funding at
current market interest rates.
Under the Direct Loan program, the DOE makes loans directly to students. The Direct Loan Program includes the Direct Subsidized Loan,
the Direct Unsubsidized Loan, the Direct PLUS Loan (including loans to graduate and professional students), and the Direct Consolidation
Loan. The Budget Control Act of 2011 signed into law in August 2011, eliminated Direct Subsidized Loans for graduate and professional
students, as of July 1, 2012. The terms and conditions of subsidized loans originated prior to July 1, 2012 are unaffected by the law.
For Pell grants, the DOE makes grants to undergraduate students who demonstrate financial need. To date, few Aspen students have
received Pell Grants. Accordingly, the Pell Grant program currently is not material to Aspen’s cash revenues.
Regulation of Federal Student Financial Aid Programs
The substantial amount of federal funds disbursed through Title IV programs, the large number of students and institutions participating in
these programs, and allegations of fraud and abuse by certain for-profit institutions have prompted the DOE to exercise considerable
regulatory oversight over for-profit institutions of higher learning. Accrediting agencies and state education agencies also have
responsibilities for overseeing compliance of institutions in connection with Title IV program requirements. As a result, our institution is
subject to extensive oversight and review. Because the DOE periodically revises its regulations and changes its interpretations of existing
laws and regulations, we cannot predict with certainty how the Title IV program requirements will be applied in all circumstances. See the
“Risk Factors” contained herein which disclose comprehensive regulatory risks.
In addition to the state authorization requirements and other regulatory requirements described herein, other significant factors relating to
Title IV programs that could adversely affect us include the following legislative action and regulatory changes:
Congress reauthorizes the Higher Education Act approximately every five to eight years. Congress most recently reauthorized the Higher
Education Act in August 2008. We cannot predict with certainty whether or when Congress might act to amend further the Higher
Education Act. The elimination of additional Title IV programs, material changes in the requirements for participation in such programs, or
the substitution of materially different programs could increase our costs of compliance and could reduce the ability of certain students to
finance their education at our institution.
On December 23, 2011, President Obama signed into law the Consolidated Appropriations Act of 2012, or the Act. The law includes a
number of provisions that significantly affect the Title IV programs. For example, it reduces the income threshold at which students are
assigned “an automatic zero expected family contribution” for purposes of awarding financial aid for the 2012-2013 award year. Under the
Act, students who do not have a high school diploma or a recognized equivalent (e.g., GED) or do not meet an applicable home school
requirement and who first enroll in a program of study on or after July 1, 2012 are not eligible to receive Title IV aid. The Act also made
certain changes to the Pell Grant Program and temporarily eliminates the interest subsidy that is provided for Direct Subsidized Loans
during the six-month grace period immediately following termination of enrollment.
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Over the last several years, Congressional committees have held hearings related to for-profit postsecondary education institutions.
Additionally, the chairmen of the House and Senate education committees, along with other members of Congress, asked the GAO, to
review various aspects of the for-profit education sector, including recruitment practices, educational quality, student outcomes, the
sufficiency of integrity safeguards against waste, fraud and abuse in Title IV programs, and the degree to which for-profit schools’ revenue
is comprised of Title IV and other federal funding sources. In 2010, the GAO released a report based on a three-month undercover
investigation of recruiting practices at for-profit schools. The report concluded that employees at a non-random sample of 15 for-profit
schools (which did not include Aspen) made deceptive statements to students about accreditation, graduation rates, job placement, program
costs, or financial aid. On October 31, 2011, the GAO released a second report following an additional undercover investigation related to
enrollment, cost, financial aid, course structure, substandard student performance, withdrawal, and exit counseling. The report concluded
that while some of the 15 unidentified for-profit schools investigated appeared to follow existing policies, others did not. Although the
report identified a number of deficiencies in specific instances, it made no recommendations. On December 7, 2011, the GAO released a
report that attempted to compare the quality of education provided by for-profit, nonprofit, and public institutions based upon multiple
outcome measures including graduation rates, pass rates on licensing exams, employment outcomes, and student loan default rates. The
report found that students at for-profit institutions had higher graduation rates for certificate programs, similar graduation rates for
associate’s degree programs, and lower graduation rates for bachelor’s degree programs than students at nonprofit and public institutions. It
also found that a higher proportion of bachelor’s degree recipients from for-profit institutions took out loans than did degree recipients from
other institutions and that some evidence exists that students at for-profits institutions default on their student loans at higher rates. On nine
of the ten licensing exams reviewed, graduates of for-profit institutions had lower pass rates than students from nonprofit and public
institutions.
The DOE currently is in the process of developing proposed regulations to amend regulations pertinent to the Title IV loan programs and
teacher education. We are unable to predict the timing or the proposed or final form of any regulations that the DOE ultimately may adopt
and the impact of such regulations on our business.
Administrative Capability. DOE regulations specify extensive criteria by which an institution must establish that it has the requisite
“administrative capability” to participate in Title IV programs. Failure to satisfy any of the standards may lead the DOE to find the
institution ineligible to participate in Title IV programs or to place the institution on provisional certification as a condition of its
participation. To meet the administrative capability standards, an institution must, among other things:
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comply with all applicable Title IV program regulations;
have capable and sufficient personnel to administer the federal student financial aid programs;
have acceptable methods of defining and measuring the satisfactory academic progress of its students;
have cohort default rates above specified levels;
have various procedures in place for safeguarding federal funds;
not be, and not have any principal or affiliate who is, debarred or suspended from federal contracting or engaging in activity that
is cause for debarment or suspension;
provide financial aid counseling to its students;
refer to the DOE’s Office of Inspector General any credible information indicating that any applicant, student, employee, or
agent of the institution, has been engaged in any fraud or other illegal conduct involving Title IV programs;
report annually to the Secretary of Education on any reasonable reimbursements paid or provided by a private education lender or
group of lenders to any employee who is employed in the institution’s financial aid office or who otherwise has responsibilities
with respect to education loans;
develop and apply an adequate system to identify and resolve conflicting information with respect to a student’s application for
Title IV aid;
submit in a timely manner all reports and financial statements required by the regulations; and
not otherwise appear to lack administrative capability.
Among other things, DOE regulations require that an institution must evaluate satisfactory academic progress (1) at the end of each
payment period if the length of the educational program is one academic year or less or (2) for all other educational programs, at the end of
each payment period or at least annually to correspond to the end of a payment period. Second, the DOE regulations add an administrative
capability standard related to the existing requirement that students must have a high school diploma or its recognized equivalent in order to
be eligible for Title IV aid. Under the administrative capability standard, institutions must develop and follow procedures for evaluating the
validity of a student’s high school diploma if the institution or the Secretary of Education has reason to believe that the student’s diploma is
not valid.
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If an institution fails to satisfy any of these criteria or any other DOE regulation, the DOE may:
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require the repayment of Title IV funds;
transfer the institution from the “advance” system of payment of Title IV funds to cash monitoring status or to the
“reimbursement” system of payment;
place the institution on provisional certification status; or
commence a proceeding to impose a fine or to limit, suspend or terminate the participation of the institution in Title IV programs.
If we are found not to have satisfied the DOE’s “administrative capability” requirements, we could lose, or be limited in our access to, Title
IV program funding.
Distance Education. We offer all of our existing degree and certificate programs via Internet-based telecommunications from our
headquarters in Colorado. Under the Higher Education Opportunity Act, or HEOA, an accreditor that evaluates institutions offering
distance education must require such institutions to have processes through which the institution establishes that a student who registers for
a distance education program is the same student who participates in and receives credit for the program. Under DOE regulations, if an
institution offers postsecondary education through distance education to students in a state in which the institution is not physically located
or in which it is otherwise subject to state jurisdiction as determined by the state, the institution must meet any state requirements for it to
offer legally postsecondary distance education in that state. The institution must be able to document state approval for distance education if
requested by the DOE. In addition, states must have a process to review and take appropriate action on complaints concerning
postsecondary institutions. As previously discussed herein, these regulations have been vacated by a federal court. However, if the DOE
reinstates these regulations or creates similar regulations, educational institutions without state authorization may be asked to reimburse
federal financial aid funds.
Financial Responsibility. The Higher Education Act and DOE regulations establish extensive standards of financial responsibility that
institutions such as Aspen must satisfy to participate in Title IV programs. These standards generally require that an institution provide the
resources necessary to comply with Title IV program requirements and meet all of its financial obligations, including required refunds and
any repayments to the DOE for liabilities incurred in programs administered by the DOE.
The DOE evaluates institutions on an annual basis for compliance with specified financial responsibility standards that include a complex
formula that uses line items from the institution’s audited financial statements. In addition, the financial responsibility standards require an
institution to receive an unqualified opinion from its accountants on its audited financial statements, maintain sufficient cash reserves to
satisfy refund requirements, meet all of its financial obligations, and remain current on its debt payments. The formula focuses on three
financial ratios: (1) equity ratio (which measures the institution’s capital resources, financial viability, and ability to borrow); (2) primary
reserve ratio (which measures the institution’s viability and liquidity); and (3) net income ratio (which measures the institution’s
profitability or ability to operate within its means). An institution’s financial ratios must yield a composite score of at least 1.5 for the
institution to be deemed financially responsible without the need for further federal oversight. The DOE may also apply such measures of
financial responsibility to the operating company and ownership entities of an eligible institution.
For fiscal year 2014 (ending April 30, 2014), Aspen did not meet the financial responsibility standards due to a failure to meet the minimum
composite score of 1.5. Consequently, in order for Aspen to continue to participate in the Title IV, HEA programs, we were required to
choose one of two alternatives. The first alternative was to qualify as a financially responsible institution by submitting an irrevocable letter
of credit in the amount of $2,244,971, which represented 50% of the HEA Title IV program funds received by the institution during the
recently completed fiscal year (April 30, 2014). The second alternative was to post a letter of credit in the amount of $1,122,485 and be
provisionally certified for a period of up to three complete award years. This amount represented 25% of the HEA Title IV program funds
received by the institution during the most recently completed fiscal year (April 30, 2014). Aspen University selected the second
alternative and posted the required letter of credit in the amount of $1,122,485 on April 29, 2015. In addition to posting a 25% letter of
credit on April 29, 2015, Aspen is currently subject to Heightened Cash Monitoring 1 (HCM1) status, which requires the institution to first
make disbursements to eligible students and parents before it requests for or receives funds for the amount of those disbursements from the
DOE.
In late-July, 2015, Aspen reported its financial results to the DOE with an estimated composite score based on those financial results of 1.6
for the fiscal year ended April 30, 2015. Following the DOE’s formal review later this calendar year, and assuming the DOE concurs with
Aspen’s calculations, Aspen would qualify as a financially responsible institution relative to the financial responsibility standard.
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Note that the DOE’s qualification standards of a financially responsible institution are significantly broader than the Financial Ratio
standard, including the acid test ratio, going concern audit opinion and standards related to administrative capability, among others.
Although Aspen has reported to the DOE that it has passed the minimum composite score necessary to meet the Financial Ratio standard,
the DOE may determine that Aspen’s calculation is incorrect, and/or it may determine that Aspen continues to not meet other financial
responsibility standards. If the DOE were to continue to determine that we do not meet its financial responsibility standards, we may be able
to continue to establish financial responsibility on an alternative basis. Alternative bases include, for example:
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posting a letter of credit in an amount equal to at least 50% of the total Title IV program funds received by us during our most
recently completed fiscal year;
posting a letter of credit in an amount equal to at least 10% of such prior year’s Title IV program funds received by us, accepting
provisional certification, complying with additional DOE monitoring requirements and agreeing to receive Title IV program
funds under an arrangement other than the DOE’s standard advance payment arrangement such as the “reimbursement” system
of payment or cash monitoring; or
complying with additional DOE monitoring requirements and agreeing to receive Title IV program funds under an arrangement
other than the DOE’s standard advance payment arrangement such as the “reimbursement” system of payment or cash
monitoring.
Failure to meet the DOE’s “financial responsibility” requirements, either because we do not meet the DOE’s financial responsibility
standards or are unable to establish financial responsibility on an alternative basis, would cause us to lose access to Title IV program
funding.
Consistent with the Higher Education Act, Aspen’s certification to participate in Title IV programs terminated after closing of the Reverse
Merger. The DOE received Aspen's application and initially extended the provisional certification through April 15, 2015. When Aspen
University posted its most recent letter of credit on April 29, 2015, the DOE extended Aspen’s provisional certification for a period of up to
three complete award years. In the future, the DOE may impose additional or different terms and conditions in any final or provisional
program participation agreement that it may issue.
Third-Party Servicers. DOE regulations permit an institution to enter into a written contract with a third-party servicer for the
administration of any aspect of the institution’s participation in Title IV programs. The third-party servicer must, among other obligations,
comply with Title IV requirements and be jointly and severally liable with the institution to the Secretary of Education for any violation by
the servicer of any Title IV provision. An institution must report to the DOE new contracts with or any significant modifications to
contracts with third-party servicers as well as other matters related to third-party servicers. We contract with a third-party servicer which
performs certain activities related to our participation in Title IV programs. If our third-party servicer does not comply with applicable
statutes and regulations including the Higher Education Act, we may be liable for its actions, and we could lose our eligibility to participate
in Title IV programs.
Title IV Return of Funds. Under the DOE’s return of funds regulations, when a student withdraws, an institution must return unearned
funds to the DOE in a timely manner. An institution must first determine the amount of Title IV program funds that a student “earned.” If
the student withdraws during the first 60% of any period of enrollment or payment period, the amount of Title IV program funds that the
student earned is equal to a pro rata portion of the funds for which the student would otherwise be eligible. If the student withdraws after
the 60% threshold, then the student has earned 100% of the Title IV program funds. The institution must return to the appropriate Title IV
programs, in a specified order, the lesser of (i) the unearned Title IV program funds and (ii) the institutional charges incurred by the student
for the period multiplied by the percentage of unearned Title IV program funds. An institution must return the funds no later than 45 days
after the date of the institution’s determination that a student withdrew. If such payments are not timely made, an institution may be subject
to adverse action, including being required to submit a letter of credit equal to 25% of the refunds the institution should have made in its
most recently completed year. Under DOE regulations, late returns of Title IV program funds for 5% or more of students sampled in the
institution’s annual compliance audit constitutes material non-compliance. Aspen’s academic calendar structure is a non-standard term with
rolling start dates with defined length of term (10 week term).
The “90/10 Rule.” A requirement of the Higher Education Act commonly referred to as the “90/10 Rule,” applies only to “proprietary
institutions of higher education,” which includes Aspen. An institution is subject to loss of eligibility to participate in the Title IV programs
if it derives more than 90% of its revenues (calculated on a cash basis and in accordance with a DOE formula) from Title IV programs for
two consecutive fiscal years. An institution whose rate exceeds 90% for any single fiscal year will be placed on provisional certification for
at least two fiscal years and may be subject to other conditions specified by the Secretary of the DOE. For Aspen’s most recent fiscal year
ending April 30, 2015, only 33% of our revenue was derived from Title IV programs.
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Student Loan Defaults. Under the Higher Education Act, an education institution may lose its eligibility to participate in some or all of the
Title IV programs if defaults on the repayment of Direct Loan Program loans by its students exceed certain levels. For each federal fiscal
year, a rate of student defaults (known as a “cohort default rate”) is calculated for each institution with 30 or more borrowers entering
repayment in a given federal fiscal year by determining the rate at which borrowers who become subject to their repayment obligation in
that federal fiscal year default by the end of the following federal fiscal year. For such institutions, the DOE calculates a single cohort
default rate for each federal fiscal year that includes in the cohort all current or former student borrowers at the institution who entered
repayment on any Direct Loan Program loans during that year.
If the DOE notifies an institution that its cohort default rates for each of the three most recent federal fiscal years are 25% or greater, the
institution’s participation in the Direct Loan Program and the Federal Pell Grant Program ends 30 days after the notification, unless the
institution appeals in a timely manner that determination on specified grounds and according to specified procedures. In addition, an
institution’s participation in Title IV ends 30 days after notification that its most recent fiscal year cohort default rate is greater than 40%,
unless the institution timely appeals that determination on specified grounds and according to specified procedures. An institution whose
participation ends under these provisions may not participate in the relevant programs for the remainder of the fiscal year in which the
institution receives the notification, as well as for the next two fiscal years.
If an institution’s cohort default rate equals or exceeds 25% in any single year, the institution may be placed on provisional certification
status. Provisional certification does not limit an institution’s access to Title IV program funds; however, an institution with provisional
status is subject to closer review by the DOE and may be subject to summary adverse action if it violates Title IV program requirements. If
an institution’s default rate exceeds 40%, the institution may lose eligibility to participate in some or all Title IV programs. Since Aspen
has only recently begun to participate in Title IV programs and our certification limits the number of Aspen students who may receive Title
IV aid, we have limited reporting data on our cohort default rates for the three most recent federal fiscal years for which cohort default rates
have been officially calculated, namely 2009, 2010 and 2011. As a result of Aspen’s recent participation in Title IV programs, the DOE
only has calculated Aspen University’s official cohort default for fiscal year 2011. This rate is 3%.
HEOA extended by one year the period for measuring the cohort default rate, effective with cohort default rates for federal fiscal year
2009. Currently, institutions that have two-year cohort default rates of 25% or more for each of their three most recent years, or of 40% in
any one year, will lose eligibility for Title IV student aid programs; beginning in 2014, institutions that have three-year cohort default rates
of 30% or higher for three consecutive years, or of more than 40% in any given year, will lose eligibility for those programs. For the
reasons stated above, the DOE has not calculated a three-year cohort default rate for Aspen.
Incentive Compensation Rules. As a part of an institution’s program participation agreement with the DOE and in accordance with the
Higher Education Act, an institution may not provide any commission, bonus or other incentive payment to any person or entity engaged in
any student recruitment, admissions or financial aid awarding activity based directly or indirectly on success in securing enrollments or
financial aid. Failure to comply with the incentive payment rule could result in termination of participation in Title IV programs, limitation
on participation in Title IV programs, or financial penalties. Aspen believes it is in compliance with the incentive payment rule.
In recent years, other postsecondary educational institutions have been named as defendants to whistleblower lawsuits, known as “qui tam”
cases, brought by current or former employees pursuant to the Federal False Claims Act, alleging that their institution’s compensation
practices did not comply with the incentive compensation rule. A qui tam case is a civil lawsuit brought by one or more individuals,
referred to as a relator, on behalf of the federal government for an alleged submission to the government of a false claim for payment. The
relator, often a current or former employee, is entitled to a share of the government’s recovery in the case, including the possibility of treble
damages. A qui tam action is always filed under seal and remains under seal until the government decides whether to intervene in the case.
If the government intervenes, it takes over primary control of the litigation. If the government declines to intervene in the case, the relator
may nonetheless elect to continue to pursue the litigation at his or her own expense on behalf of the government. Any such litigation could
be costly and could divert management’s time and attention away from the business, regardless of whether a claim has merit.
The GAO released a report finding that the DOE has inadequately enforced the current ban on incentive payments. In response, the DOE
has undertaken to increase its enforcement efforts by, among other approaches, strengthening procedures provided to auditors reviewing
institutions for compliance with the incentive payments ban and updating its internal compliance guidance in light of the GAO findings and
the recently amended DOE incentive payment rule.
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Code of Conduct Related to Student Loans. As part of an institution’s program participation agreement with the DOE, HEOA requires that
institutions that participate in Title IV programs adopt a code of conduct pertinent to student loans. For financial aid office or other
employees who have responsibility related to education loans, the code must forbid, with limited exceptions, gifts, consulting arrangements
with lenders, and advisory board compensation other than reasonable expense reimbursement. The code also must ban revenue-sharing
arrangements, “opportunity pools” that lenders offer in exchange for certain promises, and staffing assistance from lenders. The institution
must post the code prominently on its website and ensure that its officers, employees, and agents who have financial aid responsibilities are
informed annually of the code’s provisions. Aspen has adopted a code of conduct under the HEOA which is posted on its website. In
addition to the code of conduct requirements that apply to institutions, HEOA contains provisions that apply to private lenders, prohibiting
such lenders from engaging in certain activities as they interact with institutions. Failure to comply with the code of conduct provision
could result in termination of our participation in Title IV programs, limitations on participation in Title IV programs, or financial
penalties.
Misrepresentation. The Higher Education Act and current regulations authorize the DOE to take action against an institution that
participates in Title IV programs for any “substantial misrepresentation” made by that institution regarding the nature of its educational
program, its financial charges, or the employability of its graduates. Effective July 1, 2011, DOE regulations expanded the definition of
“substantial misrepresentation” to cover additional representatives of the institution and additional substantive areas and expands the parties
to whom a substantial misrepresentation cannot be made. The regulations also augment the actions the DOE may take if it determines that
an institution has engaged in substantial misrepresentation. Under the final regulations, the DOE may revoke an institution’s program
participation agreement, impose limitations on an institution’s participation in Title IV programs, or initiate proceedings to impose a fine or
to limit, suspend, or terminate the institution’s participation in Title IV programs.
Credit Hours. The Higher Education Act and current regulations use the term “credit hour” to define an eligible program and an academic
year and to determine enrollment status and the amount of Title IV aid an institution may disburse during a payment period. Recently, both
Congress and the DOE have increased their focus on institutions’ policies for awarding credit hours. Recent DOE regulations define the
previously undefined term “credit hour” in terms of a certain amount of time in class and outside class, or an equivalent amount of work.
The regulations also require accrediting agencies to review the reliability and accuracy of an institution’s credit hour assignments. If an
accreditor identifies systematic or significant noncompliance in one or more of an institution’s programs, the accreditor must notify the
Secretary of Education. If the DOE determines that an institution is out of compliance with the credit hour definition, the DOE could
require the institution to repay the incorrectly awarded amounts of Title IV aid. In addition, if the DOE determines that an institution has
significantly overstated the amount of credit hours assigned to a program, the DOE may fine the institution, or limit, suspend, or terminate
its participation in the Title IV programs.
Compliance Reviews. We are subject to announced and unannounced compliance reviews and audits by various external agencies,
including the DOE, its Office of Inspector General, state licensing agencies, and accrediting agencies. As part of the DOE’s ongoing
monitoring of institutions’ administration of Title IV programs, the Higher Education Act and DOE regulations require institutions to
submit annually a compliance audit conducted by an independent certified public accountant in accordance with Government Auditing
Standards and applicable audit standards of the DOE. These auditing standards differ from those followed in the audit of our financial
statements contained herein. In addition, to enable the DOE to make a determination of financial responsibility, institutions must annually
submit audited financial statements prepared in accordance with DOE regulations. Furthermore, the DOE regularly conducts program
reviews of education institutions that are participating in the Title IV programs, and the Office of Inspector General of the DOE regularly
conducts audits and investigations of such institutions. In August 2010, the Secretary of Education announced in a letter to several
members of Congress that, in part in response to recent allegations against proprietary institutions of deceptive trade practices and
noncompliance with DOE regulations, the DOE planned to strengthen its oversight of Title IV programs through, among other approaches,
increasing the number of program reviews by 50%, from 200 conducted in 2010 to up to 300 reviews in 2011. Pending legislation including
the “Students First Act” introduced in the United States Senate on February 28, 2013, would – if passed – increase the number of program
reviews for various institutions deemed at-risk of violating DOE requirements.
Potential Effect of Regulatory Violations. If we fail to comply with the regulatory standards governing Title IV programs, the DOE could
impose one or more sanctions, including transferring Aspen to the reimbursement or cash monitoring system of payment, seeking to require
repayment of certain Title IV program funds, requiring Aspen to post a letter of credit in favor of the DOE as a condition for continued
Title IV certification, taking emergency action against us, referring the matter for criminal prosecution or initiating proceedings to impose a
fine or to limit, condition, suspend or terminate our participation in Title IV programs.
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We also may be subject, from time to time, to complaints and lawsuits relating to regulatory compliance brought not only by our regulatory
agencies, but also by other government agencies and third parties, such as present or former students or employees and other members of
the public.
Restrictions on Adding Educational Programs. State requirements and accrediting agency standards may, in certain instances, limit our
ability to establish additional programs. Many states require approval before institutions can add new programs under specified conditions.
The Colorado Commission on Higher Education, and other state educational regulatory agencies that license or authorize us and our
programs, may require institutions to notify them in advance of implementing new programs, and upon notification may undertake a review
of the institution’s licensure or authorization.
In addition, we were advised by the DOE that because we were provisionally certified due to being a new Title IV program participant, we
could not add new degree or non-degree programs for Title IV program purposes, except under limited circumstances and only if the DOE
approved such new program, until the DOE reviewed a compliance audit that covered one complete fiscal year of Title IV program
participation. That fiscal year ended on December 31, 2010, and we timely submitted our compliance audit and financial statements to the
DOE. In addition, in June 2011, Aspen timely applied for recertification to participate in Title IV programs. The DOE extended Aspen's
provisional certification until September 30, 2013. Aspen re-applied as of June 30, 2013 to continue its participation in the Title IV HEA
programs. On February 9, 2015, the DOE notified Aspen that it had the choice of posting a letter of credit for 25% of all Title IV funds and
remain provisionally certified or post a 50% letter of credit and become permanently certified. We elected to post a 25% letter of credit and
remain provisionally certified – increasing our letter of credit to $1,122,485. In the future, the DOE may impose additional or different
terms and conditions in any final program participation agreement that it may issue, including growth restrictions or limitation on the
number of students who may receive Title IV aid.
Recent DOE regulations establish a new process under which an institution must apply for approval to offer a program that, under the
Higher Education Act, must prepare students for “gainful employment in a recognized occupation” in order to be eligible for Title IV funds.
An institution must notify the DOE at least 90 days before the first day of classes when it intends to add a program that prepares students
for gainful employment. The DOE may, as a condition of certification to participate in Title IV programs, require prior approval of
programs or otherwise restrict the number of programs an institution may add.
DEAC requires pre-approval of new courses, programs, and degrees that are characterized as a “substantive change.” An institution must
obtain written notice approving such change before it may be included in the institution’s grant of accreditation. An institution is further
prohibited from advertising or posting on its website information about the course or program before it has received approval. The process
for obtaining approval generally requires submission of a report and course materials and may require a follow-up on-site visit by an
examining committee.
Gainful Employment. Under the Higher Education Act, proprietary schools are eligible to participate in Title IV programs only in respect
of education programs that lead to gainful employment in a recognized occupation. Under the DOE rules, with respect to each gainful
employment program, a proprietary institution of higher education must disclose to prospective students with the identities of the
occupations that the program prepares students to enter, total program cost, on-time completion rate, job placement rate (if applicable), and
median loan debt of students who complete the program. Under the new program requirements, institutions are required to notify the DOE
at least 90 days before the commencement of new gainful employment programs which must include information on the demand for the
program, a wage analysis, an institutional program review and approval process, and a demonstration of accreditation. While the DOE had
issued various additional reporting regulations, requiring institutions to annually submit information to the DOE regarding each enrolled
student, including the amount of debt incurred, those reporting regulations were vacated in the June 2011 court decision discussed earlier
herein, which was affirmed on appeal; new reporting regulations are expected to issue at some point. Institutions need not disclose or report
gainful employment information on programs that are not eligible to participate in Title IV programs.
As part of the negotiated rulemaking process under the Higher Education Act, gainful employment rulemaking negotiations began in the
fall of 2013 and continued into 2014. However, the negotiators failed to reach consensus on gainful employment rules. As a result, the
DOE proposed a new gainful employment rule which it released in March 2014 for public comment, and on October 31, 2014, the DOE
published the final regulation which went into effect on July 1, 2015. Under the regulation, gainful employment programs with high debt-
to-earnings ratios would lose Title IV eligibility for a period of time. Specifically, the new requirements include two measures. These
metrics are as follows:
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Debt-to-earnings metric which requires that students who complete a program would need to spend on average no more
than 8 percent of their annual income on their student loan payments; or
Discretionary income metric which requires that students who complete a program would have a discretionary income
rate that does not exceed 20 percent.
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Additionally, a program that does not pass either of the above metrics and that has an annual income rate between 8% and 12% or a
discretionary income rate between 20% and 30% would be considered in the warning zone. A program would fail if the program’s
graduates have an annual income rate of 12% or greater and a discretionary income rate of 30% or greater. If a program fails both metrics
for two out of three consecutive years, or fails to pass at least one metric for consecutive years, it becomes Title IV ineligible for three
years.
If the DOE notifies an institution that a program could become ineligible based on final rates, for the next award year:
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the institution must provide a warning with respect to the program to students and prospective students indicating that
students may not be able to use Title IV funds to attend or continue in the program; and
the institution must not enroll, register or enter into a financial commitment with a prospective student until a specified
time after providing the warning to the prospective student.
Further, institutions are required to report student and program level data to the DOE and comply with additional disclosure
requirements beginning in January 2017.
By December 31, 2015, institutions must certify that eligible gainful employment programs are programmatically accredited if
required by a federal governmental entity or a state governmental entity of a state in which it is located or is otherwise required to
obtain state approval, and that each eligible program satisfies the applicable educational prerequisites for professional licensure or
certification requirements in each state in which it is located or is otherwise required to obtain state approval, so that a student who
completes the program and seeks employment in that state qualifies to take any licensure or certification exam that is needed for the
student to practice or find employment in an occupation that the program prepares students to enter.
The new gainful employment requirements will likely substantially increase our administrative burdens, particularly during the
implementation phase. These reporting and the other procedural changes in the new rules could affect student enrollment, persistence and
retention in ways that we cannot now predict. For example, if our reported program information compares unfavorably with other reporting
education institutions, it could adversely affect demand for our programs.
Although the rules regarding gainful employment metrics provide opportunities to address program deficiencies before the loss of Title IV
eligibility, the continuing eligibility of our educational programs for Title IV funding is at risk, such as changes in the actual or deemed
income level of our graduates, changes in student borrowing levels, increases in interest rates, changes in the federal poverty income level
relevant for calculating discretionary income and other factors. In addition, even though deficiencies in the metrics may be correctible on a
timely basis, the disclosure requirements to students following a failure to meet the standards may adversely impact enrollment in that
program and may adversely impact the reputation of our education institution. The exposure to these external factors may reduce our
ability to offer or continue confidently certain types of programs for which there is market demand, thus affecting our ability to maintain or
grow our business.
Eligibility and Certification Procedures. Each institution must periodically apply to the DOE for continued certification to participate in
Title IV programs. Such recertification is required every six years, but may be required earlier, including when an institution undergoes a
change of control. An institution may come under the DOE’s review when it expands its activities in certain ways, such as opening an
additional location, adding a new program, or, in certain cases, when it modifies academic credentials that it offers.
The DOE may place an institution on provisional certification status if it finds that the institution does not fully satisfy all of the eligibility
and certification standards and in certain other circumstances, such as when it undergoes a change in ownership and control. The DOE may
more closely review an institution that is provisionally certified if it applies for approval to open a new location, add an educational
program, acquire another school or make any other significant change.
In addition, during the period of provisional certification, the institution must comply with any additional conditions included in its program
participation agreement. If the DOE determines that a provisionally certified institution is unable to meet its responsibilities under its
program participation agreement, it may seek to revoke the institution’s certification to participate in Title IV programs with fewer due
process protections for the institution than if it were fully certified. Students attending provisionally certified institutions, like Aspen,
remain eligible to receive Title IV program funds.
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Change in Ownership Resulting in a Change of Control. In addition to school acquisitions, other types of transactions can also cause a
change of control. The DOE, most state education agencies, and DEAC all have standards pertaining to the change of control of schools,
but those standards are not uniform. DOE regulations describe some transactions that constitute a change of control, including the transfer
of a controlling interest in the voting stock of an institution or the institution’s parent corporation. DOE regulations provide that a change of
control of a publicly-traded corporation occurs in one of two ways: (i) if there is an event that would obligate the corporation to file a
Current Report on Form 8-K with the Securities and Exchange Commission, or the SEC, disclosing a change of control or (ii) if the
corporation has a shareholder that owns at least 25% of the total outstanding voting stock of the corporation and is the largest shareholder
of the corporation, and that shareholder ceases to own at least 25% of such stock or ceases to be the largest shareholder. A significant
purchase or disposition of our voting stock could be determined by the DOE to be a change of control under this standard. Many states
include the sale of a controlling interest of common stock in the definition of a change of control requiring approval. A change of control
under the definition of one of these agencies would require us to seek approval of the change in ownership and control to maintain our
accreditation, state authorization or licensure. The requirements to obtain such approval from the states and DETC vary widely. In some
cases, approval of the change of ownership and control cannot be obtained until after the transaction has occurred. In December 2011, we
provided details regarding the Reverse Merger to the CDHE. The CDHE indicated that under current regulations, as long as we maintain
accreditation by DEAC following the Reverse Merger, Aspen will remain in good standing with the CDHE. As described below, DEAC
approved the change of ownership, with several customary conditions.
DEAC recently revised its policy pertinent to changes in legal status, control, ownership, or management. The policy revisions add
definitions of the situations under which DEAC considers a change in legal status, control, ownership, or management to occur, describe the
procedures that an institution must follow to obtain approval, and clarify the options available to DEAC. Among other revisions, DEAC
defines a change of ownership and control as a change in the ability to direct or cause the direction of the actions of an institution,
including, for example, the sale of a controlling interest in an institution’s corporate parent. Failure to obtain prior approval of a change of
ownership and control will result in withdrawal of accreditation under the new ownership. The policy also requires institutions to undergo a
post-change examination within six months of a change of ownership. The revisions clarify that after such examination, DEAC will make a
final decision whether to continue the institution’s accreditation. In addition, if an institution is acquired by an entity that owns or operates
other distance education institutions, the amendments clarify that any such institutions must obtain DEAC approval within two years of the
change of ownership or accreditation may be withdrawn. The policy revisions define a change of management as the replacement of the
senior level executive of the institution, for example the President or Chief Executive Officer. In addition, the revisions clarify that before
undertaking such a change, an institution must seek DEAC’s prior approval by explaining when the change will occur, the rationale for the
change, the executive’s job description, the new executive’s qualifications, and how the change will affect the institution’s ability to
comply with all DEAC accreditation standards. DEAC may take any action it deems appropriate in response to a change of management
request. The Reverse Merger was considered a change of control event under DEAC’s policy. In February 2012, DEAC informed Aspen
that it had approved the change of ownership, with several conditions that are consistent with DEAC’s change of ownership procedures and
requirements. These conditions included: (1) that Aspen agree to undergo an examination visit by a committee; (2) that an updated Self-
Evaluation Report be submitted four to six weeks prior to the on-site visit; (3) that Aspen submit a new Teach-Out Resolution form as soon
as the Reverse Merger had closed; and (4) that Aspen provide written confirmation to DEAC by February 20, 2012 that it agreed to and
would comply with the stated conditions. We provided the requested information to DEAC. The examination visit occurred in August
2012.
On September 28, 2012, the DOE approved Aspen's change of control and extended its provisional certification until September 30, 2013.
On February 9, 2015, the DOE notified Aspen that it had the choice of posting a letter of credit for 25% of all Title IV funds and remain
provisionally certified or post a 50% letter of credit and become permanently certified. We elected to post a 25% letter of credit and remain
provisionally certified – increasing our letter of credit to $1,122,485.
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When a change of ownership resulting in a change of control occurs at a for-profit institution, the DOE applies a different set of financial
tests to determine the financial responsibility of the institution in conjunction with its review and approval of the change of ownership. The
institution generally is required to submit a same-day audited balance sheet reflecting the financial condition of the institution immediately
following the change in ownership. The institution’s same-day balance sheet must demonstrate an acid test ratio of at least 1:1, which is
calculated by adding cash and cash equivalents to current accounts receivable and dividing the sum by total current liabilities (and
excluding all unsecured or uncollateralized related party receivables). The same-day balance sheet must demonstrate positive tangible net
worth. If the institution does not satisfy these requirements, the DOE may condition its approval of the change of ownership on the
institution’s agreeing to post a letter of credit, provisional certification, and/or additional monitoring requirements, as described in the
above section on Financial Responsibility. The time required for the DOE to act on a post-change in ownership and control application may
vary substantially. As a result of the change of ownership, Aspen delivered a $264,665 letter of credit to the DOE in accordance with the
standards identified above. Thereafter, as described above, this letter of credit was increased to $1,122,485.
A change of control also could occur as a result of future transactions in which Aspen is involved. Some corporate reorganizations and
some changes in the Board are examples of such transactions. Moreover, the potential adverse effects of a change of control could
influence future decisions by us and our shareholders regarding the sale, purchase, transfer, issuance or redemption of our stock. In
addition, the regulatory burdens and risks associated with a change of control also could discourage bids for your shares of common stock
and could have an adverse effect on the market price of your shares.
Possible Acquisitions. In addition to the planned expansion through Aspen’s new marketing program, we may expand through acquisition
of related or synergistic businesses. Our internal growth is subject to monitoring and ultimately approval by the DEAC. If the DEAC finds
that the growth may adversely affect our academic quality, the DEAC can request us to slow the growth and potentially withdraw
accreditation and require us to re-apply for accreditation. The DOE may also impose growth restrictions on an institution, including in
connection with a change in ownership and control. While acquisitions of online universities would be subject to approval by the DEAC,
approval of businesses which supply services to online universities or which provide educational services and/or products may not be
subject to regulatory approval or extensive regulation.
ITEM 1A. RISK FACTORS.
Investing in our common stock involves a high degree of risk. You should carefully consider the following Risk Factors before deciding
whether to invest in Aspen. Additional risks and uncertainties not presently known to us, or that we currently deem immaterial, may also
impair our business operations or our financial condition. If any of the events discussed in the Risk Factors below occur, our business,
consolidated financial condition, results of operations or prospects could be materially and adversely affected. In such case, the value and
marketability of the common stock could decline.
Risks Relating to Our Business
If we are unable to generate positive cash flows from our operations or we are unable to raise capital, our ability to grow our
business will be limited.
We incurred net losses of approximately $4.27 million and $5.35 million for the years ended April 30, 2015 and 2014, respectively. In
April 2015, we raised approximately $2.3 million from current warrant holders who agreed to exercise their warrants at a reduced exercise
price of $0.155 per share. We believe that our current unrestricted cash balance will provide us with sufficient working capital to
implement our long term business plan. In the event that we are not successful at generating positive cash flows, we will be required to
raise capital or we will be required to reduce our operating expenses which will limit our ability to grow our business. Moreover, we
operate in a regulated environment and are required to meet fiscal responsibility requirements set by the DOE and DEAC. If we fail to meet
these requirements, we may be unable to offer federal loans to students and may be precluded from continuing in business.
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If we cannot manage our growth, our results of operations may suffer and could adversely affect our ability to comply with federal
regulations.
The growth that we have experienced after our new management began in May 2011, as well as any future growth that we experience, may
place a significant strain on our resources and increase demands on our management information and reporting systems and financial
management controls. We have recently experienced growth at Aspen University. Assuming we continue to grow as planned, it may
impact our ability to manage our business. If growth negatively impacts our ability to manage our business, the learning experience for our
students could be adversely affected, resulting in a higher rate of student attrition and fewer student referrals. Future growth will also
require continued improvement of our internal controls and systems, particularly those related to complying with federal regulations under
the Higher Education Act, as administered by the DOE, including as a result of our participation in federal student financial aid programs
under Title IV. If we are unable to manage our growth, we may also experience operating inefficiencies that could increase our costs and
adversely affect our profitability and results of operations.
Because there is strong competition in the postsecondary education market, especially in the online education market, our cost of
acquiring students may increase and our results of operations may be harmed.
Postsecondary education is highly fragmented and competitive. We compete with traditional public and private two-year and four-year
brick and mortar colleges as well as other for-profit schools, particularly those that offer online learning programs. Public and private
colleges and universities, as well as other for-profit schools, offer programs similar to those we offer. Public institutions receive substantial
government subsidies, and public and private institutions have access to government and foundation grants, tax-deductible contributions
that create large endowments and other financial resources generally not available to for-profit schools. Accordingly, public and private
institutions may have instructional and support resources that are superior to those in the for-profit sector. In addition, some of our
competitors, including both traditional colleges and universities and online for-profit schools, have substantially greater name recognition
and financial and other resources than we have, which may enable them to compete more effectively for potential students. We also expect
to face increased competition as a result of new entrants to the online education market, including established colleges and universities that
have not previously offered online education programs. Major brick and mortar universities continue to develop and advertise their online
course offerings.
We may not be able to compete successfully against current or future competitors and may face competitive pressures including price
pressures that could adversely affect our business or results of operations and reduce our operating margins. These competitive factors
could cause our enrollments, revenues and profitability to decrease significantly.
In the event that we are unable to update and expand the content of existing programs and develop new programs and
specializations on a timely basis and in a cost-effective manner, our results of operations may be harmed.
The updates and expansions of our existing programs and the development of new programs and specializations may not be accepted by
existing or prospective students or employers. If we cannot respond to changes in market requirements, our business may be adversely
affected. Even if we are able to develop acceptable new programs, we may not be able to introduce these new programs as quickly as
students require or as quickly as our competitors introduce competing programs. To offer a new academic program, we may be required to
obtain appropriate federal, state and accrediting agency approvals, which may be conditioned or delayed in a manner that could
significantly affect our growth plans. In addition, a new academic program that must prepare students for gainful employment must be
approved by the DOE for Title IV purposes if the institution is provisionally certified. If we are unable to respond adequately to changes in
market requirements due to financial constraints, regulatory limitations or other factors, our ability to attract and retain students could be
impaired and our financial results could suffer.
Establishing new academic programs or modifying existing programs may require us to make investments in management and faculty, incur
marketing expenses and reallocate other resources. If we are unable to increase the number of students, or offer new programs in a cost-
effective manner, or are otherwise unable to manage effectively the operations of newly established academic programs, our results of
operations and financial condition could be adversely affected.
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Because our future growth and profitability will depend in large part upon the effectiveness of our marketing and advertising
efforts, if those efforts are unsuccessful we may not be profitable in the future.
Our future growth and profitability will depend in large part upon our media performance, including our ability to:
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Grow our nursing programs;
Create greater awareness of our school and our programs;
Identify the most effective and efficient level of spending in each market and specific media vehicle;
Determine the appropriate creative message and media mix for advertising, marketing and promotional expenditures; and
Effectively manage marketing costs (including creative and media).
Our marketing expenditures may not result in increased revenue or generate sufficient levels of brand name and program awareness. If our
media performance is not effective, our future results of operations and financial condition will be adversely affected.
Although our management has spearheaded an in-house marketing and advertising program, it may not be successful long-term.
Mr. Michael Mathews, our Chief Executive Officer, has developed a debtless education business model designed to substantially increase
our student enrollment and reducing and/or eliminating student debt among Aspen’s student body. While results to date have been as
anticipated, there are no assurances that this marketing campaign will continue to be successful. Among the risks are the following:
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Our ability to compete with existing online colleges which have substantially greater financial resources, deeper management and
academic resources, and enhanced public reputations;
the emergence of more successful competitors;
factors related to our marketing, including the costs of Internet advertising and broad-based branding campaigns;
limits on our ability to attract and retain effective employees because of the new incentive payment rule;
performance problems with our online systems;
our failure to maintain accreditation;
student dissatisfaction with our services and programs;
adverse publicity regarding us, our competitors or online or for-profit education generally;
a decline in the acceptance of online education;
a decrease in the perceived or actual economic benefits that students derive from our programs;
potential students may not be able to afford the monthly payments; and
potential students may not react favorably to our marketing and advertising campaigns, including our monthly payment plan.
If our debtless education business model does not continue to be favorably received, our revenues may not increase.
If the demand for the nursing workforce decreases or the educational requirements for nurses were relaxed, our business will be
adversely affected.
Aspen’s recent focus has been the continued growth of enrollment in its School of Nursing. As of April 30, 2015, approximately 42% of
our full-time degree-seeking were enrolled in Aspen’s School of Nursing. If the demand for nurses does not continue to grow (or declines)
or there are changes within the healthcare industry that make the nursing occupation less attractive to learners or reduce the benefits of an
advanced degree, our enrollment and results of operations will be adversely affected.
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If we incur system disruptions to our online computer networks, it could impact our ability to generate revenue and damage our
reputation, limiting our ability to attract and retain students.
Since early 2011, we have spent approximately $2.24 million to update our computer network primarily to permit accelerated student
enrollment and enhance our students’ learning experience. We expect to spend $500,000 in capital expenditures over the next 12 months.
The performance and reliability of our technology infrastructure is critical to our reputation and ability to attract and retain students. Any
system error or failure, or a sudden and significant increase in bandwidth usage, could result in the unavailability of our online classroom,
damaging our reputation and could cause a loss in enrollment. Our technology infrastructure could be vulnerable to interruption or
malfunction due to events beyond our control, including natural disasters, terrorist activities and telecommunications failures.
If we are unable to develop awareness among, and attract and retain, high quality learners to Aspen University, our ability to
generate significant revenue or achieve profitability will be significantly impaired.
Building awareness of Aspen University and the programs we offer among working adult professionals is critical to our ability to attract
prospective learners. If we are unable to successfully market and advertise our educational programs, Aspen University's ability to attract
and enroll prospective learners in such programs could be adversely affected, and consequently, our ability to increase revenue or achieve
profitability could be impaired. It is also critical to our success that we convert these prospective learners to enrolled learners in a cost-
effective manner and that these enrolled learners remain active in our programs. Some of the factors that could prevent us from successfully
enrolling and retaining learners in our programs include:
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the emergence of more successful competitors;
factors related to our marketing, including the costs of Internet advertising and broad-based branding campaigns;
performance problems with our online systems;
failure to maintain accreditation;
learner dissatisfaction with our services and programs, including with our customer service and responsiveness;
adverse publicity regarding us, our competitors, or online or for-profit education in general;
price reductions by competitors that we are unwilling or unable to match;
a decline in the acceptance of online education or our degree offerings by learners or current and prospective employers;
increased regulation of online education, including in states in which we do not have a physical presence;
a decrease in the perceived or actual economic benefits that learners derive from our programs;
litigation or regulatory investigations that may damage our reputation; and
difficulties in executing on our strategy as a preferred provider to employers for the vertical markets we serve.
If we are unable to continue to develop awareness of Aspen University and the programs we offer, and to enroll and retain learners, our
enrollments would suffer and our ability to increase revenues and achieve profitability would be significantly impaired.
If we experience any interruption to our technology infrastructure, it could prevent students from accessing their courses, could
have a material adverse effect on our ability to attract and retain students and could require us to incur additional expenses to
correct or mitigate the interruption.
Our computer networks may also be vulnerable to unauthorized access, computer hackers, computer viruses and other security problems. A
user who circumvents security measures could misappropriate proprietary information, personal information about our students or cause
interruptions or malfunctions in operations. As a result, we may be required to expend significant resources to protect against the threat of
these security breaches or to alleviate problems caused by these breaches.
Because we rely on third parties to provide services in running our operations, if any of these parties fail to provide the agreed
services at an acceptable level, it could limit our ability to provide services and/or cause student dissatisfaction, either of which
could adversely affect our business.
We rely on third parties to provide us with services in order for us to efficiently and securely operate our business including our computer
network and the courses we offer to students. Any interruption in our ability to obtain the services of these or other third parties or
deterioration in their performance could impair the quality of our educational product and overall business. Generally, there are multiple
sources for the services we purchase. Our business could be disrupted if we were required to replace any of these third parties, especially if
the replacement became necessary on short notice, which could adversely affect our business and results of operations.
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If we or our service providers are unable to update the technology that we rely upon to offer online education, our future growth
may be impaired.
We believe that continued growth will require our service providers to increase the capacity and capabilities of their technology
infrastructure. Increasing the capacity and capabilities of the technology infrastructure will require these third parties to invest capital, time
and resources, and there is no assurance that even with sufficient investment their systems will be scalable to accommodate future growth.
Our service providers may also need to invest capital, time and resources to update their technology in response to competitive pressures in
the marketplace. If they are unwilling or unable to increase the capacity of their resources or update their resources appropriately and we
cannot change over to other service providers efficiently, our ability to handle growth, our ability to attract or retain students, and our
financial condition and results of operations could be adversely affected.
Because we rely on third party administration and hosting of learning management system software for our online classroom, if
that third party were to cease to do business or alter its business practices and services, it could have an adverse impact on our
ability to operate.
Beginning in June 2014, our online classroom began employing the Desire2Learn learning management system named Brightspace. The
system is a web-based portal that stores and delivers course content, provides interactive communication between students and faculty, and
supplies online evaluation tools. We rely on third parties to host and help with the administration of it. We further rely on third parties, the
D2L agreement and our internal staff for ongoing support and customization and integration of the system with the rest of our technology
infrastructure. If D2L were unable or unwilling to continue to provide us with service, we may have difficulty maintaining the software
required for our online classroom or updating it for future technological changes. Any failure to maintain our online classroom would have
an adverse impact on our operations, damage our reputation and limit our ability to attract and retain students.
Because the personal information that we or our vendors collect may be vulnerable to breach, theft or loss, any of these factors
could adversely affect our reputation and operations.
Possession and use of personal information in our operations subjects us to risks and costs that could harm our business. Aspen uses a third
party to collect and retain large amounts of personal information regarding our students and their families, including social security
numbers, tax return information, personal and family financial data and credit card numbers. We also collect and maintain personal
information of our employees in the ordinary course of our business. Some of this personal information is held and managed by certain of
our vendors. Errors in the storage, use or transmission of personal information could result in a breach of student or employee privacy.
Possession and use of personal information in our operations also subjects us to legislative and regulatory burdens that could require
notification of data breaches, restrict our use of personal information, and cause us to lose our certification to participate in the Title IV
programs. We cannot guarantee that there will not be a breach, loss or theft of personal information that we store or our third parties store.
A breach, theft or loss of personal information regarding our students and their families or our employees that is held by us or our vendors
could have a material adverse effect on our reputation and results of operations and result in liability under state and federal privacy statutes
and legal or administrative actions by state attorneys general, private litigants, and federal regulators any of which could have a material
adverse effect on our business, financial condition, results of operations and cash flows.
Because the CAN-SPAM Act imposes certain obligations on the senders of commercial emails, it could adversely impact our ability
to market Aspen’s educational services, and otherwise increase the costs of our business.
The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or the CAN-SPAM Act, establishes requirements
for commercial email and specifies penalties for commercial email that violates the CAN-SPAM Act. In addition, the CAN-SPAM Act
gives consumers the right to require third parties to stop sending them commercial email.
The CAN-SPAM Act covers email sent for the primary purpose of advertising or promoting a commercial product, service, or Internet
website. The Federal Trade Commission, a federal consumer protection agency, is primarily responsible for enforcing the CAN-SPAM
Act, and the Department of Justice, other federal agencies, State Attorneys General, and Internet service providers also have authority to
enforce certain of its provisions.
The CAN-SPAM Act’s main provisions include:
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Prohibiting false or misleading email header information;
Prohibiting the use of deceptive subject lines;
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Ensuring that recipients may, for at least 30 days after an email is sent, opt out of receiving future commercial email messages
from the sender;
Requiring that commercial email be identified as a solicitation or advertisement unless the recipient affirmatively permitted
the message; and
Requiring that the sender include a valid postal address in the email message.
The CAN-SPAM Act also prohibits unlawful acquisition of email addresses, such as through directory harvesting and transmission of
commercial emails by unauthorized means, such as through relaying messages with the intent to deceive recipients as to the origin of such
messages.
Violations of the CAN-SPAM Act’s provisions can result in criminal and civil penalties, including statutory penalties that can be based in
part upon the number of emails sent, with enhanced penalties for commercial email companies who harvest email addresses, use dictionary
attack patterns to generate email addresses, and/or relay emails through a network without permission.
The CAN-SPAM Act acknowledges that the Internet offers unique opportunities for the development and growth of frictionless commerce,
and the CAN-SPAM Act was passed, in part, to enhance the likelihood that wanted commercial email messages would be received.
The CAN-SPAM Act preempts, or blocks, most state restrictions specific to email, except for rules against falsity or deception in
commercial email, fraud and computer crime. The scope of these exceptions, however, is not settled, and some states have adopted email
regulations that, if upheld, could impose liabilities and compliance burdens in addition to those imposed by the CAN-SPAM Act.
Moreover, some foreign countries, including the countries of the European Union, have regulated the distribution of commercial email and
the online collection and disclosure of personal information. Foreign governments may attempt to apply their laws extraterritorially or
through treaties or other arrangements with U.S. governmental entities.
Because we use email marketing, our requirement to comply with the CAN-SPAM Act could adversely affect Aspen's marketing activities
and increase its costs.
If we lose the services of key personnel, it could adversely affect our business.
Our future success depends, in part, on our ability to attract and retain key personnel. Our future also depends on the continued services of
Mr. Michael Mathews, our Chief Executive Officer, who is critical to the management of our business and operations and the development
of our strategic direction and would also be difficult to replace. We have a $3 million key man life insurance policy on Mr. Mathews. The
loss of the services of Mr. Mathews and other key individuals and the process to replace these individuals would involve significant time
and expense and may significantly delay or prevent the achievement of our business objectives.
If we are unable to attract and retain our faculty, administrators, management and skilled personnel, we may not be able to
support our growth strategy.
To execute our growth strategy, we must attract and retain highly qualified faculty, administrators, management and skilled personnel.
Competition for hiring these individuals is intense, especially with regard to faculty in specialized areas. If we fail to attract new skilled
personnel or faculty or fail to retain and motivate our existing faculty, administrators, management and skilled personnel, our business and
growth prospects could be severely harmed.
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If we are unable to protect our intellectual property, our business could be harmed.
In the ordinary course of our business, we develop intellectual property of many kinds that is or will be the subject of copyright, trademark,
service mark, trade secret or other protections. This intellectual property includes but is not limited to courseware materials, business know-
how and internal processes and procedures developed to respond to the requirements of operating and various education regulatory
agencies. We rely on a combination of copyrights, trademarks, service marks, trade secrets, domain names, agreements and registrations to
protect our intellectual property. We rely on service mark and trademark protection in the U.S. to protect our rights to the mark "ASPEN
UNIVERSITY" as well as distinctive logos and other marks associated with our services. We rely on agreements under which we obtain
rights to use course content developed by faculty members and other third party content experts. We cannot assure you that the measures
that we take will be adequate or that we have secured, or will be able to secure, appropriate protections for all of our proprietary rights in
the U.S. or select foreign jurisdictions, or that third parties will not infringe upon or violate our proprietary rights. Despite our efforts to
protect these rights, unauthorized third parties may attempt to duplicate or copy the proprietary aspects of our curricula, online resource
material and other content, and offer competing programs to ours.
In particular, third parties may attempt to develop competing programs or duplicate or copy aspects of our curriculum, online resource
material, quality management and other proprietary content. Any such attempt, if successful, could adversely affect our business. Protecting
these types of intellectual property rights can be difficult, particularly as it relates to the development by our competitors of competing
courses and programs.
We may encounter disputes from time to time over rights and obligations concerning intellectual property, and we may not prevail in these
disputes. Third parties may raise a claim against us alleging an infringement or violation of the intellectual property of that third party.
If we are subject to intellectual property infringement claims, it could cause us to incur significant expenses and pay substantial
damages.
Third parties may claim that we are infringing or violating their intellectual property rights. Any such claims could cause us to incur
significant expenses and, if successfully asserted against us, could require that we pay substantial damages and prevent us from using our
intellectual property that may be fundamental to our business. Even if we were to prevail, any litigation regarding the intellectual property
could be costly and time-consuming and divert the attention of our management and key personnel from our business operations.
If we incur liability for the unauthorized duplication or distribution of class materials posted online during our class discussions, it
may affect our future operating results and financial condition.
In some instances, our faculty members or our students may post various articles or other third party content on class discussion boards. We
may incur liability for the unauthorized duplication or distribution of this material posted online for class discussions. Third parties may
raise claims against us for the unauthorized duplication of this material. Any such claims could subject us to costly litigation and impose a
significant strain on our financial resources and management personnel regardless of whether the claims have merit. As a result we may be
required to alter the content of our courses or pay monetary damages.
Because we are an exclusively online provider of education, we are entirely dependent on continued growth and acceptance of
exclusively online education and, if the recognition by students and employers of the value of online education does not continue to
grow, our ability to grow our business could be adversely impacted.
We believe that continued growth in online education will be largely dependent on additional students and employers recognizing the value
of degrees and courses from online institutions. If students and employers are not convinced that online schools are an acceptable
alternative to traditional schools or that an online education provides necessary value, or if growth in the market penetration of exclusively
online education slows, growth in the industry and our business could be adversely affected. Because our business model is based on online
education, if the acceptance of online education does not grow, our ability to continue to grow our business and our financial condition and
results of operations could be materially adversely affected.
23
As Internet commerce develops, federal and state governments may draft and propose new laws to regulate Internet commerce,
which may negatively affect our business.
The increasing popularity and use of the Internet and other online services have led and may lead to the adoption of new laws and
regulatory practices in the U.S. and to new interpretations of existing laws and regulations. These new laws and interpretations may relate to
issues such as online privacy, copyrights, trademarks and service marks, sales taxes, fair business practices and the requirement that online
education institutions qualify to do business as foreign corporations or be licensed in one or more jurisdictions where they have no physical
location or other presence. New laws, regulations or interpretations related to doing business over the Internet could increase our costs and
materially and adversely affect our enrollments, revenues and results of operations.
If there is new tax treatment of companies engaged in Internet commerce, this may adversely affect the commercial use of our
marketing services and our financial results.
Due to the growing budgetary problems facing state and local governments, it is possible that governments might attempt to tax our
activities. New or revised tax regulations may subject us to additional sales, income and other taxes. We cannot predict the effect of current
attempts to impose taxes on commerce over the Internet. New or revised taxes and, in particular, sales or use taxes, would likely increase
the cost of doing business online which could have an adverse effect on our business and results of operations.
Risks Related to the Regulation of Our Industry
If we fail to comply with the extensive regulatory requirements for our business, we could face penalties and significant restrictions
on our operations, including loss of access to Title IV loans.
We are subject to extensive regulation by (1) the federal government through the DOE and under the Higher Education Act, (2) state
regulatory bodies and (3) accrediting agencies recognized by the DOE, including the DEAC, a “national accrediting agency” recognized by
the DOE. The U.S. Department of Defense and the U.S. Department of Veterans Affairs regulate our participation in the military’s tuition
assistance program and the VA’s veterans’ education benefits program, respectively. The regulations, standards and policies of these
agencies cover the vast majority of our operations, including our educational programs, facilities, instructional and administrative staff,
administrative procedures, marketing, recruiting, financial operations and financial condition. These regulatory requirements can also affect
our ability to add new or expand existing educational programs and to change our corporate structure and ownership.
Institutions of higher education that grant degrees, diplomas, or certificates must be authorized by an appropriate state education agency or
agencies. In addition, in certain states as a condition of continued authorization to grant degrees and in order to participate in various federal
programs, including tuition assistance programs of the United States Armed Forces, a school must be accredited by an accrediting agency
recognized by the U.S. Secretary of Education. Accreditation is a non-governmental process through which an institution submits to
qualitative review by an organization of peer institutions, based on the standards of the accrediting agency and the stated aims and purposes
of the institution. The Higher Education Act requires accrediting agencies recognized by the DOE to review and monitor many aspects of
an institution's operations and to take appropriate action when the institution fails to comply with the accrediting agency's standards.
Our operations are also subject to regulation due to our participation in Title IV programs. Title IV programs, which are administered by
the DOE, include loans made directly to students by the DOE. Title IV programs also include several grant programs for students with
economic need as determined in accordance with the Higher Education Act and DOE regulations. To participate in Title IV programs, a
school must receive and maintain authorization by the appropriate state education agencies, be accredited by an accrediting agency
recognized by the U.S. Secretary of Education, and be certified as an eligible institution by the DOE. Our growth strategy is partly
dependent on being able to offer financial assistance through Title IV programs as it may increase the number of potential students who
may choose to enroll in our programs.
24
The regulations, standards, and policies of the DOE, state education agencies, and our accrediting agencies change frequently. Recent and
impending changes in, or new interpretations of, applicable laws, regulations, standards, or policies, or our noncompliance with any
applicable laws, regulations, standards, or policies, could have a material adverse effect on our accreditation, authorization to operate in
various states, activities, receipt of funds under tuition assistance programs of the United States Armed Forces, our ability to participate in
Title IV programs, receipt of veterans education benefits funds, or costs of doing business. Findings of noncompliance with these
regulations, standards and policies also could result in our being required to pay monetary damages, or being subjected to fines, penalties,
injunctions, limitations on our operations, termination of our ability to grant degrees, revocation of our accreditation, restrictions on our
access to Title IV program funds or other censure that could have a material adverse effect on our business.
If we do not maintain authorization in Colorado, our operations would be curtailed, and we may not grant degrees.
Aspen is headquartered in Colorado and is authorized by the Colorado Commission on Higher Education to grant degrees, diplomas or
certificates. If we were to lose our authorization from the Colorado Commission on Higher Education, we would be unable to provide
educational services in Colorado and we would lose our eligibility to participate in the Title IV programs.
Our failure to comply with regulations of various states could have a material adverse effect on our enrollments, revenues, and
results of operations.
Various states impose regulatory requirements on education institutions operating within their boundaries. Several states assert jurisdiction
over online education institutions that have no physical location or other presence in the state but offer education services to students who
reside in the state or advertise to or recruit prospective students in the state. State regulatory requirements for online education are
inconsistent among states and not well developed in many jurisdictions. As such, these requirements change frequently and, in some
instances, are not clear or are left to the discretion of state regulators.
State laws typically establish standards for instruction, qualifications of faculty, administrative procedures, marketing, recruiting, financial
operations, and other operational matters. To the extent that we have obtained, or obtain in the future, additional authorizations or licensure,
changes in state laws and regulations and the interpretation of those laws and regulations by the applicable regulators may limit our ability
to offer education programs and award degrees. Some states may also prescribe financial regulations that are different from those of the
DOE. If we fail to comply with state licensing or authorization requirements, we may be subject to the loss of state licensure or
authorization. If we fail to comply with state requirements to obtain licensure or authorization, we may be the subject of injunctive actions
or penalties. Loss of licensure or authorization or the failure to obtain required licensures or authorizations could prohibit us from recruiting
or enrolling students in particular states, reduce significantly our enrollments and revenues and have a material adverse effect on our results
of operations.
Under prior DOE regulations, if an institution offers postsecondary education through distance education to students in a state in which the
institution is not physically located or in which it is otherwise subject to state jurisdiction as determined by that state, the institution must
have met any state requirements for it to be legally offering postsecondary distance education in that state. Should this prior regulation be
reinstated or otherwise enforced, and if we fail to obtain required state authorization to provide postsecondary distance education in a
specific state, we could lose our ability to award Title IV aid to students within that state or be required to refund Title IV funds related to
jurisdictions in which we failed to have state authorization.
Moreover, in the event we are found not to be in compliance with a state’s new or existing requirements for offering distance education
within that state, the state could seek to restrict one or more of our business activities within its boundaries, we may not be able to recruit
students from that state, and we may have to cease providing service to students in that state. In addition, as stated above if and when the
DOE regulation is enforced or re-promulgated, we could lose eligibility to offer Title IV aid to students located in that state. Furthermore,
the institution must be able to document state approval for distance education if requested by the DOE.
25
This prior DOE regulation was recognized as a significant departure from the state authorization procedures followed by most, if not all,
institutions before its enactment. Although these new rules became effective July 1, 2011, the DOE indicated in an April 20, 2011 guidance
letter that it would not initiate any action to establish repayment liabilities or limit student eligibility for distance education activities
undertaken before July 1, 2014, provided the institution was making a good faith effort to identify and obtain necessary state authorization
before that date. However, on July 12, 2011, a federal judge for the U.S. District Court for the District of Columbia vacated the portion of
the DOE’s state authorization regulation that requires online education providers to obtain any required authorization from all states in
which their students reside, finding that the DOE had failed to provide sufficient notice and opportunity to comment on the requirement. An
appellate court affirmed that ruling on June 5, 2012 and therefore this new regulation is currently invalid. On April 16, 2013, the DOE
announced its intention to revisit the state authorization requirements for postsecondary distance education in a new negotiated rulemaking
process which began in the fall of 2013. However, the rulemaking process failed to reach consensus on the rule. However, the rulemaking
process failed to reach consensus on the rule in May 2014. Subsequently, in June 2014, the DOE announced it will “pause” on issuing a
new state authorization for distance education regulation. As a result, there currently is no federal regulation or federal deadline for state
authorization, but a new proposal is expected during 2015. If the DOE reinstates the federal regulation, educational institutions without
state authorization may be asked to reimburse federal financial aid funds. In addition, a state may impose penalties on an institution for
failure to comply with state requirements related to an institution’s activities in a state, including the delivery of distance education to
persons in that state.
Should the requirements be enforced at a later date, and if we fail to obtain required state authorization to provide postsecondary distance
education in a specific state, we could lose our ability to award Title IV aid to students within that state. In addition, a state may impose
penalties on an institution for failure to comply with state requirements related to an institution’s activities in a state, including the delivery
of distance education to persons in that state.
If we fail to maintain our institutional accreditation, we would lose our ability to participate in the tuition assistance programs of
the U.S. Armed Forces and also to participate in Title IV programs.
Aspen is accredited by the DEAC, which is a national accrediting agency recognized by the U.S. Secretary of Education for Title IV
purposes. Accreditation by an accrediting agency that is recognized by the Secretary of Education is required for an institution to become
and remain eligible to participate in Title IV programs as well as in the tuition assistance programs of the United States Armed Forces.
DEAC may impose restrictions on our accreditation or may terminate our accreditation. To remain accredited we must continuously meet
certain criteria and standards relating to, among other things, performance, governance, institutional integrity, educational quality, faculty,
administrative capability, resources and financial stability. Failure to meet any of these criteria or standards could result in the loss of
accreditation at the discretion of the accrediting agency. The loss of accreditation would, among other things, render our students and us
ineligible to participate in the tuition assistance programs of the U.S. Armed Forces or Title IV programs and have a material adverse effect
on our enrollments, revenues and results of operations.
Because we have only recently begun to participate in Title IV programs, our failure to comply with the complex regulations
associated with Title IV programs would have a significant adverse effect on our operations and prospects for growth.
We have only recently begun to participate in Title IV programs. Compliance with the requirements of the Higher Education Act and Title
IV programs is highly complex and imposes significant additional regulatory requirements on our operations, which require additional staff,
contractual arrangements, systems and regulatory costs. We have a limited demonstrated history of compliance with these additional
regulatory requirements. If we fail to comply with any of these additional regulatory requirements, the DOE could, among other things,
impose monetary penalties, place limitations on our operations, and/or condition or terminate our eligibility to receive Title IV program
funds, which would limit our potential for growth and adversely affect our enrollment, revenues and results of operations.
26
Because we are only provisionally certified by the DOE, we must reestablish our eligibility and certification to participate in the
Title IV programs, and there are no assurances that DOE will recertify us to participate in the Title IV programs.
An institution generally must seek recertification from the DOE at least every six years and possibly more frequently depending on various
factors. In certain circumstances, the DOE provisionally certifies an institution to participate in Title IV programs, such as when it is an
initial participant in Title IV programs or has undergone a change in ownership and control. Beginning in 2009, and following our change
of control in 2012, we have been provisionally certified. On February 9, 2015, the DOE notified Aspen that it had the choice of posting a
letter of credit for 25% of all Title IV funds and remain provisionally certified or post a 50% letter of credit and become permanently
certified. We elected to post a 25% letter of credit and remain provisionally certified – increasing our letter of credit to $1,122,485. In the
future, the DOE may impose additional or different terms and conditions in any final program participation agreement that it may issue,
including growth restrictions or limitation on the number of students who may receive Title IV aid. The DOE could also decline to
permanently certify Aspen, otherwise limit its participation in the Title IV programs, or continue provisional certification.
If the DOE does not ultimately approve our permanent certification to participate in Title IV programs, our students would no longer be
able to receive Title IV program funds, which would have a material adverse effect on our enrollments, revenues and results of operations.
In addition, regulatory restraints related to the addition of new programs could impair our ability to attract and retain students and could
negatively affect our financial results.
Because the DOE may conduct compliance reviews of us, we may be subject to adverse review and future litigation which could
affect our ability to offer Title IV student loans.
Because we operate in a highly regulated industry, we are subject to compliance reviews and claims of non-compliance and lawsuits by
government agencies, regulatory agencies, and third parties, including claims brought by third parties on behalf of the federal government.
If the results of compliance reviews or other proceedings are unfavorable to us, or if we are unable to defend successfully against lawsuits
or claims, we may be required to pay monetary damages or be subject to fines, limitations, loss of Title IV funding, injunctions or other
penalties, including the requirement to make refunds. Even if we adequately address issues raised by an agency review or successfully
defend a lawsuit or claim, we may have to divert significant financial and management resources from our ongoing business operations to
address issues raised by those reviews or to defend against those lawsuits or claims. Claims and lawsuits brought against us may damage
our reputation, even if such claims and lawsuits are without merit.
If the percentage of our revenues derived from Title IV programs is too high, we could lose our ability to participate in Title IV
programs.
Under the Higher Education Act, an institution is subject to loss of eligibility to participate in the Title IV programs if, on a cash accounting
basis, it derives more than 90% of its fiscal year revenue, for two consecutive fiscal years, from Title IV program funds. An institution
whose rate exceeds 90% for any single fiscal year is placed on provisional certification for at least two fiscal years and may be subject to
other conditions specified by the U.S. Secretary of Education. This rule is known as the 90/10 rule. We have only recently begun to
participate in Title IV programs, but must remain aware of the 90/10 calculation. Failure to comply with the 90/10 rule may result in
restrictions on the amounts of Title IV funds that may be distributed to students; restrictions on expansion; requirements related to letters of
credits or any other restrictions imposed by the DOE. Additionally, if we are determined to be ineligible to participate in Title IV programs
due to the 90/10 rule, any disbursements of Title IV funds while ineligible must be repaid to the DOE.
Further, due to scrutiny of the sector, legislative proposals have been introduced in Congress that would heighten the requirements of the
90/10 rule, including proposals that would reduce the 90% maximum under the rule to 85% and/or prohibit tuition derived from military
benefit programs to be included in the 85% portion.
27
If our competitors are subject to further regulatory claims and adverse publicity, it may affect our industry and reduce our future
enrollment.
We are one of a number of for-profit institutions serving the postsecondary education market. In recent years, regulatory investigations and
civil litigation have been commenced against several companies that own for-profit educational institutions. These investigations and
lawsuits have alleged, among other things, deceptive trade practices and non-compliance with DOE regulations. These allegations have
attracted adverse media coverage and have been the subject of federal and state legislative hearings. Although the media, regulatory and
legislative focus has been primarily on the allegations made against specific companies, broader allegations against the overall for-profit
school sector may negatively affect public perceptions of other for-profit educational institutions, including Aspen. In addition, in recent
years, reports on student lending practices of various lending institutions and schools, including for-profit schools, and investigations by a
number of state attorneys general, Congress and governmental agencies have led to adverse media coverage of postsecondary education. A
large competitor, Corinthian Colleges, recently announced it was selling or shutting down its schools due to substantial regulatory
investigations and recent DOE actions. Adverse media coverage regarding other companies in the for-profit school sector or regarding us
directly could damage our reputation, could result in lower enrollments, revenues and operating profit, and could have a negative impact on
our stock price. Such allegations could also result in increased scrutiny and regulation by the DOE, Congress, accrediting bodies, state
legislatures or other governmental authorities with respect to all for-profit institutions, including us.
Due to new regulations or congressional action or reduction in funding for Title IV programs, our future enrollment may be
reduced and costs of compliance increased.
The Higher Education Act comes up for reauthorization by Congress approximately every five to six years. When Congress does not act on
complete reauthorization, there are typically amendments and extensions of authorization. Additionally, Congress reviews and determines
appropriations for Title IV programs on an annual basis through the budget and appropriations process. There is no assurance that Congress
will not in the future enact changes that decrease Title IV program funds available to students, including students who attend our
institution. Any action by Congress that significantly reduces funding for Title IV programs or the ability of our school or students to
participate in these programs would require us to arrange for other sources of financial aid and would materially decrease our enrollment.
Such a decrease in enrollment would have a material adverse effect on our revenues and results of operations. Congressional action may
also require us to modify our practices in ways that could result in increased administrative and regulatory costs and decreased profit
margin.
There has been growing regulatory action and investigations of for-profit companies that offer online education. A larger competitor has
accepted a deal with the DOE to sell or shut down most of its campuses.
We are not in position to predict with certainty whether any legislation will be passed by Congress or signed into law in the future. The
reallocation of funding among Title IV programs, material changes in the requirements for participation in such programs, or the
substitution of materially different Title IV programs could reduce the ability of students to finance their education at our institution and
adversely affect our revenues and results of operations.
If our efforts to comply with DOE regulations are inconsistent with how the DOE interprets those provisions, either due to insufficient time
to implement the necessary changes, uncertainty about the meaning of the rules, or otherwise, we may be found to be in noncompliance
with such provisions and the DOE could impose monetary penalties, place limitations on our operations, and/or condition or terminate our
eligibility to receive Title IV program funds. We cannot predict with certainty the effect the new and impending regulatory provisions will
have on our business.
28
Investigations by state attorneys general, Congress and governmental agencies regarding relationships between loan providers and
educational institutions and their financial aid officers may result in increased regulatory burdens and costs.
In the past few years, the student lending practices of postsecondary educational institutions, financial aid officers and student loan
providers were subject to several investigations being conducted by state attorneys general, Congress and governmental agencies. These
investigations concern, among other things, possible deceptive practices in the marketing of private student loans and loans provided by
lenders pursuant to Title IV programs. Higher Education Opportunity Act, or HEOA, contains new requirements pertinent to relationships
between lenders and institutions. In particular, HEOA requires institutions to have a code of conduct, with certain specified provisions,
pertinent to interactions with lenders of student loans, prohibits certain activities by lenders and guaranty agencies with respect to
institutions, and establishes substantive and disclosure requirements for lists of recommended or suggested lenders of private student loans.
In addition, HEOA imposes substantive and disclosure obligations on institutions that make available a list of recommended lenders for
potential borrowers. State legislators have also passed or may be considering legislation related to relationships between lenders and
institutions. Because of the evolving nature of these legislative efforts and various inquiries and developments, we can neither know nor
predict with certainty their outcome, or the potential remedial actions that might result from these or other potential inquiries.
Governmental action may impose increased administrative and regulatory costs and decrease profit margins.
Because we are subject to sanctions if we fail to calculate correctly and return timely Title IV program funds for students who stop
participating before completing their educational program, our future operating results may be adversely affected.
A school participating in Title IV programs must correctly calculate the amount of unearned Title IV program funds that have been
disbursed to students who withdraw from their educational programs before completion and must return those unearned funds in a timely
manner, generally within 45 days after the date the school determines that the student has withdrawn. Under recently effective DOE
regulations, institutions that use the last day of attendance at an academically-related activity must determine the relevant date based on
accurate institutional records (not a student’s certificate of attendance). For online classes, “academic attendance” means engaging in an
academically-related activity, such as participating in class through an online discussion or initiating contact with a faculty member to ask a
question; simply logging into an online class does not constitute “academic attendance” for purposes of the return of funds requirements.
Because we only recently began to participate in Title IV programs, we have limited experience complying with these Title IV regulations.
Under DOE regulations, late return of Title IV program funds for 5% or more of students sampled in connection with the institution's
annual compliance audit constitutes material non-compliance. If unearned funds are not properly calculated and timely returned, we may
have to repay Title IV funds, post a letter of credit in favor of the DOE or otherwise be sanctioned by the DOE, which could increase our
cost of regulatory compliance and adversely affect our results of operations. This may have an impact on our systems, our future operations
and cash flows.
If we fail to demonstrate “financial responsibility,” Aspen may lose its eligibility to participate in Title IV programs or be required
to post a letter of credit in order to maintain eligibility to participate in Title IV programs.
To participate in Title IV programs, an eligible institution must satisfy specific measures of financial responsibility prescribed by the DOE,
or post a letter of credit in favor of the DOE and possibly accept other conditions, such as additional reporting requirements or regulatory
oversight, on its participation in Title IV programs. The DOE may also apply its measures of financial responsibility to the operating
company and ownership entities of an eligible institution and, if such measures are not satisfied by the operating company or ownership
entities, require the institution to meet the alternative standards described under “Regulation” on page 6 herein. Any of these alternative
standards would increase our costs of regulatory compliance. If we were unable to meet these alternative standards, we would lose our
eligibility to participate in Title IV programs. If we fail to demonstrate financial responsibility and thus lose our eligibility to participate in
Title IV programs, our students would lose access to Title IV program funds for use in our institution, which would limit our potential for
growth and adversely affect our enrollment, revenues and results of operations.
29
If we fail to demonstrate “administrative capability,” we may lose eligibility to participate in Title IV programs.
DOE regulations specify extensive criteria an institution must satisfy to establish that it has the requisite “administrative capability” to
participate in Title IV programs. If an institution fails to satisfy any of these criteria or comply with any other DOE regulations, the DOE
may require the repayment of Title IV funds, transfer the institution from the "advance" system of payment of Title IV funds to cash
monitoring status or to the "reimbursement" system of payment, place the institution on provisional certification status, or commence a
proceeding to impose a fine or to limit, suspend or terminate the participation of the institution in Title IV programs. If we are found not to
have satisfied the DOE's "administrative capability" requirements we could be limited in our access to, or lose, Title IV program funding,
which would limit our potential for growth and adversely affect our enrollment, revenues and results of operations.
Because we rely on a third party to administer our participation in Title IV programs, its failure to comply with applicable
regulations could cause us to lose our eligibility to participate in Title IV programs.
We have been eligible to participate in Title IV programs for a relatively short time, and we have not developed the internal capacity to
handle without third-party assistance the complex administration of participation in Title IV programs. A third party assists us with
administration of our participation in Title IV programs, and if it does not comply with applicable regulations, we may be liable for its
actions and we could lose our eligibility to participate in Title IV programs. In addition, if it is no longer able to provide the services to us,
we may not be able to replace it in a timely or cost-efficient manner, or at all, and we could lose our ability to comply with the requirements
of Title IV programs, which would limit our potential for growth and adversely affect our enrollment, revenues and results of operation.
If we pay impermissible commissions, bonuses or other incentive payments to individuals involved in recruiting, admissions or
financial aid activities, we will be subject to sanctions.
A school participating in Title IV programs may not provide any commission, bonus or other incentive payment based, directly or
indirectly, on success in enrolling students or securing financial aid to any person involved in student recruiting or admission activities or in
making decisions regarding the awarding of Title IV program funds. If we pay a bonus, commission, or other incentive payment in
violation of applicable DOE rules, we could be subject to sanctions, which could have a material adverse effect on our business. Effective
July 1, 2011, the DOE abolished 12 safe harbors that described permissible arrangements under the incentive payment regulation. Abolition
of the safe harbors and other aspects of the new regulation may create uncertainty about what constitutes impermissible incentive
payments. The modified incentive payment rule and related uncertainty as to how it will be interpreted also may influence our approach, or
limit our alternatives, with respect to employment policies and practices and consequently may affect negatively our ability to recruit and
retain employees, and as a result our business could be materially and adversely affected.
In addition, the General Accounting Office, or the GAO, has issued a report critical of the DOE’s enforcement of the incentive payment
rule, and the DOE has undertaken to increase its enforcement efforts. If the DOE determines that an institution violated the incentive
payment rule, it may require the institution to modify its payment arrangements to the DOE’s satisfaction. The DOE may also fine the
institution or initiate action to limit, suspend, or terminate the institution’s participation in the Title IV programs. The DOE may also seek
to recover Title IV funds disbursed in connection with the prohibited incentive payments. In addition, third parties may file “qui tam” or
“whistleblower” suits on behalf of the DOE alleging violation of the incentive payment provision. Such suits may prompt DOE
investigations. Particularly in light of the uncertainty surrounding the new incentive payment rule, the existence of, the costs of responding
to, and the outcome of, qui tam or whistleblower suits or DOE investigations could have a material adverse effect on our reputation causing
our enrollments to decline and could cause us to incur costs that are material to our business, among other things. As a result, our business
could be materially and adversely affected.
If our student loan default rates are too high, we may lose eligibility to participate in Title IV programs.
DOE regulations provide that an institution’s participation in Title IV programs ends when historical default rates reach a certain level in a
single year or for a number of years. Because of our limited experience enrolling students who are participating in these programs, we have
no historical default rates. Relatively few students are expected to enter the repayment phase in the near term, which could result in defaults
by a few students having a relatively large impact on our default rate. If Aspen loses its eligibility to participate in Title IV programs
because of high student loan default rates, our students would no longer be eligible to use Title IV program funds in our institution, which
would significantly reduce our enrollments and revenues and have a material adverse effect on our results of operations.
30
If our institutional accrediting agency loses recognition by the U.S. Secretary of Education or we fail to maintain our institutional
accreditation, we may lose our ability to participate in Title IV programs.
Increased regulatory scrutiny of accrediting agencies and their accreditation of universities is likely to continue. While Aspen is accredited
by the DEAC, a DOE-recognized accrediting body, if the DOE were to limit, suspend, or terminate the DEAC’s recognition, we could lose
our ability to participate in the Title IV programs. While the DOE has provisionally certified Aspen, there are no assurances that we will
remain certified. If we were unable to rely on DEAC accreditation in such circumstances, among other things, our students and our
institution would be ineligible to participate in the Title IV programs, and such consequence would have a material adverse effect on
enrollments, revenues and results of operations. In addition, increased scrutiny of accrediting agencies by the Secretary of Education in
connection with the DOE’s recognition process may result in increased scrutiny of institutions by accrediting agencies.
Furthermore, because the for-profit education sector is growing at such a rapid pace, it is possible that accrediting bodies will respond to
that growth by adopting additional criteria, standards and policies that are intended to monitor, regulate or limit the growth of for-profit
institutions like us. Actions by, or relating to, an accredited institution, including any change in the legal status, form of control, or
ownership/management of the institution, any significant changes in the institution’s financial position, or any significant growth or decline
in enrollment and/or programs, could open up an accredited institution to additional reviews by the DEAC.
If Aspen fails to meet standards regarding “gainful employment,” it may result in the loss of eligibility to participate in Title IV
programs.
In 2014, the DOE issued a new gainful employment rule which went into effect on July 1, 2015. Under the gainful employment rule,
programs with high debt-to-earnings ratios would lose Title IV eligibility for three years based on a variety of specific scenarios outlined by
the DOE. We anticipate that under this new regulation, the continuing eligibility of our educational programs for Title IV funding may be
at risk due to factors beyond our control, such as changes in the actual or deemed income level of our graduates, changes in student
borrowing levels, increases in interest rates, changes in the federal poverty income level relevant for calculating discretionary income,
changes in the percentage of our former students who are current in repayment of their student loans, and other factors. In addition, even
though deficiencies in the metrics may be correctible on a timely basis, the disclosure requirements to students following a failure to meet
the standards may adversely impact enrollment in that program and may adversely impact the reputation of our educational institutions.
If we fail to obtain required DOE approval for new programs that prepare students for gainful employment in a recognized
occupation, it could materially and adversely affect our business.
Under the new gainful employment regulation that went into effect on July 1, 2015, an institution may establish a new program’s Title IV
eligibility by updating the list of the institution’s programs maintained by the DOE. Significantly, an institution is prohibited from
updating its list of eligible programs to include a gainful employment program, or a gainful employment program that is substantially
similar to a failing or zone program that the institution voluntarily discontinued or became ineligible, that was subject to the three-year loss
of eligibility until that three-year period expires. Depending on our program offerings, compliance with the new gainful employment rule
could cause delay or an inability to offer certain new programs and put our business at a competitive disadvantage. Compliance could also
adversely affect our ability to timely offer programs of interest to our students and potential students and adversely affect our ability to
increase our revenues. As a result, our business could be materially and adversely affected.
31
If we fail to comply with the DOE’s substantial misrepresentation rules, it could result in sanctions against us.
The DOE may take action against an institution in the event of substantial misrepresentation by the institution concerning the nature of its
educational programs, its financial charges or the employability of its graduates. Under new regulations, the DOE has expanded the
activities that constitute a substantial misrepresentation. Under the DOE regulations, an institution engages in substantial misrepresentation
when the institution itself, one of its representatives, or an organization or person with which the institution has an agreement to provide
educational programs, marketing, advertising, or admissions services, makes a substantial misrepresentation directly or indirectly to a
student, prospective student or any member of the public, or to an accrediting agency, a state agency, or to the Secretary of Education. The
final regulations define misrepresentation as any false, erroneous or misleading statement, and they define a misleading statement as any
statement that has the likelihood or tendency to deceive or confuse. The final regulations define substantial misrepresentation as any
misrepresentation on which the person to whom it was made could reasonably be expected to rely, or has reasonably relied, to the person’s
detriment. If the DOE determines that an institution has engaged in substantial misrepresentation, the DOE may revoke an institution’s
program participation agreement, impose limitations on an institution’s participation in the Title IV programs, deny participation
applications made on behalf of the institution, or initiate a proceeding against the institution to fine the institution or to limit, suspend or
termination the institution’s participation in the Title IV programs. We expect that there could be an increase in our industry of
administrative actions and litigation claiming substantial misrepresentation, which at a minimum would increase legal costs associated with
defending such actions, and as a result our business could be materially and adversely affected.
If we fail to comply with the DOE’s credit hour requirements, it could result in sanctions against us.
The DOE has defined “credit” hour for Title IV purposes. The credit hour is used for Title IV purposes to define an eligible program and
an academic year and to determine enrollment status and the amount of Title IV aid that an institution may disburse in a payment period.
The final regulations define credit hour as an institutionally established equivalency that reasonably approximates certain specified time in
class and out of class and an equivalent amount of work for other academic activities. The final regulations also require institutional
accreditors to review an institution’s policies, procedures, and administration of policies and procedures for assignment of credit hours. An
accreditor must take appropriate actions to address an institution’s credit hour deficiencies and to notify the DOE if it finds systemic
noncompliance or significant noncompliance in one or more programs. The DOE has indicated that if it finds an institution to be out of
compliance with the credit hour definition for Title IV purposes, it may require the institution to repay the amount of Title IV awarded
under the incorrect assignment of credit hours and, if it finds significant overstatement of credit hours, it may fine the institution or limit,
suspend, or terminate its participation in Title IV programs, as a result of which our business could be materially and adversely affected.
The U.S. Congress continues to examine the for-profit postsecondary education sector which could result in legislation or additional
DOE rulemaking that may limit or condition Title IV program participation of proprietary schools in a manner that may
materially and adversely affect our business.
In recent years, the U.S. Congress has increased its focus on for-profit education institutions, including with respect to their participation in
the Title IV programs, and has held hearings regarding such matters. In addition, the GAO released a series of reports following undercover
investigations critical of for-profit institutions. We cannot predict the extent to which, or whether, these hearings and reports will result in
legislation, further rulemaking affecting our participation in Title IV programs, or more vigorous enforcement of Title IV requirements.
Additionally, the DOE recently created a special unit for the purpose of monitoring publicly traded for-profit educational institutions.
Moreover, political consideration could result in a reduction of Title IV funding. To the extent that any laws or regulations are adopted that
limit or condition Title IV program participation of proprietary schools or the amount of federal student financial aid for which proprietary
school students are eligible, our business could be materially and adversely affected.
Unfavorable laws and regulations may impede our growth.
Existing and future laws and regulations may create increased regulatory risk, which could impede our growth. These regulations and laws
may cover consumer protection, mobile communications, privacy, data protection, electronic communications, pricing and taxation.
32
Other Risks
Because our common stock is subject to the “penny stock” rules, brokers cannot generally solicit the purchase of our common
stock which adversely affects its liquidity and market price.
The Securities and Exchange Commission, (the “SEC”), has adopted regulations which generally define “penny stock” to be an equity
security that has a market price of less than $5.00 per share, subject to specific exemptions. The market price of our common stock is
substantially less than $5.00 per share and therefore we are considered a “penny stock” according to SEC rules. This designation requires
any broker-dealer selling these securities to disclose certain information concerning the transaction, obtain a written agreement from the
purchaser and determine that the purchaser is reasonably suitable to purchase the securities. These rules limit the ability of broker-dealers
to solicit purchases of our common stock and therefore reduce the liquidity of the public market for our shares.
Moreover, as a result of apparent regulatory pressure from the SEC and the Financial Industry Regulatory Authority, a growing number of
broker-dealers decline to permit investors to purchase and sell or otherwise make it difficult to sell shares of penny stocks like Aspen. This
may have a depressive effect upon our common stock price.
Because of their share ownership, our management may be able to exert control over us to the detriment of minority shareholders.
As of July 28, 2015, our executive officers and directors owned approximately 11.3% of our outstanding common stock. These
shareholders, if they act together, may be able to control our management and affairs and all matters requiring shareholder approval,
including significant corporate transactions. This concentration of ownership may have the effect of delaying or preventing our change in
control and might affect the market price of our common stock.
If our common stock becomes subject to a “chill” imposed by the Depository Trust Company, or DTC, your ability to sell your
shares may be limited.
The DTC acts as a depository or nominee for street name shares that investors deposit with their brokers. Until December of 2012, our
stock was not eligible to be electronically transferred among DTC participants (broker-dealers) and required delivery of paper certificates as
a result of a “chill” imposed by DTC. As a result of becoming “DTC-Eligible”, our common stock is no longer subject to a chill. However,
DTC in the last several years has increasingly imposed a chill or freeze on the deposit, withdrawal and transfer of common stock of issuers
whose common stock trades on a market other than an exchange. Depending on the type of restriction, a chill or freeze can prevent
shareholders from buying or selling shares and prevent companies from raising money. A chill or freeze may remain imposed on a security
for a few days or an extended period of time (in at least one instance a number of years). While we have no reason to believe a chill or
freeze will be imposed against our common stock again in the future, if it were your ability to sell your shares would be limited. In such
event, your investment will be adversely affected.
Due to factors beyond our control, our stock price may be volatile.
Any of the following factors could affect the market price of our common stock:
●
●
●
●
●
●
●
●
●
●
●
●
●
Our failure to generate increasing material revenues;
Our failure to become profitable or achieve positive adjusted Earnings Before Interest, Taxes, Depreciation and Amortization;
Our failure to raise working capital, if required;
Our public disclosure of the terms of any financing which we consummate in the future;
Disclosure of the results of our monthly payment plan;
Actual or anticipated variations in our quarterly results of operations;
Announcements by us or our competitors of significant contracts, new services, acquisitions, commercial relationships, joint
ventures or capital commitments;
The loss of Title IV funding or other regulatory actions;
Our failure to meet financial analysts’ performance expectations;
Changes in earnings estimates and recommendations by financial analysts;
The sale of large numbers of shares of common stock which we have registered;
Short selling activities; or
Changes in market valuations of similar companies.
33
In the past, following periods of volatility in the market price of a company’s securities, securities class action litigation has often been
instituted. A securities class action suit against us could result in substantial costs and divert our management’s time and attention, which
would otherwise be used to benefit our business.
Because we may issue preferred stock without the approval of our shareholders and have other anti-takeover defenses, it may be
more difficult for a third party to acquire us and could depress our stock price.
Our Board may issue, without a vote of our shareholders, one or more additional series of preferred stock that have more than one vote per
share. This could permit our Board to issue preferred stock to investors who support us and our management and give effective control of
our business to our management. Additionally, issuance of preferred stock could block an acquisition resulting in both a drop in our stock
price and a decline in interest of our common stock. This could make it more difficult for shareholders to sell their common stock. This
could also cause the market price of our common stock shares to drop significantly, even if our business is performing well.
An investment in Aspen may be diluted in the future as a result of the issuance of additional securities.
If we need to raise additional capital to meet our working capital needs, we expect to issue additional shares of common stock or securities
convertible, exchangeable or exercisable into common stock from time to time, which could result in substantial dilution to investors.
Investors should anticipate being substantially diluted based upon the current condition of the capital and credit markets and their impact on
small companies.
Because we may not be able to attract the attention of major brokerage firms, it could have a material impact upon the price of our
common stock.
It is not likely that securities analysts of major brokerage firms will provide research coverage for our common stock since the firm itself
cannot recommend the purchase of our common stock under the penny stock rules referenced in an earlier risk factor. The absence of such
coverage limits the likelihood that an active market will develop for our common stock. It may also make it more difficult for us to attract
new investors at times when we acquire additional capital.
Since we intend to retain any earnings for development of our business for the foreseeable future, you will likely not receive any
dividends for the foreseeable future.
We have not and do not intend to pay any dividends in the foreseeable future, as we intend to retain any earnings for development and
expansion of our business operations. As a result, you will not receive any dividends on your investment for an indefinite period of time.
ITEM 1B. UNRESOLVED STAFF COMMENTS.
None.
ITEM 2. PROPERTIES.
Our corporate headquarters are located in a facility in Denver, Colorado, consisting of approximately 3,900 square feet of office space
under a lease that expires in September 2015. This facility accommodates our academic operations. Our executive offices are in New York
City where we lease approximately 2,000 square feet under a month-to-month sublease. We operate an enrollment center in Scottsdale,
Arizona where we lease approximately 2,600 square feet under a three-year term that expires in January 2016. We believe that our existing
facilities are suitable and adequate and that we have sufficient capacity to meet our current anticipated needs.
ITEM 3. LEGAL PROCEEDINGS.
From time to time, we may be involved in litigation relating to claims arising out of our operations in the normal course of business. As of
April 30, 2015, there were no pending or threatened lawsuits that could reasonably be expected to have a material effect on the results of
our operations and there are no proceedings in which any of our directors, officers or affiliates, or any registered or beneficial shareholder,
is an adverse party or has a material interest adverse to our interest other than described below or previously reported.
34
On February 11, 2013, HEMG and Mr. Spada sued the Company, certain senior management members and our directors in state court in
New York seeking damages arising principally from (i) allegedly false and misleading statements in the filings with the SEC and the DOE
where the Company disclosed that HEMG and Mr. Spada borrowed $2.2 million without Board authority, (ii) the alleged breach of an
April 2012 agreement whereby the Company had agreed, subject to numerous conditions and time limitations, to purchase certain shares of
the Company from HEMG, and (iii) alleged diminution to the value of HEMG’s shares of the Company due to Mr. Spada’s disagreement
with certain business transactions the Company engaged in, all with Board approval. On November 8, 2013, the state court in New York
granted the Company’s motion to dismiss all of the derivative claims and all of the fiduciary duty claims. The state court in New York also
granted the Company’s motion to dismiss the duplicative breach of good faith and fair dealing claim, as well as the defamation claim. The
state court in New York denied the Company’s motion to dismiss as to the defamation per se claim. On December 10, 2013, the Company
filed a series of counterclaims against HEMG and Mr. Spada in state court of New York. Discovery is currently being pursued by the
parties. By decision and order dated August 4, 2014, the New York court denied HEMG and Spada’s motion to dismiss the fraud
counterclaim the Company asserted against them. The New York court dismissed the Company’s related “money had and received”,
“money lent” and “unjust enrichment” counterclaims as being duplicative of the fraud counterclaim; however by decision dated April 30,
2015, the Court reinstated the Company’s “money had and received”, “money lent” and “unjust enrichment” counterclaims, and denied
HEMG’s and Spada’s second request for dismissal of the Company’s fraud counterclaim.
As previously reported, HEMG and Mr. Spada filed a derivative suit on behalf of the Company against certain former senior management
member and our directors in state court in Delaware. The Company was a nominal defendant. The complaint was substantially similar to
the complaint filed in state court of New York. On November 3, 2014, the Chancery Court of the State of Delaware dismissed the
shareholders’ derivative lawsuit of Mr. Spada and HEMG against Aspen Group, Inc., certain members of the Company’s Board of
Directors and former Chief Financial Officer (collectively, the “Defendants”). The Court granted the Defendant’s Motion to Dismiss in its
entirety with prejudice. The Plaintiff’s have not taken an appeal and the time to do so has expired.
While the Company has been advised by its counsel that HEMG’s and Spada’s claims in the New York lawsuit are baseless, the Company
cannot provide any assurance as to the ultimate outcome of the case. Defending the lawsuit will be expensive and will require the
expenditure of time which could otherwise be spent on the Company’s business. While unlikely, if Mr. Spada’s and HEMG’s claims in the
New York litigation were to be successful, the damages the Company could pay could potentially be material.
On November 18, 2014, the Company filed a complaint against HEMG in the United States District Court for the District of New Jersey
for failure to pay (despite demand) to the Company any portion of the $772,793 amount overdue. The Company is seeking to collect the
full amount due. HEMG failed to answer the complaint and as a result the Court entered a default against HEMG.
On or about February 20, 2015, Aspen Group, Inc. filed a motion in the United States District Court, District of New Jersey, seeking the
entry of a money judgment on default against Defendant, HEMG, in the amount of $772,793, plus interest, costs, disbursements, and any
other relief the Court deems just and proper. Aspen University gave notice to HEMG that it intended to privately sell the 654,850 shares
held as collateral after March 10, 2015. On April 29, 2015, the Company sold those shares to a private investor for $0.155 per share or
$101,502, which proceeds reduced the receivable balance to $671,291.
ITEM 4. MINE SAFETY DISCLOSURES.
Not applicable.
35
PART II
ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER
PURCHASES OF EQUITY SECURITIES.
Our stock trades on the Bulletin Board, under the symbol “ASPU.” Since March 31, 2011, Aspen Group’s common stock has been quoted
on the Bulletin Board. The last reported sale price of Aspen’s common stock as reported by the Bulletin Board on July 27, 2015 was $0.17.
As of that date, we had 234 record holders. A substantially greater number of holders of our common stock are “street name” or beneficial
holders, whose shares are held of record by banks, brokers, and other financial institutions.
The following table provides the high and low bid price information for our common stock. The prices reflect inter-dealer prices, without
retail mark-up, mark-down or commission and does not necessarily represent actual transactions. Our common stock does not trade on a
regular basis.
Year
Fiscal 2015
Fiscal 2014
Dividend Policy
Period Ended
April 30
January 31
October 31
July 31
April 30
January 31
October 31
July 31
Prices
High
($)
Low
($)
0.27
0.29
0.39
0.17
0.20
0.23
0.335
0.51
0.17
0.11
0.12
0.096
0.101
0.12
0.176
0.25
We have not paid cash dividends on our common stock and do not plan to pay such dividends in the foreseeable future. Our Board will
determine our future dividend policy on the basis of many factors, including results of operations, capital requirements, and general
business conditions.
Recent Sales of Unregistered Securities
None
Securities Authorized for Issuance under Equity Compensation Plans
The information required by this item with respect to our equity compensation plans is incorporated by reference to our Proxy Statement
for the 2015 Annual Meeting of Shareholders to be filed with the SEC within 120 days of the fiscal year ended April 30, 2015.
ITEM 6. SELECTED FINANCIAL DATA.
Not applicable.
36
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS.
You should read the following discussion in conjunction with our consolidated financial statements, which are included elsewhere in this
Form 10-K. Management’s Discussion and Analysis of Financial Condition and Results of Operations contain forward-looking statements
that reflect our plans, estimates, and beliefs. Our actual results could differ materially from those discussed in the forward-looking
statements. Factors that could cause or contribute to these differences include those discussed in the Risk Factors contained herein.
All references to “we,” “our” and “us” refer to Aspen Group, Inc. and its subsidiaries (including Aspen), unless the context otherwise
indicates. In referring to academic matters, these words refer solely to Aspen University.
Company Overview
Founded in 1987, Aspen’s mission is to offer any motivated college-worthy student the opportunity to receive a high quality, responsibly
priced distance-learning education for the purpose of achieving sustainable economic and social benefits for themselves and their families.
Aspen is dedicated to providing the highest quality education experiences taught by top-tier professors - 60% of our adjunct professors hold
doctorate degrees.
Because we believe higher education should be a catalyst to our students’ long-term economic success, we exert financial prudence by
offering affordable tuition that is one of the greatest values in online higher education. Last year, Aspen University unveiled a monthly
payment plan aimed at reversing the college-debt sentence plaguing working-class Americans. The monthly payment plan offers bachelor
students (except nursing) the opportunity to pay $250/month for 72 months ($18,000), nursing bachelor students (RN to BSN) $250/month
for 39 months ($9,750), master students $325/month for 36 months ($11,700) and doctoral students $375 per month for 72 months
($27,000), interest free, thereby giving students the ability to earn a degree debt free.
Student Population
Aspen’s full-time degree-seeking student body increased year-over-year by 33% during the year ended April 30, 2015, from 2,485 to 3,309
students.
Our most popular school is our School of Nursing. Aspen’s School of Nursing has grown from 33% of our full-time, degree-seeking
student body at April 30, 2014, to 42% of our full-time, degree-seeking student body at April 30, 2015. Aspen’s School of Nursing grew
from 828 to 1,374 student’s year-over-year, which represented 66% of Aspen’s full-time degree-seeking student body growth. At April 30,
2015, Aspen’s School of Nursing included 285 students in the RN to BSN program and 1,089 students in the RN to MSN Bridge program
or MSN program.
New Student Enrollment Overview
Since the launch of the BSN marketing campaign in mid-November, 2014, Aspen’s growth rate of new student enrollments has accelerated
significantly. Typically, it takes 60-90 days for a new student lead to convert into an enrollment. However, Aspen began seeing BSN leads
convert to new student enrollments at the beginning of January 2015, only six weeks following the marketing campaign launch.
Aspen has updated its definition of a new student enrollment to only report those new students that complete their first seven day
assignment of their first course in their degree program. Based on that definition, below is a quarterly analysis of new student enrollments
for the past five quarters, including the recent quarter ending April 30, 2015. Note that in the recent quarter ending April 30, 2015, new
student enrollments were up 89% year-over-year, from 235 to 444.
New Student Enrollments
Fiscal Quarter End April 30, 2014
Fiscal Quarter End July 31, 2014
Fiscal Quarter End October 31, 2014
Fiscal Quarter End January 31, 2015
Fiscal Quarter End April 30, 2015
37
235
226
265
315
444
Aspen’s estimated average revenue per new student enrollment is approximately $6,000, earned over 3 years. Aspen delivered 1,008 new
student enrollments in calendar year 2014, which equates to revenues for those 1,008 new student enrollments of approximately $6 million,
earned over three years. However, should the pace of enrollments continue to rise by 89% year-over-year throughout calendar year 2015,
that would equate to 1,905 new student enrollments with a revenue value for those 1,905 new student enrollments of approximately $11.4
million, earned over three years. Aspen cannot provide any assurance that the pace of enrollment will remain constant (or will not fall) or
that students that enroll will remain all three years.
Results of Operations
For the Year Ended April 30, 2015 Compared with the Year Ended April 30, 2014
Revenue
Revenue from continuing operations for the year ended April 30, 2015 (“2015 Period”) increased to $5,225,761 from $3,981,722 for the
year ended April 30, 2014 (“2014 Period”), an increase of $1,244,039 or 31%. Of particular note, revenues from Aspen’s Nursing degree
program increased to $2,268,871 during the 2015 Period from $1,433,972 during the 2014 Period, an increase of $834,899 or 58%.
Cost of Revenues (exclusive of amortization)
The Company’s cost of revenues consist of instructional costs and services and marketing and promotional costs.
Instructional Costs and Services
Instructional costs and services for the 2015 Period rose to $1,110,518 from $836,274 for the 2014 Period, an increase of $274,244 or 33%.
As student enrollment levels increase, instructional costs and services should rise proportionately. However, as Aspen increases its full-time
degree-seeking student enrollments and related class starts, the higher gross margins associated with such students should lead to the
growth rate in instructional costs and services to lag that of overall revenue growth.
Marketing and Promotional
Marketing and promotional costs for the 2015 Period were $1,065,812 compared to $1,023,490 for the 2014 Period, an increase of $42,322
or 4%. The Company expects marketing and promotional costs to rise in future periods given the planned spend rate increase to an average
of $120,000 per month which began in May 2015.
Gross Profit rose to 49% of revenues or $2,560,478 for the 2015 Period from 42% of revenues or $1,682,020 for the 2014 Period. Gross
Profit (exclusive of amortization), a non-GAAP financial measure, rose to 58% of revenues or $3,049,431 for the 2015 Period from 53% of
revenues or $2,121,958 for the 2014 Period, a year-over-year increase of $927,473 or 44%.
Costs and Expenses
General and Administrative
General and administrative costs for the 2015 Period were $5,924,263 compared to $6,300,229 during the 2014 Period, a decrease of
$375,966 or 6%. The decrease reflects $475,000 decrease in consulting and professional services and a $150,000 decrease in stock
compensation expense, offset by a $176,000 increase in warrant exercise expense, a $36,000 increase in travel expenses and a $35,000
increase in investor relation expenses. The net decrease also reflects a $30,000 decrease in biennial graduation expenses, as there was no
graduation in the 2015 Period, as well as a reduction of regulatory expenses related to Aspen’s now completed reaccreditation review.
Depreciation and Amortization
Depreciation and amortization costs for the 2015 Period rose to $528,496 from $474,752 for the 2014 Period, an increase of $53,744 or
11%. The increase is primarily attributable to higher levels of capitalized technology costs as Aspen launched a new academic learning
system, Desire2Learn, in the 2015 Period.
38
Other Income (Expense)
Other income for the 2015 Period increased to $9,196 from $1,656 in the 2014 Period, an increase of $7,540 or 455%. A significant portion
of this increase is due to the sale of excess textbooks. Interest expense decreased from $659,997 to $421,653, a decrease of $238,344 or
36%. Interest was higher each month year over year until the extinguishment in September 2014. Before the extinguishment, the monthly
increase year over year was due to the monthly interest expense of $13,333, the amortization of the original issue discount and the
amortization of debt issuance costs, all associated with the issuance of debentures. In addition, there is the monthly interest expense of
$8,333 on the long-term loan from our CEO.
Loss from Debt Extinguishment
In the 2015 Period, there is a $452,503 loss from the extinguishment of the debenture. Included in this loss is the final interest payment of
$70,000, offset by an interest accrual of $34,084, along with the write off of $130,057 of remaining debt issuance costs and $286,530 of
remaining original issue discount.
Income Taxes
Income taxes expense (benefit) for the comparable years was $0 as Aspen Group experienced operating losses in both periods. As
management made a full valuation allowance against the deferred tax assets stemming from these losses, there was no tax benefit recorded
in the statement of operations in both periods.
Net Loss
Net loss for 2015 Period was ($4,268,288) as compared to ($5,350,348) for the 2014 Period, a decrease in the loss of $1,082,060 or
approximately 20%. Contributing to this lower loss was the increase in revenues in the 2015 period, coupled with lower General and
Administration expenses.
Discontinued Operations
As of August 4, 2013, Aspen Group discontinued business activities related to its agreement with CLS. See Note 1 of the consolidated
financial statements contained herein. The following table details the results of the discontinued operations for the years ended April 30,
2015 and 2014:
Revenues
Costs and expenses:
Instructional costs and services
General and administrative
Total costs and expenses
For the Year Ended
April 30,
2015
2014
$
— $
549,125
—
—
—
494,213
(29,751)
464,462
Income (loss) from discontinued operations, net of income taxes
$
— $
84,663
Non-GAAP – Financial Measures
The following discussion and analysis includes both financial measures in accordance with Generally Accepted Accounting Principles, or
GAAP, as well as non-GAAP financial measures. Generally, a non-GAAP financial measure is a numerical measure of a company’s
performance, financial position or cash flows that either excludes or includes amounts that are not normally included or excluded in the
most directly comparable measure calculated and presented in accordance with GAAP. Non-GAAP financial measures should be viewed as
supplemental to, and should not be considered as alternatives to net income, operating income, and cash flow from operating activities,
liquidity or any other financial measures. They may not be indicative of the historical operating results of Aspen Group nor are they
intended to be predictive of potential future results. Investors should not consider non-GAAP financial measures in isolation or as
substitutes for performance measures calculated in accordance with GAAP.
39
Our management uses and relies on Adjusted EBITDA and Gross Profit (exclusive of depreciation and amortization), which are non-GAAP
financial measures. We believe that both management and shareholders benefit from referring to the following non-GAAP financial
measures in planning, forecasting and analyzing future periods. Our management uses these non-GAAP financial measures in evaluating its
financial and operational decision making and as a means to evaluate period-to-period comparison. Our management recognizes that the
non-GAAP financial measures have inherent limitations because of the described excluded items.
Aspen Group defines Adjusted EBITDA as earnings (or loss) from continuing operations before the items in the table below including non-
recurring charges of $573,983. Adjusted EBITDA is an important measure of our operating performance because it allows management,
investors and analysts to evaluate and assess our core operating results from period-to-period after removing the impact of items of a non-
operational nature that affect comparability.
We have included a reconciliation of our non-GAAP financial measures to the most comparable financial measure calculated in accordance
with GAAP. We believe that providing the non-GAAP financial measures, together with the reconciliation to GAAP, helps investors make
comparisons between Aspen Group and other companies. In making any comparisons to other companies, investors need to be aware that
companies use different non-GAAP measures to evaluate their financial performance. Investors should pay close attention to the specific
definition being used and to the reconciliation between such measure and the corresponding GAAP measure provided by each company
under applicable SEC rules.
The following table presents a reconciliation of Adjusted EBITDA to Net loss allocable to common shareholders, a GAAP financial
measure:
Net loss
Loss on extinguishment of debt
Interest Expense, net of interest income
Discontinued Operations, net
Bad Debt Expense
Depreciation & Amortization
Receivable collateral valuation reserve
Amortization of prepaid services
Amortization of debt issue costs
Amortization of debt discount
Warrant conversion exercise expense
Non-recurring charges
Stock-based compensation
Adjusted EBITDA (Loss)
For the Years Ended
April 30,
2015
(4,268,288) $
452,503
170,758
—
156,165
528,496
—
—
75,458
166,241
333,323
573,983
456,871
(1,354,490) $
2014
(5,350,348)
—
230,931
84,663
154,732
474,752
123,647
366,647
133,738
294,640
156,952
504,973
608,428
(2,216,245)
$
$
The following table presents a reconciliation of Gross Profit (exclusive of amortization), a non-GAAP financial measure, to gross profit
calculated in accordance with GAAP:
Revenues
Costs of revenues (exclusive of depreciation and amortization shown separately
Gross profit (exclusive of depreciation and amortization
Depreciation and amortization expenses excluded from cost of revenues
GAAP gross profit
40
For the Years Ended
April 30,
2015
2014
$
5,225,761 $
3,981,722
2,176,330
1,859,764
3,049,431
2,121,958
488,953
439,938
$
2,560,478 $
1,682,020
Liquidity and Capital Resources
A summary of our cash flows is as follows:
Net cash used in operating activities
Net cash used in investing activities
Net cash provided by financing activities
Net cash provided by discontinued operations
Net increase (decrease) in cash and cash equivalents
Net Cash Used in Operating Activities
For the Years Ended
April 30,
2015
2014
$ (2,741,466) $ (3,664,964)
(995,652)
4,114,283
68,731
(477,602)
(777,432)
5,425,731
5,250
1,912,083 $
$
Net cash used in operating activities during the 2015 Period totaled ($2,741,466) and resulted primarily from a net loss from continuing
operations of ($4,268,288) offset by non-cash items of $2,133,143, comprised of $416,587 from the non-cash portion of the loss on
extinguishment of debt, $166,241 of amortization of debt discount, $528,496 in depreciation and amortization, $75,458 of amortization of
debt discount, $456,871 of stock compensation expense, $333,323 of warrant conversion exercise expense and $156,165 of bad debt
expense, and a net change in operating assets and liabilities of $(606,321), of which the $(275,674) decrease in accounts payable was the
most significant.
Net cash used in operating activities during the 2014 Period totaled ($3,664,964) and resulted primarily from a net loss from continuing
operations of $(5,350,348) offset by non-cash items of $2,229,893 and a net change in operating assets and liabilities of $(459,847).
Net Cash Used in Investing Activities
Net cash used in investing activities during the 2015 Period totaled ($777,432) and resulted primarily from capitalized technology
expenditures and the increase in restricted cash.
Net cash used in investing activities during the 2014 Period totaled ($995,652), resulting primarily from an increase in restricted cash as
well as capitalized technology expenditures.
Net Cash Provided By Financing Activities
Net cash provided by financing activities during the 2015 Period totaled $5,425,731 which resulted primarily from proceeds from the
private placements of $5,547,825 and $2,268,670 from the exercise of warrants, offset by debt repayments of $2,240,000.
Net cash provided by financing activities during the 2014 Period totaled $4,114,283 which resulted primarily from the receipt of a
$1,000,000 long-term loan from the CEO, the proceeds of $1,639,298 from issuance of convertible debt, $750,000 from the issuance of
common stock and $804,049 from the exercise of warrants.
Historical Financings
Historically, our primary sources of liquidity are cash receipts from tuition and the issuances of debt and equity securities. The primary uses
of cash are payroll related expenses, professional expenses and instructional and marketing expenses.
On July 1, 2013, Mr. Michael Mathews, our Chief Executive Officer, loaned Aspen Group $1 million and was issued a $1 million
promissory note. The promissory note bears 10% interest per annum, payable monthly in arrears. Mr. Mathews also holds two $300,000
convertible notes, one of which is convertible at $0.35 per share and the other at $1.00 per share. These Notes held by Mr. Mathews were
recently extended to July 31, 2016.
In September 2013, the Company sold a $2,240,000 Original Issue Discount Secured Convertible Debenture (the “Debenture”) and
6,736,842 five-year warrants (exercisable at $0.3325) in a private placement offering to an institutional investor. The Company received
net proceeds of approximately $1.7 million from this offering.
41
On January 15, 2014, a warrant exercise offering was completed whereby 4,231,840 warrants were exercised at an exercise price of $0.19
per warrant. The total proceeds received were $804,049. Related to this, additional 5,178,947 new warrants were issued at $0.19 per
warrant as part of a price protection agreement with two investors.
On March 10, 2014, several members of the Board of Directors invested $600,000 in exchange for 3,157,895 shares of common stock and
3,157,895 warrants at $0.19 per share.
On July 29, 2014, in the first part of a two part private placement offering, seven accredited investors, including the Company’s Chief
Financial Officer, paid a total of $1,631,500 in exchange for 10,525,809 shares of common stock and 5,262,907 five-year warrants
exercisable at $0.19 per share. Aspen reimbursed expenses in total of $75,000 related to this offering. As a result of this private placement,
on July 31, 2014, Aspen issued 3,473,259 shares of common stock to prior investors who had price protection on their investments, issued
2,662,139 warrants to a prior investor who had price protection on their investment and reduced the exercise and conversion price on
14,451,613 outstanding warrants and its outstanding Debenture to $0.155.
On September 4, 2014, Aspen raised $3,766,325 from the sale of 24,298,877 shares of common stock and 12,149,439 five-year warrants
exercisable at $0.19 per share in the second part of a two part private placement offering to 15 accredited investors. The net proceeds to
Aspen were approximately $3.7 million. With the proceeds from this offering, we pre-paid the full principal owed and interest due under
the Debenture (described above).
In April 2015, Aspen raised $2,268,670 closed on its offering to warrant holders whereby it issued 14,636,584 shares of common stock to
the holders in exchange for their early exercise of warrants at the reduced exercise price of $0.155. The Company received gross proceeds
of $2,268,670, which included warrants exercised by the Company’s Chief Financial Officer.
Liquidity and Capital Resource Considerations
At April 30, 2015, the Company had a cash balance of approximately $3.3 million which includes $1.1 million of restricted cash. In April
2015, the Company offered a warrant conversion, through which the Company issued 15,236,484 shares, raising $2,268,670. In September
2014, the Company completed the second closing of its equity financing of $3,766,325. With the additional cash raised in these financings,
the growth in the Company revenues and improving operating margins, the Company believes that it has sufficient cash to allow the
Company to implement its long-term business plan.
Our cash balances are kept liquid to support our growing infrastructure needs. The majority of our cash is concentrated in large financial
institutions.
Critical Accounting Policies and Estimates
In response to financial reporting release FR-60, Cautionary Advice Regarding Disclosure About Critical Accounting Policies, from the
SEC, we have selected our more subjective accounting estimation processes for purposes of explaining the methodology used in
calculating the estimate, in addition to the inherent uncertainties pertaining to the estimate and the possible effects on the our financial
condition. The accounting estimates are discussed below and involve certain assumptions that, if incorrect, could have a material adverse
impact on our results of operations and financial condition.
Revenue Recognition and Deferred Revenue
Revenue consisting primarily of tuition and fees derived from courses taught by Aspen online as well as from related educational resources
that Aspen provides to its students, such as access to our online materials and learning management system. Tuition revenue is recognized
pro-rata over the applicable period of instruction. Aspen maintains an institutional tuition refund policy, which provides for all or a portion
of tuition to be refunded if a student withdraws during stated refund periods. Certain states in which students reside impose separate,
mandatory refund policies, which override Aspen’s policy to the extent in conflict. If a student withdraws at a time when a portion or none
of the tuition is refundable, then in accordance with its revenue recognition policy, Aspen recognizes as revenue the tuition that was not
refunded. Since Aspen recognizes revenue pro-rata over the term of the course and because, under its institutional refund policy, the
amount subject to refund is never greater than the amount of the revenue that has been deferred, under Aspen’s accounting policies revenue
is not recognized with respect to amounts that could potentially be refunded. Aspen’s educational programs have starting and ending dates
that differ from its fiscal quarters. Therefore, at the end of each fiscal quarter, a portion of revenue from these programs is not yet earned
and is therefore deferred. Aspen also charges students annual fees for library, technology and other services, which are recognized over the
related service period. Deferred revenue represents the amount of tuition, fees, and other student payments received in excess of the portion
recognized as revenue and it is included in current liabilities in the accompanying consolidated balance sheets. Other revenue may be
recognized as sales occur or services are performed.
42
Revenue Recognition and Deferred Revenue – Discontinued Operations
Aspen entered into certain revenue sharing arrangements with consultants whereby the consultants developed course content primarily for
technology related courses, recommend, but not select, faculty, lease equipment on behalf of Aspen for instructional purposes for the on-
site laboratory portion of distance learning courses and make introductions to corporate and government sponsoring organizations who
provide students for the courses. Aspen has evaluated ASC 605-45 "Principal Agent Considerations" and determined that there are more
indicators than not that Aspen is the primary obligor in the arrangements since Aspen establishes the tuition, interfaces with the student or
sponsoring organization, selects the faculty, is responsible for delivering the course, is responsible for issuing any degrees or certificates,
and is responsible for collecting the tuition and fees. The gross tuition and fees are included in revenue while the revenue sharing payments
are included in instructional costs and services, an operating expense. As a result of presenting this component as discontinued operations,
the revenue is now included in income from discontinued operations for all periods presented.
Accounts Receivable and Allowance for Doubtful Accounts Receivable
All students are required to select both a primary and secondary payment option with respect to amounts due to Aspen for tuition, fees and
other expenses. The most common payment option for Aspen’s students is personal funds or payment made on their behalf by an employer.
In instances where a student selects financial aid as the primary payment option, he or she often selects personal cash as the secondary
option. If a student who has selected financial aid as his or her primary payment option withdraws prior to the end of a course but after the
date that Aspen’s institutional refund period has expired, the student will have incurred the obligation to pay the full cost of the course. If
the withdrawal occurs before the date at which the student has earned 100% of his or her financial aid, Aspen will have to return all or a
portion of the Title IV funds to the DOE and the student will owe Aspen all amounts incurred that are in excess of the amount of financial
aid that the student earned and that Aspen is entitled to retain. In this case, Aspen must collect the receivable using the student’s second
payment option.
For accounts receivable from students, Aspen records an allowance for doubtful accounts for estimated losses resulting from the inability,
failure or refusal of its students to make required payments, which includes the recovery of financial aid funds advanced to a student for
amounts in excess of the student’s cost of tuition and related fees. Aspen determines the adequacy of its allowance for doubtful accounts
using a general reserve method based on an analysis of its historical bad debt experience, current economic trends, and the aging of the
accounts receivable and student status. Aspen applies reserves to its receivables based upon an estimate of the risk presented by the age of
the receivables and student status. Aspen writes off accounts receivable balances at the time the balances are deemed uncollectible. Aspen
continues to reflect accounts receivable with an offsetting allowance as long as management believes there is a reasonable possibility of
collection.
For accounts receivable from primary payors other than students, Aspen estimates its allowance for doubtful accounts by evaluating
specific accounts where information indicates the customers may have an inability to meet financial obligations, such as bankruptcy
proceedings and receivable amounts outstanding for an extended period beyond contractual terms. In these cases, Aspen uses assumptions
and judgment, based on the best available facts and circumstances, to record a specific allowance for those customers against amounts due
to reduce the receivable to the amount expected to be collected. These specific allowances are re-evaluated and adjusted as additional
information is received. The amounts calculated are analyzed to determine the total amount of the allowance. Aspen may also record a
general allowance as necessary.
Direct write-offs are taken in the period when Aspen has exhausted its efforts to collect overdue and unpaid receivables or otherwise
evaluate other circumstances that indicate that Aspen should abandon such efforts.
Related Party Transactions
See Note 14 to the consolidated financial statements included herein for additional description of related party transactions that had a
material effect on our consolidated financial statements.
Off Balance Sheet Arrangements
We do not engage in any activities involving variable interest entities or off-balance sheet arrangements.
New Accounting Pronouncements
See Note 2 to our consolidated financial statements included herein for discussion of recent accounting pronouncements.
43
Cautionary Note Regarding Forward Looking Statements
This report contains forward-looking statements including the expected growth in our undergraduate Nursing degree program, forecasted
fourth quarter student enrollments, forecasted revenue from the expected forecasted student enrollments, expected increase or decrease in
expenses including an increase in Internet marketing expenses, capital expenditures, and liquidity.
The words “believe,” “may,” “estimate,” “continue,” “anticipate,” “intend,” “should,” “plan,” “could,” “target,” “potential,” “is likely,”
“will,” “expect” and similar expressions, as they relate to us, are intended to identify forward-looking statements. We have based these
forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may
affect our financial condition, results of operations, business strategy and financial needs.
The results anticipated by any or all of these forward-looking statements might not occur. Important factors, uncertainties and risks that
may cause actual results to differ materially from these forward-looking statements are contained in the Risk Factors above. We undertake
no obligation to publicly update or revise any forward-looking statements, whether as the result of new information, future events or
otherwise. For more information regarding some of the ongoing risks and uncertainties of our business, see the Risk Factors and our other
filings with the SEC.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Not applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The requirements of this Item can be found beginning on page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE.
Not applicable.
ITEM 9A. CONTROLS AND PROCEDURES.
Evaluation of Disclosure Controls and Procedures. Our management carried out an evaluation, with the participation of our Principal
Executive Officer and Principal Financial Officer, of the effectiveness of our disclosure controls and procedures as defined in Rule 13a-
15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”). Based on their evaluation, our Principal Executive Officer and
Principal Financial Officer concluded that our disclosure controls and procedures were effective as of April 30, 2015.
Management’s Annual Report on Internal Control over Financial Reporting. Our management is responsible for establishing and
maintaining adequate internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act). Our management,
under the supervision and with the participation of our Principal Executive Officer and Principal Financial Officer, evaluated the
effectiveness of our internal control over financial reporting as of the end of the period covered by this report. In making this assessment,
our management used the criteria set forth by the Committee of Sponsor Organizations of the Treadway Commission (COSO) in Internal
Control-Integrated Framework as issued in 2013. Based on that evaluation, our management concluded that our internal control over
financial reporting was effective based on that criteria.
Our internal control over financial reporting is a process designed under the supervision of our Principal Executive Officer and Principal
Financial Officer to provide reasonable assurance regarding the reliability of financial reporting and the preparation of our financial
statements for external reporting purposes in accordance with GAAP. Internal control over financial reporting includes those policies and
procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and
dispositions of our assets; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial
statements in accordance with GAAP, and that receipts and expenditures are being made only in accordance with authorizations of our
management and directors; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use
or disposition of our assets that could have a material effect on the financial statements.
44
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of
any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in
conditions, or that the degree of compliance with policies or procedures may deteriorate.
Changes in Internal Control over Financial Reporting. There were no changes in our internal control over financial reporting during the
period covered by this report that has materially affected, or is reasonably likely to materially affect our internal control over financial
reporting.
ITEM 9B. OTHER INFORMATION.
None.
45
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
PART III
The information required by this item is incorporated by reference to our Proxy Statement for the 2015 Annual Meeting of Shareholders to
be filed with the SEC within 120 days of the fiscal year ended April 30, 2015.
Our Board of Directors has adopted a Code of Ethics applicable to all officers, directors and employees, which is available on our website
(http://ir.aspen.edu/governance-documents) under "Corporate Governance." We intend to satisfy the disclosure requirement under Item
5.05 of Form 8-K regarding amendment to, or waiver from, a provision of our Code of Ethics and by posting such information on our
website at the address and location specified above.
ITEM 11. EXECUTIVE COMPENSATION.
The information required by this item is incorporated by reference to our Proxy Statement for the 2015 Annual Meeting of Shareholders to
be filed with the SEC within 120 days of the fiscal year ended April 30, 2015.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED
STOCKHOLDER MATTERS.
The information required by this item is incorporated by reference to our Proxy Statement for the 2015 Annual Meeting of Shareholders to
be filed with the SEC within 120 days of the fiscal year ended April 30, 2015.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE.
The information required by this item is incorporated by reference to our Proxy Statement for the 2015 Annual Meeting of Shareholders to
be filed with the SEC within 120 days of the fiscal year ended April 30, 2015.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES.
The information required by this item is incorporated by reference to our Proxy Statement for the 2015 Annual Meeting of Shareholders to
be filed with the SEC within 120 days of the fiscal year ended April 30, 2015.
46
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES.
(a) Documents filed as part of the report.
PART IV
(1) Financial Statements. See Index to Consolidated Financial Statements, which appears on page F-1 hereof. The financial
statements listed in the accompanying Index to Consolidated Financial Statements are filed herewith in response to this Item.
(2) Financial Statements Schedules. All schedules are omitted because they are not applicable or because the required information is
contained in the consolidated financial statements or notes included in this report.
(3) Exhibits. See the Exhibit Index.
47
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned, thereunto duly authorized.
SIGNATURES
Date: July 28, 2015
Aspen Group, Inc.
By:/s/ Michael Mathews
Michael Mathews
Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf
of the registrant and in the capacities and on the dates indicated.
Signature
Title
/s/ Michael Mathews
Michael Mathews
/s/ Janet Gill
Janet Gill
/s/ Dr. Michael D’Anton
Dr. Michael D’Anton
/s/ C. James Jensen
C. James Jensen
Andrew Kaplan
/s/ David E. Pasi
David E. Pasi
/s/ Sanford Rich
Sanford Rich
/s/ Dr. John Scheibelhoffer
Dr. John Scheibelhoffer
/s/ Paul Schneier
Paul Schneier
/s/ Rick Solomon
Rick Solomon
Principal Executive Officer and Director
Chief Financial Officer
(Principal Financial Officer)
Director
Director
Director
Director
Director
Director
Director
Director
48
Date
July 28, 2015
July 28, 2015
July 28, 2015
July 28, 2015
July 28, 2015
July 28, 2015
July 28, 2015
July 28, 2015
July 28, 2015
Aspen Group, Inc. and Subsidiaries
Index to Consolidated Financial Statements
Financial Statements
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets as of April 30, 2015 and 2014
Consolidated Statements of Operations for the years ended April 30, 2015 and 2014
Consolidated Statements of Changes in Stockholders' Equity (Deficiency) for the years ended April 30, 2015 and
2014
Consolidated Statements of Cash Flows for the years ended April 30, 2015 and 2014
Notes to Consolidated Financial Statements
Page
F-2
F-3
F-5
F-6
F-7
F-9
F-1
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Stockholders of:
Aspen Group, Inc.
We have audited the accompanying consolidated balance sheets of Aspen Group, Inc. and Subsidiaries as of April 30, 2015 and 2014, and
the related consolidated statements of operations, changes in stockholders’ equity (deficiency) and cash flows for each of the two years in
the period ended April 30, 2015. These consolidated financial statements are the responsibility of the Company’s management. Our
responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements
are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the
consolidated financial statements. An audit also includes assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall consolidated financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial
position of Aspen Group, Inc. and Subsidiaries as of April 30, 2015 and 2014, and the consolidated results of its operations and its cash
flows for each of the two years in the period ended April 30, 2015, in conformity with accounting principles generally accepted in the
United States of America.
/s/ Salberg & Company, P.A.
SALBERG & COMPANY, P.A.
Boca Raton, Florida
July 28, 2015
2295 NW Corporate Blvd., Suite 240 • Boca Raton, FL 33431-7328
Phone: (561) 995-8270• Toll Free: (866) CPA-8500• Fax: (561) 995-1920
www.salbergco.com • info@salbergco.com
Member National Association of Certified Valuation Analysts • Registered with the PCAOB
Member CPAConnect with Affiliated Offices Worldwide • Member AICPA Center for Audit Quality
F-2
ASPEN GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
Assets
Current assets:
Cash and cash equivalents
Restricted cash
Accounts receivable, net of allowance of $279,453 and $221,537, respectively
Prepaid expenses
Net assets from discontinued operations (Note 1)
Total current assets
Property and equipment:
Call center equipment
Computer and office equipment
Furniture and fixtures
Library (online)
Software
Less accumulated depreciation and amortization
Total property and equipment, net
Courseware, net
Accounts receivable, secured - related party, net of allowance of $625,963, and $625,963, respectively
Debt issuance costs, net
Other assets
Total assets
April 30,
2015
2014
$ 2,159,463 $
1,122,485
1,058,339
121,594
—
4,461,881
247,380
868,298
649,890
45,884
5,250
1,816,702
132,798
78,626
42,698
100,000
2,244,802
2,598,924
(1,387,876)
1,211,048
173,311
45,329
—
26,679
122,653
66,118
36,446
100,000
1,894,215
2,219,432
(938,703)
1,280,729
108,882
146,831
205,515
25,181
$ 5,918,248 $ 3,583,840
(Continued)
The accompanying notes are an integral part of these consolidated financial statements.
F-3
ASPEN GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (CONTINUED)
Liabilities and Stockholders’ Equity (Deficiency)
Current liabilities:
Accounts payable
Accrued expenses
Deferred revenue
Refunds Due Students
Deferred rent, current portion
Convertible notes payable, current portion
Debenture payable, net of discounts of $0 and $452,771
Total current liabilities
Line of credit
Loan payable officer - related party
Convertible notes payable - related party
Deferred rent
Total liabilities
Commitments and contingencies - See Note 10
Stockholders’ equity (deficiency):
Common stock, $0.001 par value; 250,000,000 shares authorized, 128,253,605 issued and 128,053,605
outstanding at April 30, 2015, 73,414,478 issued and 73,214,478 outstanding at April 30, 2014
Additional paid-in capital
Treasury stock (200,000 shares)
Accumulated deficit
Total stockholders’ equity (deficiency)
April 30,
2015
2014
$
179,109 $
173,663
784,818
280,739
7,751
50,000
—
1,476,080
243,989
1,000,000
600,000
—
3,320,069
454,783
144,466
653,518
288,121
13,699
175,000
1,787,229
3,516,816
244,175
1,000,000
600,000
7,751
5,368,742
128,254
73,414
24,898,647 16,302,118
(70,000)
(22,358,722) (18,090,434)
(1,784,902)
2,598,179
(70,000)
Total liabilities and stockholders’ equity (deficiency)
$ 5,918,248 $ 3,583,840
The accompanying notes are an integral part of these consolidated financial statements.
F-4
ASPEN GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
Revenues
Operating expenses
Cost of revenues (exclusive of depreciation and amortization shown separately below)
General and administrative
Receivable collateral valuation reserve
Depreciation and amortization
Total operating expenses
Operating loss from continuing operations
Other income (expense):
Other income
Loss on Debt Extinguishment
Interest expense
Total other expense, net
Loss from continuing operations before income taxes
Income tax expense (benefit)
Loss from continuing operations
Discontinued operations (Note 1)
Income from discontinued operations, net of income taxes
Net loss
Loss per share from continuing operations – basic and diluted
Income per share from discontinued operations – basic and diluted
Net loss per share – basic and diluted
Weighted average number of common shares outstanding
Basic and diluted
For the Years Ended
April 30,
2015
2014
$ 5,225,761 $ 3,981,722
2,176,330
5,924,263
—
528,496
8,629,089
1,859,764
6,300,229
123,647
474,752
8,758,392
(3,403,328)
(4,776,670)
9,196
(452,503)
(421,653)
(864,960)
1,656
—
(659,997)
(658,341)
(4,268,288)
(5,435,011)
—
—
(4,268,288)
(5,435,011)
—
84,663
$ (4,268,288) $ (5,350,348)
$
$
$
(0.04) $
— $
(0.04) $
(0.09)
0.00
(0.09)
100,884,625 62,031,861
The accompanying notes are an integral part of these consolidated financial statements.
F-5
ASPEN GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY (DEFICIENCY)
FOR THE YEARS ENDED APRIL 30, 2014 AND 2015
Balance at April 30, 2013
58,573,222 $
58,573 $13,345,888 $
Common Stock
Shares
Amount
Additional
Paid-In
Capital
Treasury
Accumulated
Deficit
Stock
(70,000) $(12,740,086) $
Total
Stockholders'
Equity
(Deficiency)
594,375
Issuance of common shares for investor relation
services
Offering cost for professional services from private
placement
Stock-based compensation
Warrants issued in financing
Warrants exercised
Warrant Modification
Shares issued for price protection
Issuance of common shares for cash
Net loss, Year Ended April 30, 2014
Balance at April 30, 2014
617,143
617
215,383
—
—
216,000
—
—
—
7,006,064
—
3,270,678
3,947,371
—
73,414,478 $
—
—
—
7,006
—
3,271
3,947
—
(48,240)
608,429
483,881
797,043
156,952
(3,271)
746,053
—
73,414 $16,302,118 $
—
—
—
—
—
—
—
—
(48,240)
608,429
483,881
804,049
156,952
—
750,000
(5,350,348) (5,350,348)
(70,000) $(18,090,434) $(1,784,902)
—
—
—
—
—
—
—
Issuance of common shares for cash
Offering cost for professional services from private
35,614,154
35,615 5,512,211
placement
Stock-based compensation
Shares issued for price protection
Conversion of convertible debt into shares
Shares issued for services rendered
Warrant Conversion
Warrant Modification Expense
Net loss, year ended April 30, 2015
Balance at April 30, 2015
—
—
3,532,682
526,316
418,859
14,747,116
—
—
3,532
526
419
(125,579)
456,871
(3,532)
99,474
69,839
14,748 2,253,922
—
—
128,253,605 $
—
—
333,323
—
128,254 $24,898,647 $
—
—
—
—
—
—
—
— 5,547,826
(125,579)
—
456,871
—
—
—
100,000
—
—
70,258
— 2,268,670
—
—
333,323
(4,268,288) (4,268,288)
(70,000) $(22,358,722) $ 2,598,179
—
The accompanying notes are an integral part of these consolidated financial statements.
F-6
ASPEN GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Cash flows from operating activities:
Net loss
Less income from discontinued operations
Loss from continuing operations
Adjustments to reconcile net loss to net cash used in operating activities:
Bad debt expense
Receivable collateral valuation reserve
Amortization of debt issuance costs
Amortization of debt discount
Depreciation and amortization
Extinguishment of debentures
Stock-based compensation
Warrant modification expense
Common shares and warrants issued for services rendered
Changes in operating assets and liabilities:
Accounts receivable
Accounts receivable, secured - related party
Prepaid expenses
Other assets
Accounts payable
Accrued expenses
Deferred rent
Refunds due students
Deferred revenue
Net cash used in operating activities
Cash flows from investing activities:
Purchases of property and equipment
Purchases of courseware
Increase in restricted cash
Net cash used in investing activities
Cash flows from financing activities:
Proceeds from issuance of common shares and warrants, net
Principal payments on notes payable
Proceeds received from issuance of convertible notes and warrants
Repayment of note
Proceeds from related party for note
Disbursements for debt issuance costs
Proceeds from warrant exercise
Payments for line of credit
Disbursements for equity offering costs
Net cash provided by financing activities
For the Years Ended
April 30,
2015
2014
$ (4,268,288) $ (5,350,348)
—
84,663
(5,435,011)
(4,268,288)
156,165
—
75,458
166,241
528,496
416,587
456,871
333,323
70,258
154,732
123,647
131,657
294,640
474,752
—
608,429
156,952
285,084
(564,614)
101,502
(75,710)
(1,498)
(275,674)
29,198
(13,699)
(7,382)
131,300
(2,741,466)
(439,834)
—
50,456
—
141,378
15,405
(10,418)
34,238
(251,071)
(3,664,964)
(379,492)
(143,753)
(254,187)
(777,432)
(386,027)
(6,500)
(603,125)
(995,652)
5,547,826
(25,000)
—
(2,240,000)
—
—
2,268,670
(186)
(125,579)
5,425,731
750,000
(25,000)
1,639,298
—
1,000,000
(48,240)
804,049
(5,824)
—
4,114,283
(Continued)
The accompanying notes are an integral part of these consolidated financial statements.
F-7
ASPEN GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED)
Cash flows from discontinued operations:
Cash flows from discontinued operations
Net cash provided by discontinued operations
Net increase (decrease) in cash and cash equivalents
Cash and cash equivalents at beginning of year
Cash and cash equivalents at end of year
Supplemental disclosure of cash flow information:
Cash paid for interest
Cash paid for income taxes
Supplemental disclosure of non-cash investing and financing activities:
Issuance of common stock from conversion of notes
Issuance of common shares for prepaid services
Warrant value recorded as debt issue cost
Warrant value recorded as debt discount
For the Years Ended
April 30,
2015
2014
5,250
5,250
68,731
68,731
1,912,083
(477,602)
247,380
724,982
$ 2,159,463 $
247,380
$
$
$
$
$
$
240,264 $
— $
173,989
—
100,000 $
— $
— $
— $
—
216,000
94,316
389,565
The accompanying notes are an integral part of these consolidated financial statements.
F-8
ASPEN GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Note 1. Nature of Operations and Liquidity
Overview
Aspen Group, Inc. (together with its subsidiary, the “Company” or “Aspen”) is a holding company. Its subsidiary Aspen University Inc.
was founded in Colorado in 1987 as the International School of Information Management. On September 30, 2004, it changed its name to
Aspen University Inc. (“Aspen University”). On March 13, 2012, the Company was recapitalized in a reverse merger. All references to the
Company or Aspen before March 13, 2012 are to Aspen University.
On April 5, 2013, the Company gave 120-day notice to CLS 123, LLC of its intent to terminate the agreement between the Company and
CLS 123, LLC dated November 9, 2011. Moreover, at the end of the 120-day period, the Company no longer offered the “Certificate in
Information Technology with a specialization in Smart Home Integration” program. Accordingly, the activities related to CLS (or the
“Smart Home Integration Certificate” program) are treated as discontinued operations. As this component of the business was not sold,
there was no gain or loss on the disposition of this component (see below “Discontinued Operations”).
Aspen’s mission is to offer any motivated college-worthy student the opportunity to receive a high quality, responsibly priced distance-
learning education for the purpose of achieving sustainable economic and social benefits for themselves and their families. Aspen is
dedicated to providing the highest quality education experiences taught by top-tier professors - 60% of our adjunct professors hold
doctorate degrees.
Because we believe higher education should be a catalyst to our students’ long-term economic success, we exert financial prudence by
offering affordable tuition that is one of the greatest values in online higher education. Early in 2014, Aspen University unveiled a monthly
payment plan aimed at reversing the college-debt sentence plaguing working-class Americans.
On November 10, 2014, Aspen University announced the Commission on Collegiate Nursing Education (“CCNE”) has granted
accreditation to its Bachelor of Science in Nursing program (RN to BSN) until December 31, 2019.
Since 1993, we have been nationally accredited by the Distance Education and Accrediting Council (“DEAC”), a national accrediting
agency recognized by the U.S. Department of Education (the “DOE”). On February 25, 2015, the DEAC informed Aspen University that
it had renewed its accreditation for five years to January, 2019.
F-9
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Discontinued Operations
As of March 31, 2013, the Company decided to discontinue business activities related to its “Certificate in Information Technology with a
specialization in Smart Home Integration” program so that it may focus on growing its full-time, degree-seeking student programs, which
have higher gross margins. On April 5, 2013, the Company gave 120-day notice to CLS 123, LLC of its intent to terminate the agreement
between the Company and CLS 123, LLC dated November 9, 2011. Thus, as of August 3, 2013, the Company is no longer offering the
“Certificate in Information Technology with a specialization in Smart Home Integration” program. The termination of the “Smart Home
Integration Certificate” program qualifies as a discontinued operation and accordingly the Company has excluded results for this
component from its continuing operations in the consolidated statements of operations for all periods presented. The following table shows
the results of the “Smart Home Integration Certificate” program component included in the income (loss) from discontinued operations:
Revenues
Costs and expenses:
Instructional costs and services
General and administrative
Total costs and expenses
For the Year Ended
April 30,
2015
2014
$
— $
549,125
—
—
—
494,213
(29,751)
464,462
Income (loss) from discontinued operations, net of income taxes
$
— $
84,663
The major classes of assets and liabilities of discontinued operations on the balance sheet are as follows:
Assets
Cash and cash equivalents
Accounts receivable, net of allowance of $486,781, and $481,531, respectively
Other current assets
Net assets from discontinued operations
Liabilities
Accounts payable
Accrued expenses
Deferred revenue
Net liabilities from discontinued operations
Liquidity
April 30,
2015
2014
$
$
$
$
— $
—
—
— $
— $
—
—
— $
—
5,250
—
5,250
—
—
—
—
At April 30, 2015, the Company had a cash balance of approximately $3.3 million which includes $1.1 million of restricted cash. In April
2015, the Company offered a warrant conversion, through which the Company issued 14,636,582 shares, raising $2,268,670. In fiscal
2015, the Company completed an equity financing of $5,547,826. With the additional cash raised in the financing, the growth in the
Company revenues and improving operating margins, the Company believes that it has sufficient cash to allow the Company to implement
its long-term business plan.
F-10
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Note 2. Significant Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of Aspen Group, Inc. and its wholly-owned subsidiaries. All intercompany
balances and transactions have been eliminated in consolidation.
Use of Estimates
The preparation of the consolidated financial statements in conformity with accounting principles generally accepted in the United States
of America (“GAAP”) requires management to make estimates and assumptions that affect the reported amounts in the consolidated
financial statements. Actual results could differ from those estimates. Significant estimates in the accompanying consolidated financial
statements include the allowance for doubtful accounts and other receivables, the valuation of collateral on certain receivables,
amortization periods and valuation of courseware and software development costs, valuation of beneficial conversion features in
convertible debt, valuation of stock-based compensation, the valuation of net assets and liabilities from discontinued operations and the
valuation allowance on deferred tax assets.
Cash and Cash Equivalents
For the purposes of the consolidated statements of cash flows, the Company considers all highly liquid investments with an original
maturity of three months or less when purchased to be cash equivalents. There were no cash equivalents at April 30, 2015 and April 30,
2014 respectively. The Company maintains its cash in bank and financial institution deposits that at times may exceed federally insured
limits of $250,000 per financial institution. The Company has not experienced any losses in such accounts from inception through April 30,
2015. As of April 30, 2015, there was $2,191,791 and $938,212 located in two institutions greater than the federally insured limits.
Restricted Cash
Restricted cash represents amounts pledged as security for letters of credit for transactions involving Title IV programs. The company
considers $1,122,485 and $868,298 as restricted cash (shown as a current asset as of April 30, 2015 and April 30, 2014 respectively).
Fair Value Measurements
Fair value is the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most
advantageous market for the asset or liability in an orderly transaction between market participants. The Company classifies assets and
liabilities recorded at fair value under the fair value hierarchy based upon the observability of inputs used in valuation techniques.
Observable inputs (highest level) reflect market data obtained from independent sources, while unobservable inputs (lowest level) reflect
internally developed market assumptions. The fair value measurements are classified under the following hierarchy:
Level 1—Observable inputs that reflect quoted market prices (unadjusted) for identical assets and liabilities in active markets;
Level 2—Observable inputs, other than quoted market prices, that are either directly or indirectly observable in the marketplace for
identical or similar assets and liabilities, quoted prices in markets that are not active, or other inputs that are observable or can be
corroborated by observable market data for substantially the full term of the assets and liabilities; and
Level 3—Unobservable inputs that are supported by little or no market activity that are significant to the fair value of assets or
liabilities.
The estimated fair value of certain financial instruments, including cash and cash equivalents, accounts receivable, accounts payable and
accrued expenses are carried at historical cost basis, which approximates their fair values because of the short-term nature of these
instruments.
F-11
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Accounts Receivable and Allowance for Doubtful Accounts Receivable
All students are required to select both a primary and secondary payment option with respect to amounts due to Aspen for tuition, fees and
other expenses. The most common payment option for Aspen’s students is personal funds or payment made on their behalf by an employer.
In instances where a student selects financial aid as the primary payment option, he or she often selects personal cash as the secondary
option. If a student who has selected financial aid as his or her primary payment option withdraws prior to the end of a course but after the
date that Aspen’s institutional refund period has expired, the student will have incurred the obligation to pay the full cost of the course. If
the withdrawal occurs before the date at which the student has earned 100% of his or her financial aid, Aspen will have to return all or a
portion of the Title IV funds to the DOE and the student will owe Aspen all amounts incurred that are in excess of the amount of financial
aid that the student earned and that Aspen is entitled to retain. In this case, Aspen must collect the receivable using the student’s second
payment option.
For accounts receivable from students, Aspen records an allowance for doubtful accounts for estimated losses resulting from the inability,
failure or refusal of its students to make required payments, which includes the recovery of financial aid funds advanced to a student for
amounts in excess of the student’s cost of tuition and related fees. Aspen determines the adequacy of its allowance for doubtful accounts
using a general reserve method based on an analysis of its historical bad debt experience, current economic trends, and the aging of the
accounts receivable and student status. Aspen applies reserves to its receivables based upon an estimate of the risk presented by the age of
the receivables and student status. Aspen writes off accounts receivable balances at the time the balances are deemed uncollectible. Aspen
continues to reflect accounts receivable with an offsetting allowance as long as management believes there is a reasonable possibility of
collection.
For accounts receivable from primary payors other than students, Aspen estimates its allowance for doubtful accounts by evaluating
specific accounts where information indicates the customers may have an inability to meet financial obligations, such as bankruptcy
proceedings and receivable amounts outstanding for an extended period beyond contractual terms. In these cases, Aspen uses assumptions
and judgment, based on the best available facts and circumstances, to record a specific allowance for those customers against amounts due
to reduce the receivable to the amount expected to be collected. These specific allowances are re-evaluated and adjusted as additional
information is received. The amounts calculated are analyzed to determine the total amount of the allowance. Aspen may also record a
general allowance as necessary.
Direct write-offs are taken in the period when Aspen has exhausted its efforts to collect overdue and unpaid receivables or otherwise
evaluate other circumstances that indicate that Aspen should abandon such efforts.
Property and Equipment
Property and equipment are recorded at cost less accumulated depreciation and amortization. Depreciation and amortization are computed
using the straight-line method over the estimated useful lives of the related assets per the following table.
Category
Call center equipment
Computer and office equipment
Furniture and fixtures
Library (online)
Software
Depreciation Term
5 years
5 years
7 years
3 years
5 years
Costs incurred to develop internal-use software during the preliminary project stage are expensed as incurred. Internal-use software
development costs are capitalized during the application development stage, which is after: (i) the preliminary project stage is completed;
and (ii) management authorizes and commits to funding the project and it is probable the project will be completed and used to perform the
function intended. Capitalization ceases at the point the software project is substantially complete and ready for its intended use, and after
all substantial testing is completed. Upgrades and enhancements are capitalized if it is probable that those expenditures will result in
additional functionality. Amortization is provided for on a straight-line basis over the expected useful life of five years of the internal-use
software development costs and related upgrades and enhancements. When existing software is replaced with new software, the
unamortized costs of the old software are expensed when the new software is ready for its intended use.
F-12
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Leasehold improvements are amortized using the straight-line method over the shorter of the lease term or the estimated useful lives of the
assets.
Upon the retirement or disposition of property and equipment, the related cost and accumulated depreciation and amortization are removed
and a gain or loss is recorded in the consolidated statements of operations. Repairs and maintenance costs are expensed in the period
incurred.
Courseware
The Company records the costs of courseware in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards
Codification (“ASC”) Topic 350 “Intangibles - Goodwill and Other”.
Generally, costs of courseware are capitalized whereas costs for upgrades and enhancements are expensed as incurred. Courseware is stated
at cost less accumulated amortization. Amortization is provided for on a straight-line basis over the expected useful life of five years.
Long-Lived Assets
The Company assesses potential impairment to its long-lived assets when there is evidence that events or changes in circumstances indicate
that the carrying amount of an asset may not be recoverable. Events and circumstances considered by the Company in determining whether
the carrying value of identifiable intangible assets and other long-lived assets may not be recoverable include, but are not limited to:
significant changes in performance relative to expected operating results, significant changes in the use of the assets, significant negative
industry or economic trends, a significant decline in the Company’s stock price for a sustained period of time, and changes in the
Company’s business strategy. An impairment loss is recorded when the carrying amount of the long-lived asset is not recoverable and
exceeds its fair value. The carrying amount of a long-lived asset is not recoverable if it exceeds the sum of the undiscounted cash flows
expected to result from the use and eventual disposition of the asset. Any required impairment loss is measured as the amount by which the
carrying amount of a long-lived asset exceeds fair value and is recorded as a reduction in the carrying value of the related asset and an
expense to operating results.
Refunds Due Students
The Company receives Title IV funds from the Department of Education to cover tuition and living expenses. Until forwarded to the
student, this amount is captured in a current liability account called Refunds Due Students. Typically, the funds are paid to the students
within two weeks.
Leases
The Company enters into various lease agreements in conducting its business. At the inception of each lease, the Company evaluates the
lease agreement to determine whether the lease is an operating or capital lease. Leases may contain initial periods of free rent and/or
periodic escalations. When such items are included in a lease agreement, the Company records rent expense on a straight-line basis over the
initial term of a lease. The difference between the rent payment and the straight-line rent expense is recorded as a deferred rent liability.
The Company expenses any additional payments under its operating leases for taxes, insurance or other operating expenses as incurred.
F-13
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Revenue Recognition and Deferred Revenue
Revenues consist primarily of tuition and fees derived from courses taught by the Company online as well as from related educational
resources that the Company provides to its students, such as access to our online materials and learning management system. Tuition
revenue is recognized pro-rata over the applicable period of instruction. The Company allows a student to make three monthly tuition
payments during each 10-week class. The Company maintains an institutional tuition refund policy, which provides for all or a portion of
tuition to be refunded if a student withdraws during stated refund periods. Certain states in which students reside impose separate,
mandatory refund policies, which override the Company’s policy to the extent in conflict. If a student withdraws at a time when a portion or
none of the tuition is refundable, then in accordance with its revenue recognition policy, the Company recognizes as revenue the tuition that
was not refunded. Since the Company recognizes revenue pro-rata over the term of the course and because, under its institutional refund
policy, the amount subject to refund is never greater than the amount of the revenue that has been deferred, under the Company’s
accounting policies revenue is not recognized with respect to amounts that could potentially be refunded. The Company’s educational
programs have starting and ending dates that differ from its fiscal quarters. Therefore, at the end of each fiscal quarter, a portion of revenue
from these programs is not yet earned and is therefore deferred. The Company also charges students annual fees for library, technology and
other services, which are recognized over the related service period. Deferred revenue represents the amount of tuition, fees, and other
student payments received in excess of the portion recognized as revenue and it is included in current liabilities in the accompanying
consolidated balance sheets. Other revenues may be recognized as sales occur or services are performed.
Revenue Recognition and Deferred Revenue - Discontinued Operations
The Company enters into certain revenue sharing arrangements with consultants whereby the consultants will develop course content
primarily for technology-related courses, recommend, but not select, faculty, lease equipment on behalf of the Company for instructional
purposes for the on-site laboratory portion of distance learning courses and make introductions to corporate and government sponsoring
organizations that provide students for the courses. The Company has evaluated ASC 605-45 "Principal Agent Considerations" and
determined that there are more indicators than not that the Company is the primary obligor in the arrangements since the Company
establishes the tuition, interfaces with the student or sponsoring organization, selects the faculty, is responsible for delivering the course, is
responsible for issuing any degrees or certificates, and is responsible for collecting the tuition and fees. The gross tuition and fees are
included in revenues while the revenue sharing payments are included in instructional costs and services, an operating expense. As a result
of presenting this component as discontinued operations, the revenues are now included in income from discontinued operations, net of
income taxes for all periods presented (See Note 1).
Cost of Revenues
Cost of revenues consists of two categories of cost, instructional costs and services, and marketing and promotional costs.
Instructional Costs and Services
Instructional costs and services consist primarily of costs related to the administration and delivery of the Company's educational programs.
This expense category includes compensation costs associated with online faculty, technology license costs and costs associated with other
support groups that provide services directly to the students.
Marketing and Promotional Costs
Marketing and promotional costs include costs associated with producing marketing materials and advertising. Such costs are generally
affected by the cost of advertising media, the efficiency of the Company's marketing and recruiting efforts, and expenditures on advertising
initiatives for new and existing academic programs. Non-direct response advertising activities are expensed as incurred, or the first time the
advertising takes place, depending on the type of advertising activity.
F-14
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
General and Administrative
General and administrative expenses include compensation of employees engaged in corporate management, finance, human resources,
information technology, academic operations, compliance and other corporate functions. General and administrative expenses also include
professional services fees, bad debt expense related to accounts receivable, financial aid processing costs, non-capitalizable courseware and
software costs, travel and entertainment expenses and facility costs.
Income Tax
The Company uses the asset and liability method to compute the differences between the tax basis of assets and liabilities and the related
financial amounts. Valuation allowances are established, when necessary, to reduce deferred tax assets to the amount that more likely than
not will be realized. The Company has deferred tax assets and liabilities that reflect the net tax effects of temporary differences between the
carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Deferred tax
assets are subject to periodic recoverability assessments. Realization of the deferred tax assets, net of deferred tax liabilities, is principally
dependent upon achievement of projected future taxable income.
The Company records a liability for unrecognized tax benefits resulting from uncertain tax positions taken or expected to be taken in a tax
return. The Company accounts for uncertainty in income taxes using a two-step approach for evaluating tax positions. Step one,
recognition, occurs when the Company concludes that a tax position, based solely on its technical merits, is more likely than not to be
sustained upon examination. Step two, measurement, is only addressed if the position is more likely than not to be sustained. Under step
two, the tax benefit is measured as the largest amount of benefit, determined on a cumulative probability basis, which is more likely than
not to be realized upon ultimate settlement. The Company recognizes interest and penalties, if any, related to unrecognized tax benefits in
income tax expense.
Stock-Based Compensation
Stock-based compensation expense is measured at the grant date fair value of the award and is expensed over the requisite service period.
For employee stock-based awards, the Company calculates the fair value of the award on the date of grant using the Black-Scholes option
pricing model. Determining the fair value of stock-based awards at the grant date under this model requires judgment, including estimating
volatility, employee stock option exercise behaviors and forfeiture rates. The assumptions used in calculating the fair value of stock-based
awards represent the Company's best estimates, but these estimates involve inherent uncertainties and the application of management
judgment. For non-employee stock-based awards, the Company calculates the fair value of the award on the date of grant in the same
manner as employee awards, however, the awards are revalued at the end of each reporting period and the prorata compensation expense is
adjusted accordingly until such time the non-employee award is fully vested, at which time the total compensation recognized to date shall
equal the fair value of the stock-based award as calculated on the measurement date, which is the date at which the award recipient’s
performance is complete. The estimation of stock-based awards that will ultimately vest requires judgment, and to the extent actual results
or updated estimates differ from original estimates, such amounts are recorded as a cumulative adjustment in the period estimates are
revised.
Net Loss Per Share
Net loss per common share is based on the weighted average number of common shares outstanding during each period. Options to
purchase 14,426,412 and 10,746,412 common shares, warrants to purchase 28,871,757 and 23,144,005 common shares, and $650,000 and
$775,000 of convertible debt (convertible into 1,207,143 and 1,225,564 common shares, respectively) were outstanding during the years
ended April 30, 2015 and 2014, respectively, but were not included in the computation of diluted loss per share because the effects would
have been anti-dilutive. The options, warrants and convertible debt are considered to be common stock equivalents and are only included in
the calculation of diluted earnings per common share when their effect is dilutive.
F-15
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Segment Information
The Company operates in one reportable segment as a single educational delivery operation using a core infrastructure that serves the
curriculum and educational delivery needs of its online students regardless of geography. The Company's chief operating decision makers,
its CEO and Chief Academic Officer, manage the Company's operations as a whole, and no revenue, expense or operating income
information is evaluated by the chief operating decision makers on any component level.
Recent Accounting Pronouncements
Financial Accounting Standards Board, Accounting Standard Updates which are not effective until after April 30, 2015 are not expected to
have a significant effect on the Company’s unaudited consolidated financial position or results of operations.
In August 2014, the FASB issued ASU 2014-15, “Presentation of Financial Statements – Going Concern (Topic 205-40)”, which requires
management to evaluate whether there is substantial doubt about an entity’s ability to continue as a going concern for each annual and
interim reporting period. If substantial doubt exists, additional disclosure is required. This new standard will be effective for the Company
for annual and interim periods beginning after December 15, 2016. Early adoption is permitted. The Company does not expect the
implementation of this standard to have a material effect on it disclosures.
Note 3. Accounts Receivable
Accounts receivable consisted of the following at April 30, 2015 and 2014:
Accounts receivable
Less: Allowance for doubtful accounts
Accounts receivable, net
Bad debt expense for the years ended April 30, 2015 and 2014, were $156,165 and $154,732 respectively.
April 30,
2015
2014
$
$
1,337,792 $
(279,453)
1,058,339 $
871,427
(221,537)
649,890
F-16
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Note 4. Secured Note and Accounts Receivable – Related Parties
On March 30, 2008 and December 1, 2008, the Company sold courseware pursuant to marketing agreements to Higher Education
Management Group, Inc. (“HEMG”,) which was then a related party and principal stockholder of the Company. HEMG’s president is Mr.
Patrick Spada, the former Chairman of the Company, in the amount of $455,000 and $600,000, respectively; UCC filings were filed
accordingly. Under the marketing agreements, the receivables were due net 60 months. On September 16, 2011, HEMG pledged 772,793
Series C preferred shares (automatically converted to 654,850 common shares on March 13, 2012) of the Company as collateral for this
account receivable which at that time had a remaining balance of $772,793. On March 8, 2012, due to the impending reduction in the value
of the collateral as the result of the Series C conversion ratio and the Company’s inability to engage Mr. Spada in good faith negotiations to
increase HEMG’s pledge, Michael Mathews, the Company’s CEO, pledged 117,943 common shares of the Company, owned personally by
him, valued at $1.00 per share based on recent sales of capital stock as additional collateral to the accounts receivable, secured – related
party. On March 13, 2012, the Company deemed the receivables stemming from the sale of courseware curricula to be in default. On
April 4, 2012, the Company entered into an agreement with: (i) an individual, (ii) HEMG, and (iii) Mr. Patrick Spada. Under the
agreement, (a) the individual purchased and HEMG sold to the individual 400,000 common shares of the Company at $0.50 per share; (b)
the Company guaranteed it would purchase at least 600,000 common shares of the Company at $0.50 per share within 90 days of the
agreement and the Company would use its best efforts to purchase from HEMG and resell to investors an additional 1,400,000 common
shares of the Company at $0.50 per share within 180 days of the agreement; and (c) the Company waived any default of the accounts
receivable, secured - related party and extended the due date to September 30, 2014. Based on proceeds received on September 28, 2012
under a private placement at $0.35 per unit (consisting of one share of common stock and one-half of a warrant exercisable at $0.50 per
share), the value of the aforementioned collateral decreased. Accordingly, as of December 31, 2012, the Company recognized an allowance
of $502,315 for this account receivable. Based on the reduction in value of the collateral to $0.19, the Company recognized an expense of
$123,647 during the year ended April 30, 2014 as an additional allowance. As of April 30, 2015 and 2014, the balance of the account
receivable, net of allowance, was $45,329 and $146,831 respectively.
HEMG has failed to pay to Aspen University any portion of the $772,793 amount due as of September 30, 2014, despite due demand for
same. Consequently, on November 18, 2014 Aspen University filed a complaint vs. HEMG in the United States District Court for
the District of New Jersey, to collect the full amount due to the Company. HEMG defaulted. In addition, Aspen University gave notice to
HEMG that it intended to privately sell the 654,850 shares after March 10, 2015. On April 29, 2015, the Company sold those shares to a
private investor for $0.155 per share or $101,502, which proceeds reduced the receivable balance to $671,291 with a remaining allowance
of $625,963, resulting in a net receivable of $45,329.
Note 5. Property and Equipment
Property and equipment consisted of the following at April 30, 2015 and 2014:
April 30,
Call center hardware
Computer and office equipment
Furniture and fixtures
Library (online)
Software
Accumulated depreciation and amortization
Property and equipment, net
Software consisted of the following at April 30, 2015 and 2014:
Software
Accumulated amortization
Software, net
F-17
$
2015
132,798 $
78,626
42,698
100,000
2014
122,653
66,118
36,446
100,000
2,244,802 1,894,215
2,598,924 2,219,432
(1,387,876)
(938,703)
$ 1,211,048 $ 1,280,729
April 30,
2015
2014
$ 2,244,802 $ 1,894,215
(1,130,453)
(720,823)
$ 1,114,349 $ 1,173,392
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Depreciation and Amortization expense for all Property and Equipment as well as the portion for just software is presented for years ended
April 30, 2015 and 2014:
Depreciation and Amortization Expense
Software Amortization Expense
The following is a schedule of estimated future software amortization expense of software at April 30, 2015:
For the Years Ended
April 30,
2015
2014
$
449,173 $
369,039
$
409,630 $
334,224
Year Ending April 30,
2016
2017
2018
2019
2020
Total
$
299,307
388,670
222,506
136,544
67,322
$ 1,114,349
Note 6. Courseware
Courseware costs capitalized were $143,752 and $6,500 for the years ended April 30, 2015 and 2014, respectively.
Courseware consisted of the following at April 30, 2015 and 2014:
Courseware
Accumulated amortization
Courseware, net
Amortization expense of courseware for years ended April 30, 2015 and 2014:
Amortization Expense
The following is a schedule of estimated future amortization expense of courseware at April 30, 2015:
April 30,
2015
2014
$ 2,247,790 $ 2,104,038
(2,074,479) (1,995,156)
108,882
$
173,311 $
For the Years Ended
April 30,
2015
2014
$
79,323 $
105,713
Year Ending April 30,
2016
2017
2018
2019
2020
Total
F-18
$
$
57,780
39,146
31,057
29,584
15,744
173,311
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Note 7. Accrued Expenses
Accrued expenses consisted of the following at April 30, 2015 and 2014:
Accrued compensation
Accrued Interest
Other accrued expenses
Accrued expenses
Note 8. Loan Payable Officer – Related Party
April 30,
2015
2014
$
$
95,344 $
57,887
20,432
173,663 $
—
85,412
59,054
144,466
On June 28, 2013, the Company received $1,000,000 as a loan from the Company’s Chief Executive Officer. This loan was for a term of 6
months with an annual interest rate of 10%, payable monthly. Through various note extensions, the debt was extended to July 31, 2016.
There was no accounting effect for these extensions.
Note 9. Convertible Notes, Convertible Notes – Related Party and Debenture Payable
On February 25, 2012, February 27, 2012 and February 29, 2012, loans payable of $100,000, $50,000 and $50,000, respectively, were
converted into two-year convertible promissory notes, bearing interest of 0.19% per annum. Beginning March 31, 2012, the notes were
convertible into common shares of the Company at the rate of $1.00 per share. The Company evaluated the convertible notes and
determined that, for the embedded conversion option, there was no beneficial conversion value to record as the conversion price is
considered to be the fair market value of the common shares on the note issue dates. These loans (now convertible promissory notes) were
originally due in February 2014. Two of the above mentioned notes were modified in February 2014, see below, and the third became due
in February 2014. The amount due under this note has been reserved for payment upon the note being tendered to the Company by the note
holder.
On February 18, 2014 the Company renegotiated the terms of one of the $50,000 convertible notes, specifically the one dated February 27,
2012. The maturity date was extended to December 1, 2014 and the conversion price has been reduced to $0.19 per share. The interest rate
has been amended to 3.25% from February 27, 2012. This was treated as a note extinguishment in accordance with ASC 470-50. No gain or
loss on extinguishment was recorded and no beneficial conversion feature existed on the modification date. This note was converted to
common shares on December 1, 2014. (See Note 11)
On February 28, 2014 the Company renegotiated the terms of the $100,000 convertible note dated February 25, 2012. A payment was
made in the amount of $25,000 on February 28, 2014, reducing the principal to $75,000. Another principal payment of $25,000 was made
on August 1, 2014 reducing the principal to $50,000. The interest rate was raised to 3.25% from February 25, 2012. The conversion price
was reduced to $0.19 per share. This was treated as a note extinguishment in accordance with ASC 470-50. No gain or loss on
extinguishment was recorded and no beneficial conversion feature existed on the modification date. The remaining $50,000 balance of this
note was converted to common shares on December 1, 2014. (See Note 11)
On March 13, 2012, the Company’s CEO loaned the Company $300,000 and received a convertible promissory note due March 31, 2013,
bearing interest at 0.19% per annum. The note is convertible into common shares of the Company at the rate of $1.00 per share upon five
days written notice to the Company. The Company evaluated the convertible note and determined that, for the embedded conversion
option, there was no beneficial conversion value to record as the conversion price is considered to be the fair market value of the common
shares on the note issue date. On September 4, 2012, the maturity date was extended to August 31, 2013. On July 16, 2014, the maturity of
the debt to the CEO has been extended to January 1, 2016 and on March 4, 2015, the debt was extended to July 31, 2016. There was no
accounting effect for these modifications.
F-19
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
On August 14, 2012, the Company’s CEO loaned the Company $300,000 and received a convertible promissory note, payable on demand,
bearing interest at 5% per annum. The note is convertible into shares of common stock of the Company at a rate of $0.35 per share (based
on proceeds received on September 28, 2012 under a private placement at $0.35 per unit). The Company evaluated the convertible notes
and determined that, for the embedded conversion option, there was no beneficial conversion value to record as the conversion price is
considered to be the fair market value of the shares of common stock on the note issue date. On September 4, 2012, the maturity date was
extended to August 31, 2013. On December 17, 2012 the maturity date was extended to August 31, 2013. On September 25, 2013, as a
term of the convertible Debenture issued as discussed further in this Note, the maturity of the debt to the CEO has been extended to April 5,
2015. On July 16, 2014, the maturity of the debt to the CEO has been extended to January 1, 2016 and on March 4, 2015, the debt was
extended to July 31, 2016. There was no accounting effect for these modifications.
On September 26, 2013, the Company and an institutional investor (the "Institutional Investor") signed a Securities Purchase Agreement
(the “Agreement”) with respect to a loan of $2,240,000 evidenced by an 18 month original issue discount secured convertible debenture
(the "Debenture") with gross proceeds of $2,000,000 prior to fees. Payments on the Debenture were due 25% on November 1, 2014, 25%
on January 1, 2015 and the remaining 50% on April 1, 2015 as a final payment. The Company had the option to pay the interest or principal
in stock subject to certain “Equity Conditions” such as giving notice of its intent 20 trading days beforehand. The Agreement provided that
the Debenture may have been converted at the holder’s option at $0.3325 per share at any time after the closing and subject to adjustments.
The Company evaluated that for the embedded conversion option, there was no beneficial conversion value to record as the conversion
price was greater than the fair market value of the common shares on the note issue date. Warrants with a relative fair value of $389,565
were issued for 100% of the number of shares of common stock that could be purchased at the conversion price at closing or 6,736,842.
The warrants have a five-year term and are exercisable for cash if an outstanding registration statement is in effect within 90 days of
closing. The $389,565 was recorded as a debt discount to be amortized over the debt term. The Debenture bore 8% per annum interest and
was amortizable in installments over its term. The financing closed on September 26, 2013 and the Company received proceeds of
approximately $1.7 million, net of certain offering costs and before payment of various debt issue costs. Offering costs to the lender
included an original issue discount of $240,000 and cash loan fees of $117,846. At July 31, 2014, the balance of the Debenture payable was
$1,911,572, which was the loan of $2,240,000 less $328,428 of unamortized original issue discount. On September 4, 2014, Aspen used
part of the equity offering proceeds to fully prepay principal and interest owed under its outstanding debenture held by Institutional
Investor. Aspen paid them $2,310,000, after entering into an agreement whereby the Institutional Investor agreed to the prepayment and
agreed to limit the future sale of shares of common stock upon exercise of its warrants or otherwise. Of the $2,310,000 payment, $70,000
was for interest. Upon repayment of the debenture, the $70,000 interest payment, along with the balance of the debt discount and the debt
issuance costs totaling $452,503, was expensed in the Loss from debt extinguishment line on the Statement of Operations.
In September 2013 Company had entered into an engagement agreement with Laidlaw & Co. ("Laidlaw") to act as placement agent for the
offering and receive customary compensation. Laidlaw introduced the Institutional Investor. As a placement agent fee, the Company paid
Laidlaw $207,500 and issued 1,347,368 five year warrants with an exercise price of $0.3325, valued at $94,316. The warrants and fees paid
plus legal fees of $35,356 were recorded as a debt issue cost asset and were being amortized over the debt term. The discount was expensed
to interest expense upon repayment of the debenture.
F-20
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Notes payable consisted of the following at April 30, 2015 and 2014:
Note payable - related party originating August 14, 2012; no monthly payments required; bearing interest at
5% [A] [D]
Note payable - related party originating March 13, 2012; no monthly payments required; bearing interest at
0.19% [A] [D]
Note payable - originating February 25, 2012; no monthly payments required [B]
Note payable - originating February 27, 2012; no monthly payments required [C]
Note payable - originating February 29, 2012; no monthly payments required; bearing interest at 0.19%;
maturing at February 29, 2014
Loan Payable - related party originating February 25, 2012; no monthly payments required; bearing interest
at 10% [D]
Debentures payable, net of OID
Total
April 30,
2015
2014
$
300,000 $
300,000
300,000
—
—
300,000
75,000
50,000
50,000
50,000
1,000,000
—
1,650,000
1,000,000
1,787,229
3,562,229
Less: Current maturities (notes payable)
Less: Current maturities (Debentures Payable)
Subtotal
Less: amount due after one year for notes payable
Amount due after one year for convertible notes payable
———————
[A] - Effective September 4, 2012, note amended to provide a maturity date of August 31, 2013. Effective December 17, 2012, note further
amended to provide a maturity date of August 31, 2014. On September 25, 2013, maturity date had been extended to April 5, 2015. On July
16, 2014, the maturity date had been extended to January 1, 2016.
[B] - Effective February 28, 2014 a payment was made in the amount of $25,000 , reducing the principal to $75,000, the interest rate was
raised to 3.25% from February 25, 2012, and the conversion price was reduced to $0.19 per share. Another principal payment of $25,000
was made on August 1, 2014. On December 1, 2014 the final $50,000 was converted to Common Stock.
[C] - Effective February 18, 2014 the maturity date was extended to December 1, 2014 and the conversion price reduced to $0.19 per share,
and the interest rate has been amended to 3.25% from February 27, 2012. This note was converted to common shares on December 1, 2014.
[D] - Effective March 4, 2015, the note was amended to provide a maturity date of July 31, 2016.
(50,000)
—
1,600,000
(1,000,000)
600,000 $
(175,000)
(1,787,229)
1,600,000
(1,000,000)
600,000
$
Future maturities of notes payable as of April 30, 2015 are as follows:
Year Ending April 30,
2016
2017
$
$
50,000
1,600,000
1,650,000
F-21
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Note 10. Commitments and Contingencies
Line of Credit
The Company maintains a line of credit with a bank, up to a maximum credit line of $250,000. The line of credit bears interest equal to the
prime rate plus 0.50% (overall interest rate of 3.75% at April 30, 2015). The line of credit requires minimum monthly payments consisting
of interest only. The line of credit is secured by all business assets, inventory, equipment, accounts, general intangibles, chattel paper,
documents, instruments and letter of credit rights of the Company. The line of credit is for an unspecified time until the bank notifies the
Company of the Final Availability Date, at which time monthly payments on the line of credit become the sum of: (a) accrued interest and
(b) 1/60th of the unpaid principal balance immediately following the Final Availability Date, which equates to a five-year payment period.
The balance due on the line of credit as of April 30, 2015 was $243,989. Since the earliest the line of credit is due and payable is over a five
year period and the Company believes that it could obtain a comparable replacement line of credit elsewhere, the entire line of credit is
included in long-term liabilities. The unused amount under the line of credit available to the Company at April 30, 2015 was $6,011.
Operating Leases
The Company leases office space for its corporate headquarters in New York, New York on a month-to-month basis with monthly rent
payments of $4,320 per month.
The Company leases office space for its developers in Dieppe, NB, Canada under a one year agreement commencing January 1, 2015. The
monthly rent payment is $2,049 Canadian which is approximately $1,700 US.
The Company leases office space for its Denver, Colorado location under a seven-year lease agreement commencing September 15, 2008.
The operating lease granted four initial months of free rent and had a base monthly rent of $6,526 commencing January 15, 2009.
Thereafter, the monthly rent escalates 2.5% annually over the base year.
On October 4, 2012, the Company entered into a three-year lease agreement for its call center in Scottsdale, Arizona. The Company
occupied temporary space at this location until moving into the leased space on February 1, 2013, the commencement date of the lease.
The lease requires rent payments of $4,491 per month during months 4 through 12, $4,601 per month during the second year, and $4,710
per month during the third year.
The following is a schedule by years of future minimum rental payments required under operating leases that have initial or remaining
noncancelable lease terms in excess of one year as of April 30, 2015:
Year Ending April 30,
2016
2017
2018
$
Total minimum payments required $
87,393
—
—
87,393
Rent expense for the years ended April 30, 2015 and 2014, were $213,225 and $210,977, respectively.
Employment Agreements
From time to time, the Company enters into employment agreements with certain of its employees. These agreements typically include
bonuses, some of which are performance-based in nature. As of April 30, 2015, no performance bonuses have been earned.
F-22
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Legal Matters
From time to time, we may be involved in litigation relating to claims arising out of our operations in the normal course of business. As of
April 30, 2015, except as discussed below, there were no other pending or threatened lawsuits that could reasonably be expected to have a
material effect on the results of our operations and there are no proceedings in which any of our directors, officers or affiliates, or any
registered or beneficial shareholder, is an adverse party or has a material interest adverse to our interest.
On February 11, 2013, HEMG and Mr. Spada sued the Company, certain senior management members and our directors in state court in
New York seeking damages arising principally from (i) allegedly false and misleading statements in the filings with the SEC and the DOE
where the Company disclosed that HEMG and Mr. Spada borrowed $2.2 million without board authority, (ii) the alleged breach of an April
2012 agreement whereby the Company had agreed, subject to numerous conditions and time limitations, to purchase certain shares of the
Company from HEMG, and (iii) alleged diminution to the value of HEMG’s shares of the Company due to Mr. Spada’s disagreement with
certain business transactions the Company engaged in, all with Board approval. On November 8, 2013, the state court in New York granted
the Company’s motion to dismiss all of the derivative claims and all of the fiduciary duty claims. The state court in New York also granted
the Company’s motion to dismiss the duplicative breach of good faith and fair dealing claim, as well as the defamation claim. The state
court in New York denied the Company’s motion to dismiss as to the defamation per se claim. On December 10, 2013, the Company filed
a series of counterclaims against HEMG and Mr. Spada in state court of New York. Discovery is currently being pursued by the parties. By
decision and order dated August 4, 2014, the New York court denied HEMG and Spada’s motion to dismiss the fraud counterclaim the
Company asserted against them. The New York court dismissed the Company’s related “money had and received”, “money lent” and
“unjust enrichment” counterclaims as being duplicative of the fraud counterclaim; however by decision dated April 30, 2015, the Court
reinstated the Company’s “money had and received”, “money lent” and “unjust enrichment” counterclaims, and denied HEMG’s and
Spada’s second request for dismissal of the Company’s fraud counterclaim.
As previously reported, HEMG and Mr. Spada filed a derivative suit on behalf of the Company against certain former senior management
member and our directors in state court in Delaware. The Company is a nominal defendant. The complaint was substantially similar to the
complaint filed in state court of New York. On November 3, 2014, the Chancery Court of the State of Delaware dismissed the
shareholders’ derivative lawsuit of Mr. Patrick Spada and Higher Education Management Group, Inc. against Aspen Group, Inc., certain
members of the Company’s Board of Directors and former Chief Financial Officer (collectively, the “Defendants”). The Court granted the
Defendant’s Motion to Dismiss in its entirety with prejudice. The Plaintiff’s have not taken an appeal and the time to do so has expired.
While the Company has been advised by its counsel that HEMG’s and Spada’s claims New York lawsuit is baseless, the Company cannot
provide any assurance as to the ultimate outcome of the case. Defending the lawsuit will be expensive and will require the expenditure of
time which could otherwise be spent on the Company’s business. While unlikely, if Mr. Spada’s and HEMG’s claims in the New York
litigation were to be successful, the damages the Company could pay could potentially be material.
On November 18, 2014, the Company filed a complaint against HEMG in the United States District Court for the District of New Jersey
for failure to pay (despite demand) to the Company any portion of the $772,793 amount overdue. The Company is seeking to collect the
full amount due. HEMG failed to answer the complaint and as a result the Court entered a default against HEMG.
On or about February 20, 2015, Aspen Group, Inc. filed a motion in the United States District Court, District of New Jersey, seeking the
entry of a money judgment on default against Defendant, HEMG, in the amount of $772,793, plus interest, costs, disbursements, and any
other relief the Court deems just and proper. Aspen University gave notice to HEMG that it intended to privately sell the 654,850 shares
held as collateral after March 10, 2015. On April 29, 2015, the Company sold those shares to a private investor for $0.155 per share or
$101,502, which proceeds reduced the receivable balance to $671,291. (See Note 4)
F-23
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Regulatory Matters
The Company’s subsidiary, Aspen University, is subject to extensive regulation by Federal and State governmental agencies and
accrediting bodies. In particular, the Higher Education Act (the “HEA”) and the regulations promulgated thereunder by the DOE subject
Aspen University to significant regulatory scrutiny on the basis of numerous standards that schools must satisfy to participate in the various
types of federal student financial assistance programs authorized under Title IV of the HEA. Aspen University has had provisional
certification to participate in the Title IV programs. That provisional certification imposes certain regulatory restrictions including, but not
limited to, a limit of 1,200 student recipients for Title IV funding for the duration of the provisional certification. The provisional
certification restrictions continue with regard to Aspen University’s participation in Title IV programs.
To participate in the Title IV programs, an institution must be authorized to offer its programs of instruction by the relevant agencies of the
State in which it is located. An institution must also be authorized to offer its programs in the States where the institution offers
postsecondary education through distance education. In addition, an institution must be accredited by an accrediting agency recognized by
the DOE and certified as eligible by the DOE. The DOE will certify an institution to participate in the Title IV programs only after the
institution has demonstrated compliance with the HEA and the DOE’s extensive academic, administrative, and financial regulations
regarding institutional eligibility and certification. An institution must also demonstrate its compliance with these requirements to the DOE
on an ongoing basis. Aspen University performs periodic reviews of its compliance with the various applicable regulatory requirements. As
Title IV funds received in fiscal 2015 represented approximately 33% of the Company's cash basis revenues (including revenues from
discontinued operations), as calculated in accordance with Department of Education guidelines, the loss of Title IV funding would have a
material effect on the Company's future financial performance.
On March 27, 2012 and on August 31, 2012, Aspen University provided the DOE with letters of credit for which the due date was extended
to December 31, 2013. On January 30, 2014, the DOE provided Aspen University with an option to become permanently certified by
increasing the letter of credit to 50% of all Title IV funds received in the last program year, equaling $1,696,445, or to remain provisionally
certified by increasing the 25% letter of credit to $848,225. Aspen informed the DOE of its desire to remain provisionally certified and
posted the $848,225 letter of credit for the DOE on April 14, 2014. On February 26, 2015, Aspen University was informed by the DOE
that it again has the option to become permanently certified by increasing the letter of credit to 50% of all Title IV funds received in the
last program year, equaling $2,244,971, or to remain provisionally certified by increasing the existing 25% letter of credit to $1,122,485.
Aspen informed the DOE on March 3, 2015 of its desire to remain provisionally certified and post the $1,122,485 letter of credit for the
DOE by April 30, 2015. The DOE may impose additional or different terms and conditions in any final provisional program participation
agreement that it may issue (See Note 2 “Restricted Cash”).
The HEA requires accrediting agencies to review many aspects of an institution's operations in order to ensure that the education offered is
of sufficiently high quality to achieve satisfactory outcomes and that the institution is complying with accrediting standards. Failure to
demonstrate compliance with accrediting standards may result in the imposition of probation, the requirements to provide periodic reports,
the loss of accreditation or other penalties if deficiencies are not remediated.
Because Aspen University operates in a highly regulated industry, it may be subject from time to time to audits, investigations, claims of
noncompliance or lawsuits by governmental agencies or third parties, which allege statutory violations, regulatory infractions or common
law causes of action.
On February 25, 2015, the DEAC informed Aspen University that it had renewed its accreditation for five years to January, 2019.
F-24
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Return of Title IV Funds
An institution participating in Title IV programs must correctly calculate the amount of unearned Title IV program funds that have been
disbursed to students who withdraw from their educational programs before completion and must return those unearned funds in a timely
manner, no later than 45 days of the date the school determines that the student has withdrawn. Under Department regulations, failure to
make timely returns of Title IV program funds for 5% or more of students sampled on the institution's annual compliance audit in either of
its two most recently completed fiscal years can result in the institution having to post a letter of credit in an amount equal to 25% of its
required Title IV returns during its most recently completed fiscal year. If unearned funds are not properly calculated and returned in a
timely manner, an institution is also subject to monetary liabilities or an action to impose a fine or to limit, suspend or terminate its
participation in Title IV programs.
Subsequent to a program review by the Department of Education, the Company recognized that it had not fully complied with all
requirements for calculating and making timely returns of Title IV funds (R2T4). In November 2013, the Company returned a total of
$102,810 of Title IV funds to the Department of Education.
Delaware Approval to Confer Degrees
Aspen University is a Delaware corporation. Delaware law requires an institution to obtain approval from the Delaware Department of
Education (“Delaware DOE”) before it may incorporate with the power to confer degrees. In July 2012, Aspen received notice from the
Delaware DOE that it is granted provisional approval status effective until June 30, 2015 and is currently in the process of applying for
either an extension of its provisional approval status or obtain permanent approval status. Aspen University is authorized by the Colorado
Commission on Education to operate in Colorado as a degree granting institution.
Letter of Credit
The Company maintains a letter of credit under a DOE requirement (See Note 2 “Restricted Cash”).
Note 11. Stockholders’ Equity (Deficiency)
Common Stock
As part of two contracts entered into during the year ended April 30, 2014, the Company issued restricted stock to two firms as part of their
fees for services. The fair value of the stock issued was set up as a prepaid expense and was amortized over the service period of the
contract. Since the contract was terminated, the full amount was recognized during the three months ended January 31, 2014. On June 27,
2013, the Company issued one firm 317,143 shares of its common stock valued at $0.35 per share (based on recent sales of shares by the
Company) to an investor relations firm pursuant to a service agreement with two service components, one for three months and one for 12
months. The $111,000 of expense was being recognized in two pieces, $90,000 over 12 months and $21,000 over three months. On July 24,
2013, the Company issued the second firm 300,000 shares of its common stock valued at $0.35 per share (based on recent sales of shares by
the Company) to a business development consultant pursuant to a six month consulting agreement. The $105,000 of expense was being
amortized over the life of the contract. Since the contract was terminated, the unamortized balance was recognized as an expense in the
year ended April 30, 2014.
In January 2014, the Company issued 7,006,064 shares of common stock and received $804,050 in connection with warrant exercises more
fully described below. As a result of the warrant modifications and exercises described below, the Company issued 3,270,678 shares of
common stock as price protection on prior cash investments.
On March 10, 2014, several members of the Board of Directors paid $600,000 in exchange for 3,157,895 shares of common stock and
3,157,895 warrants at $0.19 per share. On April 24, 2014, an investor paid $50,000 in exchange for 263,158 shares of common stock and
263,158 warrants at $0.19 per share. On April 30, 2014, a Director paid $100,000 in exchange for 526,318 shares of common stock and
526,318 warrants at $0.19 per share.
F-25
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
On June 4, 2014, a member of the Board of Directors invested $50,000 in exchange for 263,158 shares of common stock and 263,158
warrants at $0.19 per share. On June 24, 2014, a member of the Board of Directors and the Company’s CEO each invested $50,000 in
exchange for issuing each of them 263,158 shares of common stock and 263,158 warrants at $0.19 per share.
On July 29, 2014, as part of a private placement offering, seven accredited investors, including the Company’s CFO, paid a total of
$1,631,500 in exchange for 10,525,809 shares of common stock and 5,262,907 five-year warrants exercisable at $0.19 per share. Aspen
incurred $75,000 of expenses relating to this offering. As a result of this private placement, on July 31, 2014, Aspen issued 3,473,259
shares of common stock to prior investors who had price protection on their investments, issued 2,662,139 warrants to a prior investor who
had price protection on their investment, and reduced the exercise and conversion price on 14,451,613 outstanding warrants and its
outstanding Debenture to $0.155.
On September 4, 2014, Aspen raised $3,766,326 from the sale of 24,298,871 shares of common stock and 12,149,438 five-year warrants
exercisable at $0.19 per share in a private placement offering to 15 accredited investors. In connection with the offering, Aspen agreed to
register the shares of common stock and the shares of common stock underlying the warrants. The net proceeds to Aspen were
approximately $3.7 million. As a result of the private placement, Aspen issued 59,423 shares of common stock to a prior investor who had
price protection on his investment.
On September 30, 2014, Aspen Group filed a Certificate of Amendment to its Certificate of Incorporation increasing its authorized shares
from 120,000,000 shares to 250,000,000 shares.
On December 1, 2014, $100,000 of convertible debt was converted into common stock at the conversion rate of $0.19 per share, equally for
two investors. Each investor received 263,158 shares of common stock.
On January 14, 2015, 210,526 shares of stock were issued for services provided to Aspen. The shares were valued at the fair market value
of the common stock or $0.155 and accordingly, the Company recorded an expense of $32,632.
On April 23 and 29, 2015, the Company closed on its offering to warrant holders whereby it issued 14,636,590 shares of common stock to
the holders in exchange for their early exercise of warrants at the reduced exercise price of $0.155. One of the participating warrant holders
is an executive officer of the Company. The Company received gross proceeds of $2,268,670. The offering closed in two tranches of
7,556,884 shares and 7,079,700 shares on April 23rd and April 29th, respectively. Additionally, on April 29th, two warrant holders
cashlessly exercised a total of 600,000 warrants and were issued 110,526 shares of common stock in connection with a reduced exercise
price of $0.155. The Company recorded an expense of $333,323 for the warrant modifications as described below.
On April 29, 2015, 208,333 shares of stock were issued for services provided to Aspen. The shares were valued at the fair market value of
the common stock on January 1, 2015, and accordingly, the Company recorded an expense of $37,626.
Warrants
A summary of the Company’s warrant activity during the year ended April 30, 2015, is presented below:
Weighted
Warrants
Balance Outstanding, April 30, 2014
Granted
Exercised
Forfeited
Expired
Balance Outstanding, April 30, 2015
Exercisable, April 30, 2015
Weighted Average
Average
Exercise
Price
Remaining Aggregate
Contractual
Term
Intrinsic
Value
Number of
Shares
23,144,005 $
20,863,958 $
(15,236,582) $
100,376
—
28,871,757 $
0.31
0.19
0.15
0.26
4.2 $
179,791
28,871,757 $
0.26
4.2 $
179,791
F-26
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
On January 15, 2014, a warrant exercise offering was completed whereby 4,231,840 warrants were offered at an exercise price of $0.19 per
warrant. The total proceeds received were $804,050 and since the exercise price was discounted from the stated prices of either $0.50 or
$0.3325, a warrant modification expense of $156,952 was recorded in accordance with ASC 718-20-35. This expense was calculated by
comparing the value of the warrants before and after the reduced price. As a result of the $0.19 exercise, an additional 5,178,947 new
warrants were issued at $0.19 per warrant as part of a price protection agreement with two investors. There was no accounting effect for
this warrant issuance.
On March 10, 2014, several members of the Board of Directors paid $600,000 in exchange for 3,157,895 shares of common stock and
3,157,895 warrants at $0.19 per share. On April 24, 2014, an investor paid $50,000 in exchange for 263,158 shares of common stock and
263,158 warrants at $0.19 per share. On April 30, 2014, a Director paid $100,000 in exchange for 526,318 shares of common stock and
526,318 warrants at $0.19 per share.
On June 4, 2014, a member of the Board of Directors invested $50,000 in exchange for 263,158 shares of common stock and 263,158
warrants at $0.19 per share. On June 24, 2014, a member of the Board of Directors and the Company’s CEO each invested $50,000 in
exchange for issuing each of them 263,158 shares of common stock and 263,158 warrants at $0.19 per share.
On July 29, 2014, as part of a private placement offering seven accredited investors, including the Company’s CFO, paid a total of
$1,631,500 from the sale of 10,525,809 shares of common stock and 5,262,907 five-year warrants exercisable at $0.19 per share. As a
result of this private placement, on July 31, 2014, Aspen issued 3,473,259 shares of common stock to prior investors who had price
protection on their investments, issued 2,662,139 warrants to a prior investor who had price protection on their investment and reduced the
exercise and conversion price on 14,451,613 outstanding warrants and its outstanding Debenture to $0.155.
On September 4, 2014, as part of a private placement offering fifteen accredited investors paid a total of $3,766,326 from the sale of
24,298,871 shares of common stock and 12,149,438 five-year warrants exercisable at $0.19 per share. As a result of this private placement,
on July 31, 2014, Aspen issued 59,423 shares of common stock to a prior investor who had price protection on his investment.
Warrants issued to an investor were modified on January 31, 2015 to reduce the exercise price to $0.19 per share. As a result of the
modification, the modification expense was not material.
On April 23 and 29, 2015, the “Company closed on its offering to warrant holders whereby it issued 14,636,590 shares of common stock to
the holders in exchange for their early exercise of warrants at the reduced exercise price of $0.155. One of the participating warrant holders
is an executive officer of the Company. The Company received gross proceeds of $2,268,670. The offering closed in two tranches of
7,556,884 shares and 7,079,700 shares on April 23rd and April 29th, respectively. Additionally, on April 29th, two warrant holders
exercised cashless a total of 600,000 warrants and were issued 110,526 shares of common stock in connection with a reduced exercise price
of $0.155. Since the exercise price was discounted from the stated prices of $0.50, $0.3325 or $0.19, a warrant modification expense of
$333,323 was recorded in accordance with ASC 718-20-35. This expense was calculated by comparing the value of the warrants before and
after the reduced price.
Certain of the Company’s warrants contain price protection. The Company evaluated whether the price protection provision of the warrant
would cause derivative treatment. In its assessment, the Company determined that since its shares are not readily convertible to cash due to
an inactive trading market, through April 30, 2015 the warrants are excluded from derivative treatment.
Stock Incentive Plan and Stock Option Grants to Employees and Directors
Immediately following the closing of the Reverse Merger, on March 13, 2012, the Company adopted the 2012 Equity Incentive Plan (the
“Plan”) that provides for the grant of 9,300,000 shares, 14,300,000 effective July 2014 and 16,300,000 effective September 2014, in the
form of incentive stock options, non-qualified stock options, restricted shares, stock appreciation rights and restricted stock units to
employees, consultants, officers and directors. As of April 30, 2015, there were 1,873,588 shares remaining under the Plan for future
issuance.
F-27
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
The Company estimates the fair value of share-based compensation utilizing the Black-Scholes option pricing model, which is dependent
upon several variables such as the expected option term, expected volatility of the Company’s stock price over the expected term, expected
risk-free interest rate over the expected option term, expected dividend yield rate over the expected option term, and an estimate of
expected forfeiture rates. The Company believes this valuation methodology is appropriate for estimating the fair value of stock options
granted to employees and directors which are subject to ASC Topic 718 requirements. These amounts are estimates and thus may not be
reflective of actual future results, nor amounts ultimately realized by recipients of these grants. The Company recognizes compensation on
a straight-line basis over the requisite service period for each award.
The Company estimates the fair value of share-based compensation utilizing the Black-Scholes option pricing model, which is dependent
upon several variables such as the expected option term, expected volatility of the Company’s stock price over the expected term, expected
risk-free interest rate over the expected option term, expected dividend yield rate over the expected option term, and an estimate of
expected forfeiture rates. The Company believes this valuation methodology is appropriate for estimating the fair value of stock options
granted to employees and directors which are subject to ASC Topic 718 requirements. These amounts are estimates and thus may not be
reflective of actual future results, nor amounts ultimately realized by recipients of these grants. The Company recognizes compensation on
a straight-line basis over the requisite service period for each award. The following table summarizes the assumptions the Company utilized
to record compensation expense for stock options granted to employees during the years ended April 30, 2015 and 2014:
Expected life (years)
Expected volatility
Weighted-average volatility
Risk-free interest rate
Dividend yield
Expected forfeiture rate
April 30,
2015
3.5
43.4%
43.4%
0.38%
0.00%
n/a
2014
3.3
45.0%
45.0%
0.38%
0.00%
n/a
The Company utilized the simplified method to estimate the expected life for stock options granted to employees. The simplified method
was used as the Company does not have sufficient historical data regarding stock option exercises. The expected volatility is based on the
average of the expected volatilities from the most recent audited financial statements available for comparative public companies that are
deemed to be similar in nature to the Company. The risk-free interest rate is based on the U.S. Treasury yields with terms equivalent to the
expected life of the related option at the time of the grant. Dividend yield is based on historical trends. While the Company believes these
estimates are reasonable, the compensation expense recorded would increase if the expected life was increased, a higher expected volatility
was used, or if the expected dividend yield increased.
A summary of the Company’s stock option activity for employees and directors during the year ended April 30, 2015 is presented below:
Options
Balance Outstanding, April 30, 2014
Granted
Exercised
Forfeited
Expired
Balance Outstanding, April 30, 2015
Exercisable, April 30, 2015
Weighted
Average
Weighted
Average
Exercise
Price
Remaining Aggregate
Contractual
Term
Intrinsic
Value
Number of
Shares
10,476,412 $
3,900,000 $
—
(170,000) $
—
14,206,412 $
0.32
0.17
0.34
0.21
3.45 $
103,000
5,660,470 $
0. 26
2.85 $
4,000
F-28
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
During the year ended April 30, 2014, the Company granted to employees 3,778,711 stock options, all of which were under the Plan,
having an exercise price ranging from $0.35 per share to $0.17 per share. The options vest pro rata over three years on each anniversary
date; all options expire five years from the grant date. The total fair value of stock options granted to employees during the year ended April
30, 2014 was $332,545, which is being recognized over the respective vesting periods.
On September 4, 2014, 2,600,000 options were granted to the CEO and the Board of Directors. The fair value of these options on the date
of grant is $130,000 and the exercise price is $0.155 per option. On September 16, 2014, 200,000 options were granted to two members of
the Board of Directors. The fair value of these options on the date of grant is $12,000 and the exercise price is $0.20 per option.
On November 24, 2014, the CFO was granted 300,000 stock options. The fair value of these options is $21,000 and the exercise price was
$0.234. On December 11, 2014, each of the 8 non-employee members of the Board of Directors was granted 100,000 stock options. The
fair value of the options was $7,000 each and the exercise price was $0.2026.
As of April 30, 2015, there was approximately $485,000 of total unrecognized compensation costs related to nonvested share-based
compensation arrangements. That cost is expected to be recognized over a weighted-average period of 4 years.
The Company recorded compensation expense of $456,871 for the year ended April 30, 2015 in connection with employee stock options.
The Company recorded compensation expense of $334,723 for the year ended April 30, 2014 in connection with employee stock options.
Stock Option Grants to Non-Employees
There were no stock options granted to non-employees during the year ended April 30, 2015. The Company recorded compensation
expense of $748 for the year ended April 30, 2015 in connection with non-employee stock options. $2,968 was recorded for the year ended
April 30, 2014. There was no unrecognized compensation cost at April 30, 2015.
A summary of the Company's stock option activity for non-employees during the year ended April 30, 2015 is presented below:
Options
Balance Outstanding, April 30, 2014
Granted
Exercised
Forfeited
Expired
Balance Outstanding, April 30, 2015
Exercisable, April 30, 2015
Number of
Average
Weighted
Average
Exercise
Price
Remaining Aggregate
Contractual
Term
Intrinsic
Value
Shares
270,000 $
—
—
(50,000) $
—
220,000 $
0.28
0.19
0.30
2.1 $
—
—
73,333
0.30
2.3
F-29
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
Note 12. Income Taxes
The components of income tax expense (benefit) are as follows:
Current:
Federal
State
Deferred:
Federal
State
Total Income tax expense (benefit)
Significant components of the Company's deferred income tax assets and liabilities are as follows:
Deferred tax assets:
Net operating loss
Allowance for doubtful accounts
Intangible assets
Deferred rent
Stock-based compensation
Contributions carryforward
Total deferred tax assets
Deferred tax liabilities:
Property and equipment
Total deferred tax liabilities
Deferred tax assets, net
Valuation allowance:
Beginning of year
(Increase) during period
Ending balance
Net deferred tax asset
For the Years Ended
April 30,
2015
2014
$
$
— $
—
—
—
—
—
— $
—
—
—
—
—
—
—
April 30,
2015
2014
$
7,487,076 $
21,416
304,062
2,872
580,672
93
8,396,191
6,021,134
55,679
294,284
7,948
411,374
93
6,790,512
(155,991)
(155,991)
(126,297)
(126,297)
8,240,200
6,664,215
(6,664,215)
(1,575,985)
(8,240,200)
(4,684,841)
(1,979,374)
(6,664,215)
$
— $
—
A valuation allowance is established if it is more likely than not that all or a portion of the deferred tax asset will not be realized. The
Company recorded a valuation allowance at April 30, 2015 and 2014 due to the uncertainty of realization. Management believes that based
upon its projection of future taxable operating income for the foreseeable future, it is more likely than not that the Company will not be
able to realize the tax benefit associated with deferred tax assets. The net change in the valuation allowance during the year ended April 30,
2015 was an increase of $1,575,985.
At April 30, 2015, the Company had $20,204,869 of net operating loss carryforwards which will expire from 2030 to 2035. The Company
believes its tax positions are all highly certain of being upheld upon examination. As such, the Company has not recorded a liability for
unrecognized tax benefits. As of April 30, 2015, tax years 2011 through 2014 remain open for IRS audit. The Company has received no
notice of audit from the Internal Revenue Service for any of the open tax years.
F-30
ASPEN GROUP, INC. AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
April 30, 2015 and 2014
A reconciliation of income tax computed at the U.S. statutory rate to the effective income tax rate is as follows:
Statutory U.S. federal income tax rate
State income taxes, net of federal tax benefit
Other
Change in valuation allowance
Effective income tax rate
Note 13. Concentrations
Concentration of Credit Risk
April 30,
2015
2014
34.0%
3.0
(0.1)
(36.9)
0.0%
34.0%
3.1
(0.1)
(37.0)
0.0%
As of April 30, 2015, the Company’s bank balances exceed FDIC insurance by approximately $3,130,003.
Note 14. Related Party Transactions
See Note 4 for discussion of secured note and account receivable to related parties and see Notes 8 and 9 for discussion of loans payable and
convertible notes payable to related parties. See also Note 11 for equity related grants to various related parties.
Note 15. Subsequent Events
On June 8, 2015, the Chief Academic Officer received a grant of 1,000,000 options which has a fair value of $60,000, the Chief Operating
Officer received a grant of 700,000 options which has a fair value of $42,000 and the Chief Financial Officer received a grant of 300,000
options which has a fair value of $18,000. All of these options have an exercise price of $0.168 per share.
Also, on June 8, 2015, in exchange for the termination of a consulting agreement with a Director, the Company issued 300,000 restricted
stock units (with the value of $50,400 based on market value), 2/3 fully vested and the remaining balance vesting in six equal monthly
installments commencing on June 30, 2015.
F-31
EXHIBIT INDEX
Exhibit #
3.1
3.2
3.3
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12
10.13
Exhibit Description
Certificate of Incorporation, as amended
Bylaws
Amendment No. 1 to Bylaws
Form of Securities Purchase Agreement
Form of Registration Rights Agreement
Form of Warrant
Form of Convertible Note – Mathews - $1.00
Form of Convertible Note – Mathews - $0.35
Promissory Note dated March 4, 2015 - Mathews
2012 Equity Incentive Plan, as amended*
Form of Directors Indemnification Agreement
Form of Employee Stock Option Agreement*
Form of Director Stock Option Agreement
Consulting Agreement – AEK Consulting
Termination of Consulting Agreement – AEK Consulting
Form of Securities Purchase Agreement–July/September 2014
Private Placement
10.14
Form of Registration Rights Agreement – July/September 2014
Private Placement
10.15
10.16
10.17
10.18
10.19
Form of Warrant – July/September 2014 Private Placement
Employment Agreement dated as of May 16, 2013 – Mathews*
Amendment to Employment Agreement dated November 24,
2014– Mathews*
Employment Agreement dated November 24, 2014 – Gill*
Employment Agreement dated November 24, 2014* –
Wendolowski**
10.20
Letter Agreement with Warrant Holders for Reduced Exercise
Price and Early Exercise
21.1
31.1
31.2
32.1
Subsidiaries
Certification of Principal Executive Officer (302)
Certification of Principal Financial Officer (302)
Certification of Principal Executive and Principal Financial Officer
(906)
101.INS XBRL Instance Document
101.SCH XBRL Taxonomy Extension Schema Document
101.CAL XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF XBRL Taxonomy Extension Definition Linkbase Document
101.LAB XBRL Taxonomy Extension Label Linkbase Document
101.PRE XBRL Taxonomy Extension Presentation Linkbase Document
Incorporated by Reference
Form
S-1
8-K
8-K
8-K
8-K
8-K
10-Q
10-Q
10-Q
10-Q
8-K/A
10-K
10-Q
10-K
Date
Number
10/18/14
3/19/12
3/12/14
7/30/14
7/30/14
7/30/14
3/11/15
3/11/15
3/11/15
9/5/14
5/7/14
7/29/14
3/11/15
7/29/14
3.1
2.7
3.1
10.1
10.2
10.3
10.4
10.5
10.6
10.1
10.21
10.17
10.7
10.24
8-K
8-K
8-K
S-1
7/30/14
10.1
7/30/14
7/30/14
7/3/13
10.2
10.3
10.6
S-1
2/11/13
21.1
Filed or
Furnished
Herewith
Filed
Filed
Filed
Filed
Filed
Filed
Filed
Furnished**
Filed
Filed
Filed
Filed
Filed
Filed
———————
*
**
Represents compensatory plan of management.
This exhibit is being furnished rather than filed and shall not be deemed incorporated by reference into any filing, in accordance with
Item 601 of Regulation S-K.
EXHIBIT 10.12
Aspen Group, Inc.
224 West 30th Street, Suite 604
New York, New York 10001
June 8, 2015
AEK Consulting LLC
Attention: Mr. Andy Kaplan [Via Email: Andy@panix.com]
Re: Termination of Consulting Agreement
Andy:
This letter agreement documents our understanding regarding the termination of the Consulting Agreement (the
“Agreement”) dated May 29, 2014 between Aspen Group, Inc. (the “Company”) and AEK Consulting LLC, a company
controlled by you. In consideration for the issuance of 300,000 restricted stock units to you, the Company and you
hereby agree to terminate the Agreement and release the other from any obligations (whether monetary or otherwise)
under the Agreement. Of the restricted stock units, 2/3 shall be fully vested and the remaining shall vest in six equal
monthly increments with the first vesting date being June 30, 2015. The common stock (underlying the restricted stock
units) shall be delivered on the earlier of: (i) November 30, 2015, (ii) a change of control of the Company (as defined
under the Company’s equity incentive plan), or (iii) the average closing price of the Company’s common stock over
any 10-day period is at least $0.50 per share. In the event that any of the events in the preceding sentence takes place
prior to vesting, the unvested restricted stock units shall immediately vest.
If you are agreeable to the foregoing, please sign below.
Sincerely,
Michael Mathews
Chief Executive Officer
I hereby agree.
AEK Consulting LLC
By: ____________________
Manager or other authorized
Representative
AMENDMENT TO NO. 1 TO
EMPLOYMENT AGREEMENT
EXHIBIT 10.17
This AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”), dated November __, 2014, is by
and between Aspen Group, Inc., a Delaware corporation (the “Company”), and Michael Matthews (the “Executive”).
WHEREAS, the Company and the Executive entered into an employment agreement as of May 16, 2013 (the
“Agreement”); and
WHEREAS, the parties desire to amend the Agreement to revise the requirements and rights with respect to
obtaining a bonus under the Agreement.
NOW, THEREFORE, the Company and the Executive, each intending to be legally bound hereby, do mutually
covenant and agree as follows:
I.
The Agreement is hereby amended as follows:
A.
Section 4(b) shall be replaced with the following:
(b)
Target Bonus. For each fiscal year during the Term beginning May 1st and ending April 30th of the
applicable fiscal year, the Executive shall have the opportunity to earn a bonus up to 30%, 66% or 100% of his then
Base Salary (the “Target Bonus”) as follows:
When the Company achieves annual Adjusted EBITDA (as defined below) at certain threshold levels (each, an
“EBITDA Threshold”), the Executive shall receive an automatic cash bonus (the “Automatic Cash Bonus”) equal to a
percentage of his then Base Salary, and shall receive a grant of fully vested shares of the Company’s common stock
having an aggregate Fair Market Value (as such term is defined in the Company’s 2012 Equity Incentive Plan, as
amended) equal to a percentage of the Executive’s then Base Salary (the “Automatic Equity Bonus”). In addition, the
Executive shall be eligible to receive an additional percentage of his then Base Salary as a cash bonus (the
“Discretionary Cash Bonus”) and an additional grant of fully vested shares of the Company’s common stock having an
aggregate Fair Market Value equal to a percentage of the Executive’s then Base Salary (the “Discretionary Equity
Bonus”) based on the Board’s determination that the Executive has achieved certain annual performance objectives
established by the Board, based on the mutual agreement of the Executive and the Board, at the beginning of each
fiscal year.
The EBITDA Thresholds and corresponding bonus levels are set forth in the table below. For the avoidance of
doubt, the Executive shall only be eligible to receive the bonuses associated with a single EBITDA Threshold; i.e. in
the event the Company attains EBITDA Threshold (2), only the bonuses associated with EBITDA Threshold (2) below
(and not the bonuses associated with EBITDA Threshold (1)) shall be applicable.
EBITDA Threshold
Automatic Cash
Bonus
Automatic Equity
Bonus
Discretionary Cash
Bonus
Discretionary Equity
Bonus
(1)
7.5%
7.5%
Up to 7.5%
Up to 7.5%
$1,000,000 -
$1,999,999
(2)
16.5%
16.5%
Up to 16.5%
Up to 16.5%
$2,000,000 -
$3,999,999
(3)
25%
25%
Up to 25%
Up to 25%
$4,000,000 and over
Provided, however, that the earning of the Automatic Cash Bonus is subject to the Company having at least
$2,000,000 in available cash after deducting the Target Bonus paid to all executive officers of the Company or its
subsidiaries under the same Target Bonus formula pursuant to such executives’ employment agreements (the “Cash
Threshold”) and the Executive continuing to provide services under this Agreement on the applicable Target Bonus
determination date. If the Company is unable to pay the Automatic Cash Bonus as a result of not meeting the Cash
Threshold, no Automatic Cash Bonus will be earned for that fiscal year. Provided, however, the Company shall issue
the Executive common stock having a Fair Market Value equal to the Automatic Cash Bonus which he was not paid.
As used in this Agreement, Adjusted EBITDA is calculated as earnings (or loss) from continuing operations before
preferred dividends, interest expense, income taxes, collateral valuation adjustment, bad debt expense, depreciation and
amortization, and amortization of stock-based compensation; however, if Adjusted EBITDA shall be defined
differently in any filing of the Company with the Securities and Exchange Commission subsequent to the date of this
Agreement, then Adjusted EBITDA shall thereafter be defined in accordance with the definition most recently set forth
in any such filing at each Target Bonus determination date.
B.
The following shall be added to the Agreement as Section 4(d):
(d)
Discretionary Bonus. During the term of the Agreement, the Compensation Committee shall have the
discretion to award the Executive a bonus, in cash or the Company’s common stock, based upon the Executive’s job
performance, the Company’s revenue growth or any other factors as determined by the Compensation Committee.
II.
Capitalized terms used but not otherwise defined in this Amendment shall have the meanings assigned
thereto in the Agreement.
III.
In the event of any conflict between the Agreement and this Amendment, the terms as contained in this
Amendment shall control. In all other respects the Agreement is hereby ratified and confirmed.
IV.
This Amendment may be executed in one or more counterparts, each of which shall be deemed to be
one and the same agreement. Facsimile signatures shall be treated in all respects and for all purposes as originals.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.
COMPANY:
ASPEN GROUP, INC.
By:
Janet Gill, Chief Financial Officer
EXECUTIVE:
Michael Matthews
EMPLOYMENT AGREEMENT
EXHIBIT 10.18
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of __________ ____, 2014 (the
“Effective Date”), between Aspen Group, Inc., a Delaware corporation (the “Company”), and Janet Gill (the
“Executive”).
WHEREAS, in its business, the Company has acquired and developed certain trade secrets, including, but not
limited to, proprietary processes, sales methods and techniques, and other like confidential business and technical
information, including but not limited to, technical information, design systems, pricing methods, pricing rates or
discounts, processes, procedures, formulas, designs of computer software, or improvements, or any portion or phase
thereof, whether patented, or not, or unpatentable, that is of any value whatsoever to the Company, as well as
information relating to the Company’s Services (as defined), information concerning proposed new Services, market
feasibility studies, proposed or existing marketing techniques or plans (whether developed or produced by the
Company or by any other person or entity for the Company), other Confidential Information, as defined in Section 9(a),
and information about the Company’s executives, officers, and directors, which necessarily will be communicated to
the Executive by reason of her employment by the Company; and
WHEREAS, the Company has strong and legitimate business interests in preserving and protecting its
investment in the Executive, its trade secrets and Confidential Information, and its substantial, significant, or key,
relationships with vendors, and Students, as defined below, whether actual or prospective; and
WHEREAS, the Company desires to preserve and protect its legitimate business interests further by restricting
competitive activities of the Executive during the term of this Agreement and for a reasonable time following the
termination of this Agreement; and
WHEREAS, the Company desires to continue to employ the Executive and to ensure the continued availability
to the Company of the Executive’s services, and the Executive is willing to accept such employment and render such
services, all upon and subject to the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth in this Agreement,
and intending to be legally bound, the Company and the Executive agree as follows:
1.
Representations and Warranties. The Executive hereby represents and warrants to the Company that she
(i) is not subject to any non-solicitation or non-competition agreement affecting her employment with the Company
(other than any prior agreement with the Company), (ii) is not subject to any confidentiality or nonuse/nondisclosure
agreement affecting her employment with the Company (other than any prior agreement with the Company), and (iii)
has brought to the Company no trade secrets, confidential business information, documents, or other personal property
of a prior employer.
2.
Term of Employment.
(a)
Term. The Company hereby employs the Executive, and the Executive hereby accepts
employment with the Company for a period of three years commencing as of the Effective Date (such period, as it may
be extended or renewed, the “Term”), unless sooner terminated in accordance with the provisions of Section 6. The
Term shall be automatically renewed for successive one-year terms unless notice of non-renewal is given by either
party at least 30 days before the end of the Term.
(b)
Continuing Effect. Notwithstanding any termination of this Agreement, at the end of the Term
or otherwise, the provisions of Sections 6(e), 7, 8, 9, 10, 12 15, 18, 19, and 22 shall remain in full force and effect and
the provisions of Section 9 shall be binding upon the legal representatives, successors and assigns of the Executive.
3.
Duties.
(a)
General Duties. The Executive shall serve as the Interim Chief Financial Officer of the
Company, with duties and responsibilities that are customary for such an executive. The Executive shall report to the
Company’s Chief Executive Officer. The Executive shall also perform services for such subsidiaries of the Company
as may be necessary. The Executive shall use her best efforts to perform her duties and discharge her responsibilities
pursuant to this Agreement competently, carefully and faithfully. In determining whether or not the Executive has used
her best efforts hereunder, the Executive’s and the Company’s delegation of authority and all surrounding
circumstances shall be taken into account and the best efforts of the Executive shall not be judged solely on the
Company’s earnings or other results of the Executive’s performance, except as specifically provided to the contrary by
this Agreement.
(b)
Devotion of Time . Subject to the last sentence of this Section 3(b), the Executive shall devote
such time, attention and energies to the affairs of the Company and its subsidiaries and affiliates as are necessary to
perform her duties and responsibilities pursuant to this Agreement. The Executive shall not enter the employ of or
serve as a consultant to, or in any way perform any services with or without compensation to, any other persons,
business, or organization, without the prior consent of the Board of Directors of the Company (the “Board”).
Notwithstanding the above, the Executive shall be permitted to devote a limited amount of her time, to professional,
charitable or similar organizations, including, but not limited to, serving as a non-executive director or an advisor to a
board of directors, committee of any company or organization provided that such activities do not interfere with the
Executive’s performance of her duties and responsibilities as provided hereunder.
(c)
Location of Office . The Executive’s principal business office shall be in New York, NY or such
other location to which the Company may, in the future, relocate its present New York, NY office, provided however,
that such other location shall be within the greater New York metropolitan area, which shall include the states of New
York, New Jersey and Connecticut (the “New York Metro Area”). However, the Executive’s job responsibilities shall
include all business travel necessary for the performance of her job including travel to the
2
Company’s offices located in Colorado, Arizona and any other location in which the Company may in the future
establish an office.
(d)
Adherence to Inside Information Policies . The Executive acknowledges that the Company is
publicly-held and, as a result, has implemented inside information policies designed to preclude its executives and those
of its subsidiaries from violating the federal securities laws by trading on material, non-public information or passing
such information on to others in breach of any duty owed to the Company, or any third party. The Executive shall
promptly execute any agreements generally distributed by the Company to its employees requiring such employees to
abide by its inside information policies.
4.
Compensation and Expenses.
(a)
Salary. For the services of the Executive to be rendered under this Agreement, the Company
shall pay the Executive an annual salary of $200,000 (the “Base Salary”), less such deductions as shall be required to be
withheld by applicable law and regulations payable in accordance with the Company’s customary payroll practices.
(b)
Target Bonus. For each fiscal year during the Term beginning May 1st and ending April 30th of
the applicable fiscal year, the Executive shall have the opportunity to earn a bonus up to 30%, 66% or 100% of her
then Base Salary (the “Target Bonus”) as follows:
When the Company achieves annual Adjusted EBITDA (as defined below) at certain threshold levels (each, an
“EBITDA Threshold”), the Executive shall receive an automatic cash bonus (the “Automatic Cash Bonus”) equal to a
percentage of her then Base Salary, and shall receive a grant of fully vested shares of the Company’s common stock
having an aggregate Fair Market Value (as such term is defined in the Company’s 2012 Equity Incentive Plan, as
amended) equal to a percentage of the Executive’s then Base Salary (the “Automatic Equity Bonus”). In addition, the
Executive shall be eligible to receive an additional percentage of her then Base Salary as a cash bonus (the
“Discretionary Cash Bonus”) and an additional grant of fully vested shares of the Company’s common stock having an
aggregate Fair Market Value equal to a percentage of the Executive’s then Base Salary (the “Discretionary Equity
Bonus”) based on the Board’s determination that the Executive has achieved certain annual performance objectives
established by the Board, based on the mutual agreement of the Chief Executive Officer and the Executive, at the
beginning of each fiscal year.
The EBITDA Thresholds and corresponding bonus levels are set forth in the table below. For the avoidance of
doubt, the Executive shall only be eligible to receive the bonuses associated with a single EBITDA Threshold; i.e. in
the event the Company attains EBITDA Threshold (2), only the bonuses associated with EBITDA Threshold (2) below
(and not the bonuses associated with EBITDA Threshold (1)) shall be applicable.
3
EBITDA Threshold Automatic Cash Bonus Automatic Equity
(1)
7.5%
$1,000,000 -
$1,999,999
Bonus
7.5%
Discretionary Cash
Bonus
Discretionary Equity
Bonus
Up to 7.5%
Up to 7.5%
(2)
16.5%
16.5%
Up to 16.5%
Up to 16.5%
$2,000,000 -
$3,999,999
(3)
25%
25%
Up to 25%
Up to 25%
$4,000,000 and over
Provided, however, that the earning of the Automatic Cash Bonus is subject to the Company having at least
$2,000,000 in available cash after deducting the Target Bonus paid to all executive officers of the Company or its
subsidiaries under the same Target Bonus formula pursuant to such executives’ employment agreements (the “Cash
Threshold”) and the Executive continuing to provide services under this Agreement on the applicable Target Bonus
determination date. If the Company is unable to pay the Automatic Cash Bonus as a result of not meeting the Cash
Threshold, no Automatic Cash Bonus will be earned for that fiscal year. As used in this Agreement, Adjusted EBITDA
is calculated as earnings (or loss) from continuing operations before preferred dividends, interest expense, income
taxes, collateral valuation adjustment, bad debt expense, depreciation and amortization, and amortization of stock-
based compensation; however, if Adjusted EBITDA shall be defined differently in any filing of the Company with the
Securities and Exchange Commission subsequent to the date of this Agreement, then Adjusted EBITDA shall thereafter
be defined in accordance with the definition most recently set forth in any such filing at each Target Bonus
determination date.
(c)
Discretionary Bonus. During the term of the Agreement, the Compensation Committee shall
have the discretion to award the Executive a bonus, in cash or the Company’s common stock, based upon the
Executive’s job performance, the Company’s revenue growth or any other factors as determined by the Compensation
Committee.
(d)
Equity Incentive Compensation. The Company will grant the Executive the following, subject to
execution of this Agreement: 300,000 stock options (exercisable at $_____ per share) which shall vest in three equal
increments on one, two and three-years from the Effective Date, subject to continued service as an employee of the
Company on each applicable vesting date.
All of the options shall be subject to the terms of the Company’s 2012 Equity Incentive Plan
(the “Incentive Plan”) and will be exercisable for a period of five years from the date of this Agreement provided that
they are vested at time of exercise. The
4
exercisability of the options shall be subject to the execution of the Company’s standard option agreement which is
attached as Exhibit A.
(e)
Expenses. In addition to any compensation received pursuant to this Section 4, the Company
will reimburse or advance funds to the Executive for all reasonable documented travel (including travel expenses
incurred by the Executive related to her travel to the Company’s other offices), entertainment and miscellaneous
expenses incurred in connection with the performance of her duties under this Agreement, provided that the Executive
properly provides a written accounting of such expenses to the Company in accordance with the Company’s practices.
Such reimbursement or advances will be made in accordance with policies and procedures of the Company in effect
from time to time relating to reimbursement of, or advances to, its executive officers.
5.
Benefits.
(a)
Paid Time Off. For each 12-month period during the Term, the Executive shall be entitled to
three weeks of Paid Time Off without loss of compensation or other benefits to which she is entitled under this
Agreement, to be taken at such times as the Executive may select and the affairs of the Company may permit. Any
unused days will be carried over to the next 12 month period.
(b)
Employee Benefit Programs . The Executive is entitled to participate in any pension, 401(k),
insurance or other employee benefit plan that is maintained by the Company for its executives, including programs of
health insurance, life insurance and reimbursement of membership fees in professional organizations. .
6.
Termination.
(a)
Death or Disability. Except as otherwise provided in this Agreement, this Agreement shall
automatically terminate upon the death or disability of the Executive. For purposes of this Section 6(a), “disability”
shall mean (i) the Executive is unable to engage in her customary duties by reason of any medically determinable
physical or mental impairment that can be expected to result in death, or last for a continuous period of not less than 12
months; (ii) the Executive is, by reason of any medically determinable physical or mental impairment that can be
expected to result in death, or last for continuous period of not less than 12 months, receiving income replacement
benefits for a period of not less than three months under an accident and health plan covering employees of the
Company; or (iii) the Executive is determined to be totally disabled by the Social Security Administration. Any
question as to the existence of a disability shall be determined by the written opinion of the Executive’s regularly
attending physician (or her guardian) (or the Social Security Administration, where applicable). In the event that the
Executive’s employment is terminated by reason of Executive’s death or disability, the Company shall pay the
following to the Executive or her personal representative: (i) any accrued but unpaid Base Salary for services rendered
to the date of termination, (ii) any accrued but unpaid expenses required to be reimbursed under this Agreement, (iii)
any earned but unpaid bonuses, and (iv) all equity awards previously granted to the Executive under the Incentive Plan
or similar plan shall thereupon become fully vested, and the Executive or her legally appointed guardian, as the case
may be, shall have up to three months from the date of
5
termination (or one year from the date of death) to exercise all such previously granted options, provided that in no
event shall any option be exercisable beyond its term.
(b)
Termination by the Company for Cause or by the Executive Without Good Reason . The
Company may terminate the Executive’s employment pursuant to the terms of this Agreement at any time for Cause
(as defined below) by giving the Executive written notice of termination. Such termination shall become effective upon
the giving of such notice. Upon any such termination for Cause, or in the event the Executive terminates her
employment with the Company without Good Reason (as defined in Section 6(c)), then the Executive shall have no
right to compensation, or reimbursement under Section 4, or to participate in any Executive benefit programs under
Section 5, except as may otherwise be provided for by law, for any period subsequent to the effective date of
termination. For purposes of this Agreement, “Cause” shall mean: (i) the Executive is convicted of, or pleads guilty or
nolo contendere to, a felony related to the business of the Company; (ii) the Executive, in carrying out her duties
hereunder, has acted with gross negligence or intentional misconduct resulting, in any case, in harm to the Company;
(iii) the Executive misappropriates Company funds or otherwise defrauds the Company; (iv) the Executive breaches her
fiduciary duty to the Company resulting in profit to her, directly or indirectly; (v) the Executive materially breaches any
agreement with the Company; (vi) the Executive breaches any provision of Section 8 or Section 9; (vii) the Executive
becomes subject to a preliminary or permanent injunction issued by a United States District Court enjoining the
Executive from violating any securities law administered or regulated by the Securities and Exchange Commission;
(viii) the Executive becomes subject to a cease and desist order or other order issued by the Securities and Exchange
Commission after an opportunity for a hearing; (ix) the Executive refuses to carry out a resolution adopted by the
Company’s Board at a meeting in which the Executive was offered a reasonable opportunity to argue that the resolution
should not be adopted; or (x) the Executive abuses alcohol or drugs in a manner that interferes with the successful
performance of her duties.
(c)
Other Termination.
(1)
This Agreement may be terminated: (i) by the Executive for Good Reason (as defined
below), (ii) by the Company without Cause, (iii) automatically upon any Change of Control event as defined in
Treasury Regulation Section 1.409A-3(i)(5) or (iv) at the end of a Term after the Company provides the Executive with
notice of non-renewal.
Company without Cause, the Executive shall be entitled to the following:
(2)
In the event this Agreement is terminated by the Executive for Good Reason or by the
any accrued but unpaid Base Salary for services rendered to the date of
(A)
termination;
(B)
(C)
any accrued but unpaid expenses required to be reimbursed under this Agreement;
a payment equal to three months of the then Base Salary (“Severance Amount”);
6
the Executive or her legally appointed guardian, as the case may be, shall have up
(D)
to three months from the date of termination to exercise all such previously granted
options, provided that in no event shall any option be exercisable beyond its Term; and
any benefits (except perquisites) to which the Executive was entitled pursuant to
(E)
Section 5(b) hereof shall continue to be paid or provided by the Company, as the case
may be, for three months, subject to the terms of any applicable plan or insurance contract
and applicable law provided that such benefits are exempt from Section 409A of the Code
by reason of Treasury Regulation 1.409A-1(a)(5) or otherwise. In the event all or a
portion of the benefits to which the Executive was entitled pursuant to Section 5(b) hereof
are subject to 409A of the Code, the Executive shall not be entitled to the benefits that are
subject to Section 409A of the Code subsequent to the “applicable 2 ½ month period” (as
such term is defined under Treasury Regulation Section 1.409A-1(b)(4)(i)(A)).
(3)
In the event of a Change of Control during the Term, the Executive shall be entitled to
receive each of the provisions of Section 6(c)(2)(A) – (E) above except the Severance Amount shall equal to three
months of the then Base Salary and the benefits under Section 6(c)(2)(E) shall continue for an three month period
provided that such benefits are exempt from Section 409A of the Code by reason of Treasury Regulation 1.409A-1(a)
(5) or otherwise. In the event all or a portion of the benefits under Section 6(c)(2)(E) are subject to 409A of the Code,
the Executive shall not be entitled to the benefits that are subject to Section 409A of the Code subsequent to the
“applicable 2 ½ month period” (as such term is defined under Treasury Regulation Section 1.409A-1(b)(4)(i)(A)).
In the event this Agreement is terminated at the end of a Term after the Company
provides the Executive with notice of non-renewal and the Executive remains employed until the end of the Term, the
Executive shall be entitled to the following:
(4)
any accrued but unpaid Base Salary for services rendered to the date of
(A)
termination;
any accrued but unpaid expenses required to be reimbursed under this Agreement;
(B)
and
(C)
the Executive or her legally appointed guardian, as the case may be, shall have up
to three months from the date of termination to exercise all such previously granted
options, provided that in no event shall any option be exercisable beyond its Term.
In the event of a termination for Good Reason or without Cause, the payment of the
Severance Amount shall be made at the same times as the Company pays compensation to its employees over the
applicable monthly period and any other payments owed
(5)
7
under Section 6(c) shall be promptly paid. Provided, however, that any balance of the Severance Amount remaining
due on the “applicable 2 ½ month period” (as such term is defined under Treasury Regulation Section 1.409A-1(b)(4)(i)
(A)) after the end of the tax year in which the Executive’s employment is terminated or the Term ends shall be paid on
the last day of the applicable 2 ½ month period. The payment of the Severance Amount shall be conditioned on the
Executive signing an Agreement and General Release (in the form which is attached as Exhibit B) which releases the
Company or any of its affiliates (including its officers, directors and their affiliates) from any liability under this
Agreement or related to the Executive’s employment with the Company provided that (x) the payment of the Severance
Amount is made on or before the 90th day following the Executive’s termination of employment; (y) such Agreement
and General Release is executed by the Executive, submitted to the Company, and the statutory period during which
the Executive is entitled to revoke the Agreement and General Release under applicable law has expired on or before
that 90th day; and (z) in the event that the 90 day period begins in one taxable year and ends in a second taxable year,
then the payment of the Severance Amount shall be made in the second taxable year. Upon any Change of Control
event, all payments owed under Section 6(c)(3) shall be paid immediately.
The term “Good Reason” shall mean: (i) a material diminution in the Executive’s authority,
duties or responsibilities due to no fault of the Executive (unless the Executive has agreed to such diminution); (ii) the
Company no longer maintains or operates an office in the New York Metro Area; (iii) the Company requires the
Executive to change her principal business office as defined in Section 3(c) to a location other than the New York
Metro Area, or (iv) any other action or inaction that constitutes a material breach by the Company under this
Agreement. Prior to the Executive terminating her employment with the Company for Good Reason, the Executive
must provide written notice to the Company, within 30 days following the Executive’s initial awareness of the
existence of such condition, that such Good Reason exists and setting forth in detail the grounds the Executive believes
constitutes Good Reason. If the Company does not cure the condition(s) constituting Good Reason within 30 days
following receipt of such notice, then the Executive’s employment shall be deemed terminated for Good Reason.
(d)
Any termination made by the Company under this Agreement shall be approved by the Board.
(e)
Upon (a) voluntary or involuntary termination of the Executive’s employment or (b) the
Company’s request at any time during the Executive's employment, the Executive shall (i) provide or return to the
Company any and all Company property, including keys, key cards, access cards, security devices, employer credit
cards, network access devices, computers, cell phones, smartphones, manuals, work product, thumb drives or other
removable information storage devices, and hard drives, and all Company documents and materials belonging to the
Company and stored in any fashion, including but not limited to those that constitute or contain any Confidential
Information or work product, that are in the possession or control of the Executive, whether they were provided to the
Executive by the Company or any of its business associates or created by the Executive in connection with her
employment by the Company; and (ii) delete or destroy all copies of any such documents and materials not returned to
the Company that remain in the Executive’s possession or control, including those stored on
8
any non-Company devices, networks, storage locations and media in the Executive’s possession or control.
7.
Indemnification. The Company shall indemnify the Executive, to the maximum extent permitted by
applicable law, against all costs, charges and expenses incurred or sustained by her in connection with any action, suit
or proceeding to which she may be made a party by reason of her being an officer, director or employee of the
Company or of any subsidiary or affiliate of the Company. This indemnification shall be pursuant an Indemnification
Agreement, a copy of which is annexed as Exhibit C.
8.
Non-Competition Agreement.
(a)
Competition with the Company. Until termination of her employment and for a period of three
months commencing on the date of termination, the Executive (individually or in association with, or as a shareholder,
director, officer, consultant, employee, partner, joint venturer, member, or otherwise, of or through any person, firm,
corporation, partnership, association or other entity) shall not, directly or indirectly, act as an employee or officer (or
comparable position) of, owning an interest in, or providing services substantially similar to those services the
Executive provided to the Company to a nationally or regionally accredited university.
(b)
Solicitation of Students. During the periods in which the provisions of Section 8(a) shall be in
effect, the Executive, directly or indirectly, will not seek nor accept Prohibited Business from any Students (as defined
below) on behalf of herself or any enterprise or business other than the Company, refer Prohibited Business from any
Student to any enterprise or business other than the Company or receive commissions based on sales or otherwise
relating to the Prohibited Business from any Student, or any enterprise or business other than the Company. For
purposes of this Agreement, the term “Student” means any person who enrolled in the Company as a student during the
24-month period prior to the time at which any determination is required to be made as to whether any such person is a
Student.
(c)
Solicitation of Employees. During the period in which the provisions of Section 8(a) and (b)
shall be in effect, the Executive agrees that she shall not, directly or indirectly, request, recommend or advise any
employee of the Company to terminate her employment with the Company, for the purposes of providing services for a
Prohibited Business, or solicit for employment or recommend to any third party the solicitation for employment of any
individual who was employed by the Company or any of its subsidiaries and affiliates at any time during the one year
period preceding the Executive’s termination of employment.
(d)
Non-disparagement. The Executive agrees that, after the end of her employment, she will refrain
from making, in writing or orally, any unfavorable comments about the Company, its operations, policies, or
procedures that would be likely to injure the Company’s reputation or business prospects; provided, however, that
nothing herein shall preclude the Executive from responding truthfully to a lawful subpoena or other compulsory legal
process or from providing truthful information otherwise required by law.
9
(e)
No Payment. The Executive acknowledges and agrees that no separate or additional payment
will be required to be made to her in consideration of her undertakings in this Section 8, and confirms she has received
adequate consideration for such undertakings.
(f)
References. References to the Company in this Section 8 shall include the Company’s
subsidiaries and affiliates.
9.
Non-Disclosure of Confidential Information .
(a)
Confidential Information. For purposes of this Agreement, “Confidential Information” includes,
but is not limited to, trade secrets, processes, policies, procedures, techniques, designs, drawings, know-how, show-
how, technical information, specifications, computer software and source code, information and data relating to the
development, research, testing, costs, marketing, and uses of the Services (as defined herein), the Company’s budgets
and strategic plans, and the identity and special needs of Students, vendors, and suppliers, subjects and databases, data,
and all technology relating to the Company’s businesses, systems, methods of operation, and Student lists, Student
information, solicitation leads, marketing and advertising materials, methods and manuals and forms, all of which
pertain to the activities or operations of the Company, the names, home addresses and all telephone numbers and e-mail
addresses of the Company’s directors, employees, officers, executives, former executives, Students and former
Students. Confidential Information also includes, without limitation, Confidential Information received from the
Company’s subsidiaries and affiliates. For purposes of this Agreement, the following will not constitute Confidential
Information (i) information which is or subsequently becomes generally available to the public through no act or fault
of the Executive, (ii) information set forth in the written records of the Executive prior to disclosure to the Executive by
or on behalf of the Company which information is given to the Company in writing as of or prior to the date of this
Agreement, and (iii) information which is lawfully obtained by the Executive in writing from a third party (excluding
any affiliates of the Executive) who lawfully acquired the confidential information and who did not acquire such
confidential information or trade secret, directly or indirectly, from the Executive or the Company or its subsidiaries or
affiliates and who has not breached any duty of confidentiality. As used herein, the term “Services” shall include all
services offered for sale and marketed by the Company during the Term, which as of the Effective Date consist of
operating an online university in compliance with all applicable regulatory requirements.
(b)
Legitimate Business Interests . The Executive recognizes that the Company has legitimate
business interests to protect and as a consequence, the Executive agrees to the restrictions contained in this Agreement
because they further the Company’s legitimate business interests. These legitimate business interests include, but are
not limited to (i) trade secrets; (ii) valuable confidential business, technical, and/or professional information that
otherwise may not qualify as trade secrets, including, but not limited to, all Confidential Information; (iii) substantial,
significant, or key relationships with specific prospective or existing Students, vendors or suppliers; (iv) Student
goodwill associated with the Company’s business; and (v) specialized training relating to the Company’s technology,
Services, methods, operations and procedures. Notwithstanding the foregoing, nothing in this Section 9(b) shall be
construed to impose restrictions greater than those imposed by other provisions of this Agreement.
10
(c)
Confidentiality. During the Term of this Agreement and following termination of employment,
for any reason, the Confidential Information shall be held by the Executive in the strictest confidence and shall not,
without the prior express written consent of the Company, be disclosed to any person other than in connection with the
Executive’s employment by the Company. The Executive further acknowledges that such Confidential Information as
is acquired and used by the Company or its subsidiaries or affiliates is a special, valuable and unique asset. The
Executive shall exercise all due and diligent precautions to protect the integrity of the Company’s Confidential
Information and to keep it confidential whether it is in written form, on electronic media, oral, or otherwise. The
Executive shall not copy any Confidential Information except to the extent necessary to her employment nor remove
any Confidential Information or copies thereof from the Company’s premises except to the extent necessary to her
employment. All records, files, materials and other Confidential Information obtained by the Executive in the course of
her employment with the Company are confidential and proprietary and shall remain the exclusive property of the
Company, its Students, or subjects, as the case may be. The Executive shall not, except in connection with and as
required by her performance of her duties under this Agreement, for any reason use for her own benefit or the benefit of
any person or entity other than the Company or disclose any such Confidential Information to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever without the prior express written consent
of an executive officer of the Company (excluding the Executive).
(d)
References. References to the Company in this Section 9 shall include the Company’s
subsidiaries and affiliates.
10.
Equitable Relief.
(a)
The Company and the Executive recognize that the services to be rendered under this Agreement
by the Executive are special, unique and of extraordinary character, and that in the event of the breach by the Executive
of the terms and conditions of this Agreement or if the Executive, without the prior express consent of the Board, shall
leave her employment for any reason and/or take any action in violation of Section 8 and/or Section 9, the Company
shall be entitled to institute and prosecute proceedings in any court of competent jurisdiction referred to in Section 10(b)
below, to enjoin the Executive from breaching the provisions of Section 8 and/or Section 9.
(b)
Any action arising from or under this Agreement must be commenced only in the appropriate
state or federal court located in New York, New York. The Executive and the Company irrevocably and
unconditionally submit to the exclusive jurisdiction of such courts and agree to take any and all future action necessary
to submit to the jurisdiction of such courts. The Executive and the Company irrevocably waive any objection that they
now have or hereafter may have to the laying of venue of any suit, action or proceeding brought in any such court and
further irrevocably waive any claim that any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum. Final judgment against the Executive or the Company in any such suit shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment, a certified or true copy of which shall be conclusive
evidence of the fact and the amount of any liability of the Executive or the Company therein described, or by
appropriate proceedings under any applicable treaty or otherwise.
11
11.
Conflicts of Interest. While employed by the Company, the Executive shall not, unless approved by the
Compensation Committee, directly or indirectly:
(a)
participate as an individual in any way in the benefits of transactions with any of the Company’s
suppliers, vendors, Students, or subjects, including, without limitation, having a financial interest in the Company’s
suppliers, vendors, Students, or subjects, or making loans to, or receiving loans, from, the Company’s suppliers,
vendors, Students, or subjects;
(b)
realize a personal gain or advantage from a transaction in which the Company has an interest or
use information obtained in connection with the Executive’s employment with the Company for the Executive’s
personal advantage or gain; or
(c)
accept any offer to serve as an officer, director, partner, consultant, manager with, or to be
employed in a professional, medical, technical, or managerial capacity by, a person or entity which does business with
the Company.
12.
Inventions, Ideas, Processes, and Designs . All inventions, ideas, processes, programs, software, and
designs (including all improvements) directly related to the Company’s business (i) conceived or made by the
Executive during the course of her employment with the Company (whether or not actually conceived during regular
business hours) and for a period of three months subsequent to the termination (whether by expiration of the Term or
otherwise) of such employment with the Company, and (ii) related to the business of the Company, shall be disclosed
in writing promptly to the Company and shall be the sole and exclusive property of the Company, and the Executive
hereby assigns any such inventions to the Company. An invention, idea, process, program, software, or design
(including an improvement) shall be deemed directly related to the business of the Company if (a) it was made with the
Company’s funds, personnel, equipment, supplies, facilities, or Confidential Information, (b) results from work
performed by the Executive for the Company, or (c) pertains to the current business or demonstrably anticipated
research or development work of the Company. The Executive shall cooperate with the Company and its attorneys in
the preparation of patent and copyright applications for such developments and, upon request, shall promptly assign all
such inventions, ideas, processes, and designs to the Company. The decision to file for patent or copyright protection
or to maintain such development as a trade secret, or otherwise, shall be in the sole discretion of the Company, and the
Executive shall be bound by such decision. The Executive hereby irrevocably assigns to the Company, for no
additional consideration, the Executive’s entire right, title and interest in and to all work product and intellectual
property rights, including the right to sue, counterclaim and recover for all past, present and future infringement,
misappropriation or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in
this Agreement shall be construed to reduce or limit the Company's rights, title or interest in any work product or
intellectual property rights so as to be less in any respect than the Company would have had in the absence of this
Agreement. If applicable, the Executive shall provide as a schedule to this Agreement, a complete list of all inventions,
ideas, processes, and designs, if any, patented or unpatented, copyrighted or otherwise, or non-copyrighted, including a
brief description, which she made or conceived prior to her employment with the Company and which therefore are
excluded from the scope of this Agreement. References to the Company in this Section 12 shall include the Company,
its subsidiaries and affiliates.
12
13.
Indebtedness. If, during the course of the Executive’s employment under this Agreement, the Executive
becomes indebted to the Company for any reason, the Company may, if it so elects, and if permitted by applicable law,
set off any sum due to the Company from the Executive and collect any remaining balance from the Executive unless
the Executive has entered into a written agreement with the Company.
14.
Assignability. The rights and obligations of the Company under this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Company, provided that such successor or assign shall
acquire all or substantially all of the securities or assets and business of the Company. The Executive’s obligations
hereunder may not be assigned or alienated and any attempt to do so by the Executive will be void.
15.
Severability.
(a)
The Executive expressly agrees that the character, duration and geographical scope of the non-
competition provisions set forth in this Agreement are reasonable in light of the circumstances as they exist on the date
hereof. Should a decision, however, be made at a later date by a court of competent jurisdiction that the character,
duration or geographical scope of such provisions is unreasonable, then it is the intention and the agreement of the
Executive and the Company that this Agreement shall be construed by the court in such a manner as to impose only
those restrictions on the Executive’s conduct that are reasonable in the light of the circumstances and as are necessary
to assure to the Company the benefits of this Agreement. If, in any judicial proceeding, a court shall refuse to enforce
all of the separate covenants deemed included herein because taken together they are more extensive than necessary to
assure to the Company the intended benefits of this Agreement, it is expressly understood and agreed by the parties
hereto that the provisions of this Agreement that, if eliminated, would permit the remaining separate provisions to be
enforced in such proceeding shall be deemed eliminated, for the purposes of such proceeding, from this Agreement.
(b)
If any provision of this Agreement otherwise is deemed to be invalid or unenforceable or is
prohibited by the laws of the state or jurisdiction where it is to be performed, this Agreement shall be considered
divisible as to such provision and such provision shall be inoperative in such state or jurisdiction and shall not be part of
the consideration moving from either of the parties to the other. The remaining provisions of this Agreement shall be
valid and binding and of like effect as though such provisions were not included.
16.
Notices and Addresses. All notices, offers, acceptance and any other acts under this Agreement (except
payment) shall be in writing, and shall be sufficiently given if delivered to the addressees in person, by FedEx or
similar receipted delivery, or next business day delivery to the addresses detailed below (or to such other address, as
either of them, by notice to the other may designate from time to time), or by e-mail delivery (in which event a copy
shall immediately be sent by FedEx or similar receipted delivery), as follows:
To the Company:
Michael Mathews
Chief Executive Officer
Aspen Group, Inc.
224 West 30th Street, Suite 604
13
With a copy to:
New York, NY 10001
Email: mike@aspen.com
Nason, Yeager, Gerson White & Lioce, P.A.
Attn: Michael D. Harris, Esq.
1645 Palm Beach Lakes Blvd., Suite 1200
West Palm Beach, Florida 33410
Email: mharris@nasonyeager.com
To the Executive:
Janet Gill
175 Sawmill Road
Stamford, CT 06903
Email: janet.gill@aspen.edu
17.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
18.
Attorneys’ Fees . In the event that there is any controversy or claim arising out of or relating to this
Agreement, or to the interpretation, breach or enforcement thereof, and any action or proceeding is commenced to
enforce the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and
expenses (including such fees and costs on appeal).
19.
Governing Law. This Agreement shall be governed or interpreted according to the internal laws of the
State of Delaware without regard to choice of law considerations and all claims relating to or arising out of this
Agreement, or the breach thereof, whether sounding in contract, tort, or otherwise, shall also be governed by the laws
of the State of Delaware without regard to choice of law considerations.
20.
Entire Agreement. This Agreement constitutes the entire Agreement between the parties and supersedes
all prior oral and written agreements between the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, except by a statement in
writing signed by the party or parties against which enforcement or the change, waiver discharge or termination is
sought.
21.
Section and Paragraph Headings . The section and paragraph headings in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of this Agreement.
22.
Investigations/Clawbacks.
(a)
In the event the Executive or the Company is the subject of an investigation (whether criminal,
civil, or administrative) involving possible violations of the United States federal securities laws by the Executive, the
Compensation Committee or the Board may, in its sole discretion, direct the Company to withhold any and all
payments to the
14
Executive (whether compensation or otherwise) which would have otherwise been made pursuant to this Agreement or
otherwise would have been paid or payable by the Company, which the Compensation Committee or the Board
believes, in its sole discretion, may or could be considered an “extraordinary payment” and therefore at risk and
potentially subject to, the provisions of Section 1103 of the Sarbanes-Oxley Act of 2002 (including, but not limited to,
any severance payments made to the Executive upon termination of employment). The withholding of any payment
shall be until such time as the investigation is concluded, without charges having been brought or until the successful
conclusion of any legal proceedings brought in connection with such amounts as directed by the Compensation
Committee or the Board to be withheld with or without the accruing of interest (and if with interest the rate thereof).
Except by an admission of wrongdoing or the final adjudication by a court or administrative agency finding the
Executive liable for or guilty of violating any of the federal securities laws, rules or regulations, the Compensation
Committee or the Board shall pay to the Executive such compensation or other payments. Notwithstanding the
exclusion caused by the first clause of the prior sentence, the Executive shall receive such payments if provided for by
a court or other administrative order.
(b)
Notwithstanding any other provisions in this Agreement to the contrary, any incentive-based
compensation, or any other compensation, paid to the Executive pursuant to this Agreement or any other agreement or
arrangement with the Company which is subject to recovery under any law, government regulation or stock exchange
listing requirement, will be subject to such deductions and clawback as may be required to be made pursuant to such
law, government regulation or stock exchange listing requirement (or any policy adopted by the Company pursuant to
any such law, government regulation or stock exchange listing requirement).
23.
Section 409A Compliance .
(a)
This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986,
as amended (“Section 409A”), or an exemption thereunder. This Agreement shall be construed and administered in
accordance with Section 409A. Notwithstanding any other provision of this Agreement to the contrary, payments
provided under this Agreement may only be made upon an event and in a manner that complies with Section 409A or
an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as
separation pay due to an involuntary separation from service (including a voluntary separation from service for good
reason that is considered an involuntary separation for purposes of the separation pay exception under Treasury
Regulation 1.409A-1(n)(2)) or as a short-term deferral shall be excluded from Section 409A to the maximum extent
possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a
separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be
made if such termination of employment constitutes a “separation from service” under Section 409A. Notwithstanding
the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement
comply with Section 409A and in no event shall the Company be liable for all or any portion of any taxes, penalties,
interest, or other expenses that may be incurred by the Executive on account of non-compliance with Section 409A.
15
(b)
Notwithstanding any other provision of this Agreement, if at the time of the Executive's
termination of employment, the Executive is a "specified employee", determined in accordance with Section 409A, any
payments and benefits provided under this Agreement that constitute "nonqualified deferred compensation" subject to
Section 409A (e.g., payments and benefits that do not qualify as a short-term deferral or as a separation pay exception)
that are provided to the Executive on account of the Executive’s separation from service shall not be paid until the first
payroll date to occur following the six-month anniversary of the Executive's termination date ("Specified Employee
Payment Date"). The aggregate amount of any payments that would otherwise have been made during such six-month
period shall be paid in a lump sum on the Specified Employee Payment Date without interest and thereafter, any
remaining payments shall be paid without delay in accordance with their original schedule. If the Executive dies during
the six-month period, any delayed payments shall be paid to the Executive's estate in a lump sum upon the Executive's
death.
(c)
To the extent required by Section 409A, each reimbursement or in-kind benefit provided under
this Agreement shall be provided in accordance with the following:
the amount of expenses eligible for reimbursement, or in-kind benefits provided, during
each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any
other calendar year;
(i)
last day of the calendar year following the calendar year in which the expense was incurred; and
(ii)
any reimbursement of an eligible expense shall be paid to the Executive on or before the
to liquidation or exchange for another benefit.
(iii)
any right to reimbursements or in-kind benefits under this Agreement shall not be subject
(d)
In the event the Company determines that the Executive is a “specified employee” within the
meaning of Section 409A(a)(2)(B)(i) of the Code at the time of the Executive’s separation from service, then to the
extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the
Executive’s separation from service would be considered deferred compensation subject to Section 409A as a result of
the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not
be provided until the date that is the earlier of (i) six months and one day after the Executive’s separation from service,
or (ii) the Executive’s death (the “Six Month Delay Rule”).
(i)
For purposes of this subparagraph, amounts payable under the Agreement should not
provide for a deferral of compensation subject to Section 409A to the extent provided in Treasury Regulation Section
1.409A-1(b)(4) (e.g., short-term deferrals), Treasury Regulation Section 1.409A-1(b)(9) (e.g., separation pay plans,
including the exception under subparagraph (iii)), and other applicable provisions of the Treasury Regulations.
To the extent that the Six Month Delay Rule applies to payments otherwise payable on
an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have
been paid during the six-month period but for the
(ii)
16
application of the Six Month Delay Rule, and the balance of the installments shall be payable in accordance with their
original schedule.
(iii)
To the extent that the Six Month Delay Rule applies to the provision of benefits
(including, but not limited to, life insurance and medical insurance), such benefit coverage shall nonetheless be
provided to the Executive during the first six months following her separation from service (the “Six Month Period”),
provided that, during such Six-Month Period, the Executive pays to the Company, on a monthly basis in advance, an
amount equal to the Monthly Cost (as defined below) of such benefit coverage. The Company shall reimburse the
Executive for any such payments made by the Executive in a lump sum not later than 30 days following the sixth
month anniversary of the Executive’s separation from service. For purposes of this subparagraph, “Monthly Cost”
means the minimum dollar amount which, if paid by the Executive on a monthly basis in advance, results in the
Executive not being required to recognize any federal income tax on receipt of the benefit coverage during the Six
Month Period.
(e)
The parties intend that this Agreement will be administered in accordance with Section 409A.
To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A, the provision
shall be read in such a manner so that all payments hereunder comply with Section 409A. The parties agree that this
Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with
Section 409A and all related rules and regulations in order to preserve the payments and benefits provided hereunder
without additional cost to either party.
(f)
The Company makes no representation or warranty and shall have no liability to the Executive
or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to
Section 409A but do not satisfy an exemption from, or the conditions of, such Section.
[Signature Page To Follow]
17
IN WITNESS WHEREOF, the Company and the Executive have executed this Agreement as of the date and
year first above written.
Aspen Group, Inc.
By:
Michael Mathews,
Chief Executive Officer
Executive:
Janet Gill
Exhibit A
Option Agreement
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the “Agreement”) entered into as of __________
____, 2014 (the “Grant Date”) between Aspen Group, Inc. (the “Company”) and Janet Gill (the “Optionee”).
WHEREAS, by action taken by the Board of Directors (the “Board”) it has adopted the 2012 Equity Incentive
Plan (the “Plan”); and
WHEREAS, pursuant to the Plan, it has been determined that in order to enhance the ability of the Company to
attract and retain qualified employees, consultants and directors, the Company has granted the Optionee the right to
purchase the common stock of the Company pursuant to stock options.
NOW THEREFORE, in consideration of the mutual covenants and promises hereafter set forth and for other
good and valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1.
Grant of Non-Qualified Options . On the Grant Date, the Company irrevocably granted to the Optionee,
as a matter of separate agreement and not in lieu of salary or other compensation for services, the right and option to
purchase all or any part of 300,000 shares of authorized but unissued or treasury common stock of the Company (the
“Options”) on the terms and conditions herein set forth. The Optionee acknowledges receipt of a copy of the Plan, as
amended.
2.
3.
Price. The exercise price of the Options shall be the Fair Market Value, as defined in the Plan.
Vesting - When Exercisable .
(a)
The Options shall vest in three equal annual increments with the first vesting date being
one year from the Grant Date, subject to the Optionee’s continued service as an employee of the Company on each
applicable vesting date. Employment with Aspen University Inc., a subsidiary of the Company shall be deemed to be
employment with the Company. Any fractional vesting shall be rounded up to the extent necessary. Notwithstanding
any other provision in this Agreement, the Options shall vest immediately on the occurrence of a Change of Control as
defined under the Plan. In the event of a Change of Control, the Options shall be assumed or substituted by the
successor corporation or a parent or subsidiary of the successor corporation. If the successor corporation refuses to
assume or substitute for the Options, all Options immediately prior to the closing of the Change of Control event will
automatically be exercised by a net exercise of the Options, under which the Company will not require a payment of
the exercise price of the Options in cash but will reduce the number of shares of stock issued upon exercise by a whole
number of shares based upon the price paid per share by the successor corporation. For example, if the successor
corporation pays $2.00 per share and your exercise price is $0.50, if you hold 1,000 options, the Company will issue
you 750 shares immediately prior to the Change of Control event. If the successor corporation pays a price per share
which is below the exercise price under Section 2, then the Options will terminate
immediately upon the Change of Control event if they are not assumed. If the successor corporation pays a price per
share which is below the exercise price under Section 2, then the Options will terminate immediately upon the Change
of Control event if they are not assumed.
Subject to Section 24 of the Plan, any of the vested Options may be exercised prior to
and until 6:00 p.m. New York time five years from the Grant Date (the “Expiration Date”). None of the Options may
be exercised prior to vesting.
(b)
Notwithstanding any other provision of this Agreement, upon resolution of the Board or
the Committee (as defined in the Plan), the Options, whether vested or unvested, shall be immediately forfeited if any
of the events specified in Sections 24(a) or (b) of the Plan, as applicable, occur.
(c)
4.
Termination of Relationship . The Options granted hereunder shall be subject to the termination
provisions under Sections 10 and 11 of the Plan.
5.
Profits on the Sale of Certain Shares; Redemption . The Options granted hereunder shall be subject to
the redemption provisions under Section 24(c) of the Plan.
6.
Method of Exercise . The Options shall be exercisable by a written notice in the form attached to this
Agreement, which shall:
(a)
be signed by the person or persons entitled to exercise the Options and, if the Options are being
exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel for the
Company, of the right of such person or persons to exercise the Options;
(b)
be accompanied by full payment of the exercise price by tender to the Company of an amount
equal to the exercise price multiplied by the number of underlying shares being purchased either in cash, by wire
transfer, or by certified check or bank cashier’s check, payable to the order of the Company;
(c)
be accompanied by payment of any amount that the Company, in its sole discretion, deems
necessary to comply with any federal, state or local withholding requirements for income and employment tax
purposes. If the Optionee fails to make such payment in a timely manner, the Company may: (i) decline to permit
exercise of the Options or (ii) withhold and set-off against compensation and any other amounts payable to the
Optionee the amount of such required payment. Such withholding may be in the shares underlying the Options at the
sole discretion of the Company.
The certificate or certificates for shares of common stock as to which the Options shall be exercised shall be
registered in the name of the person or persons exercising the Options.
7.
Anti-Dilution Provisions. The Options granted hereunder shall have the anti-dilution rights set forth in
Section 14 of the Plan.
8.
Necessity to Become Holder of Record . Neither the Optionee, the Optionee’s estate, nor any Transferee
shall have any rights as a shareholder with respect to any shares underlying the Options until such person shall have
become the holder of record of such shares. No dividends or cash distributions, ordinary or extraordinary, shall be
provided to the holder if the record date is prior to the date on which such person became the holder of record thereof.
9.
Reservation of Right to Terminate Relationship . Nothing contained in this Agreement shall restrict the
right of the Company to terminate the relationship of the Optionee at any time, with or without cause. The termination
of the relationship of the Optionee by the Company, regardless of the reason therefor, shall have the results provided
for in Section 24 of the Plan.
10.
Conditions to Exercise of Options . If a Registration Statement on Form S-8 (or any other successor
form) is not effective as to the shares of common stock issuable upon exercise of the Options, the remainder of this
Section 10 is applicable as to federal law. In order to enable the Company to comply with the Securities Act of 1933
(the “Securities Act”) and relevant state law, the Company may require the Optionee, the Optionee’s estate, or any
Transferee as a condition of the exercising of the Options granted hereunder, to give written assurance satisfactory to
the Company that the shares subject to the Options are being acquired for such person’s own account, for investment
only, with no view to the distribution of same, and that any subsequent resale of any such shares either shall be made
pursuant to a registration statement under the Securities Act and applicable state law which has become effective and is
current with regard to the shares being sold, or shall be pursuant to an exemption from registration under the Securities
Act and applicable state law.
The Options are further subject to the requirement that, if at any time the Board shall determine, in its
discretion, that the listing, registration, or qualification of the shares of common stock underlying the Options upon any
securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body,
is necessary as a condition of, or in connection with the issue or purchase of shares underlying the Options, the Options
may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have
been effected.
11.
Sale of Shares Acquired Upon Exercise of Options . If the Optionee is an officer (as defined by Section
16(b) of the Securities Exchange Act of 1934 (“Section 16(b)”)) or a director of the Company, any shares of the
Company’s common stock acquired pursuant to the Options cannot be sold by the Optionee until at least six months
elapse from the Grant Date except in case of death or disability or if the grant was exempt from the short-swing profit
provisions of Section 16(b).
12.
Transfer. No transfer of the Options by the Optionee by will or by the laws of descent and distribution
shall be effective to bind the Company unless the Company shall have been furnished with written notice thereof and a
copy of the letters testamentary or such other evidence as the Board may deem necessary to establish the authority of
the estate and the acceptance by the Transferee or Transferees of the terms and conditions of the Options.
13.
Duties of the Company . The Company will at all times during the term of the Options:
(a)
Reserve and keep available for issue such number of shares of its authorized and unissued
common stock as will be sufficient to satisfy the requirements of this Agreement;
(b)
Pay all original issue taxes with respect to the issuance of shares pursuant hereto and all other
fees and expenses necessarily incurred by the Company in connection therewith;
(c)
Use its best efforts to comply with all laws and regulations which, in the opinion of counsel for
the Company, shall be applicable thereto.
14.
Parties Bound by Plan. The Plan and each determination, interpretation or other action made or taken
pursuant to the provisions of the Plan shall be final and shall be binding and conclusive for all purposes on the
Company and the Optionee and the Optionee’s respective successors in interest.
15.
Severability. In the event any parts of this Agreement are found to be void, the remaining provisions of
this Agreement shall nevertheless be binding with the same effect as though the void parts were deleted.
16.
Arbitration. Except to the extent a party is seeking equitable relief, any controversy, dispute or claim
arising out of or relating to this Agreement, or its interpretation, application, implementation, breach or enforcement
which the parties are unable to resolve by mutual agreement, shall be settled by submission by either party of the
controversy, claim or dispute to binding arbitration in New York County, New York (unless the parties agree in writing
to a different location), before a single arbitrator in accordance with the rules of the American Arbitration Association
then in effect. The decision and award made by the arbitrator shall be final, binding and conclusive on all parties
hereto for all purposes, and judgment may be entered thereon in any court having jurisdiction thereof.
17.
Benefit. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
legal representatives, successors and assigns.
18.
Notices and Addresses. All notices, offers, acceptance and any other acts under this Agreement (except
payment) shall be in writing and shall be delivered to the addresses in person, by FedEx or similar receipted delivery as
follows:
The Optionee:
The Company:
at the address on the Signature Page
Aspen Group, Inc.
224 West 30 th Street, Suite 604
New York, New York 10001
Attention: Michael Mathews
with a copy to:
Michael D. Harris, Esq.
Nason, Yeager, Gerson, White & Lioce, P.A.
1645 Palm Beach Lakes Blvd., Suite 1200
West Palm Beach, FL 33401
or to such other address as either of them, by notice to the other may designate from time to time.
19.
Attorney’s Fees . In the event that there is any controversy or claim arising out of or relating to this
Agreement, or to the interpretation, breach or enforcement thereof, and any action or proceeding is commenced to
enforce the provisions of this Agreement, the prevailing party shall be entitled to a reasonable attorneys’ fees, costs and
expenses.
20.
Governing Law. This Agreement and any dispute, disagreement, or issue of construction or
interpretation arising hereunder whether relating to its execution, its validity, the obligations provided herein or
performance whether sounding in contract, tort or otherwise shall be governed or interpreted according to the laws of
Delaware without regard to choice of law considerations.
21.
Oral Evidence. This Agreement constitutes the entire Agreement between the parties and supersedes all
prior oral and written agreements between the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, except by a statement in
writing signed by the party or parties against which enforcement or the change, waiver discharge or termination is
sought.
22.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
23.
Section or Paragraph Headings . Section headings herein have been inserted for reference only and shall
not be deemed to limit or otherwise affect, in any matter, or be deemed to interpret in whole or in part any of the terms
or provisions of this Agreement.
24.
Stop-Transfer Orders.
(a)
The Optionee agrees that, in order to ensure compliance with the restrictions set forth in the Plan
and this Agreement, the Company may issue appropriate “stop transfer” instructions to its duly authorized transfer
agent, if any, and that, if the Company transfers its own securities, it may make appropriate notations to the same effect
in its own records.
(b)
The Company shall not be required (i) to transfer on its books any shares of the Company’s
common stock that have been sold or otherwise transferred in violation of any of the provisions of the Plan or the
Agreement or (ii) to treat the owner of such shares of common stock or to accord the right to vote or pay dividends to
any purchaser or other Transferee to whom such shares of common stock shall have been so transferred.
25.
Exclusive Jurisdiction and Venue . Any action brought by either party against the other concerning the
transactions contemplated by or arising under this Agreement shall be brought only in the state or federal courts of New
York and venue shall be in New York County or appropriate federal district and division. The parties to this
Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and
shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens.
[Signature Page To Follow]
IN WITNESS WHEREOF the parties hereto have set their hand and seals the day and year first above written.
ASPEN GROUP, INC.
By:
Michael Mathews
Chief Executive Officer
OPTIONEE:
Janet Gill
Address:
175 Sawmill Road
Stamford, CT 06903
NOTICE OF EXERCISE
To:
__________________________
__________________________
__________________________
Attention _________, _______________
Facsimile: (____) _____-______
Please be advised that I hereby elect to exercise my option to purchase shares of ___________, pursuant to the Stock
Option Agreement dated __________________.
Number of Shares to Be Purchased:
_______________
Multiplied by: Purchase Price Per Share
$______________
Total Purchase Price
$_______________
Please check the payment method below:
____
Enclosed is a check for the total purchase price above.
____
Wire transfer sent on _____________, 20__.
Please contact me as soon as possible to discuss the possible payment of withholding taxes and any other documents we may
require.
Name of Option Holder (Please Print): ________________________________
Address of Option Holder
________________________________________________________________
Telephone Number of Option Holder:
________________________________
Social Security Number of Option Holder:
________________________________
If the certificate is to be issued to person other than the Option Holder, please provide the following for such person:
________________________________
(Name)
________________________________
(Address)
________________________________
________________________________
________________________________
(Telephone Number)
________________________________
(Social Security Number)
In connection with the issuance of the Common Stock, if the Common Stock may not be immediately publicly sold, I hereby
represent to the Company that I am acquiring the Common Stock for my own account for investment and not with a view to, or
for resale in connection with, a distribution of the shares within the meaning of the Securities Act of 1933 (the “Securities Act”).
I am______ am not ______ [please initial one] an accredited investor for at least one of the reasons on the attached Exhibit A.
If the SEC has amended the rule defining the definition of accredited investor, the new provisions shall be applicable. I
acknowledge that as a condition to exercise the Options, the Company may request updated information regarding the Holder’s
status as an accredited investor. My exercise of the Options shall be in compliance with the applicable exemptions under the
Securities Act and applicable state law.
_______________________________
Signature of Option Holder
Dated: _________________
Exhibit A To Stock Option Agreement
For Individual Investors Only:
1.
A person who has an individual net worth, or a person who with her spouse has a combined net worth, in excess
of $1,000,000. For purposes of calculating net worth under this paragraph (1), (i) the primary residence shall not be included as
an asset, (ii) to the extent that the indebtedness that is secured by the primary residence is in excess of the fair market value of the
primary residence, the excess amount shall be included as a liability, and (iii) if the amount of outstanding indebtedness that is
secured by the primary residence exceeds the amount outstanding 60 days prior to exercising the stock options, other than as a
result of the acquisition of the primary residence, the amount of such excess shall be included as a liability.
2a.
A person who had individual income (exclusive of any income attributable to the person’s spouse) of more than
who has $200,000 in each of the two most recently completed years and who reasonably expects to have an individual income in
excess of $200,000 this year.
2b.
3.
Other Investors:
Alternatively, a person, who with her spouse, has joint income in excess of $300,000 in each applicable year.
A director or executive officer of the Company.
4.
Any bank as defined in Section 3(a)(2) of the Securities Act of 1933 (“Securities Act”) whether acting in its
individual or fiduciary capacity; any broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934;
insurance company as defined in Section 2(13) of the Securities Act; investment company registered under the Investment
Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Act; Small Business Investment
Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act
of 1958; any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or
its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; employee benefit
plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974, if the investment decision is made
by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance
company, or registered investment advisor, or if the employee benefit plan has total assets in excess of $5,000,000, or if a self-
directed plan, with investment decisions made solely by persons that are accredited investors.
5.
A private business development company as defined in Section 202(a)(22) of the Investment Advisors Act of
1940.
6.
An organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or
similar business trust or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in
excess of $5,000,000.
7.
A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities
offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of the Securities Act.
8.
An entity in which all of the equity owners are accredited investors.
Exhibit B
General Release Agreement
TERMINATION AND RELEASE AGREEMENT
THIS TERMINATION AND RELEASE AGREEMENT (the “Agreement”) is made and entered into as of
_______ __, 201___ (the “Effective Date”), by and between Janet Gill (the “Executive”) and Aspen Group, Inc. (the
“Employer” or the “Company”).
WHEREAS, the Executive was employed as Interim Chief Financial Officer of the Employer;
WHEREAS, the parties wish to resolve all outstanding claims and disputes between them in an amicable
manner;
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth in this
Agreement, the sufficiency of which the parties acknowledge, it is agreed as follows:
1.
Nothing in this Agreement shall be construed as an admission of liability or wrongdoing by the Employer,
its past and present affiliates, officers, directors, owners, executives, attorneys, or agents, and the Employer specifically
disclaims liability to or wrongful treatment of the Executive on the part of itself, its past and present affiliates, officers,
directors, owners, employees, attorneys, and agents. Additionally, nothing in this Agreement shall be construed as an
admission of liability or wrongdoing by the Executive and the Executive specifically disclaims liability to or wrongful
acts directed at the Employer.
2.
The Executive covenants not to sue, and fully and forever releases and discharges the Employer, its past and
present affiliates, directors, officers, owners, executives and agents, as well as its successors and assigns from any and
all legally waivable claims, liabilities, damages, demands, and causes of action or liabilities of any nature or kind,
whether now known or unknown, arising out of or in any way connected with the Executive’s employment with the
Employer or the termination of that employment; provided, however, that nothing in this Agreement shall either waive
any rights or claims of the Executive that arise after the Executive signs this Agreement or impair or preclude the
Executive’s right to take action to enforce the terms of this Agreement. This release includes but is not limited to
claims arising under federal, state or local laws prohibiting employment discrimination or relating to leave from
employment, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination
in Employment Act, as amended, the Equal Pay Act and the Americans with Disabilities Act, as amended, the Family
and Medical Leave Act, as amended, claims for attorneys’ fees or costs, and any and all claims in contract, tort, or
premised on any other legal theory. The Executive acknowledges that the Executive has been paid in full all
compensation owed to the Executive by the Employer as a result of Executive’s employment, except from
compensation (if any) due through the Effective Date which shall be paid in the next regular payroll of the Company.
The Employer and its directors, officers, and employees covenant not to sue, and fully and forever release and
discharge the Executive, from any and all legally waivable claims from the beginning of time until the date of this
Agreement, and from liabilities, damages, demands, and causes of action, attorney’s fees, costs or liabilities of any
nature or kind,
whether now known or unknown, arising out of or in any way connected with the Executive’s employment with the
Employer.
3.
The Executive represents that she has not filed any complaints or charges against the Employer with the
Equal Employment Opportunity Commission, or with any other federal, state or local agency or court, and covenants
that she will not seek to recover on any claim released in this Agreement.
4.
The Executive agrees that she will not encourage or assist any of the Employer’s employees to litigate
claims or file administrative charges against the Employer or its past and present affiliates, officers, directors, owners,
employees and agents, unless required to provide testimony or documents pursuant to a lawful subpoena or other
compulsory legal process.
5.
The Executive acknowledges that she is subject to non-compete and confidentiality provisions under that
certain Employment Agreement between the Executive and the Employer dated ________ ____, 2014 (the
“Employment Agreement”).
6.
The Executive acknowledges that she has been given at least 21 days to consider this Agreement and that
she has seven days from the date she executes this Agreement in which to revoke it and that this Agreement will not be
effective or enforceable until after the seven-day revocation period ends without revocation by the Executive.
Revocation can be made by delivery of a written notice of revocation to Michael Mathews, Chief Executive Officer at
the offices of the Employer, by midnight on or before the seventh calendar day after the Executive signs the
Agreement.
7.
The Executive acknowledges that she has been advised to consult with an attorney of her choice with regard
to this Agreement. The Executive hereby acknowledges that she understands the significance of this Agreement, and
represents that the terms of this Agreement are fully understood and voluntarily accepted by her.
8.
The Executive and the Employer agree that neither she nor they, nor any of their agents or representatives
will disclose, disseminate and/or publicize, or cause or permit to be disclosed, disseminated or publicized, the existence
of this Agreement, any of the terms of this Agreement, or any claims or allegations which the Executive believes she or
they could have made or asserted against one another, specifically or generally, to any person, corporation, association
or governmental agency or other entity except: (i) to the extent necessary to report income to appropriate taxing
authorities; (ii) in response to an order of a court of competent jurisdiction or subpoena issued under the authority
thereof; or (iii) in response to any inquiry or subpoena issued by a state or federal governmental agency; provided,
however, that notice of receipt of such order or subpoena shall be faxed to Aspen Group, Inc., attention Michael
Mathews (____) ______, and in the case of the Executive, to Janet Gill (____) _______-______ within 24 hours of the
receipt of such order or subpoena, so that both Executive and Employer will have the opportunity to assert what rights
they have to non-disclosure prior to any response to the order, inquiry or subpoena.
9.
The Executive and Employer agree to refrain from disparaging or making any unfavorable comments, in
writing or orally, about either party, and in the case of the Employer, about its management, its operations, policies, or
procedures and in the case of the Executive, to prospective employers, those making inquiry as to the reasons for her
separation from the Company or to any person, company or other business entity.
10.
In the event of any lawsuit against the Employer that relates to alleged acts or omissions by the Executive
during her employment with the Employer, the Executive agrees to cooperate with Employer by voluntarily providing
truthful and full information as reasonably necessary for the Employer to defend against such lawsuit. Provided,
however, the Executive shall be entitled to receive reimbursement for expenses, including lost wages, incurred in
assisting the Employer regarding any lawsuit.
11.
Except as provided herein, all agreements between the Employer and the Executive including but not
limited to the Employment Agreement, are null and void and no longer enforceable.
12.
This Agreement sets forth the entire agreement between the Executive and the Employer, and fully
supersedes any and all prior agreements or understandings between them regarding its subject matter; provided,
however, that nothing in this Agreement is intended to or shall be construed to modify, impair or terminate any
obligation of the Executive or the Employer pursuant to provisions of the Employment Agreement that by their terms
continues after the Executive’s separation from the Employer’s employment. This Agreement may only be modified
by written agreement signed by both parties.
13.
The Employer and the Executive agree that in the event any provision of this Agreement is deemed to be
invalid or unenforceable by any court or administrative agency of competent jurisdiction, or in the event that any
provision cannot be modified so as to be valid and enforceable, then that provision shall be deemed severed from the
Agreement and the remainder of the Agreement shall remain in full force and effect.
14.
This Agreement shall be governed or interpreted according to the internal laws of the State of Delaware
without regard to choice of law considerations and all claims relating to or arising out of this Agreement, or the breach
thereof, whether sounding in contract, tort, or otherwise, shall also be governed by the laws of the State of Delaware
without regard to choice of law considerations.
15.
In the event that there is any controversy or claim arising out of or relating to this Agreement, or to the
interpretation, breach or enforcement thereof, and any action or proceeding is commenced to enforce or contest the
provisions of this Agreement, the prevailing party shall be entitled to a reasonable attorney’s fee, costs and expenses.
16.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument. The execution of this Agreement may be by
actual or facsimile signature.
[Signature Page To Follow]
PLEASE READ CAREFULLY. THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
ASPEN GROUP, INC.
By:
Michael Mathews
Chief Executive Officer
I have carefully read this Agreement and understand that it contains a release of known and unknown claims. I
acknowledge and agree to all of the terms and conditions of this Agreement. I further acknowledge that I enter into this
Agreement voluntarily with a full understanding of its terms.
Janet Gill
Exhibit C
Indemnification Agreement
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the “Agreement”) is entered into as of this _____day of ______ 2014, by and
between Aspen Group, Inc., a Delaware corporation (the “Company”), and Janet Gill (the “Indemnitee”) and replaces
any and all Indemnification Agreements previously entered into between the Parties:
WHEREAS, competent and experienced persons are becoming increasingly reluctant to serve publicly-held
corporations as directors, officers, or in other capacities unless they are provided with adequate protection through
liability insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of
their service to the corporation;
WHEREAS, the board of directors of the Company (the “Board”) has determined that the inability to attract and
retain such persons is detrimental to the best interests of the Company’s shareholders and that the Company should act
to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, Section 145 of the Delaware General Corporation Law (the “DGCL”) empowers the Company to
indemnify its officers, directors, employees and agents by agreement and to indemnify persons who serve, at the
request of the Company, as directors, officers, employees or agents of other corporations or enterprises;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to
indemnify such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified;
WHEREAS, the Indemnitee is willing to serve as a director or officer of the Company on the condition that she
be so indemnified.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the
Company and the Indemnitee do hereby covenant and agree as follows:
1.
Definitions. For purposes of this Agreement:
(a)
“Act” means the Securities Exchange Act of 1934.
(b)
“Beneficial Owner” means (as defined in Rule 13d-3 under the Act), any Person who directly or
indirectly, owns securities of the Company representing 10% or more of the combined voting power of the Company’s
then outstanding securities.
(c)
“Change of Control” means a change in control of the Company occurring after the Effective
Date of a nature that would be required to be reported in response to Item 5.01 on Form 8-K (or in response to any
similar item on any similar schedule or form) promulgated under the Act, whether or not the Company is then subject to
such reporting requirement; provided, however, that, without limitation, such a Change of Control shall be deemed to
have
occurred after the Effective Date if a Person (as defined below) becomes the Beneficial Owner without the prior
approval of at least two-thirds of the directors in office immediately prior to such person attaining such percentage; (ii)
the Company is a party to a merger, consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board in office immediately prior to such transaction or event constitute less
than a majority of the Board thereafter; or (iii) during any period of two consecutive years, individuals who, at the
beginning of such period, constituted the Board (including for this purpose, any new director whose election or
nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such period) cease for any reason to constitute at least a
majority of the Board.
(d)
“Corporate Status” describes the status of a person who is or was a director, officer, employee,
agent or fiduciary of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which such person is or was serving at the request of the Company.
(e)
“Disinterested Director” means a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by the Indemnitee.
(f)
“Effective Date” means the date first above written.
(g)
“Expenses” shall include all reasonable attorney’s fees, retainers, court costs, transcript costs,
fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to be a witness in a
Proceeding.
(h)
“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years has been, retained to represent (i) the
Company or the Indemnitee in any matter material to either such party, or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not
include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict
of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s rights under
this Agreement.
(i)
“Person” means (as such term is used in Sections 13(d) and 14(d) of the Act) an individual, a
partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof).
(j)
“Proceeding” includes any actual or threatened action, suit, arbitration, alternative dispute
resolution mechanism, investigation, administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative, whether or not initiated prior to the Effective Date, except a proceeding initiated by an
Indemnitee pursuant to Section 11 of this Agreement to enforce her rights under this Agreement.
(k)
“Standard” shall mean the applicable standard of conduct set forth in Sections 145(a) and (b) of
the DGCL.
2.
Agreement to Serve. The Indemnitee agrees to serve as a director or officer of the Company. The
Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or
any obligation imposed by operation of law). Similarly, the Company shall have no obligation under this Agreement to
continue the Indemnitee in any position with the Company.
3.
Indemnification — General. The Company shall indemnify and advance Expenses to the Indemnitee as
provided in this Agreement and to the fullest extent permitted by applicable law in effect on the date hereof and to such
greater extent as applicable law may thereafter from time to time permit. However, no indemnification shall be made
by the Company (except as ordered by a court) unless a determination has been made in the manner provided for in
Section 145(d) of the DGCL and Section 9(b) herein that the Indemnitee has met the applicable Standard. The rights of
the Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the
other sections of this Agreement.
4.
Third-Party Actions . The Indemnitee shall be entitled to the rights of indemnification provided in this
Section 4 if, by reason of her Corporate Status, she is, or is threatened to be made, a party to any Proceeding, other than
a Proceeding by or in the right of the Company. Pursuant to this Section 4, the Indemnitee shall be indemnified against
Expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by her in connection with such Proceeding or any claim, issue or matter therein, if (i) she acted in good faith, and in a
manner she reasonably believed to be in or not opposed to the Company’s best interests; and (ii) with respect to any
criminal Proceeding, had no reasonable cause to believe her conduct was unlawful. The Indemnitee shall not be
entitled to indemnification in connection with any Proceeding charging improper personal benefit to the Indemnitee,
whether or not involving action in her official capacity, in which she was judged liable on the basis that personal benefit
was improperly received by her.
5.
Direct and Derivative Actions . The Indemnitee shall be entitled to the rights of indemnification
provided in this Section 5, by reason of her Corporate Status, if she is, or is threatened to be made, a party to any
Proceeding brought by a shareholder directly or on behalf of the Company to procure a judgment in its favor. Pursuant
to this Section, the Indemnitee shall be indemnified against Expenses actually and reasonably incurred by her or on her
behalf in connection with such Proceeding if she acted in good faith and in a manner she reasonably believed to be in or
not opposed to the best interests of the Company. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to
which the Indemnitee shall have been adjudged to be liable to the Company unless the Delaware Court of Chancery or
the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of
liability but in view of all of the circumstances of the case, the Indemnitee is fairly and reasonably entitled to
indemnification for such Expenses which the Delaware Court of Chancery or such other court shall deem proper.
The Indemnitee shall not be entitled to the rights of indemnification provided in this Section 5, by reason of her
corporate status, if she is, or is threatened to be made, a party to any Proceeding brought by the Company, or files any
claim against the Company in a Proceeding.
6.
Indemnification for Expenses of an Indemnitee . Notwithstanding any other provision of this Agreement,
to the extent that the Indemnitee is, by reason of her Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, she shall be indemnified against all Expenses actually and reasonably incurred by her in
connection therewith. If the Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify
the Indemnitee against all Expenses actually and reasonably incurred by her or on her behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Section 6 and without limitation, the termination of
any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
7.
Indemnification for Expenses of a Witness . Notwithstanding any other provision of this Agreement, to
the extent that the Indemnitee is, by reason of her Corporate Status, a witness in any Proceeding, she shall be
indemnified against all Expenses actually and reasonably incurred by her or on her behalf in connection therewith.
8.
Advancement of Expenses . The Company shall advance all reasonable Expenses incurred by or on
behalf of the Indemnitee in connection with any Proceeding within 20 working days after the receipt by the Company
of a statement or statements from the Indemnitee requesting such advance or advances from time to time, whether prior
to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses
incurred by the Indemnitee including providing detailed invoices from attorneys and other parties (unless an advance
retainer) and shall include, be preceded by or accompanied by, as the case may be, the following: (i) a written
affirmation of the Indemnitee’s good-faith that she has met the Standard; (ii) an undertaking by or on behalf of the
Indemnitee to repay any Expenses advanced if it shall be determined that the Indemnitee did not meet the Standard or
that the Indemnitee is not entitled to be indemnified against such Expenses; and (iii) a determination that the facts then
known to those making the determination would not preclude indemnification under the DGCL.
The Indemnitee understands and agrees that the undertaking required by this Section 8(ii) shall be an unlimited
general obligation of the Indemnitee.
9.
Indemnification Procedure.
(a)
To obtain indemnification under this Agreement, the Indemnitee shall submit to the Company a
written request, including therein or therewith such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification,
advise the Board in writing that the Indemnitee has requested indemnification.
(b)
Upon written request by the Indemnitee for indemnification pursuant to Section 9(a) hereof, a
determination, if required by applicable law, with respect to the Indemnitee’s entitlement thereto shall be made (i) by
the Board by a majority vote of a quorum consisting of Disinterested Directors; or (ii) if a quorum cannot be obtained
or, even if attainable, a quorum of Disinterested Directors so directs, by (a) Independent Counsel in a written opinion;
or (b) by the shareholders of the Company. If it is determined that the Indemnitee is entitled to indemnification,
payment to the Indemnitee shall be made within 10 working days after such determination. The Indemnitee shall
cooperate with the person, persons or entity making such determination with respect to the Indemnitee’s entitlement to
indemnification, including providing to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably
available to the Indemnitee and reasonably necessary to such determination.
10.
Presumptions and Effect of Certain Proceedings .
(a)
If a Change of Control shall have occurred, in making a determination with respect to entitlement
to indemnification hereunder, and following the procedures in Section 9, as applicable, it shall be presumed that the
Indemnitee is entitled to indemnification under this Agreement if the Indemnitee has submitted a request for
indemnification in accordance with Section 9(a) of this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons or entity of any determination
contrary to that presumption.
(b)
If the Indemnitee’s right to indemnification shall not have been made within 60 days after receipt
by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed
to have been made and the Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by the
Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification
under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed
an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to
indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or
information relating thereto; and provided, further, that the foregoing provisions of Section 10(b) shall not apply (i) if
the determination of entitlement to indemnification is to be made by the
shareholders pursuant to Section 9(b) of this Agreement and if (A) within 15 days after receipt by the Company of the
request for such determination the Board has resolved to submit such determination to the shareholders for their
consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made
thereat, or (B) a special meeting of shareholders is called within 15 days after such receipt for the purpose of making
such determination, such meeting is held for such purpose within 60 days after having been so called and such
determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 9(b) of this Agreement.
(c)
The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise
expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create
a presumption that the Indemnitee did not act in good faith and in a manner which she reasonably believed to be in or
not opposed to the best interests of the Company, and with respect to any criminal Proceeding, that the Indemnitee had
reasonable cause to believe that her conduct was unlawful.
11.
Remedies of the Indemnitee .
(a)
In the event that (i) a determination is made pursuant to Section 9 of this Agreement that the
Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made
pursuant to Section 8 of this Agreement, (iii) the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 9(b) of this Agreement and such determination shall not have been made and
delivered in a written opinion within 90 days after receipt by the Company of the request for indemnification, (iv)
payment of indemnification is not made pursuant to Section 5 of this Agreement within 10 days after receipt by the
Company of a written request therefor, or (v) payment of indemnification is not made within 10 days after a
determination has been made that the Indemnitee is entitled to indemnification or such determination is deemed to have
been made pursuant to Section 9 or 10 of this Agreement, the Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of Delaware, or in any other court of competent jurisdiction, of her entitlement to such
indemnification or advancement of Expenses. The Indemnitee shall commence such proceeding seeking an
adjudication within 180 days following the date on which the Indemnitee first has the right to commence such
proceeding pursuant to this Section 11(a).
(b)
In the event that a determination shall have been made pursuant to Section 9 of this Agreement
that the Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 11
shall be conducted in all respects as a de novo trial on the merits and the Indemnitee shall not be prejudiced by reason
of that adverse determination. If a Change of Control shall have occurred, in any judicial proceeding commenced
pursuant to this Section 11, the Company shall have the burden of proving the the Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c)
If a determination shall have been made or deemed to have been made pursuant to Section 9 or
10 of this Agreement that the Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding commenced pursuant to this Section 11, absent (i) a misstatement by the
Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification
under applicable law.
(d)
The Company shall be precluded from asserting in any judicial proceeding commenced pursuant
to this Section 11 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and
shall stipulate in any such court that the Company is bound by all the provisions of this Agreement.
(e)
In the event that the Indemnitee, pursuant to this Section 11, seeks a judicial adjudication to
enforce her rights under, or to recover damages for breach of, this Agreement, the Indemnitee shall be entitled to
recover from the Company, and shall be indemnified by the Company against, any and all Expenses (of the types
described in the definition of Expenses in Section 1 of this Agreement) actually and reasonably incurred by her in such
judicial adjudication, but only if she prevails therein. If it shall be determined in said judicial adjudication that the
Indemnitee is entitled to receive part but not all of the indemnification or advancement of Expenses sought, the
Expenses incurred by the Indemnitee in connection with such judicial adjudication shall be appropriately prorated.
12.
Non-Exclusivity; Survival of Rights; Insurance; Subrogation .
(a)
The rights of indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which the Indemnitee may at any time be entitled under
applicable law, the Articles of Incorporation, the Bylaws, any agreement, a vote of shareholders or a resolution of
directors, or otherwise. No amendment, alteration or repeal of this Agreement or any provision hereof shall be effective
as to any Indemnitee with respect to any action taken or omitted by such Indemnitee in her Corporate Status prior to
such amendment, alteration or repeal.
(b)
To the extent that the Company maintains an insurance policy or policies providing liability
insurance for directors, officers, employees, agents or fiduciaries of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise which such person serves at the request of the
Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer, employee or agent under such policy or
policies.
(c)
In the event of any payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all papers required and take
all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(d)
The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that the Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
(e)
The Company may, to the full extent authorized by law, create a trust fund, grant a security
interest and/or use other means (including, without limitation, letters of credit, surety bonds and other similar
arrangements) to ensure the payment of such amounts as may become necessary to effect indemnification provided
hereunder.
13.
Duration of Agreement . This Agreement shall continue until and terminate upon the later of: (a) six
years after the date that the Indemnitee shall have ceased to serve as a director, officer, employee, agent or fiduciary of
the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
which the Indemnitee served at the request of the Company; or (b) the final termination of all pending Proceedings in
respect of which the Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any
proceeding commenced by the Indemnitee pursuant to Section 11 of this Agreement relating thereto.
14.
Exceptions to Indemnification Rights . Notwithstanding any other provision of this Agreement, except
for Indemnification or advancement of Expenses in a Proceeding to enforce or claim therein to enforce the provisions of
that Agreement, the Indemnitee shall not be entitled to Indemnification or advancement of Expenses with respect to any
Proceeding, or any claim therein, brought or made by her against the Company or the Company against the Indemnitee;
except as provided in the Company’s Certificate of Incorporation. Provided further that no right of indemnification
under the provisions set forth herein shall be available to the Indemnitee unless within 10 days after the later of (i) the
filing of or (ii) learning of any such Proceeding she shall have offered the Company in writing the opportunity to handle
and defend such Proceeding at its own expense.
15.
appropriate.
Gender. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where
16.
Successors. Subject to the provisions of this Agreement, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns.
17.
Severability. In the event any parts of this Agreement are found to be void, the remaining provisions of
this Agreement shall nevertheless be binding with the same effect as though the void parts were deleted.
18.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
19.
Benefit. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
legal representatives, successors and assigns.
20.
Notices and Addresses. All notices, offers, acceptance and any other acts under this Agreement (except
payment) shall be in writing, and shall be sufficiently given if delivered to the addressee in person, by Federal Express
or similar receipted delivery, or by email delivery as follows:
The Company:
with a copy to:
.
To the Indemnitee:
Aspen Group, Inc.
224 W 30th St. Ste. 604
New York, NY 10001
Attention: Mr. Michael Mathews
Email:mike@aspen.edu
Michael D. Harris, Esq.
Nason, Yeager, Gerson, White& Lioce, P.A.
1645 Palm Beach Lakes Blvd. 12 th Floor
West Palm Beach, FL33401
Email: mharris@nasonyeager.com
Janet Gill
175 Sawmill Road
Stamford, CT 06903
Email: janet.gill@aspen.edu
or to such other address as either of them, by notice to the other may designate from time to time. Time shall be
counted to, or from, as the case may be, the delivery in person or by mailing.
21.
Attorneys’ Fees . In the event that there is any controversy or claim arising out of or relating to this
Agreement, or to the interpretation, breach or enforcement thereof, and any action or proceeding relating to this
Agreement is filed, the prevailing party shall be entitled to an award by the court of reasonable attorneys’ fees, costs
and expenses.
22.
Oral Evidence. This Agreement constitutes the entire Agreement between the parties and supersedes all
prior oral and written agreements between the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, except by a statement in
writing signed by the party or parties against which enforcement or the change, waiver discharge or termination is
sought.
23.
Governing Law. This Agreement and any dispute, disagreement, or issue of construction or
interpretation arising hereunder whether relating to its execution, its validity, the obligations provided herein or
performance shall be governed or interpreted according to the internal laws of the State of Delaware without regard to
choice of law considerations.
24.
Arbitration. Any controversy, dispute or claim arising out of or relating to this Agreement, or its
interpretation, application, implementation, breach or enforcement which the parties are unable to resolve by mutual
agreement, shall be settled by submission by either party of the controversy, claim or dispute to binding arbitration in
New York County, New York (unless the parties agree in writing to a different location), before a single arbitrator in
accordance with the rules of the American Arbitration Association then in effect. In any such arbitration proceeding
the parties agree to provide all discovery deemed necessary by the arbitrator. The decision and award made by the
arbitrator shall be final, binding and conclusive on all parties hereto for all purposes, and judgment may be entered
thereon in any court having jurisdiction thereof.
25.
Section or Paragraph Headings . Section headings herein have been inserted for reference only and shall
not be deemed to limit or otherwise affect, in any matter, or be deemed to interpret in whole or in part any of the terms
or provisions of this Agreement.
[Signature Page To Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above
written.
ASPEN GROUP, INC.:
By:
Michael Mathews
Chief Executive Officer
INDEMNITEE:
By:
Janet Gill
EMPLOYMENT AGREEMENT
EXHIBIT 10.19
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of __________ ____, 2014 (the
“Effective Date”), between Aspen Group, Inc., a Delaware corporation (the “Company”), and Gerard Wendolowski (the
“Executive”).
WHEREAS, in its business, the Company has acquired and developed certain trade secrets, including, but not
limited to, proprietary processes, sales methods and techniques, and other like confidential business and technical
information, including but not limited to, technical information, design systems, pricing methods, pricing rates or
discounts, processes, procedures, formulas, designs of computer software, or improvements, or any portion or phase
thereof, whether patented, or not, or unpatentable, that is of any value whatsoever to the Company, as well as
information relating to the Company’s Services (as defined), information concerning proposed new Services, market
feasibility studies, proposed or existing marketing techniques or plans (whether developed or produced by the
Company or by any other person or entity for the Company), other Confidential Information, as defined in Section 9(a),
and information about the Company’s executives, officers, and directors, which necessarily will be communicated to
the Executive by reason of his employment by the Company; and
WHEREAS, the Company has strong and legitimate business interests in preserving and protecting its
investment in the Executive, its trade secrets and Confidential Information, and its substantial, significant, or key,
relationships with vendors, and Students, as defined below, whether actual or prospective; and
WHEREAS, the Company desires to preserve and protect its legitimate business interests further by restricting
competitive activities of the Executive during the term of this Agreement and for a reasonable time following the
termination of this Agreement; and
WHEREAS, the Company desires to continue to employ the Executive and to ensure the continued availability
to the Company of the Executive’s services, and the Executive is willing to accept such employment and render such
services, all upon and subject to the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth in this Agreement,
and intending to be legally bound, the Company and the Executive agree as follows:
1.
Representations and Warranties. The Executive hereby represents and warrants to the Company that he
(i) is not subject to any non-solicitation or non-competition agreement affecting his employment with the Company
(other than any prior agreement with the Company), (ii) is not subject to any confidentiality or nonuse/nondisclosure
agreement affecting his employment with the Company (other than any prior agreement with the Company), and (iii)
has brought to the Company no trade secrets, confidential business information, documents, or other personal property
of a prior employer.
2.
Term of Employment.
(a)
Term. The Company hereby employs the Executive, and the Executive hereby accepts
employment with the Company for a period of three years commencing as of the Effective Date (such period, as it may
be extended or renewed, the “Term”), unless sooner terminated in accordance with the provisions of Section 6. The
Term shall be automatically renewed for successive one-year terms unless notice of non-renewal is given by either
party at least 30 days before the end of the Term.
(b)
Continuing Effect. Notwithstanding any termination of this Agreement, at the end of the Term
or otherwise, the provisions of Sections 6(e), 7, 8, 9, 10, 12 15, 18, 19, and 22 shall remain in full force and effect and
the provisions of Section 9 shall be binding upon the legal representatives, successors and assigns of the Executive.
3.
Duties.
(a)
General Duties. The Executive shall serve as the Chief Operating Officer of the Company, with
duties and responsibilities that are customary for such an executive. The Executive shall report to the Company’s Chief
Executive Officer. The Executive shall also perform services for such subsidiaries of the Company as may be
necessary. The Executive shall use his best efforts to perform his duties and discharge his responsibilities pursuant to
this Agreement competently, carefully and faithfully. In determining whether or not the Executive has used his best
efforts hereunder, the Executive’s and the Company’s delegation of authority and all surrounding circumstances shall
be taken into account and the best efforts of the Executive shall not be judged solely on the Company’s earnings or
other results of the Executive’s performance, except as specifically provided to the contrary by this Agreement.
(b)
Devotion of Time . Subject to the last sentence of this Section 3(b), the Executive shall devote
such time, attention and energies to the affairs of the Company and its subsidiaries and affiliates as are necessary to
perform his duties and responsibilities pursuant to this Agreement. The Executive shall not enter the employ of or serve
as a consultant to, or in any way perform any services with or without compensation to, any other persons, business, or
organization, without the prior consent of the Board of Directors of the Company (the “Board”). Notwithstanding the
above, the Executive shall be permitted to devote a limited amount of his time, to professional, charitable or similar
organizations, including, but not limited to, serving as a non-executive director or an advisor to a board of directors,
committee of any company or organization provided that such activities do not interfere with the Executive’s
performance of his duties and responsibilities as provided hereunder.
(c)
Location of Office . The Executive’s principal business office shall be in New York, NY or such
other location to which the Company may, in the future, relocate its present New York, NY office, provided however,
that such other location shall be within the greater New York metropolitan area, which shall include the states of New
York, New Jersey and Connecticut (the “New York Metro Area”). However, the Executive’s job responsibilities shall
include all business travel necessary for the performance of his job including travel to the
2
Company’s offices located in Colorado, Arizona and any other location in which the Company may in the future
establish an office.
(d)
Adherence to Inside Information Policies . The Executive acknowledges that the Company is
publicly-held and, as a result, has implemented inside information policies designed to preclude its executives and those
of its subsidiaries from violating the federal securities laws by trading on material, non-public information or passing
such information on to others in breach of any duty owed to the Company, or any third party. The Executive shall
promptly execute any agreements generally distributed by the Company to its employees requiring such employees to
abide by its inside information policies.
4.
Compensation and Expenses.
(a)
Salary. For the services of the Executive to be rendered under this Agreement, the Company
shall pay the Executive an annual salary of $200,000 (the “Base Salary”), less such deductions as shall be required to be
withheld by applicable law and regulations payable in accordance with the Company’s customary payroll practices.
(b)
Target Bonus. For each fiscal year during the Term beginning May 1st and ending April 30th of
the applicable fiscal year, the Executive shall have the opportunity to earn a bonus up to 30%, 66% or 100% of his
then Base Salary (the “Target Bonus”) as follows:
When the Company achieves annual Adjusted EBITDA (as defined below) at certain threshold levels (each, an
“EBITDA Threshold”), the Executive shall receive an automatic cash bonus (the “Automatic Cash Bonus”) equal to a
percentage of his then Base Salary, and shall receive a grant of fully vested shares of the Company’s common stock
having an aggregate Fair Market Value (as such term is defined in the Company’s 2012 Equity Incentive Plan, as
amended) equal to a percentage of the Executive’s then Base Salary (the “Automatic Equity Bonus”). In addition, the
Executive shall be eligible to receive an additional percentage of his then Base Salary as a cash bonus (the
“Discretionary Cash Bonus”) and an additional grant of fully vested shares of the Company’s common stock having an
aggregate Fair Market Value equal to a percentage of the Executive’s then Base Salary (the “Discretionary Equity
Bonus”) based on the Board’s determination that the Executive has achieved certain annual performance objectives
established by the Board, based on the mutual agreement of the Chief Executive Officer and the Executive, at the
beginning of each fiscal year.
The EBITDA Thresholds and corresponding bonus levels are set forth in the table below. For the avoidance of
doubt, the Executive shall only be eligible to receive the bonuses associated with a single EBITDA Threshold; i.e. in
the event the Company attains EBITDA Threshold (2), only the bonuses associated with EBITDA Threshold (2) below
(and not the bonuses associated with EBITDA Threshold (1)) shall be applicable.
3
EBITDA Threshold Automatic Cash Bonus Automatic Equity
(1)
7.5%
$1,000,000 -
$1,999,999
Bonus
7.5%
Discretionary Cash
Bonus
Discretionary Equity
Bonus
Up to 7.5%
Up to 7.5%
(2)
16.5%
16.5%
Up to 16.5%
Up to 16.5%
$2,000,000 -
$3,999,999
(3)
25%
25%
Up to 25%
Up to 25%
$4,000,000 and over
Provided, however, that the earning of the Automatic Cash Bonus is subject to the Company having at least
$2,000,000 in available cash after deducting the Target Bonus paid to all executive officers of the Company or its
subsidiaries under the same Target Bonus formula pursuant to such executives’ employment agreements (the “Cash
Threshold”) and the Executive continuing to provide services under this Agreement on the applicable Target Bonus
determination date. If the Company is unable to pay the Automatic Cash Bonus as a result of not meeting the Cash
Threshold, no Automatic Cash Bonus will be earned for that fiscal year. As used in this Agreement, Adjusted EBITDA
is calculated as earnings (or loss) from continuing operations before preferred dividends, interest expense, income
taxes, collateral valuation adjustment, bad debt expense, depreciation and amortization, and amortization of stock-
based compensation; however, if Adjusted EBITDA shall be defined differently in any filing of the Company with the
Securities and Exchange Commission subsequent to the date of this Agreement, then Adjusted EBITDA shall thereafter
be defined in accordance with the definition most recently set forth in any such filing at each Target Bonus
determination date.
(c)
Discretionary Bonus. During the term of the Agreement, the Compensation Committee shall have the
discretion to award the Executive a bonus, in cash or the Company’s common stock, based upon the Executive’s job
performance, the Company’s revenue growth or any other factors as determined by the Compensation Committee.
(d)
Expenses. In addition to any compensation received pursuant to this Section 4, the Company will
reimburse or advance funds to the Executive for all reasonable documented travel (including travel expenses incurred
by the Executive related to his travel to the Company’s other offices), entertainment and miscellaneous expenses
incurred in connection with the performance of his duties under this Agreement, provided that the Executive properly
provides a written accounting of such expenses to the Company in accordance with the Company’s practices. Such
reimbursement or advances will be made in accordance with policies and
4
procedures of the Company in effect from time to time relating to reimbursement of, or advances to, its executive
officers.
5.
Benefits.
(a)
Paid Time Off. For each 12-month period during the Term, the Executive shall be entitled to
three weeks of Paid Time Off without loss of compensation or other benefits to which he is entitled under this
Agreement, to be taken at such times as the Executive may select and the affairs of the Company may permit. Any
unused days will be carried over to the next 12 month period.
(b)
Employee Benefit Programs . The Executive is entitled to participate in any pension, 401(k),
insurance or other employee benefit plan that is maintained by the Company for its executives, including programs of
health insurance, life insurance and reimbursement of membership fees in professional organizations.
6.
Termination.
(a)
Death or Disability. Except as otherwise provided in this Agreement, this Agreement shall
automatically terminate upon the death or disability of the Executive. For purposes of this Section 6(a), “disability”
shall mean (i) the Executive is unable to engage in his customary duties by reason of any medically determinable
physical or mental impairment that can be expected to result in death, or last for a continuous period of not less than 12
months; (ii) the Executive is, by reason of any medically determinable physical or mental impairment that can be
expected to result in death, or last for continuous period of not less than 12 months, receiving income replacement
benefits for a period of not less than three months under an accident and health plan covering employees of the
Company; or (iii) the Executive is determined to be totally disabled by the Social Security Administration. Any
question as to the existence of a disability shall be determined by the written opinion of the Executive’s regularly
attending physician (or his guardian) (or the Social Security Administration, where applicable). In the event that the
Executive’s employment is terminated by reason of Executive’s death or disability, the Company shall pay the
following to the Executive or his personal representative: (i) any accrued but unpaid Base Salary for services rendered
to the date of termination, (ii) any accrued but unpaid expenses required to be reimbursed under this Agreement, (iii)
any earned but unpaid bonuses, and (iv) all equity awards previously granted to the Executive under any equity
incentive plan established by the Company shall thereupon become fully vested, and the Executive or his legally
appointed guardian, as the case may be, shall have up to three months from the date of termination (or one year from
the date of death) to exercise all such previously granted options, provided that in no event shall any option be
exercisable beyond its term.
(b)
Termination by the Company for Cause or by the Executive Without Good Reason . The
Company may terminate the Executive’s employment pursuant to the terms of this Agreement at any time for Cause
(as defined below) by giving the Executive written notice of termination. Such termination shall become effective upon
the giving of such notice. Upon any such termination for Cause, or in the event the Executive terminates his
employment with the Company without Good Reason (as defined in Section 6(c)), then the Executive shall have no
right to compensation, or reimbursement under Section 4, or to participate in any Executive
5
benefit programs under Section 5, except as may otherwise be provided for by law, for any period subsequent to the
effective date of termination. For purposes of this Agreement, “Cause” shall mean: (i) the Executive is convicted of, or
pleads guilty or nolo contendere to, a felony related to the business of the Company; (ii) the Executive, in carrying out
his duties hereunder, has acted with gross negligence or intentional misconduct resulting, in any case, in harm to the
Company; (iii) the Executive misappropriates Company funds or otherwise defrauds the Company; (iv) the Executive
breaches his fiduciary duty to the Company resulting in profit to him, directly or indirectly; (v) the Executive materially
breaches any agreement with the Company; (vi) the Executive breaches any provision of Section 8 or Section 9; (vii)
the Executive becomes subject to a preliminary or permanent injunction issued by a United States District Court
enjoining the Executive from violating any securities law administered or regulated by the Securities and Exchange
Commission; (viii) the Executive becomes subject to a cease and desist order or other order issued by the Securities and
Exchange Commission after an opportunity for a hearing; (ix) the Executive refuses to carry out a resolution adopted by
the Company’s Board at a meeting in which the Executive was offered a reasonable opportunity to argue that the
resolution should not be adopted; or (x) the Executive abuses alcohol or drugs in a manner that interferes with the
successful performance of his duties.
(c)
Other Termination.
(1)
This Agreement may be terminated: (i) by the Executive for Good Reason (as defined
below), (ii) by the Company without Cause, (iii) automatically upon any Change of Control event as defined in
Treasury Regulation Section 1.409A-3(i)(5) or (iv) at the end of a Term after the Company provides the Executive with
notice of non-renewal.
Company without Cause, the Executive shall be entitled to the following:
(2)
In the event this Agreement is terminated by the Executive for Good Reason or by the
any accrued but unpaid Base Salary for services rendered to the date of
(A)
termination;
(B)
(C)
any accrued but unpaid expenses required to be reimbursed under this Agreement;
a payment equal to six months of the then Base Salary (“Severance Amount”);
(D)
the Executive or his legally appointed guardian, as the case may be, shall have up
to three months from the date of termination to exercise all such previously granted
options, provided that in no event shall any option be exercisable beyond its Term; and
(E)
any benefits (except perquisites) to which the Executive was entitled pursuant to
Section 5(b) hereof shall continue to be paid or provided by the Company, as the case
may be, for three months, subject to the terms of any applicable plan or insurance contract
and applicable law provided that such benefits are exempt from Section 409A of the Code
by reason of Treasury Regulation
6
1.409A-1(a)(5) or otherwise. In the event all or a portion of the benefits to which the
Executive was entitled pursuant to Section 5(b) hereof are subject to 409A of the Code,
the Executive shall not be entitled to the benefits that are subject to Section 409A of the
Code subsequent to the “applicable 2 ½ month period” (as such term is defined under
Treasury Regulation Section 1.409A-1(b)(4)(i)(A)).
(3)
In the event of a Change of Control during the Term, the Executive shall be entitled to
receive each of the provisions of Section 6(c)(2)(A) – (E) above except the Severance Amount shall equal to three
months of the then Base Salary and the benefits under Section 6(c)(2)(E) shall continue for an three month period
provided that such benefits are exempt from Section 409A of the Code by reason of Treasury Regulation 1.409A-1(a)
(5) or otherwise. In the event all or a portion of the benefits under Section 6(c)(2)(E) are subject to 409A of the Code,
the Executive shall not be entitled to the benefits that are subject to Section 409A of the Code subsequent to the
“applicable 2 ½ month period” (as such term is defined under Treasury Regulation Section 1.409A-1(b)(4)(i)(A)).
In the event this Agreement is terminated at the end of a Term after the Company
provides the Executive with notice of non-renewal and the Executive remains employed until the end of the Term, the
Executive shall be entitled to the following:
(4)
any accrued but unpaid Base Salary for services rendered to the date of
(A)
termination;
any accrued but unpaid expenses required to be reimbursed under this Agreement;
(B)
and
(C)
the Executive or his legally appointed guardian, as the case may be, shall have up
to three months from the date of termination to exercise all such previously granted
options, provided that in no event shall any option be exercisable beyond its Term.
(5)
In the event of a termination for Good Reason or without Cause, the payment of the
Severance Amount shall be made at the same times as the Company pays compensation to its employees over the
applicable monthly period and any other payments owed under Section 6(c) shall be promptly paid. Provided,
however, that any balance of the Severance Amount remaining due on the “applicable 2 ½ month period” (as such term
is defined under Treasury Regulation Section 1.409A-1(b)(4)(i)(A)) after the end of the tax year in which the
Executive’s employment is terminated or the Term ends shall be paid on the last day of the applicable 2 ½ month
period. The payment of the Severance Amount shall be conditioned on the Executive signing an Agreement and
General Release (in the form which is attached as Exhibit A) which releases the Company or any of its affiliates
(including its officers, directors and their affiliates) from any liability under this Agreement or related to the
Executive’s employment with the Company provided that (x) the payment of the Severance Amount is made on or
before the 90th day following the Executive’s termination of employment; (y) such Agreement and General Release is
executed by the Executive, submitted to the Company, and the statutory period during
7
which the Executive is entitled to revoke the Agreement and General Release under applicable law has expired on or
before that 90th day; and (z) in the event that the 90 day period begins in one taxable year and ends in a second taxable
year, then the payment of the Severance Amount shall be made in the second taxable year. Upon any Change of
Control event, all payments owed under Section 6(c)(3) shall be paid immediately.
The term “Good Reason” shall mean: (i) a material diminution in the Executive’s authority,
duties or responsibilities due to no fault of the Executive (unless the Executive has agreed to such diminution); (ii) the
Company no longer maintains or operates an office in the New York Metro Area; (iii) the Company requires the
Executive to change his principal business office as defined in Section 3(c) to a location other than the New York Metro
Area, or (iv) any other action or inaction that constitutes a material breach by the Company under this Agreement.
Prior to the Executive terminating his employment with the Company for Good Reason, the Executive must provide
written notice to the Company, within 30 days following the Executive’s initial awareness of the existence of such
condition, that such Good Reason exists and setting forth in detail the grounds the Executive believes constitutes Good
Reason. If the Company does not cure the condition(s) constituting Good Reason within 30 days following receipt of
such notice, then the Executive’s employment shall be deemed terminated for Good Reason.
(d)
Any termination made by the Company under this Agreement shall be approved by the Board.
(e)
Upon (a) voluntary or involuntary termination of the Executive’s employment or (b) the
Company’s request at any time during the Executive's employment, the Executive shall (i) provide or return to the
Company any and all Company property, including keys, key cards, access cards, security devices, employer credit
cards, network access devices, computers, cell phones, smartphones, manuals, work product, thumb drives or other
removable information storage devices, and hard drives, and all Company documents and materials belonging to the
Company and stored in any fashion, including but not limited to those that constitute or contain any Confidential
Information or work product, that are in the possession or control of the Executive, whether they were provided to the
Executive by the Company or any of its business associates or created by the Executive in connection with his
employment by the Company; and (ii) delete or destroy all copies of any such documents and materials not returned to
the Company that remain in the Executive’s possession or control, including those stored on any non-Company devices,
networks, storage locations and media in the Executive’s possession or control.
7.
Indemnification. The Company shall indemnify the Executive, to the maximum extent permitted by
applicable law, against all costs, charges and expenses incurred or sustained by him in connection with any action, suit
or proceeding to which he may be made a party by reason of him being an officer, director or employee of the
Company or of any subsidiary or affiliate of the Company. This indemnification shall be pursuant an Indemnification
Agreement, a copy of which is annexed as Exhibit B.
8
8.
Non-Competition Agreement.
(a)
Competition with the Company. Until termination of his employment and for a period of six
months commencing on the date of termination, the Executive (individually or in association with, or as a shareholder,
director, officer, consultant, employee, partner, joint venturer, member, or otherwise, of or through any person, firm,
corporation, partnership, association or other entity) shall not, directly or indirectly, act as an employee or officer (or
comparable position) of, owning an interest in, or providing services substantially similar to those services the
Executive provided to the Company to a nationally or regionally accredited university.
(b)
Solicitation of Students. During the periods in which the provisions of Section 8(a) shall be in
effect, the Executive, directly or indirectly, will not seek nor accept Prohibited Business from any Students (as defined
below) on behalf of herself or any enterprise or business other than the Company, refer Prohibited Business from any
Student to any enterprise or business other than the Company or receive commissions based on sales or otherwise
relating to the Prohibited Business from any Student, or any enterprise or business other than the Company. For
purposes of this Agreement, the term “Student” means any person who enrolled in the Company as a student during the
24-month period prior to the time at which any determination is required to be made as to whether any such person is a
Student.
(c)
Solicitation of Employees. During the period in which the provisions of Section 8(a) and (b)
shall be in effect, the Executive agrees that he shall not, directly or indirectly, request, recommend or advise any
employee of the Company to terminate his employment with the Company, for the purposes of providing services for a
Prohibited Business, or solicit for employment or recommend to any third party the solicitation for employment of any
individual who was employed by the Company or any of its subsidiaries and affiliates at any time during the one year
period preceding the Executive’s termination of employment.
(d)
Non-disparagement. The Executive agrees that, after the end of his employment, he will refrain
from making, in writing or orally, any unfavorable comments about the Company, its operations, policies, or
procedures that would be likely to injure the Company’s reputation or business prospects; provided, however, that
nothing herein shall preclude the Executive from responding truthfully to a lawful subpoena or other compulsory legal
process or from providing truthful information otherwise required by law.
(e)
No Payment. The Executive acknowledges and agrees that no separate or additional payment
will be required to be made to him in consideration of his undertakings in this Section 8, and confirms he has received
adequate consideration for such undertakings.
(f)
References. References to the Company in this Section 8 shall include the Company’s
subsidiaries and affiliates.
9.
Non-Disclosure of Confidential Information .
(a)
Confidential Information. For purposes of this Agreement, “Confidential Information” includes,
but is not limited to, trade secrets, processes, policies, procedures, techniques, designs, drawings, know-how, show-
how, technical information, specifications,
9
computer software and source code, information and data relating to the development, research, testing, costs,
marketing, and uses of the Services (as defined herein), the Company’s budgets and strategic plans, and the identity
and special needs of Students, vendors, and suppliers, subjects and databases, data, and all technology relating to the
Company’s businesses, systems, methods of operation, and Student lists, Student information, solicitation leads,
marketing and advertising materials, methods and manuals and forms, all of which pertain to the activities or operations
of the Company, the names, home addresses and all telephone numbers and e-mail addresses of the Company’s
directors, employees, officers, executives, former executives, Students and former Students. Confidential Information
also includes, without limitation, Confidential Information received from the Company’s subsidiaries and affiliates.
For purposes of this Agreement, the following will not constitute Confidential Information (i) information which is or
subsequently becomes generally available to the public through no act or fault of the Executive, (ii) information set
forth in the written records of the Executive prior to disclosure to the Executive by or on behalf of the Company which
information is given to the Company in writing as of or prior to the date of this Agreement, and (iii) information which
is lawfully obtained by the Executive in writing from a third party (excluding any affiliates of the Executive) who
lawfully acquired the confidential information and who did not acquire such confidential information or trade secret,
directly or indirectly, from the Executive or the Company or its subsidiaries or affiliates and who has not breached any
duty of confidentiality. As used herein, the term “Services” shall include all services offered for sale and marketed by
the Company during the Term, which as of the Effective Date consist of operating an online university in compliance
with all applicable regulatory requirements.
(b)
Legitimate Business Interests . The Executive recognizes that the Company has legitimate
business interests to protect and as a consequence, the Executive agrees to the restrictions contained in this Agreement
because they further the Company’s legitimate business interests. These legitimate business interests include, but are
not limited to (i) trade secrets; (ii) valuable confidential business, technical, and/or professional information that
otherwise may not qualify as trade secrets, including, but not limited to, all Confidential Information; (iii) substantial,
significant, or key relationships with specific prospective or existing Students, vendors or suppliers; (iv) Student
goodwill associated with the Company’s business; and (v) specialized training relating to the Company’s technology,
Services, methods, operations and procedures. Notwithstanding the foregoing, nothing in this Section 9(b) shall be
construed to impose restrictions greater than those imposed by other provisions of this Agreement.
(c)
Confidentiality. During the Term of this Agreement and following termination of employment,
for any reason, the Confidential Information shall be held by the Executive in the strictest confidence and shall not,
without the prior express written consent of the Company, be disclosed to any person other than in connection with the
Executive’s employment by the Company. The Executive further acknowledges that such Confidential Information as
is acquired and used by the Company or its subsidiaries or affiliates is a special, valuable and unique asset. The
Executive shall exercise all due and diligent precautions to protect the integrity of the Company’s Confidential
Information and to keep it confidential whether it is in written form, on electronic media, oral, or otherwise. The
Executive shall not copy any Confidential Information except to the extent necessary to his employment nor remove
any Confidential Information or copies thereof from the Company’s premises except to the
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extent necessary to his employment. All records, files, materials and other Confidential Information obtained by the
Executive in the course of his employment with the Company are confidential and proprietary and shall remain the
exclusive property of the Company, its Students, or subjects, as the case may be. The Executive shall not, except in
connection with and as required by his performance of his duties under this Agreement, for any reason use for his own
benefit or the benefit of any person or entity other than the Company or disclose any such Confidential Information to
any person, firm, corporation, association or other entity for any reason or purpose whatsoever without the prior express
written consent of an executive officer of the Company (excluding the Executive).
(d)
References. References to the Company in this Section 9 shall include the Company’s
subsidiaries and affiliates.
10.
Equitable Relief.
(a)
The Company and the Executive recognize that the services to be rendered under this Agreement
by the Executive are special, unique and of extraordinary character, and that in the event of the breach by the Executive
of the terms and conditions of this Agreement or if the Executive, without the prior express consent of the Board, shall
leave his employment for any reason and/or take any action in violation of Section 8 and/or Section 9, the Company
shall be entitled to institute and prosecute proceedings in any court of competent jurisdiction referred to in Section 10(b)
below, to enjoin the Executive from breaching the provisions of Section 8 and/or Section 9.
(b)
Any action arising from or under this Agreement must be commenced only in the appropriate
state or federal court located in New York, New York. The Executive and the Company irrevocably and
unconditionally submit to the exclusive jurisdiction of such courts and agree to take any and all future action necessary
to submit to the jurisdiction of such courts. The Executive and the Company irrevocably waive any objection that they
now have or hereafter may have to the laying of venue of any suit, action or proceeding brought in any such court and
further irrevocably waive any claim that any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum. Final judgment against the Executive or the Company in any such suit shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment, a certified or true copy of which shall be conclusive
evidence of the fact and the amount of any liability of the Executive or the Company therein described, or by
appropriate proceedings under any applicable treaty or otherwise.
11.
Conflicts of Interest. While employed by the Company, the Executive shall not, unless approved by the
Compensation Committee, directly or indirectly:
(a)
participate as an individual in any way in the benefits of transactions with any of the Company’s
suppliers, vendors, Students, or subjects, including, without limitation, having a financial interest in the Company’s
suppliers, vendors, Students, or subjects, or making loans to, or receiving loans, from, the Company’s suppliers,
vendors, Students, or subjects;
11
(b)
realize a personal gain or advantage from a transaction in which the Company has an interest or
use information obtained in connection with the Executive’s employment with the Company for the Executive’s
personal advantage or gain; or
(c)
accept any offer to serve as an officer, director, partner, consultant, manager with, or to be
employed in a professional, medical, technical, or managerial capacity by, a person or entity which does business with
the Company.
12.
Inventions, Ideas, Processes, and Designs . All inventions, ideas, processes, programs, software, and
designs (including all improvements) directly related to the Company’s business (i) conceived or made by the
Executive during the course of his employment with the Company (whether or not actually conceived during regular
business hours) and for a period of six months subsequent to the termination (whether by expiration of the Term or
otherwise) of such employment with the Company, and (ii) related to the business of the Company, shall be disclosed
in writing promptly to the Company and shall be the sole and exclusive property of the Company, and the Executive
hereby assigns any such inventions to the Company. An invention, idea, process, program, software, or design
(including an improvement) shall be deemed directly related to the business of the Company if (a) it was made with the
Company’s funds, personnel, equipment, supplies, facilities, or Confidential Information, (b) results from work
performed by the Executive for the Company, or (c) pertains to the current business or demonstrably anticipated
research or development work of the Company. The Executive shall cooperate with the Company and its attorneys in
the preparation of patent and copyright applications for such developments and, upon request, shall promptly assign all
such inventions, ideas, processes, and designs to the Company. The decision to file for patent or copyright protection
or to maintain such development as a trade secret, or otherwise, shall be in the sole discretion of the Company, and the
Executive shall be bound by such decision. The Executive hereby irrevocably assigns to the Company, for no
additional consideration, the Executive’s entire right, title and interest in and to all work product and intellectual
property rights, including the right to sue, counterclaim and recover for all past, present and future infringement,
misappropriation or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in
this Agreement shall be construed to reduce or limit the Company's rights, title or interest in any work product or
intellectual property rights so as to be less in any respect than the Company would have had in the absence of this
Agreement. If applicable, the Executive shall provide as a schedule to this Agreement, a complete list of all inventions,
ideas, processes, and designs, if any, patented or unpatented, copyrighted or otherwise, or non-copyrighted, including a
brief description, which he made or conceived prior to his employment with the Company and which therefore are
excluded from the scope of this Agreement. References to the Company in this Section 12 shall include the Company,
its subsidiaries and affiliates.
13.
Indebtedness. If, during the course of the Executive’s employment under this Agreement, the Executive
becomes indebted to the Company for any reason, the Company may, if it so elects, and if permitted by applicable law,
set off any sum due to the Company from the Executive and collect any remaining balance from the Executive unless
the Executive has entered into a written agreement with the Company.
14.
Assignability. The rights and obligations of the Company under this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the Company,
12
provided that such successor or assign shall acquire all or substantially all of the securities or assets and business of the
Company. The Executive’s obligations hereunder may not be assigned or alienated and any attempt to do so by the
Executive will be void.
15.
Severability.
(a)
The Executive expressly agrees that the character, duration and geographical scope of the non-
competition provisions set forth in this Agreement are reasonable in light of the circumstances as they exist on the date
hereof. Should a decision, however, be made at a later date by a court of competent jurisdiction that the character,
duration or geographical scope of such provisions is unreasonable, then it is the intention and the agreement of the
Executive and the Company that this Agreement shall be construed by the court in such a manner as to impose only
those restrictions on the Executive’s conduct that are reasonable in the light of the circumstances and as are necessary
to assure to the Company the benefits of this Agreement. If, in any judicial proceeding, a court shall refuse to enforce
all of the separate covenants deemed included herein because taken together they are more extensive than necessary to
assure to the Company the intended benefits of this Agreement, it is expressly understood and agreed by the parties
hereto that the provisions of this Agreement that, if eliminated, would permit the remaining separate provisions to be
enforced in such proceeding shall be deemed eliminated, for the purposes of such proceeding, from this Agreement.
(b)
If any provision of this Agreement otherwise is deemed to be invalid or unenforceable or is
prohibited by the laws of the state or jurisdiction where it is to be performed, this Agreement shall be considered
divisible as to such provision and such provision shall be inoperative in such state or jurisdiction and shall not be part of
the consideration moving from either of the parties to the other. The remaining provisions of this Agreement shall be
valid and binding and of like effect as though such provisions were not included.
16.
Notices and Addresses. All notices, offers, acceptance and any other acts under this Agreement (except
payment) shall be in writing, and shall be sufficiently given if delivered to the addressees in person, by FedEx or
similar receipted delivery, or next business day delivery to the addresses detailed below (or to such other address, as
either of them, by notice to the other may designate from time to time), or by e-mail delivery (in which event a copy
shall immediately be sent by FedEx or similar receipted delivery), as follows:
To the Company:
Michael Mathews
Chief Executive Officer
Aspen Group, Inc.
224 West 30th Street, Suite 604
New York, NY 10001
Email: mike@aspen.com
With a copy to:
Nason, Yeager, Gerson White & Lioce, P.A.
Attn: Michael D. Harris, Esq.
1645 Palm Beach Lakes Blvd., Suite 1200
West Palm Beach, Florida 33410
Email: mharris@nasonyeager.com
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To the Executive:
Gerard Wendolowski
248 Van Winkle Place
Rutherford, NJ 07070
Email: gerard.wendolowski@aspen.edu
17.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
18.
Attorneys’ Fees . In the event that there is any controversy or claim arising out of or relating to this
Agreement, or to the interpretation, breach or enforcement thereof, and any action or proceeding is commenced to
enforce the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and
expenses (including such fees and costs on appeal).
19.
Governing Law. This Agreement shall be governed or interpreted according to the internal laws of the
State of Delaware without regard to choice of law considerations and all claims relating to or arising out of this
Agreement, or the breach thereof, whether sounding in contract, tort, or otherwise, shall also be governed by the laws
of the State of Delaware without regard to choice of law considerations.
20.
Entire Agreement. This Agreement constitutes the entire Agreement between the parties and supersedes
all prior oral and written agreements between the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, except by a statement in
writing signed by the party or parties against which enforcement or the change, waiver discharge or termination is
sought.
21.
Section and Paragraph Headings . The section and paragraph headings in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of this Agreement.
22.
Section 409A Compliance.
(a)
This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986,
as amended (“Section 409A”), or an exemption thereunder. This Agreement shall be construed and administered in
accordance with Section 409A. Notwithstanding any other provision of this Agreement to the contrary, payments
provided under this Agreement may only be made upon an event and in a manner that complies with Section 409A or
an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as
separation pay due to an involuntary separation from service (including a voluntary separation from service for good
reason that is considered an involuntary separation for purposes of the separation pay exception under Treasury
Regulation 1.409A-1(n)(2)) or as a short-term deferral shall be excluded from Section 409A to the maximum extent
possible. For purposes of Section 409A, each installment payment provided under this
14
Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination
of employment shall only be made if such termination of employment constitutes a “separation from service” under
Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits
provided under this Agreement comply with Section 409A and in no event shall the Company be liable for all or any
portion of any taxes, penalties, interest, or other expenses that may be incurred by the Executive on account of non-
compliance with Section 409A.
(b)
Notwithstanding any other provision of this Agreement, if at the time of the Executive's
termination of employment, the Executive is a "specified employee", determined in accordance with Section 409A, any
payments and benefits provided under this Agreement that constitute "nonqualified deferred compensation" subject to
Section 409A (e.g., payments and benefits that do not qualify as a short-term deferral or as a separation pay exception)
that are provided to the Executive on account of the Executive’s separation from service shall not be paid until the first
payroll date to occur following the six-month anniversary of the Executive's termination date ("Specified Employee
Payment Date"). The aggregate amount of any payments that would otherwise have been made during such six-month
period shall be paid in a lump sum on the Specified Employee Payment Date without interest and thereafter, any
remaining payments shall be paid without delay in accordance with their original schedule. If the Executive dies during
the six-month period, any delayed payments shall be paid to the Executive's estate in a lump sum upon the Executive's
death.
(c)
To the extent required by Section 409A, each reimbursement or in-kind benefit provided under
this Agreement shall be provided in accordance with the following:
the amount of expenses eligible for reimbursement, or in-kind benefits provided, during
each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any
other calendar year;
(i)
last day of the calendar year following the calendar year in which the expense was incurred; and
(ii)
any reimbursement of an eligible expense shall be paid to the Executive on or before the
to liquidation or exchange for another benefit.
(iii)
any right to reimbursements or in-kind benefits under this Agreement shall not be subject
(d)
In the event the Company determines that the Executive is a “specified employee” within the
meaning of Section 409A(a)(2)(B)(i) of the Code at the time of the Executive’s separation from service, then to the
extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the
Executive’s separation from service would be considered deferred compensation subject to Section 409A as a result of
the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not
be provided until the date that is the earlier of (i) six months and one day after the Executive’s separation from service,
or (ii) the Executive’s death (the “Six Month Delay Rule”).
15
(i)
For purposes of this subparagraph, amounts payable under the Agreement should not
provide for a deferral of compensation subject to Section 409A to the extent provided in Treasury Regulation Section
1.409A-1(b)(4) (e.g., short-term deferrals), Treasury Regulation Section 1.409A-1(b)(9) (e.g., separation pay plans,
including the exception under subparagraph (iii)), and other applicable provisions of the Treasury Regulations.
(ii)
To the extent that the Six Month Delay Rule applies to payments otherwise payable on
an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have
been paid during the six-month period but for the application of the Six Month Delay Rule, and the balance of the
installments shall be payable in accordance with their original schedule.
(iii)
To the extent that the Six Month Delay Rule applies to the provision of benefits
(including, but not limited to, life insurance and medical insurance), such benefit coverage shall nonetheless be
provided to the Executive during the first six months following his separation from service (the “Six Month Period”),
provided that, during such Six-Month Period, the Executive pays to the Company, on a monthly basis in advance, an
amount equal to the Monthly Cost (as defined below) of such benefit coverage. The Company shall reimburse the
Executive for any such payments made by the Executive in a lump sum not later than 30 days following the sixth
month anniversary of the Executive’s separation from service. For purposes of this subparagraph, “Monthly Cost”
means the minimum dollar amount which, if paid by the Executive on a monthly basis in advance, results in the
Executive not being required to recognize any federal income tax on receipt of the benefit coverage during the Six
Month Period.
(e)
The parties intend that this Agreement will be administered in accordance with Section 409A.
To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A, the provision
shall be read in such a manner so that all payments hereunder comply with Section 409A. The parties agree that this
Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with
Section 409A and all related rules and regulations in order to preserve the payments and benefits provided hereunder
without additional cost to either party.
(f)
The Company makes no representation or warranty and shall have no liability to the Executive
or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to
Section 409A but do not satisfy an exemption from, or the conditions of, such Section.
[Signature Page To Follow]
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IN WITNESS WHEREOF, the Company and the Executive have executed this Agreement as of the date and
year first above written.
Aspen Group, Inc.
By:
Michael Mathews,
Chief Executive Officer
Executive:
Gerard Wendolowski
Exhibit A
General Release Agreement
TERMINATION AND RELEASE AGREEMENT
THIS TERMINATION AND RELEASE AGREEMENT (the “Agreement”) is made and entered into as of
_______ __, 201___ (the “Effective Date”), by and between Gerard Wendolowski (the “Executive”) and Aspen Group,
Inc. (the “Employer” or the “Company”).
WHEREAS, the Executive was employed as Chief Operating Officer of the Employer;
WHEREAS, the parties wish to resolve all outstanding claims and disputes between them in an amicable
manner;
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth in this
Agreement, the sufficiency of which the parties acknowledge, it is agreed as follows:
1.
Nothing in this Agreement shall be construed as an admission of liability or wrongdoing by the Employer,
its past and present affiliates, officers, directors, owners, executives, attorneys, or agents, and the Employer specifically
disclaims liability to or wrongful treatment of the Executive on the part of itself, its past and present affiliates, officers,
directors, owners, employees, attorneys, and agents. Additionally, nothing in this Agreement shall be construed as an
admission of liability or wrongdoing by the Executive and the Executive specifically disclaims liability to or wrongful
acts directed at the Employer.
2.
The Executive covenants not to sue, and fully and forever releases and discharges the Employer, its past and
present affiliates, directors, officers, owners, executives and agents, as well as its successors and assigns from any and
all legally waivable claims, liabilities, damages, demands, and causes of action or liabilities of any nature or kind,
whether now known or unknown, arising out of or in any way connected with the Executive’s employment with the
Employer or the termination of that employment; provided, however, that nothing in this Agreement shall either waive
any rights or claims of the Executive that arise after the Executive signs this Agreement or impair or preclude the
Executive’s right to take action to enforce the terms of this Agreement. This release includes but is not limited to
claims arising under federal, state or local laws prohibiting employment discrimination or relating to leave from
employment, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination
in Employment Act, as amended, the Equal Pay Act and the Americans with Disabilities Act, as amended, the Family
and Medical Leave Act, as amended, claims for attorneys’ fees or costs, and any and all claims in contract, tort, or
premised on any other legal theory. The Executive acknowledges that the Executive has been paid in full all
compensation owed to the Executive by the Employer as a result of Executive’s employment, except from
compensation (if any) due through the Effective Date which shall be paid in the next regular payroll of the Company.
The Employer and its directors, officers, and employees covenant not to sue, and fully and forever release and
discharge the Executive, from any and all legally waivable claims from the beginning of time until the date of this
Agreement, and from liabilities, damages, demands, and causes of action, attorney’s fees, costs or liabilities of any
nature or kind, whether now known or unknown, arising out of or in any way connected with the Executive’s
employment with the Employer.
3.
The Executive represents that he has not filed any complaints or charges against the Employer with the
Equal Employment Opportunity Commission, or with any other federal, state or local agency or court, and covenants
that he will not seek to recover on any claim released in this Agreement.
4.
The Executive agrees that he will not encourage or assist any of the Employer’s employees to litigate claims
or file administrative charges against the Employer or its past and present affiliates, officers, directors, owners,
employees and agents, unless required to provide testimony or documents pursuant to a lawful subpoena or other
compulsory legal process.
5.
The Executive acknowledges that he is subject to non-compete and confidentiality provisions under that
certain Employment Agreement between the Executive and the Employer dated __________ ___, 2014 (the
“Employment Agreement”).
6.
The Executive acknowledges that he has been given at least 21 days to consider this Agreement and that he
has seven days from the date he executes this Agreement in which to revoke it and that this Agreement will not be
effective or enforceable until after the seven-day revocation period ends without revocation by the Executive.
Revocation can be made by delivery of a written notice of revocation to Michael Mathews, Chief Executive Officer at
the offices of the Employer, by midnight on or before the seventh calendar day after the Executive signs the
Agreement.
7.
The Executive acknowledges that he has been advised to consult with an attorney of his choice with regard
to this Agreement. The Executive hereby acknowledges that he understands the significance of this Agreement, and
represents that the terms of this Agreement are fully understood and voluntarily accepted by him.
8.
The Executive and the Employer agree that neither he nor they, nor any of their agents or representatives
will disclose, disseminate and/or publicize, or cause or permit to be disclosed, disseminated or publicized, the existence
of this Agreement, any of the terms of this Agreement, or any claims or allegations which the Executive believes he or
they could have made or asserted against one another, specifically or generally, to any person, corporation, association
or governmental agency or other entity except: (i) to the extent necessary to report income to appropriate taxing
authorities; (ii) in response to an order of a court of competent jurisdiction or subpoena issued under the authority
thereof; or (iii) in response to any inquiry or subpoena issued by a state or federal governmental agency; provided,
however, that notice of receipt of such order or subpoena shall be faxed to Aspen Group, Inc., attention Michael
Mathews (____) ______, and in the case of the Executive, to Gerard Wendolowski (____) _______-______ within 24
hours of the receipt of such order or subpoena, so that both Executive and Employer will have the opportunity to assert
what rights they have to non-disclosure prior to any response to the order, inquiry or subpoena.
9.
The Executive and Employer agree to refrain from disparaging or making any unfavorable comments, in
writing or orally, about either party, and in the case of the Employer, about its management, its operations, policies, or
procedures and in the case of the Executive, to
prospective employers, those making inquiry as to the reasons for his separation from the Company or to any person,
company or other business entity.
10.
In the event of any lawsuit against the Employer that relates to alleged acts or omissions by the Executive
during his employment with the Employer, the Executive agrees to cooperate with Employer by voluntarily providing
truthful and full information as reasonably necessary for the Employer to defend against such lawsuit. Provided,
however, the Executive shall be entitled to receive reimbursement for expenses, including lost wages, incurred in
assisting the Employer regarding any lawsuit.
11.
Except as provided herein, all agreements between the Employer and the Executive including but not
limited to the Employment Agreement, are null and void and no longer enforceable.
12.
This Agreement sets forth the entire agreement between the Executive and the Employer, and fully
supersedes any and all prior agreements or understandings between them regarding its subject matter; provided,
however, that nothing in this Agreement is intended to or shall be construed to modify, impair or terminate any
obligation of the Executive or the Employer pursuant to provisions of the Employment Agreement that by their terms
continues after the Executive’s separation from the Employer’s employment. This Agreement may only be modified
by written agreement signed by both parties.
13.
The Employer and the Executive agree that in the event any provision of this Agreement is deemed to be
invalid or unenforceable by any court or administrative agency of competent jurisdiction, or in the event that any
provision cannot be modified so as to be valid and enforceable, then that provision shall be deemed severed from the
Agreement and the remainder of the Agreement shall remain in full force and effect.
14.
This Agreement shall be governed or interpreted according to the internal laws of the State of Delaware
without regard to choice of law considerations and all claims relating to or arising out of this Agreement, or the breach
thereof, whether sounding in contract, tort, or otherwise, shall also be governed by the laws of the State of Delaware
without regard to choice of law considerations.
15.
In the event that there is any controversy or claim arising out of or relating to this Agreement, or to the
interpretation, breach or enforcement thereof, and any action or proceeding is commenced to enforce or contest the
provisions of this Agreement, the prevailing party shall be entitled to a reasonable attorney’s fee, costs and expenses.
16.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument. The execution of this Agreement may be by
actual or facsimile signature.
[Signature Page To Follow]
PLEASE READ CAREFULLY. THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
ASPEN GROUP, INC.
By:
Michael Mathews
Chief Executive Officer
I have carefully read this Agreement and understand that it contains a release of known and unknown claims. I
acknowledge and agree to all of the terms and conditions of this Agreement. I further acknowledge that I enter into this
Agreement voluntarily with a full understanding of its terms.
Gerard Wendolowski
Exhibit B
Indemnification Agreement
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the “Agreement”) is entered into as of this _____day of ______ 2014, by and
between Aspen Group, Inc., a Delaware corporation (the “Company”), and Gerard Wendolowski (the “Indemnitee”)
and replaces any and all Indemnification Agreements previously entered into between the Parties:
WHEREAS, competent and experienced persons are becoming increasingly reluctant to serve publicly-held
corporations as directors, officers, or in other capacities unless they are provided with adequate protection through
liability insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of
their service to the corporation;
WHEREAS, the board of directors of the Company (the “Board”) has determined that the inability to attract and
retain such persons is detrimental to the best interests of the Company’s shareholders and that the Company should act
to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, Section 145 of the Delaware General Corporation Law (the “DGCL”) empowers the Company to
indemnify its officers, directors, employees and agents by agreement and to indemnify persons who serve, at the
request of the Company, as directors, officers, employees or agents of other corporations or enterprises;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to
indemnify such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified;
WHEREAS, the Indemnitee is willing to serve as a director or officer of the Company on the condition that he
be so indemnified.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the
Company and the Indemnitee do hereby covenant and agree as follows:
1.
Definitions. For purposes of this Agreement:
(a)
“Act” means the Securities Exchange Act of 1934.
(b)
“Beneficial Owner” means (as defined in Rule 13d-3 under the Act), any Person who directly or
indirectly, owns securities of the Company representing 10% or more of the combined voting power of the Company’s
then outstanding securities.
(c)
“Change of Control” means a change in control of the Company occurring after the Effective
Date of a nature that would be required to be reported in response to Item 5.01 on Form 8-K (or in response to any
similar item on any similar schedule or form) promulgated under the Act, whether or not the Company is then subject to
such reporting requirement;
provided, however, that, without limitation, such a Change of Control shall be deemed to have occurred after the
Effective Date if a Person (as defined below) becomes the Beneficial Owner without the prior approval of at least two-
thirds of the directors in office immediately prior to such person attaining such percentage; (ii) the Company is a party
to a merger, consolidation, sale of assets or other reorganization, or a proxy contest, as a consequence of which
members of the Board in office immediately prior to such transaction or event constitute less than a majority of the
Board thereafter; or (iii) during any period of two consecutive years, individuals who, at the beginning of such period,
constituted the Board (including for this purpose, any new director whose election or nomination for election by the
Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who were
directors at the beginning of such period) cease for any reason to constitute at least a majority of the Board.
(d)
“Corporate Status” describes the status of a person who is or was a director, officer, employee,
agent or fiduciary of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which such person is or was serving at the request of the Company.
(e)
“Disinterested Director” means a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by the Indemnitee.
(f)
“Effective Date” means the date first above written.
(g)
“Expenses” shall include all reasonable attorney’s fees, retainers, court costs, transcript costs,
fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to be a witness in a
Proceeding.
(h)
“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five years has been, retained to represent (i) the
Company or the Indemnitee in any matter material to either such party, or (ii) any other party to the Proceeding giving
rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not
include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict
of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s rights under
this Agreement.
(i)
“Person” means (as such term is used in Sections 13(d) and 14(d) of the Act) an individual, a
partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof).
(j)
“Proceeding” includes any actual or threatened action, suit, arbitration, alternative dispute
resolution mechanism, investigation, administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative, whether or not initiated prior to the Effective Date, except a proceeding initiated by an
Indemnitee pursuant to Section 11 of this Agreement to enforce his rights under this Agreement.
(k)
“Standard” shall mean the applicable standard of conduct set forth in Sections 145(a) and (b) of
the DGCL.
2.
Agreement to Serve. The Indemnitee agrees to serve as a director or officer of the Company. The
Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or
any obligation imposed by operation of law). Similarly, the Company shall have no obligation under this Agreement to
continue the Indemnitee in any position with the Company.
3.
Indemnification — General. The Company shall indemnify and advance Expenses to the Indemnitee as
provided in this Agreement and to the fullest extent permitted by applicable law in effect on the date hereof and to such
greater extent as applicable law may thereafter from time to time permit. However, no indemnification shall be made
by the Company (except as ordered by a court) unless a determination has been made in the manner provided for in
Section 145(d) of the DGCL and Section 9(b) herein that the Indemnitee has met the applicable Standard. The rights of
the Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the
other sections of this Agreement.
4.
Third-Party Actions . The Indemnitee shall be entitled to the rights of indemnification provided in this
Section 4 if, by reason of his Corporate Status, he is, or is threatened to be made, a party to any Proceeding, other than
a Proceeding by or in the right of the Company. Pursuant to this Section 4, the Indemnitee shall be indemnified against
Expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such Proceeding or any claim, issue or matter therein, if (i) he acted in good faith, and in a
manner he reasonably believed to be in or not opposed to the Company’s best interests; and (ii) with respect to any
criminal Proceeding, had no reasonable cause to believe his conduct was unlawful. The Indemnitee shall not be
entitled to indemnification in connection with any Proceeding charging improper personal benefit to the Indemnitee,
whether or not involving action in his official capacity, in which he was judged liable on the basis that personal benefit
was improperly received by him.
5.
Direct and Derivative Actions . The Indemnitee shall be entitled to the rights of indemnification
provided in this Section 5, by reason of his Corporate Status, if he is, or is threatened to be made, a party to any
Proceeding brought by a shareholder directly or on behalf of the Company to procure a judgment in its favor. Pursuant
to this Section, the Indemnitee shall be indemnified against Expenses actually and reasonably incurred by him or on his
behalf in connection with such Proceeding if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Company. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to
which the Indemnitee shall have been adjudged to be liable to the Company unless the Delaware Court of Chancery or
the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of
liability but in view of all of the circumstances of the case, the Indemnitee is fairly and reasonably entitled to
indemnification for such Expenses which the Delaware Court of Chancery or such other court shall deem proper.
The Indemnitee shall not be entitled to the rights of indemnification provided in this Section 5, by reason of his
corporate status, if he is, or is threatened to be made, a party to any Proceeding brought by the Company, or files any
claim against the Company in a Proceeding.
6.
Indemnification for Expenses of an Indemnitee . Notwithstanding any other provision of this Agreement,
to the extent that the Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him in
connection therewith. If the Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify
the Indemnitee against all Expenses actually and reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this Section 6 and without limitation, the termination of
any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
7.
Indemnification for Expenses of a Witness . Notwithstanding any other provision of this Agreement, to
the extent that the Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
8.
Advancement of Expenses . The Company shall advance all reasonable Expenses incurred by or on
behalf of the Indemnitee in connection with any Proceeding within 20 working days after the receipt by the Company
of a statement or statements from the Indemnitee requesting such advance or advances from time to time, whether prior
to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses
incurred by the Indemnitee including providing detailed invoices from attorneys and other parties (unless an advance
retainer) and shall include, be preceded by or accompanied by, as the case may be, the following: (i) a written
affirmation of the Indemnitee’s good-faith that he has met the Standard; (ii) an undertaking by or on behalf of the
Indemnitee to repay any Expenses advanced if it shall be determined that the Indemnitee did not meet the Standard or
that the Indemnitee is not entitled to be indemnified against such Expenses; and (iii) a determination that the facts then
known to those making the determination would not preclude indemnification under the DGCL.
The Indemnitee understands and agrees that the undertaking required by this Section 8(ii) shall be an unlimited
general obligation of the Indemnitee.
9.
Indemnification Procedure.
(a)
To obtain indemnification under this Agreement, the Indemnitee shall submit to the Company a
written request, including therein or therewith such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification,
advise the Board in writing that the Indemnitee has requested indemnification.
(b)
Upon written request by the Indemnitee for indemnification pursuant to Section 9(a) hereof, a
determination, if required by applicable law, with respect to the Indemnitee’s entitlement thereto shall be made (i) by
the Board by a majority vote of a quorum consisting of Disinterested Directors; or (ii) if a quorum cannot be obtained
or, even if attainable, a quorum of Disinterested Directors so directs, by (a) Independent Counsel in a written opinion;
or (b) by the shareholders of the Company. If it is determined that the Indemnitee is entitled to indemnification,
payment to the Indemnitee shall be made within 10 working days after such determination. The Indemnitee shall
cooperate with the person, persons or entity making such determination with respect to the Indemnitee’s entitlement to
indemnification, including providing to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably
available to the Indemnitee and reasonably necessary to such determination.
10.
Presumptions and Effect of Certain Proceedings .
(a)
If a Change of Control shall have occurred, in making a determination with respect to entitlement
to indemnification hereunder, and following the procedures in Section 9, as applicable, it shall be presumed that the
Indemnitee is entitled to indemnification under this Agreement if the Indemnitee has submitted a request for
indemnification in accordance with Section 9(a) of this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons or entity of any determination
contrary to that presumption.
(b)
If the Indemnitee’s right to indemnification shall not have been made within 60 days after receipt
by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed
to have been made and the Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by the
Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification
under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed
an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to
indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or
information relating thereto; and provided, further, that the foregoing provisions of Section 10(b) shall not apply (i) if
the determination of entitlement to indemnification is to be made by the
shareholders pursuant to Section 9(b) of this Agreement and if (A) within 15 days after receipt by the Company of the
request for such determination the Board has resolved to submit such determination to the shareholders for their
consideration at an annual meeting thereof to be held within 75 days after such receipt and such determination is made
thereat, or (B) a special meeting of shareholders is called within 15 days after such receipt for the purpose of making
such determination, such meeting is held for such purpose within 60 days after having been so called and such
determination is made thereat, or (ii) if the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 9(b) of this Agreement.
(c)
The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise
expressly provided in this Agreement) of itself adversely affect the right of the Indemnitee to indemnification or create
a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Company, and with respect to any criminal Proceeding, that the Indemnitee had
reasonable cause to believe that his conduct was unlawful.
11.
Remedies of the Indemnitee .
(a)
In the event that (i) a determination is made pursuant to Section 9 of this Agreement that the
Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made
pursuant to Section 8 of this Agreement, (iii) the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 9(b) of this Agreement and such determination shall not have been made and
delivered in a written opinion within 90 days after receipt by the Company of the request for indemnification, (iv)
payment of indemnification is not made pursuant to Section 5 of this Agreement within 10 days after receipt by the
Company of a written request therefor, or (v) payment of indemnification is not made within 10 days after a
determination has been made that the Indemnitee is entitled to indemnification or such determination is deemed to have
been made pursuant to Section 9 or 10 of this Agreement, the Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of Delaware, or in any other court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. The Indemnitee shall commence such proceeding seeking an
adjudication within 180 days following the date on which the Indemnitee first has the right to commence such
proceeding pursuant to this Section 11(a).
(b)
In the event that a determination shall have been made pursuant to Section 9 of this Agreement
that the Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 11
shall be conducted in all respects as a de novo trial on the merits and the Indemnitee shall not be prejudiced by reason
of that adverse determination. If a Change of Control shall have occurred, in any judicial proceeding commenced
pursuant to this Section 11, the Company shall have the burden of proving the the Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c)
If a determination shall have been made or deemed to have been made pursuant to Section 9 or
10 of this Agreement that the Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding commenced pursuant to this Section 11, absent (i) a misstatement by the
Indemnitee of a material fact, or an omission of a material fact necessary to make the Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification
under applicable law.
(d)
The Company shall be precluded from asserting in any judicial proceeding commenced pursuant
to this Section 11 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and
shall stipulate in any such court that the Company is bound by all the provisions of this Agreement.
(e)
In the event that the Indemnitee, pursuant to this Section 11, seeks a judicial adjudication to
enforce his rights under, or to recover damages for breach of, this Agreement, the Indemnitee shall be entitled to
recover from the Company, and shall be indemnified by the Company against, any and all Expenses (of the types
described in the definition of Expenses in Section 1 of this Agreement) actually and reasonably incurred by him in such
judicial adjudication, but only if he prevails therein. If it shall be determined in said judicial adjudication that the
Indemnitee is entitled to receive part but not all of the indemnification or advancement of Expenses sought, the
Expenses incurred by the Indemnitee in connection with such judicial adjudication shall be appropriately prorated.
12.
Non-Exclusivity; Survival of Rights; Insurance; Subrogation .
(a)
The rights of indemnification and to receive advancement of Expenses as provided by this
Agreement shall not be deemed exclusive of any other rights to which the Indemnitee may at any time be entitled under
applicable law, the Articles of Incorporation, the Bylaws, any agreement, a vote of shareholders or a resolution of
directors, or otherwise. No amendment, alteration or repeal of this Agreement or any provision hereof shall be effective
as to any Indemnitee with respect to any action taken or omitted by such Indemnitee in his Corporate Status prior to
such amendment, alteration or repeal.
(b)
To the extent that the Company maintains an insurance policy or policies providing liability
insurance for directors, officers, employees, agents or fiduciaries of the Company or of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise which such person serves at the request of the
Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director, officer, employee or agent under such policy or
policies.
(c)
In the event of any payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all papers required and take
all action necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(d)
The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that the Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
(e)
The Company may, to the full extent authorized by law, create a trust fund, grant a security
interest and/or use other means (including, without limitation, letters of credit, surety bonds and other similar
arrangements) to ensure the payment of such amounts as may become necessary to effect indemnification provided
hereunder.
13.
Duration of Agreement . This Agreement shall continue until and terminate upon the later of: (a) six
years after the date that the Indemnitee shall have ceased to serve as a director, officer, employee, agent or fiduciary of
the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
which the Indemnitee served at the request of the Company; or (b) the final termination of all pending Proceedings in
respect of which the Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any
proceeding commenced by the Indemnitee pursuant to Section 11 of this Agreement relating thereto.
14.
Exceptions to Indemnification Rights . Notwithstanding any other provision of this Agreement, except
for Indemnification or advancement of Expenses in a Proceeding to enforce or claim therein to enforce the provisions of
that Agreement, the Indemnitee shall not be entitled to Indemnification or advancement of Expenses with respect to any
Proceeding, or any claim therein, brought or made by him against the Company or the Company against the
Indemnitee; except as provided in the Company’s Certificate of Incorporation. Provided further that no right of
indemnification under the provisions set forth herein shall be available to the Indemnitee unless within 10 days after the
later of (i) the filing of or (ii) learning of any such Proceeding he shall have offered the Company in writing the
opportunity to handle and defend such Proceeding at its own expense.
15.
appropriate.
Gender. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where
16.
Successors. Subject to the provisions of this Agreement, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns.
17.
Severability. In the event any parts of this Agreement are found to be void, the remaining provisions of
this Agreement shall nevertheless be binding with the same effect as though the void parts were deleted.
18.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
19.
Benefit. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
legal representatives, successors and assigns.
20.
Notices and Addresses. All notices, offers, acceptance and any other acts under this Agreement (except
payment) shall be in writing, and shall be sufficiently given if delivered to the addressee in person, by Federal Express
or similar receipted delivery, or by email delivery as follows:
The Company:
with a copy to:
.
To the Indemnitee:
Aspen Group, Inc.
224 W 30th St. Ste. 604
New York, NY 10001
Attention: Mr. Michael Mathews
Email:mike@aspoen.edu
Michael D. Harris, Esq.
Nason, Yeager, Gerson, White& Lioce, P.A.
1645 Palm Beach Lakes Blvd. 12 th Floor
West Palm Beach, FL33401
Email: mharris@nasonyeager.com
Gerard Wendolowski
248 Van Winkle Place
Rutherford, NJ 07070
Email: gerard.wendolowski@aspen.edu
or to such other address as either of them, by notice to the other may designate from time to time. Time shall be
counted to, or from, as the case may be, the delivery in person or by mailing.
21.
Attorneys’ Fees . In the event that there is any controversy or claim arising out of or relating to this
Agreement, or to the interpretation, breach or enforcement thereof, and any action or proceeding relating to this
Agreement is filed, the prevailing party shall be entitled to an award by the court of reasonable attorneys’ fees, costs
and expenses.
22.
Oral Evidence. This Agreement constitutes the entire Agreement between the parties and supersedes all
prior oral and written agreements between the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, except by a statement in
writing signed by the party or parties against which enforcement or the change, waiver discharge or termination is
sought.
23.
Governing Law. This Agreement and any dispute, disagreement, or issue of construction or
interpretation arising hereunder whether relating to its execution, its validity, the obligations provided herein or
performance shall be governed or interpreted according to the internal laws of the State of Delaware without regard to
choice of law considerations.
24.
Arbitration. Any controversy, dispute or claim arising out of or relating to this Agreement, or its
interpretation, application, implementation, breach or enforcement which the parties are unable to resolve by mutual
agreement, shall be settled by submission by either party of the controversy, claim or dispute to binding arbitration in
New York County, New York (unless the parties agree in writing to a different location), before a single arbitrator in
accordance with the rules of the American Arbitration Association then in effect. In any such arbitration proceeding
the parties agree to provide all discovery deemed necessary by the arbitrator. The decision and award made by the
arbitrator shall be final, binding and conclusive on all parties hereto for all purposes, and judgment may be entered
thereon in any court having jurisdiction thereof.
25.
Section or Paragraph Headings . Section headings herein have been inserted for reference only and shall
not be deemed to limit or otherwise affect, in any matter, or be deemed to interpret in whole or in part any of the terms
or provisions of this Agreement.
[Signature Page To Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above
written.
ASPEN GROUP, INC.:
By:
Michael Mathews
Chief Executive Officer
INDEMNITEE:
By:
Gerard Wendolowski
EXHIBIT 10.20
Aspen Group, Inc.
224 West 30th Street, Suite 604
New York, New York 10001
April 27, 2015
Dear Warrant Holder:
This letter agreement documents our understanding regarding you exercising your warrants to purchase common stock
of Aspen Group, Inc. (the “Company”). In order to increase the Company’s shareholders’ equity, we are offering to amend your
warrants to provide a cashless exercise feature with a fair market value of $0.19 per share and a reduced exercise price if you
cashlessly exercise your warrants now. If you cashlessly exercise your warrants at any time through April 29, 2015 (the “Offer
End Date”), the Company will reduce the exercise price of the [_______] warrants you obtained in [_________] to $0.155 per
share which will result in you being issued [_______] shares of the Company’s common stock. You may exercise your warrants
by signing below and e-mailing this executed letter to my attention (e-mail address provided below) by 5:00 p.m. on the Offer
End Date. The Company must receive your original warrant (sent to the address above) by 5:00 p.m. on April 30, 2015. If you
do not cashlessly exercise your warrants in accordance with this letter agreement, the terms of your warrants will remain the
same.
If you have any questions, please call me at (914) 906-9159 or e-mail me at michael.mathews@aspen.edu.
Sincerely yours,
Michael Mathews
Chief Executive Officer
I hereby agree to exercise all of my warrants as provided for above:
_____________
By: __________________________________
__________________________________
Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
I, Michael Mathews, certify that:
1.
I have reviewed this annual report on Form 10-K of Aspen Group, Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in
all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this
report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in
Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made
known to us by others within those entities, particularly during the period in which this report is being prepared;
a)
Designed such internal control over financial reporting, or caused such internal control over financial reporting
to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles;
b)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on
such evaluation; and
c)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred
during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
d)
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control
over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the
equivalent functions):
All significant deficiencies and material weaknesses in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial
information; and
a)
the registrant’s internal control over financial reporting.
b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in
Date: July 28, 2015
/s/ Michael Mathews
Michael Mathews
Chief Executive Officer
(Principal Executive Officer)
Exhibit 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
I, Janet Gill, certify that:
1.
I have reviewed this annual report on Form 10-K of Aspen Group, Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in
all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this
report;
4.
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in
Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made
known to us by others within those entities, particularly during the period in which this report is being prepared;
a)
Designed such internal control over financial reporting, or caused such internal control over financial reporting
to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting principles;
b)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on
such evaluation; and
c)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred
during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially
affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
d)
5.
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control
over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the
equivalent functions):
All significant deficiencies and material weaknesses in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial
information; and
a)
the registrant’s internal control over financial reporting.
b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in
Date: July 28, 2015
/s/ Janet Gill
Janet Gill
Chief Financial Officer
(Principal Financial Officer)
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.1
In connection with the annual report of Aspen Group, Inc. (the “Company”) on Form 10-K for the fiscal year ended April 30, 2015, as filed
with the Securities and Exchange Commission on the date hereof, I, Michael Mathews, certify, pursuant to 18 U.S.C. §1350, as adopted
pursuant to §906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
1.
2.
The annual report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934
and
The information contained in the annual report fairly presents, in all material respects, the financial condition and results of
operations of the Company.
/s/ Michael Mathews
Michael Mathews
Chief Executive Officer
(Principal Executive Officer)
Dated: July 28, 2015
In connection with the annual report of Aspen Group, Inc. (the “Company”) on Form 10-K for the fiscal year ended April 30,
2015, as filed with the Securities and Exchange Commission on the date hereof, I, Janet Gill, certify, pursuant to 18 U.S.C. §1350, as
adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
1.
2.
The annual report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934
and
The information contained in the annual report fairly presents, in all material respects, the financial condition and results of
operations of the Company.
/s/ Janet Gill
Janet Gill
Chief Financial Officer
(Principal Financial Officer)
Dated: July 28, 2015