EXHIBIT 10.3
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT (this "Agreement") is made as of
March 1, 2005, among GTCR Xxxxxx Xxxxxx XX, L.L.C., a Delaware limited liability
company ("GTCR"), NewQuest Holdings, Inc., a Delaware corporation (the
"Company"), and NewQuest, Inc., a Delaware corporation and wholly owned
subsidiary of the Company ("NewQuest Inc.").
WHEREAS, GTCR (together with any investment fund or special investment
vehicle controlled by GTCR or GTCR Xxxxxx Xxxxxx XX, L.L.C., a Delaware limited
liability company, the "Investors") will purchase Preferred Stock, par value
$0.01 per share ("Preferred Stock"), of the Company and Common Stock, par value
$0.01 per share ("Common Stock"), of the Company pursuant to that certain Stock
Purchase Agreement of even date herewith between the Company and the Investors
(the "Purchase Agreement");
WHEREAS, the Company and NewQuest Inc. desire to receive financial and
management consulting services from GTCR, and obtain the benefit of the
experience of GTCR in business and financial management generally and its
knowledge of the Company and the Company's financial affairs in particular; and
WHEREAS, GTCR is willing to provide financial and management
consulting services to the Company and NewQuest Inc. and the compensation
arrangements set forth in this Agreement are designed to compensate GTCR for
such services.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective agreements hereinafter set forth and the mutual benefits to be
derived herefrom, GTCR, the Company and NewQuest Inc. hereby agree as follows:
1. Engagement. The Company and NewQuest Inc. hereby engage GTCR as a
financial and management consultant, and GTCR hereby agrees to provide financial
and management consulting services to the Company and NewQuest Inc., all on the
terms and subject to the conditions set forth below.
2. Services of GTCR. GTCR hereby agrees during the term of this
engagement to consult with the board of directors of the Company (the "Board"),
the boards of directors (or similar governing body) of NewQuest Inc. and the
Company's other affiliates and the management of the Company and its affiliates
in such manner and on such business and financial matters as may be reasonably
requested from time to time by the Board, including, but not limited to:
(a) corporate strategy;
(b) budgeting of future corporate investments;
(c) acquisition and divestiture strategies; and
(d) debt and equity financings.
3. Personnel. GTCR shall provide and devote to the performance of this
Agreement such partners, employees and agents of GTCR as GTCR shall deem
appropriate for the furnishing of the services required thereby.
4. Placement Fee. Subject to the terms of the Credit Agreement (as
hereinafter defined), at the time of any purchase of equity by the GTCR
Purchasers (as defined in the Purchase Agreement) and/or their affiliates
pursuant to Section 1B of the Purchase Agreement, the Company and NewQuest Inc.,
jointly and severally, shall pay to GTCR a placement fee in immediately
available funds in an amount equal to one percent (1%) of the amount paid to the
Company in connection with such purchase. For purposes of this Agreement, the
"Credit Agreement" means that certain Credit Agreement, dated as of the date
hereof, by and among the Company, NewQuest Inc., the subsidiary guarantors party
thereto, the lenders party thereto, UBS Securities LLC, UBS Loan Finance LLC,
UBS AG, Stamford Branch, and certain other parties thereto.
5. Management Fee. Commencing as of the date hereof and subject to the
terms of the Credit Agreement, the Company and NewQuest Inc., jointly and
severally, shall pay to GTCR an annual management fee equal to $500,000, payable
in equal monthly installments beginning on the first day of each month.
6. Expenses. Subject to the terms of the Credit Agreement, the Company
and NewQuest Inc., jointly and severally, shall promptly reimburse GTCR for such
reasonable travel expenses, legal fees and other out-of-pocket fees and expenses
as have been or may be incurred by GTCR, its directors, officers and employees
in connection with the Closing (as defined in the Purchase Agreement), in
connection with rendering any services hereunder (including, but not limited to,
fees and expenses incurred in attending Company-related meetings).
7. Term. This Agreement will continue from the date hereof until the
Investors and their affiliates cease to own at least 20% of the Preferred Stock
or at least 20% of the Common Stock acquired by the Investors pursuant to the
Purchase Agreement. No termination of this Agreement, whether pursuant to this
paragraph or otherwise, shall affect the Company's or NewQuest Inc.'s
obligations with respect to the fees, costs and expenses incurred by GTCR in
rendering services hereunder and not reimbursed by the Company or NewQuest Inc.
as of the effective date of such termination.
8. Liability. Neither GTCR nor any of its affiliates, partners,
employees or agents shall be liable to the Company or its subsidiaries or
affiliates for any loss, liability, damage or expense arising out of or in
connection with the performance of services contemplated by this Agreement,
unless such loss, liability, damage or expense shall be proven to result
directly from the gross negligence, willful misconduct or fraud of GTCR.
9. Indemnification. The Company and NewQuest Inc., jointly and
severally, agree to indemnify and hold harmless GTCR, its partners, affiliates,
officers, agents and employees against and from any and all loss, liability,
suits, claims, costs, damages and expenses (including reasonable attorneys'
fees) arising from their performance hereunder, except as a result of their
gross negligence, intentional wrongdoing or fraud.
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10. GTCR an Independent Contractor. GTCR, the Company and NewQuest
Inc. agree that GTCR shall perform services hereunder as an independent
contractor, retaining control over and responsibility for its own operations and
personnel. Neither GTCR nor its directors, officers, or employees shall be
considered employees or agents of the Company or NewQuest Inc. as a result of
this Agreement nor shall any of them have authority to contract in the name of
or bind the Company or NewQuest Inc., except as expressly agreed to in writing
by the Company.
11. Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when (i) delivered personally to
the recipient, (ii) sent to the recipient by reputable express courier service
(charges prepaid), (iii) mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid, or (iv) telecopied to the
recipient (with hard copy sent to the recipient by reputable overnight courier
service (charges prepaid) that same day) if telecopied before 5:00 p.m. Chicago,
Illinois time on a business day, and otherwise on the next business day. Such
notices, demands and other communications shall be sent to the Investors and to
the Company and NewQuest Inc. at the addresses indicated below (or at such other
address as shall be given in writing by one party to the others):
If to GTCR:
GTCR Xxxxxx Xxxxxx XX, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Xx.
Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, P.C.
Xxxxxxx X. Fine, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company or NewQuest Inc.:
NewQuest Holdings, Inc.
00 Xxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
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Attention: Xx. Xxxx Xxxxxx
Telecopy: (000) 000-0000
with copies to:
GTCR Xxxxxx Xxxxxx XX, L.L.C.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Xx.
Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, P.C.
Xxxxxxx X. Fine, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
12. Entire Agreement; Modification. This Agreement, those documents
expressly referred to herein and other documents of even date herewith (a)
contain the complete and entire understanding and agreement of GTCR, the Company
and NewQuest Inc. with respect to the subject matter hereof and (b) supersede
all prior and contemporaneous understandings, conditions and agreements, oral or
written, express or implied, respecting the engagement of GTCR in connection
with the subject matter hereof. The provisions of this Agreement may be amended,
modified and/or waived only with the prior written consent of the Company and
GTCR.
13. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any subsequent breach of that provision or any other provision
hereof.
14. Assignment. GTCR may not assign its rights or obligations under
this Agreement without the express written consent of the Company, except that
GTCR may assign its rights and obligations to an affiliate of GTCR (which shall
include GTCR Xxxxxx Xxxxxx, L.L.C.). Neither the Company nor NewQuest Inc. may
assign its rights or obligations under this Agreement without the express
written consent of GTCR.
15. Successors. This Agreement and all the obligations and benefits
hereunder shall inure to the successors and permitted assigns of the parties.
16. Counterparts. This Agreement may be executed and delivered by each
party hereto in separate counterparts (including by means of facsimile), each of
which when so executed and delivered shall be deemed an original and both of
which taken together shall constitute one and the same agreement.
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17. Choice of Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Delaware, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Delaware.
18. MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT
THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN
THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT
OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT AND/OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
19. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
20. Descriptive Headings; Interpretation. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. Whenever required by the context, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine, or neuter forms, and the singular form of nouns, pronouns, and verbs
shall include the plural and vice versa. The use of the word "including" in this
Agreement shall be, in each case, by way of example and without limitation. The
use of the words "or," "either," and "any" shall not be exclusive. Reference to
any agreement, document, or instrument means such agreement, document, or
instrument as amended or otherwise modified from time to time in accordance with
the terms thereof, and, if applicable, hereof.
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IN WITNESS WHEREOF, the undersigned have caused this Professional
Services Agreement to be duly executed and delivered on the date and year first
above written.
GTCR XXXXXX XXXXXX XX, L.L.C.
By:
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Name:
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Its: Principal
NEWQUEST HOLDINGS, INC.
By:
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Name:
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Its:
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NEWQUEST, INC.
By:
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Name:
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Its:
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SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
