Exhibit 10.20
CONSULTING AGREEMENT
CONSULTING AGREEMENT (the "Consulting Agreement"), dated as of March 31,
2003 (the "Effective Date"), among Collegiate Funding Services, LLC, a Virginia
limited liability company (the "Company"), EdPro, LLC, a Mississippi limited
liability company ("EdPro"), and Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx").
RECITALS
A. The Company is acquiring the business of originating, disbursing and
servicing student loans (the "Business") from Xxxxxxxx and a corporation
Xxxxxxxx controls pursuant to the terms of an Asset Purchase Agreement dated as
of March 28, 2003 (the "Asset Purchase Agreement"), among the Company, CFS
Servicing, LLC (the "Purchaser"), a Delaware limited liability company and a
wholly owned subsidiary of the Company, Xxxxxxxx and SunTech, Inc., a
Mississippi corporation ("SunTech"). Capitalized terms used but not defined
herein shall have the meaning set forth in the Asset Purchase Agreement.
B. The Company desires to retain Xxxxxxxx for certain consulting
services after the closing of the sale contemplated by the Asset Purchase
Agreement. Xxxxxxxx represents that he is the sole member and owner of EdPro, a
management company. The Company acknowledges that Xxxxxxxx, through his
relationship with EdPro, will provide consulting services as provided herein. It
is acknowledged that all references in this Consulting Agreement to Xxxxxxxx
providing services or references discussing payment for those services are
referring to services provided to the Company through EdPro and all payments for
such services will be made directly to EdPro. It is also understood that
Xxxxxxxx will be providing all the services described herein on behalf of EdPro
and that no other person will supply the services. It is also acknowledged that,
except as otherwise provided herein, Xxxxxxxx will be personally providing all
such services and that Xxxxxxxx shall provide services only to the Company.
C. Pursuant to the terms of the Asset Purchase Agreement, the parties
have agreed to enter into this Consulting Agreement on the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of the premises and covenants, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged and on the terms and subject to the conditions contained herein,
intending to be legally bound, the parties agree as follows:
1. Consulting Relationship. The Company agrees to retain Xxxxxxxx as an
independent consultant to the Company and Xxxxxxxx accepts such retention.
Xxxxxxxx agrees to provide the following services (the "Services") to the
Company, the Purchaser and their subsidiaries:
a. travel to and communicate with current or prospective clients to
handle matters regarding the Business and the Company's capabilities
and ensure an orderly transition of Business for existing customers;
b. assist in communicating the status of the transition to employees of
the Business in coordination with the Company;
c. advise and assist in the development of a detailed integration plan
for the Business, a key component of which will be an operating
budget for the Business;
d. advise and assist in the selection of a lead manager of the Business
if requested to do so by the Company;
e. otherwise provide information and knowledge concerning the Business
and its contracts, operations, and finances; and
f. provide such services during normal business hours and complete
assignments according to a mutually agreeable schedule. Xxxxxxxx
does not have to be physically present at SunTech's offices except
when his presence is necessary to perform the specific services
requested.
In the event that Xxxxxxxx shall become physically or mentally disabled such
that he is incapable of performing the Services for a period in excess of 180
days, the Services may be provided by another person selected by EdPro and
acceptable to the Company in its sole discretion, provided that Xxx Xxxxxxxx
shall be acceptable to the Company.
2. Term of Engagement. The term of this Consulting Agreement shall be
for the initial period commencing on the Closing Date and ending on the second
anniversary of the Closing Date (the "Term"), unless Xxxxxxxx is earlier
terminated as provided in Section 6. This Term may be extended upon the written
agreement of the parties.
3. Compensation. As full compensation for all services to be rendered
by Xxxxxxxx to the Company and its subsidiaries and affiliates in all capacities
during the Term (other than those amounts to which Xxxxxxxx may be entitled by
virtue of the acquisition of the Business pursuant to the Asset Purchase
Agreement), Xxxxxxxx shall receive the following compensation and benefits:
3.1 Fee. The compensation for the services to be rendered hereunder,
which the Company agrees to pay or cause to be paid to Xxxxxxxx and Xxxxxxxx
agrees to accept, shall be (a) $1,350,000 for the period commencing upon the
Closing Date and ending on the first anniversary of such date, and (b)
$1,000,000 for the period commencing on the first anniversary of the Closing
Date and ending upon the second anniversary of such date, in each case payable
quarterly in arrears. Xxxxxxxx shall also be reimbursed for his reasonable and
documented out-of-pocket expenses relating to the provision of services (to the
extent such services are requested by the Company) hereunder. At the sole and
absolute discretion of the Company, $250,000 (the "Escrow Amount") of the
compensation which the Company agrees to pay or cause to be paid for the final
payment to Xxxxxxxx under this Section 3.1(b) shall be (i) placed and held in
escrow on behalf of Xxxxxxxx and SunTech (the "Sellers" and individually, each
"Seller") in accordance with the terms of the Escrow Agreement by and among the
Company, Sellers and Xxxxx Fargo Bank Minnesota, N.A., as escrow agent (the
"Escrow Agent") which Escrow Amount shall be available for Purchaser in the
event that Sellers fail to pay any amounts due as a result of claims for
indemnification pursuant to Section 8(b)(iv) of the Asset Purchase Agreement
("Tax Liability"), (ii) retained by Seller to compensate it for any
out-of-pocket tax liability it has incurred, or (iii) paid to Xxxxxxxx in
accordance with this Consulting Agreement. Xxxxxxxx agrees to include the Escrow
Amount as ordinary income received at the time such amount is paid into escrow.
Any and all interest accrued and paid or dividends or similar return accrued
after payment of expenses incurred in connection with the investment,
reinvestment or sale of the Escrow Amount shall be distributed to Xxxxxxxx, in
each case payable quarterly in arrears. In the event the Escrow Amount is placed
in escrow in accordance with clause (i) above, Purchaser shall instruct the
Escrow Agent to deliver to Xxxxxxxx the remaining Escrow Amount, if any, on
April 15, 2006, except that such Escrow Amount shall be retained by the Escrow
Agent in the event that any Seller, individually or together, or the Company or
any of its affiliates is being audited with respect to the recharacterization by
a governmental authority of any compensation arrangement for services provided
to Sellers (the "Audit"), in which case the Escrow Amount, if any, shall be
delivered to Xxxxxxxx upon resolution of the Audit to the extent there is no
liability on the part of the Company or any of its affiliates, and to the
Company to the extent of any liability on the part of the Company or any of its
affiliates.
3.2 Insurance Coverage. Xxxxxxxx acknowledges that he shall not be an
employee of the Company and will not be entitled to participate in any employee
benefit plans or other benefits or conditions of employment available to the
employees of the Company. In consideration of the foregoing, the Company will
make a one-time, lump sum payment to Xxxxxxxx as soon as practicable after the
execution of this Agreement equal to $25,000, which Xxxxxxxx shall promptly use
to purchase a life and/or disability insurance policy. Taxes. It is intended
that the fees paid and payments made hereunder shall constitute revenues to
Xxxxxxxx. To the extent consistent with applicable law, the Company will not
withhold any amounts therefrom as federal income tax withholding from wages or
as employee contributions under the Federal Insurance Contributions Act or any
other state or federal laws. Xxxxxxxx shall be solely responsible for the
payment of any federal, state or local income or payroll taxes in respect of
amounts paid to Xxxxxxxx hereunder and shall hold the Company, its officers,
directors and employees harmless from any liability arising from Xxxxxxxx'x
failure to make any such payments.
4. Confidential Information
4.1 It is understood that as a result of his prior services to the
Business being acquired by the Company pursuant to the Asset Purchase Agreement,
Xxxxxxxx has been and shall be a consultant to the Company and afforded access
to confidential and/or
proprietary information of the Company. In consideration of the Company's
agreement to acquire the Business and to retain Xxxxxxxx as a consultant and to
continue to make available to him information, including confidential and/or
proprietary information, relating to the Company and the Business, Xxxxxxxx
agrees that any nonpublic information Xxxxxxxx learns or acquires, in whatever
manner and from whatever source, in the course of his involvement with the
Company, whether as a consultant or otherwise, is "Confidential Information"
owned solely by the Company. Confidential Information includes but is not
necessarily limited to: nonpublic information and knowledge pertaining to the
day to day operations of the Business, including price, cost, revenue, profit
and other financial information; data and data compilations; formulas,
processes, techniques, methods of doing business; computer software; research
and development, including negative information; information about and listings
of the Company's affiliates, officers, employees, agents and representatives,
distributors, customers, vendors, competitors, and markets; and information
disclosed to the Company in confidence. Confidential Information does not
include information that is or that becomes generally known within the Company's
line of business. Xxxxxxxx further agrees that any valuable, proprietary
information that provides the Company with a competitive advantage and which the
Company retains as trade secret ("Trade Secret") that Xxxxxxxx learns or
acquires, in whatever manner and from whatever source, in the course of his
involvement with the Company will be maintained by Xxxxxxxx in secrecy in
perpetuity.
4.2 Xxxxxxxx agrees he shall not use the Confidential Information or
Trade Secrets except for the sole benefit of the Company and strictly incidental
to, and solely in furtherance and within the scope of, the Consulting Agreement,
that he shall not, unless required to do so by law, disclose, furnish, divulge,
or otherwise directly or indirectly communicate Confidential Information or
Trade Secrets to any third party without the express prior written consent of
the Chief Executive Officer of the Company, and that he shall take all
reasonable precautions to safeguard the Confidential Information and Trade
Secrets against unauthorized use or disclosure. If reasonable doubt may exist as
to whether particular information is Confidential Information or a Trade Secret
subject to this Section, Xxxxxxxx shall consult with the Chief Executive Officer
of the Company before making any use or disclosure of such information which may
constitute a breach of this Section, and Xxxxxxxx agrees to abide by the
determination of the Chief Executive Officer of the Company. Xxxxxxxx further
agrees to adhere strictly to any of the Company's policies and procedures
regarding the use and protection of Confidential Information.
4.3 Xxxxxxxx agrees that all files, letters, memoranda, reports,
records, data, sketches, drawings, notebooks, program listings or other written,
photographic, electronic, or other tangible documents or material containing
Confidential Information, whether created by Xxxxxxxx or others, either before
the Company acquired the Business from Xxxxxxxx and the corporations he controls
(except as specifically set forth in the Asset Purchase Agreement) or after
which shall come into his custody or possession, shall be and are the exclusive
property of the Company and subject to the terms of this Section 4. Xxxxxxxx
shall immediately return and deliver to the Company, without making or retaining
any copies or derivations, any such documents and things, as well as any
other equipment, supplies or other documents and things owned by the Company
upon either (i) a request by the Company or (ii) termination of Xxxxxxxx'x
status as a consultant of the Company.
5. Discoveries are Property of the Company
5.1 All discoveries, developments, designs, improvements, inventions,
programs, promotional or advertising materials or ideas, processes, techniques,
know-how, data, formulae or other information of possible technical or
commercial importance relating to the Business ("Developments") shall be the
sole property of the Company. The Company shall be the sole owner of all
patents, copyrights, trademarks, trade secrets and other proprietary rights
arising from Developments.
5.2 Xxxxxxxx agrees to assign and does hereby assign to the Company all
Developments that are made or conceived by Xxxxxxxx alone, or with others,
during the term of the Consulting Agreement. Xxxxxxxx agrees to assist the
Company in every necessary way to obtain or enforce any patents, copyrights,
trademarks or any proprietary rights relating to the Developments and to execute
all documents necessary to give the Company full legal ownership to such
Developments, and Xxxxxxxx agrees to continue this assistance after termination
of the Consulting Agreement.
5.3 During the term of the Consulting Agreement, Xxxxxxxx agrees to
report all Developments developed, solely or jointly, for the purpose of
determining the Company's rights in the Developments.
5.4 Xxxxxxxx hereby designates and appoints the Company and its duly
authorized officers and agents as his agents and attorneys-in-fact to execute
and file any certificates, applications or documents and to do all other lawful
acts necessary to protect the Company's rights in the Developments. Xxxxxxxx
expressly acknowledges that the foregoing power of attorney is coupled with an
interest and is therefore irrevocable and shall survive Xxxxxxxx'x death or
incompetency.
6. Termination.
6.1 Termination with Cause. If Xxxxxxxx is convicted of a felony or any
offense involving commission of an act of willful misconduct, fraud or
embezzlement against the Company or any affiliate thereof, or materially
breaches any material affirmative or negative covenants or undertakings
hereunder, provided that the Company shall provide written notice of such breach
and allow Xxxxxxxx ten business days to cure such breach, under the Asset
Purchase Agreement or the Non-competition Agreement dated of even date herewith
between the Company and Xxxxxxxx (the "Non-competition Agreement"), the Company
may at any time by written notice to Xxxxxxxx terminate this Consulting
Agreement immediately and Xxxxxxxx shall have no right to receive any
compensation or benefit hereunder on and after the date of such notice.
6.2 Termination without Cause. Either the Company or Xxxxxxxx may
terminate this Consulting Agreement at any time, with or without cause, upon
written notice to the other party. If the Company terminates this Consulting
Agreement pursuant to this Section 6.2, the Company shall continue to pay to
Xxxxxxxx the amounts provided for in Section 3.1 on the dates on which such
payments would be made had the Consulting Agreement not been so terminated. If
Xxxxxxxx terminates this Consulting Agreement pursuant to this Section 6.2,
Xxxxxxxx shall have no right to receive any compensation or benefit hereunder on
and after the date of such notice.
6.3 Termination on Termination of the Asset Purchase Agreement In the
event that the Asset Purchase Agreement is terminated for any reason
prior to the Closing Date, this Consulting Agreement shall automatically
terminate and be of no force and effect and Xxxxxxxx shall have no right to
receive any compensation or benefit hereunder on and after the date of such
termination.
7. Other Provisions.
7.1 Independent Contractor. Xxxxxxxx shall be deemed for all purposes to
be an independent contractor and not an employee of the Company. Xxxxxxxx will
provide services hereunder as a consultant of EdPro, as referenced in Section B
of the Recitals hereto. Nothing in this Consulting Agreement shall establish an
agency, partnership, joint venture or employee relationship between the Company
and Xxxxxxxx, and Xxxxxxxx shall not be authorized to bind the Company
contractually or otherwise in his capacity as an independent contractor.
7.2 Notices. Any notice or other communication required or which may be
given hereunder shall be in writing and shall be delivered personally, sent by
facsimile or confirmed electronic mail, or sent by certified, registered or
express mail, postage prepaid, to the parties at the following addresses, or at
such other addresses as shall be specified by the parties by like notice, and
shall be deemed given when so delivered personally, sent by facsimile or
confirmed electronic mail, or if mailed, three days after the date of mailing,
as follows:
(i) if to the Company, to:
Collegiate Funding Services, LLC
000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxxxxx, Xxxxxxxx 00000
Attn: J. Xxxxx Xxxxxx, Chief Executive Officer
Fax No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Collegiate Funding Services, LLC
000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Executive Vice President
and General Counsel
Fax No.: (000) 000-0000
(ii) if to Xxxxxxxx, to:
Xx. Xxxxxxx X. Xxxxxxxx
000 Xx. Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
with a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxxxx, Esquire
Wells, Moore, Xxxxxxx & Xxxxxxx, PLLC
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Fax No.: (000) 000-0000
(iii) if to EdPro, to:
EdPro, LLC
c/o Xx. Xxxxxxx X. Xxxxxxxx
000 Xx. Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
7.3 Entire Agreement. This Consulting Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior contracts and other agreements, written or oral, with
respect thereto.
7.4 Waivers and Amendments. This Consulting Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any right, power or privilege hereunder, nor any single or partial exercise
of any right, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder.
7.5 Governing Law; Jurisdiction. This Consulting Agreement shall be
governed by, and construed in accordance with and subject to, the laws of the
Commonwealth of Virginia applicable to agreements made and to be performed
entirely within such Commonwealth. No suit, action or proceeding with respect to
this Consulting Agreement may be brought in any court or before any similar
authority other than (i) a federal court located in the Commonwealth of Virginia
or (ii) if no such court has
jurisdiction over any such suit, action or proceeding, any other court of
competent jurisdiction in the Commonwealth of Virginia. Each of the Parties
submits to the exclusive jurisdiction of such courts in any such suit, action or
proceeding arising out of or relating to this Consulting Agreement and agrees
that all claims in respect of the suit, action or proceeding may be heard and
determined in any such court. Each Party also agrees not to bring any action or
proceeding arising out of or relating to this Consulting Agreement in any other
court. Each of the Parties waives any defense of inconvenient forum to the
maintenance of any suit, action or proceeding so brought and waives any bond,
surety, or other security that might be required of any other Party with respect
thereto.
7.6 Binding Effect; Benefit. This Consulting Agreement shall inure to
the benefit of and be binding upon the parties hereto and any successors and
assigns permitted by Section 7.7 hereof. Nothing in this Consulting Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Consulting Agreement.
7.7 Assignment. Neither the Company nor Xxxxxxxx may assign this
Consulting Agreement, or his or its respective rights and obligations hereunder,
without the consent of the other; provided, however, that (a) the Company may
assign this Consulting Agreement and its rights, together with its obligations,
hereunder in connection with any sale, transfer or other disposition of all or
substantially all of its assets or business, whether by merger, consolidation or
otherwise (provided that the assignee agrees to undertake the obligations of the
Company hereunder) and (b) the Company may assign its rights hereunder to any
person whom the Company may assign its rights (or otherwise acquire the Acquired
Assets) under the Asset Purchase Agreement.
7.8 Survival. Without limiting any other provision of this Agreement,
Xxxxxxxx'x obligations pursuant to Sections 4 and 5 of this Consulting Agreement
shall be obligations of each of Xxxxxxxx individually and EdPro and shall
survive any termination of this Consulting Agreement without limitation in
duration.
7.9 Counterparts. This Consulting Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
7.10 Headings. The headings in this Consulting Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Consulting Agreement.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement as
of the date first above written.
COLLEGIATE FUNDING SERVICES, LLC
By: /s/ J. Xxxxx Xxxxxx
---------------------------
Name: J. Xxxxx Xxxxxx
Title: President
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement as
of the date first above written.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
XXXXXXX X. XXXXXXXX, Individually
EDPRO, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxxx, its sole member
