CONSULTING AGREEMENT
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CONSULTING AGREEMENT dated this 13th day of December 2004 by and among
ProQuest Company (the "Company"), VEL Acquisition Corp., a Texas corporation
("Merger Sub"), Voyager Expanded Learning, Inc., a Texas corporation
("Voyager"), and Xxxxx Xxxx ("Best").
WITNESSETH:
WHEREAS, Best is employed by Voyager as its Chief Executive Officer.
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of
December 13, 2004 ("Merger Agreement"), Voyager will be merged with Merger Sub,
which is an indirect subsidiary of the Company.
WHEREAS, upon the completion of the merger, the parties desire to
terminate Best's employment relationship with Voyager and to enter into a
consulting relationship with the Company and Voyager upon the terms and
conditions set forth in this Consulting Agreement and to bind Best to certain
restrictive covenants in favor of the Company and Voyager as set forth in the
Non-Disclosure, Non-Solicitation and Non-Competition Agreement (the "Non-Compete
Agreement") attached as Exhibit A.
NOW, THEREFORE, in consideration of the mutual premises and agreements
contained herein, and intending to be legally bound hereby, the parties agree as
follows:
1. Effective Date. This Consulting Agreement shall be effective upon
completion of the merger of the Merger Sub with Voyager, which is defined as the
"Effective Time" in the Merger Agreement (the "Effective Date"). Simultaneously
with the execution of this Consulting Agreement, Best shall execute the
Non-Compete Agreement. In the event that the merger does not close by such time
as contemplated by the Merger Agreement, the Consulting Agreement shall
terminate and become void.
2. Consulting Period. The Company and Voyager agree to retain Best as a
consultant to provide the services described in Section 4 below from the
Effective Date until the second anniversary of the Effective Date (the
"Consulting Period"), as provided in this Consulting Agreement, subject to
earlier termination under Section 6 below.
3. Services as a Director. The Company shall endeavor to cause Best to
be nominated as a director of the Company's Board of Directors, and, if elected,
Best will serve as a director for a term of not less than two years. Best shall
receive compensation for services provided as a director as per the Company's
director compensation program as in effect from time to time. Best shall be
required to travel to attend Board meetings, and shall be entitled reimbursement
for travel expenses as per the Company's reimbursement policies applicable to
all directors.
4. Consulting Services. During the Consulting Period, Best shall
perform such duties as reasonably requested by Voyager and the Company
(including--where requested by senior management--attending meetings in person),
including assisting the Company and its senior management in their efforts (a)
to retain and develop client and referral sources, (b) making major sales calls
at the federal, state, and district levels, (c) developing of a "new account"
strategy, (d) developing of a government relations strategy at the federal and
state level, (e) introducing and transiting contacts for Voyager's business and
(f) performing transition and integration services related to the businesses of
the Company and Voyager with Best's named successor at Voyager and the Company's
senior management team as reasonably requested (collectively, the "Consulting
Services"). Best agrees to be available up to eight days per month for the first
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six months of the Term to perform the Consulting Services, and up to sixteen
days every three months during the last eighteen months of the Term to perform
the Consulting Services. The Consulting Services will be performed at such times
as are reasonably requested by the Company after reasonable consultation with
Best. Best shall provide these services in Dallas, Texas, provided that Best
shall be required to travel for business and client meetings as reasonably
requested by the Company.
5. Fees. As compensation for the Consulting Services, the Company or
Voyager shall Best $40,000 per month for the first six months of the Term and
$26,666 per month for the last eighteen months of the Term. Fees shall be paid
monthly in arrears. Best shall provide his own health and other insurance
coverages. Best shall not be entitled to participate, and shall not participate,
in any employee benefit plan providing benefits to Company or Voyager employees,
whether presently in force or adopted subsequent to this Consulting Agreement.
All reasonable and necessary business expenses incurred by Best in the
performance of the Consulting Services shall be promptly reimbursed by the
Company in accordance with the Company's standard expense reimbursement policies
applicable to independent contractors, provided that such expenses are approved
in advance by the Company.
6. Termination. This Consulting Agreement may terminate prior to the
second anniversary of the Effective Date due to any of the events described
below. In the event that this Consulting Agreement terminates under this Section
6, Best shall only be entitled to accrued but unpaid consulting fees under
Section 5 above as of the termination date and compensation attributable to his
services as a director under the Company's director compensation programs.
(a) This Consulting Agreement shall terminate immediately upon
the death of Best.
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(b) The Company may terminate this Consulting Agreement for
any reason upon providing sixty (60) days' advance written notice to Best.
(c) Best may terminate this Consulting Agreement and be
released from providing services to the Company for the remainder of the
Consulting Period only for "Good Reason," which shall be found if, and only if,
the Company engages in a material breach of its obligations under this
Consulting Agreement which is not remedied by the Company within forty five (45)
days after receipt of notice thereof given by Best. Notwithstanding the
foregoing, it is agreed between the parties that "Good Reason" shall include a
change in the management of ProQuest Company that results in Xxxx Xxxxxxxx no
longer being employed by the Company. A termination of this Consulting Agreement
by Best for "Good Reason" under this Section 6(c) shall be accomplished by
giving the Company's Chief Executive Officer, General Counsel and Senior Vice
President of Human Resources written notice of the termination, setting forth in
reasonable detail the specific conduct of the Company that constitutes Good
Reason. An event shall not be deemed to constitute Good Reason if Best fails to
deliver such notice of termination for Good Reason within twenty days of Best's
actual knowledge of such event.
7. Status. Best acknowledges and agrees that his status at all times
during the Consulting Period shall be that of an independent contractor, and
that he may not, at any time, act as a representative for or on behalf of the
Company or Voyager for any purpose or transaction, and may not bind or otherwise
obligate the Company or Voyager in any manner whatsoever without obtaining the
prior written approval of an authorized representative of the Company or
Voyager. Best hereby waives any rights to be treated as an employee or deemed
employee of the Company or any of its affiliates for any purpose following his
termination of employment at the Effective Date. The parties hereby acknowledge
and agree that the compensation provided for in Section 5 shall represent fees
for Best's Consulting Services as an independent contractor, and shall be paid
without any deductions or withholdings for taxes. Best further acknowledges that
the Company and Voyager make no warranties as to any tax consequences regarding
payment of compensation under this Consulting Agreement, and specifically agrees
that the determination of any tax liability or other consequences of the payment
set forth above is his sole and complete responsibility and that Best will pay
all federal, state and local taxes, if any, assessed on such payments.
8. Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Texas, excluding any conflicts or choice of law rule or principle that might
otherwise refer construction or interpretation of this Consulting Agreement to
the substantive law of another jurisdiction.
9. Assignability. Best may not assign or transfer this Consulting
Agreement or any of Best's rights, duties or obligations hereunder. The Company,
Voyager or both may assign this Consulting Agreement to any affiliate thereof or
to any person or entity acquiring all or substantially all of the assets (by
merger or otherwise) of the Company, Voyager or any such affiliate so long as
such person, entity or affiliate assumes the Company's obligations hereunder.
10. Entire Agreement. This Consulting Agreement and the Non-Compete
Agreement constitute the full and complete understanding and agreement of the
parties hereto with respect to engaging Best as a consultant to the Company and
Voyager. This Consulting Agreement may not be changed or amended orally, but
only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought. (a) Notice. All
notices, requests and other communications to any party hereunder shall be in
writing (including facsimile transmission) and shall be given,
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if to the Company or Voyager, to:
ProQuest Company
000 X. Xxxx Xx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
XxXxxxxxx, Will & Xxxxx LLP
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, P.C.
Facsimile: (000) 000-0000
if to Best, to:
R. Best Associates, Inc. 0000 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxx,
Xxxxx 00000 Attention: Xxxxx Xxxx Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Carrington, Coleman, Xxxxxx & Xxxxxxxxxx, L.L.P.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx Xxxxx, 00000
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5 p.m. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
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11. Divisibility. If any one or more of the provisions of this
Consulting Agreement or any application thereof shall be invalid, illegal or
unenforceable in any respect, the validity, legality or enforceability of the
remaining provisions and other application thereof shall not in any way be
affected or impaired.
12. Survival. All of the Company's and Best's obligations hereunder
shall survive the termination of this Consulting Agreement.
13. Counterparts. This Consulting Agreement may be executed in
counterparts, each of which shall be deemed an original, all of which shall
together constitute one and the same Consulting Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed this Consulting
Agreement as of the day and year first above written.
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
PROQUEST COMPANY
/s/ Xxxx Xxxxxxxx
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By: Xxxx Xxxxxxx
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Its: Chief Executive Officer
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VOYAGER EXPANDED LEARNING, INC.
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By:
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Its:
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VEL ACQUISITION CORP.
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By:
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Its:
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