Exhibit 10.19
CONSULTING SERVICES AGREEMENT
The following confirms the agreement (the "Agreement") between NOBS
Capital Ventures, L.L.C. (the "Consultant") and CFSL Holdings Corp. (together
with its subsidiaries, the "Company") with respect to the provision of
consulting services to the Company.
1. Term of Agreement. This Agreement is effective as of the closing of the
transactions contemplated in the Purchase Agreement, dated April 15, 2002, by
and among the Company, the Consultant, Collegiate Funding Services, L.L.C., The
▇▇▇▇▇▇▇ Group, Inc., ▇▇▇▇▇ ▇▇▇▇▇ and the additional sellers named therein (the
"Effective Date") and will terminate on the date two years after the Effective
Date, unless terminated earlier pursuant to Paragraph 12 of this Agreement;
provided, however, the term may be extended for an additional period of one year
commencing on the second anniversary of the Effective Date, and on each
subsequent anniversary thereafter, by written agreement of the Consultant and
the Company. The last day of such term as may be extended from time to time
shall be the "Termination Date."
2. Independent Contractor Status. It is the express intention of the
parties to this Agreement that the Consultant and all individuals performing
Services on behalf of the Consultant under this Agreement as set forth in
Section 3 below ("Representatives"), are independent contractors, and are
classified by the Company as such for all employee benefit purposes, and are not
employees, agents, joint venturers, or partners of the Company. Nothing in this
Agreement shall be interpreted or construed as creating or establishing an
employment relationship between the Company and the Representatives. Both
parties understand and agree that the Consultant and the Representatives may,
and probably will (subject to Section 9 hereof), perform services for others
during the term of this Agreement.
3. Services. Consultant agrees to render consulting services (the
"Services") to the Company for the term of this Agreement. The Services shall
include, but are not limited to, those duties set forth in Exhibit A hereto.
Consultant hereby agrees that such Services will be performed solely by ▇▇▇▇▇
▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇, as requested by the Company.
4. Employment of Representatives. If the Consultant, with the Company's
consent pursuant to Section 3 above, deems it necessary to employ the
Representatives to aid it in the performance of the Services, the parties agree
that the Company will not direct, supervise, or control in any way the
Representatives in their performance of Services. The parties further agree that
such Representatives are employed solely by the Consultant, and that it alone is
responsible for providing workers' compensation insurance for its
Representatives, for paying the salaries and wages of the Representatives, and
for ensuring that all required tax withholdings are made. Consultant further
represents and warrants that it will maintain workers' compensation insurance
coverage for the Representatives and acknowledges that it alone has
responsibility for such coverage.
5. Obligations of the Consultant.
a. The Consultant will supply all tools and equipment necessary to
perform the Services.
b. Consultant is solely responsible for all taxes, withholdings, and
other similar statutory obligations; and Consultant and the Representatives
agree to defend, indemnify and hold Company harmless from any and all claims
made by the Representatives or any entity or governmental agency on account of
an alleged failure by the Consultant to satisfy any such tax or withholding
obligations.
c. Since neither the Consultant nor the Representatives are
employees of Company, Consultant agrees and understands that neither it nor the
Representatives are entitled to any of the benefits which the Company may make
available to its employees, such as group insurance, workers' compensation,
disability insurance, vacation, sick pay, profit-sharing, stock options, or
retirement benefits. In addition, Consultant shall be responsible for providing,
at its expense and in its name or in the names of its Representatives,
disability, workers' compensation or other insurance as well as any and all
licenses and permits usual or necessary for conducting the Services described in
this Agreement.
d. Consultant will be responsible for all travel and other expenses
incurred in connection with this Agreement; provided however, if travel is
performed or other expenses incurred pursuant to the Company's prior written
request, Consultant shall be reimbursed for reasonable expenses incurred,
including, approved in advance by the Company, the use of Consultant's plane at
an hourly rate of $1,750 and such additional amount approved in advance by the
Company, upon submission and verification of customary receipts and vouchers.
6. Reporting to the Company's Facilities. The Representatives are not
required to report to work at the offices of the Company during any particular
work hours. Rather, the Representatives are free to report or not report to the
Company's offices at their discretion except when necessary to fulfill
Consultant's duties.
7. Consulting Fees. In consideration for the performance of the Services,
Consultant shall be paid $2,000,000, payable in $250,000 quarterly installments
over the Term of this Agreement and payable via wire transfer to an account
specified in writing by the Consultant ("Consulting Fees").
8. Confidential Information. Consultant understands that the Company
possesses Confidential Information as defined below which is important to its
business and that this Agreement creates a relationship of confidence and trust
between Consultant, the Representatives and the Company with regard to
Confidential Information.
a. For purposes of this Agreement, "Confidential Information" is
information that was or will be developed, created, or discovered by or on
behalf of the Company, or is developed, created or discovered by the
Representatives while performing Services. "Confidential Information" includes,
but is not limited to, trade secrets, computer programs, ideas, techniques,
inventions (whether patentable or not), business and product development plans,
customers and other information concerning the Company's actual or anticipated
business, research or development, personnel information, Inventions (as defined
in subsection e below), or which is received in confidence by or for the Company
from any other person. "Confidential Information" excludes such information that
(i) is or becomes publicly known or enters the public domain without violating
Consultant's obligations of confidentiality and nondisclosure,
(ii) was available to Consultant prior to its disclosure to Consultant by the
Company, (iii) becomes available to Consultant from a source other than the
Company, provided that such source is not known by Consultant to be subject to
another confidentiality agreement with the Company or (iv) has been or is
subsequently independently conceived or discovered by Consultant or any of its
affiliates or employees without reliance on material provided to Consultant by
the Company. If Consultant is required to disclose any Confidential Information
by law or regulation, Consultant will notify the Company promptly of such
requirement so that the Company may, with the reasonable assistance of
Consultant, seek an appropriate protective order.
b. For a period of five years from the Effective Date, Consultant
will keep and will cause its Representatives to keep in confidence and trust,
and will not use or disclose, any Confidential Information without the prior
written consent of an executive officer of the Company, except as may be
necessary in the ordinary course of performing the Services under this
Agreement.
c. Consultant understands that the Company possesses or will possess
"Company Documents" which are important to its business. For purposes of this
Agreement, "Company Documents" are documents or other media that contain or
embody Confidential Information or any other information concerning the
business, operations or plans of the Company, whether such documents have been
prepared by the Representatives or by others. "Company Documents" include, but
are not limited to, blueprints, drawings, photographs, charts, graphs,
notebooks, customer lists, computer disks, personnel files, tapes or printouts,
sound recordings and other printed, typewritten or handwritten documents. All
Company Documents are and shall remain the sole property of the Company.
Consultant agrees not to remove nor to permit the Representatives to remove any
Company Documents from the business premises of the Company or deliver any
Company Documents to any person or entity outside the Company, except as
required to do in connection with performance of the Services under this
Agreement. Consultant further agrees that, immediately upon the Company's
request and in any event upon completion of the Services, Consultant shall
deliver or cause the Representatives to deliver to the Company all Company
Documents, apparatus, equipment and other physical property or any reproduction
of such property, excepting only Consultant's copy of this Agreement.
d. Consultant will promptly disclose in writing to the Company all
"Inventions" (which term includes improvements, inventions, designs, formulas,
works of authorship, trade secrets, technology, mask works, circuits, layouts,
algorithms, computer programs, ideas, processes, techniques, know-how and data,
whether or not patentable) made or conceived or reduced to practice or developed
by Consultant or the Representatives, either alone or jointly with others,
during the term of this Agreement in connection with the Services or which
relate to any Confidential Information.
e. All Confidential Information and all title, patents, patent
rights, copyrights, mask work rights, trade secret rights, and other
intellectual property and rights anywhere in the world (collectively "Rights")
in connection therewith shall be the sole property of the Company. Consultant
hereby assigns to the Company any Rights Consultant or the Representatives may
have or acquire in such Confidential Information.
f. Consultant agrees that all Inventions which Consultant or the
Representatives make, conceive, reduce to practice or develop (in whole or in
part, either alone or jointly with others) during the term of this Agreement in
connection with the Services or which relate to any Confidential Information
shall be the sole property of the Company. Consultant agrees and hereby assigns
and will cause the Representatives to assign to the Company all Rights to any
such Inventions.
g. Consultant agrees to perform and to cause the Representatives to
perform, during and after the term of this Agreement, all acts deemed necessary
or desirable by the Company to permit and assist it in evidencing, perfecting,
obtaining, maintaining, defending and enforcing Rights and/or Consultant's or
the Representative's assignment with respect to such Inventions in any and all
countries. Such acts may include, but are not limited to, execution of documents
and assistance or cooperation in legal proceedings. Any reasonable fees or
expenses incurred by the Consultant pursuant to this Section 8(g), if approved
in advance, shall be reimbursed by the Company.
h. Consultant represents that performance of all the terms of this
Agreement will not breach any agreement to keep in confidence Confidential
Information acquired by Consultant in confidence or in trust prior to the
execution of this Agreement. Consultant has not entered into, and Consultant
agrees not to enter into, any agreement either written or oral that conflicts or
might conflict with Consultant's performances of the Services under this
Agreement.
i. If any Rights or Inventions assigned hereunder are based on, or
incorporate, or are improvements or derivatives of, or cannot be reasonably
made, used, reproduced and distributed without using or violating technology or
Rights owned or licensed by Consultant or the Representatives and not assigned
hereunder, Consultant hereby grants the Company and agrees to cause the
Representatives to grant perpetual, worldwide royalty-free, non-exclusive
sublicensable right and license to exploit and exercise all such technology and
Rights in support of the Company's exercise or exploitation of any assigned
Rights or Inventions (including any modifications, improvements and derivatives
thereof).
9. Competition. Until the later of the Termination Date or two years from
the Effective Date, Consultant agrees that it will not and will not permit any
of the Representatives to, without Buyer's and the Company's prior written
consent, directly or indirectly own, have an interest in (other than as a less
than 5% equity owner of any company traded on any national stock exchange or
over-the-counter market), operate, join, control, promote, or participate in, or
be connected with as an director, officer, employee, partner, member, manager,
proprietor, consultant, advisor, agent, independent contractor or otherwise
with, any business that directly or indirectly competes anywhere within the
United States with the Business (as defined in the Purchase Agreement) in any
way.
10. Non-Solicitation. During the period described in Section 9, Consultant
agrees that it will not and will not permit any of the Representatives to (i)
solicit, hire, employ or retain, or, cause or assist any other person or entity
to solicit, hire, employ or retain, any person who is an employee or consultant
of the Company or who was employed or retained by the Company at any time during
the 12-month period prior to the Effective Date (other than ▇▇▇▇▇ ▇▇▇▇▇) or (ii)
solicit, interfere with, or endeavor to entice away from the Company, any
principal, salesperson,
customer, active lead or prospect, supplier, bank lender
or other person with whom the Company, during such 12-month period, has or has
had an introduction, lead, relationship, understanding, proposed lending
relationship or arrangement. In addition, during the period covered by the
period described in Section 9 hereof, Consultant agrees that it shall not and
shall not permit any of its Representatives to directly or indirectly disparage
the Company, or their respective affiliates and employees. The Company agrees
that it shall not, and it shall not permit any of its directors, officers or
employees, and its affiliates, to directly or indirectly disparage the
Consultant or the Representatives.
11. Reasonableness and Judicial Modification. The parties agree that the
periods of time and the geographic area applicable to the covenants of Sections
9 and 10 hereof are reasonable, in view of the geographic scope and nature of
the Business and in view of Consultant's knowledge of the Business. However, if
any of the covenants contained in Sections 9 and 10 shall be deemed by any
applicable court to be unenforceable by reason of the extent, duration or
geographical scope thereof, or otherwise, then the parties agree that such court
shall modify such restriction, only to the extent necessary to render it
enforceable and, in its reduced form, such restrictions shall then be enforced,
and in its reduced form, this Sections 9 and 10 shall be enforceable in the
manner contemplated hereby.
12. Termination of Agreement. This Agreement may be terminated by the
Consultant, for any reason, without cause, at any time prior to the Termination
Date by giving fifteen (15) days' written notice of termination, and by the
Company for Cause at any time prior to the Termination Date by giving five (5)
days' written notice of termination. "Cause" means (a) the Consultant's or any
Representative's act or acts amounting to gross negligence to the detriment of
the Company; (b) the Consultant's or a Representative's fraud or embezzlement of
funds or property; or (c) the Consultant's or a Representative's material breach
of any covenant, condition or provision of this Agreement; provided, however,
where such breach is capable of remedy, such breach is not remedied within
fifteen (15) business days after notice of such breach is given to the
Consultant by the Company, describing the breach in reasonable detail. Upon such
termination either by the Consultant, without cause or by the Company for Cause,
the Consultant shall only be entitled to receive in a lump sum cash payment as
soon as practicable after the Termination Date an amount equal to the portion of
the Consulting Fees (as set forth in Section 7) accrued to the Termination Date
but unpaid as of the Termination Date. Thereafter, no further amounts shall be
paid to the Consultant pursuant to this Agreement.
13. Liquidated Damages. Consultant expressly acknowledges that the
covenants contained in Sections 8, 9 and 10 of this Agreement are essential to
the Agreement and are included as an inducement for the Company to retain the
Consultant and the Representatives pursuant to this Agreement. Consultant
further acknowledges that any breach of any of the provisions of Sections 8, 9,
or 10 of this Agreement may result in significant and continuing injury to the
Company, the monetary value of which would be impossible to establish.
Therefore, if Consultant or any of the Representatives breaches the terms of
Sections 8, 9 or 10 of this Agreement, in addition to any other legal and
equitable remedies the Company may have, Consultant will pay or will cause the
Representatives to pay to the Company, an amount equal to 25% of the Consulting
Fees previously paid to Consultant pursuant to Section 7 of this Agreement.
14. Governing Law. Consultant agrees that any dispute in the meaning,
effect, or validity of this Agreement shall be resolved in accordance with the
laws of the State of New York without regard to the conflict of laws provisions
thereof (other than Section 5-1401 and Section 5-1402 of the General Obligations
Law of the State of New York).
15. Assignment. This Agreement shall not be assignable by either the
Consultant or the Company without the express written consent of the other
party.
16. Consent to Jurisdiction. Each of the parties hereto irrevocably
submits to the jurisdiction of the United States District Court for the Southern
District of New York, for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby. Each of
the parties hereto further agrees that service of any process, summons, notice
or document by U.S. registered mail to such party's respective address set forth
above shall be effective service of process for any action, suit or proceeding
in the United States District Court for the Southern District of New York with
respect to any matters to which it has submitted to jurisdiction in this Section
16. Each of the parties hereto irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in the United States
District Court for the Southern District of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
17. Entire Agreement. This Agreement along with the Exhibit attached
hereto, contains the entire agreement and understanding among the parties hereto
with respect to the subject matter hereof and supersede all prior agreements and
understandings relating to such subject matter. No party shall be liable or
bound to any other party in any manner by any representations, warranties or
covenants relating to such subject matter except as specifically set forth
herein. This Agreement contains the entire understanding of the parties
regarding its subject matter and can only be modified by a subsequent written
agreement executed by the Consultant and the Company.
18. Notices. All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be delivered by hand or sent by
facsimile or sent, postage prepaid, by registered, certified or express mail or
reputable overnight courier service and shall be deemed given when so delivered
by hand or facsimile, or if mailed, three days after mailing (one Business Day
in the case of express mail or overnight courier service), as follows:
a. To Company:
CFSL Holdings Corp.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
1290 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
b. To Consultant:
NOBS Capital Ventures, L.L.C.
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
19. Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs, and necessary disbursements, in
addition to any other relief to which the party may be entitled.
20. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other party.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement.
CFSL HOLDINGS CORP. NOBS CAPITAL VENTURES, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: CAO -------------------
Name:
Title:
Dated: May 17, 2002
Dated: May 17, 2002
The undersigned hereby approve, accept and agree to be bound by the provisions
of this Agreement, including, without limitation, the indemnification provisions
contained in Section 5, the covenants contained in Sections 8, 9 and 10, and the
liquidated damages provision contained in Section 13.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ ------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
EXHIBIT A
SERVICES
Consultant or the Representatives shall provide the Company such
consulting services as the Company may reasonably request, including responding
to the inquiries of the Company's management and the board, attending
semi-annual advisory committee meetings, participating in strategic planning and
budgeting, and/or other transition matters relating to the acquisition of CFS.
Consultant or the Representatives shall report to the Company and upon the
request of the Company, attend Company meetings in person or by telephone.
Exhibit A-1