UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 23,
2018
Navient Corporation
(Exact name of registrant as specified in its charter)
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Delaware
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001-36228
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46-4054283
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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123 Justison Street, Wilmington, Delaware
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19801
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code:
(302) 283-8000
Not Applicable
(Former name or former address, if changed since last
report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
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Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
☐
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this
chapter).
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Emerging
growth company
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange
Act. ☐
ITEM 5.02
DEPARTURE
OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS;
APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENT OF
CERTAIN OFFICERS
As
previously reported by Navient Corporation (“Navient”
or the “Company”) in a Current Report on Form 8-K filed
with the Securities and Exchange Commission on May 23, 2018 (the
“Initial Form 8-K”), Navient announced that John F.
(Jeff) Whorley Jr., its Group President, Asset Management and
Servicing, will depart the Company to join First Data Management
(“First Data”) in conjunction with First Data’s
acquisition of Navient’s student loan technology platform.
This Current Report on Form 8-K/A is being filed as an amendment to
the Initial Form 8-K to provide the material terms of the
separation agreement between the Company and Mr.
Whorley.
On July 17,
2018, the Company entered into a Letter Agreement
(“Agreement”) with Mr. Whorley setting forth the terms
of his departure. In exchange for Mr. Whorley’s agreeing to a
general release and certain post-employment restrictions, the
Company has agreed to pay Mr. Whorley a 2018 annual cash incentive
bonus equal to 150% of his current base salary (i.e., an annual
incentive bonus assuming target performance) reduced on a pro-rated
basis to reflect the number of days he was employed with the
Company during 2018. In addition, for purposes of any outstanding
equity awards granted to Mr. Whorley pursuant to the Navient
Corporation 2014 Omnibus Incentive Plan, the Company has agreed
that such awards will remain outstanding and continue to vest and
become payable pursuant to their respective terms. Finally, Mr.
Whorley has agreed that his departure from the Company will not
entitle him to any severance payments or benefits under the Navient
Corporation Executive Severance Plan for Senior
Officers.
The
description of the Agreement included in this Current Report is
qualified in its entirety by the terms of the Agreement which is
attached and incorporated herein as Exhibit 10.01.
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(d) Exhibits
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Exhibit
Number
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Description
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
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NAVIENT CORPORATION
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Date:
July 20, 2018
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By:
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/s/
Mark L. Heleen
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Mark
L. Heleen
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Chief
Legal Officer
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11100 USA Parkway
Fishers, IN 46037
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July
13, 2018
John F.
(Jeff) Whorley
Dear
Jeff:
In
connection with the transaction (the “Transaction”)
contemplated by the Asset Purchase Agreement entered into by and
between Navient Solutions, LLC (the “Company”), a
wholly owned subsidiary of Navient Corporation
(“Navient”), and First Data Resources, LLC (the
“Purchase Agreement”), you have indicated your
intention to seek employment with First Data Corporation
(“First Data”) on or following the Closing (as defined
in the Purchase Agreement) of the Transaction, pursuant to the
terms and conditions mutually agreed upon by you and First Data.
Your last day of employment with the Company (and any other
subsidiary or affiliate of Navient) is referred to herein as the
“Separation Date.” The purpose of this letter (this
“Letter Agreement”) is to confirm our mutual agreement
that, in connection with the Transaction and subject to the
Closing, your employment with the Company (and any other subsidiary
or affiliate of Navient) will terminate effective as of the
Separation Date and set forth certain terms and conditions of your
termination of employment.
Subject
to the Closing, your last day of employment with the Company (and
any other subsidiary or affiliate of Navient) will be the
Separation Date and you will be paid for all time worked up to and
including the Separation Date. Your eligibility to participate in
all Navient-sponsored employee benefit plans will end effective on
the Separation Date or such other date as may be set forth in such
plans.
If you
sign this Letter Agreement and, on or after the Separation Date, a
Separation and Release Agreement substantially in the form attached
hereto as Exhibit
A, agreeing to be bound by the general release and other
terms and conditions in the Separation and Release Agreement, then
Navient agrees to provide to you the following (the
“Consideration”):
●
Navient will pay
you an annual cash incentive bonus under the Navient 2018
Management Incentive Plan equal to 150% of your base salary (i.e.,
an annual incentive bonus based on target performance) reduced on a
pro-rated basis to reflect the number of days you are employed with
the Company (and any other subsidiary or affiliate of Navient) in
2018.
●
Solely for purposes
of your outstanding equity awards granted under the Navient
Corporation 2014 Omnibus Incentive Plan, as amended from time to
time, your termination will be treated as an involuntary
termination of employment for reasons other than cause, and the
aforementioned equity awards will remain outstanding and continue
to vest and become payable pursuant to their terms.
Please
note that you will not be eligible for the Consideration until
Navient has received an executed copy of the Separation and Release
Agreement, and you have not revoked the Separation and Release
Agreement as set forth therein. You acknowledge and agree that your
termination of employment shall not constitute an involuntary
termination event under the Navient Corporation Executive Severance
Plan for Senior Officers and you therefore will not be entitled to
any severance payments or benefits thereunder.
Please
acknowledge your agreement to the terms of this Letter Agreement by
signing below and returning this Letter Agreement to me no later
than July 18, 2018. Should you have any additional questions
regarding the foregoing, please do not hesitate to contact
me.
Sincerely,
/s/ John Kroehler
Jon
Kroehler
Chief
Human Resources Officer
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AGREED
AND ACCEPTED:
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/s/
John F. (Jeff) Whorley Jr.
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Date:
July 17, 2018
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John F.
(Jeff) Whorley, Jr.
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Exhibit A
SEPARATION AND RELEASE AGREEMENT
This
Separation and Release Agreement (this “Agreement”) is
entered into as of the date set forth on the signature page below
(the “Execution Date”), by and between John F. (Jeff)
Whorley, Jr. (“you”) and Navient Corporation, its
subsidiaries, predecessors, and affiliates (collectively, the
“Company”).
WHEREAS, you have
agreed to employment with First Data Corporation or an affiliated
company (“First Data”), pursuant to terms and
conditions mutually agreed upon between you and First
Data;
WHEREAS, in
connection with your employment with First Data, you and the
Company have mutually agreed that your employment with the Company
will terminate effective July 22, 2018 (the “Separation
Date”);
WHEREAS, you and
the Company entered that certain letter agreement dated July 13,
2018 (the “Letter Agreement”), which set forth the
general terms of your termination of employment with the Company
and required that you enter into this Agreement;
WHEREAS, you and
the Company desire to enter into this Agreement to set forth the
terms and conditions of the termination of your employment with the
Company, including the release and other terms required by the
Letter Agreement; and
WHEREAS, you may
consider for twenty-one (21) days whether you wish to sign this
Agreement and you are advised to review this Agreement with your
attorney.
NOW
THEREFORE, in consideration of the mutual promises set forth in
this Agreement and of other good and valuable consideration the
sufficiency of which you acknowledge, and intending to be legally
bound hereby, you and the Company agree as follows:
1. General Terms of Separation.
Your last day of employment with the Company will be the Separation
Date and you will be paid for all time worked up to and including
the Separation Date. Your eligibility to participate in all
Company-sponsored plans that are governed by Employee Retirement
Income Security Act or 1974, as amended (“ERISA”) will
end effective on the Separation Date or such other date as may be
set forth in such plans. You acknowledge and agree that your
termination of employment shall not constitute an involuntary
termination event under the Company’s Executive Severance
Plan for Senior Officers and you therefore will not be entitled to
severance thereunder.
2. Consideration. If you sign (and
do not revoke) this Agreement, agreeing to be bound by the general
release in Paragraph 3 below, including the other terms and
conditions of this Agreement described below, the Company agrees to
provide the following (the “Consideration”): (a) the
Company will pay you an annual cash incentive bonus under the
Navient 2018 Management Incentive Plan equal to 150% of your base
salary (i.e., an annual incentive bonus based on target
performance) reduced on a pro-rated basis to reflect the number of
days you are employed with the Company in 2018, payable in a lump
sum within thirty (30) days of the Separation Date; and (b) the
Company will treat your termination as an involuntary termination
of employment for reasons other than cause such that all of your
outstanding equity awards granted under the Navient Corporation
2014 Omnibus Incentive Plan, as amended from time to time, will
remain outstanding and continue to vest and become payable pursuant
to their terms. You will not be eligible for the Consideration
described in this Paragraph 2 until the Company has received an
executed copy of this Agreement and you have not revoked this
Agreement as set forth
in Paragraph 13.
3. General Release. In exchange
for the Consideration, you hereby waive all claims available under
federal, state or local law against the Company (including its
subsidiaries, affiliates and assigns) and the directors, officers,
employees, employee benefit plans and agents of the Company (and
its subsidiaries, affiliates and assigns) arising out of your
employment with the Company or the termination of that employment,
including but not limited to all claims arising under the Americans
with Disabilities Act, the Civil Rights Act of 1991, the Employee
Retirement Income Security Act, the Equal Pay Act, the Genetic
Information Non-discrimination Act, the Family and Medical Leave
Act, Section 1981 of U.S.C, Title VII of the Civil Rights Act, the
Indiana Civil Rights Act, the Indiana Wage Discrimination Law, the
Indiana Employment Discrimination Against Disabled Persons Law, the
Indiana Equal Pay Law, the Indiana Military Leave Family leave Act,
the Indiana Blacklisting Statute, the Indiana Off Duty Use of
Tobacco by Employees Law, the Indiana Age Bias Law, the Indiana
False Claims and Whistleblower Protection Statute, the Indiana Wage
Payment and Wage Claims Act, the Indiana Minimum Wage Law, as well
as wrongful termination claims, breach of contract claims,
discrimination claims, harassment claims, retaliation claims,
whistleblower claims (to the fullest extent they may be released
under applicable law), defamation or other tort claims, and claims
for attorneys’ fees and costs. You are not prohibited from
making or asserting and you are not waiving: (i) your rights under
this Agreement; (ii) any claims for unemployment compensation,
workers’ compensation or state disability insurance benefits
pursuant to the terms of applicable state laws; (iii) any claim for
vested benefits under any Company-sponsored retirement or welfare
benefit plan; and (iv) any other right that may not be released
under applicable law. You acknowledge that you have not made any
claims or allegations related to sexual harassment or sexual abuse
and none of the payments set forth in this Agreement are related to
sexual harassment or sexual abuse.
4. Reports to Government Entities.
Nothing in this Agreement, restricts or prohibits you from
initiating communications directly with, responding to any
inquiries from, providing testimony before, providing confidential
information to, reporting possible violations of law or regulation
to, or from filing a claim or assisting with an investigation
directly with a self-regulatory authority or a government agency or
entity, including the U.S. Equal Employment Opportunity Commission,
the Department of Labor, the National Labor Relations Board, the
Department of Justice, the Securities and Exchange Commission, the
Congress, and any agency Inspector General (collectively, the
“Regulators”), or from making other disclosures that
are protected under the whistleblower provisions of state or
federal law or regulation. However, you are waiving your right to
receive any individual monetary relief resulting from such claims,
regardless of whether you or another party has filed them, and in
the event you obtain such monetary relief the Company will be
entitled to an offset for the payments made pursuant to this
Agreement, except where such limitations are prohibited as a matter
of law (e.g., under the Sarbanes-Oxley Act of 2002, 18 U.S.C.A.
§§ 1514A). This Agreement does not limit your right to
receive an award from any Regulator that provides awards for
providing information relating to a potential violation of law. You
do not need the prior authorization of the Company to engage in
such communications with the Regulators, respond to such inquiries
from the Regulators, provide confidential information or documents
to the Regulators, or make any such reports or disclosures to the
Regulators. You are not required to notify the Company that you
have engaged in such communications with the
Regulators.
5. Confidentiality, Intellectual
Property, Non-Competition, and
Non-Solicitation.
(a) Except
as required or permitted by statute, regulation, court order or the
Asset Purchase Agreement by and between Navient Solutions, LLC and
First Data Resources, LLC dated April 4, 2018 (the “First
Data Agreement”), or pursuant to written consent given by
Navient’s Chief Legal Officer, you agree not to disclose to
anyone else any of the information or materials which are
proprietary or trade secrets of the Company or are otherwise
confidential. In addition, you hereby acknowledge that you
previously signed an Agreement Regarding Confidentiality,
Intellectual Property and Non-Solicitation in June 2015, and that
you continue to be bound by the terms of that agreement (the
“IP Agreement”), the purpose of which is to protect to
the maximum extent permitted by law the Company’s protectable
business interests, except as modified in this Paragraph 5. You
understand that you shall not be held criminally or civilly liable
under any federal or state trade secret law for the disclosure of a
trade secret that is made (i) in confidence to a federal, state, or
local government official, either directly or indirectly, or to an
attorney, and solely for the purpose of reporting or investigating
a suspected violation of law; or (ii) is made in a complaint or
other document filed in a lawsuit or other proceeding, if such
filing is made under seal.
(b) In
exchange for the Consideration, you agree as follows: You shall
not, directly or indirectly, compete with the Company for a period
of twelve (12) months after your Separation Date (“Restricted
Period”). For the purposes of this Paragraph 5(b), and
except as provided below, “compete” means working or
serving in any capacity in which you would engage in similar work
or activities as you did for the Company, including but not limited
to working or serving as a director, officer, employee, consultant,
agent, representative, or in any other capacity, with or without
compensation, on behalf of one or more entities engaged in any
business similar to the type of business conducted by the Company
at the time your employment with the Company terminated. For
purposes of this Paragraph 5(b), and except as provided below,
businesses similar to the type of business conducted by the Company
include, but are not limited to, (i) loan management; (ii) loan
servicing; (iii) asset recovery services, including debt collection
and default prevention services for government and non-government
entities; (iv) business process servicing on behalf of
municipalities, public authorities and hospitals; and (v) any other
business substantially similar to that in which the Company is
engaged at the time of your termination.
Notwithstanding the
foregoing, your employment by First Data will be excepted from the
foregoing non-competition restrictions to the extent your
responsibilities during the Restricted Period are limited to the
development, operation and marketing of (i) the student loan
processing platform conveyed pursuant to the First Data Agreement,
and/or (ii) other loan processing platforms owned by First Data, in
either case subject to the confidentiality and other provisions set
forth in Paragraph 5(a) above. The Company will consider additional
exceptions to the non-competition restrictions in this Agreement
(e.g., future joint ventures between the Company and First Data) on
a case-by-case basis. Requests for exceptions must be provided in
writing to the Company’s Chief Human Resources
Officer.
(c) Except
as provided below, you further agree that during the Restricted
Period you shall not solicit or encourage any employee with whom
you communicated within the last year of your employment to leave
the employ of the Company, or hire any such employee. The foregoing
employee non-solicitation restrictions shall not apply with respect
to those employees of the Company who (i) receive and accept offers
of employment by First Data pursuant to the First Data Agreement,
or (ii) may be hired by First Data in response to general
employment advertisements/solicitations pursuant to the terms of
the First Data Agreement. For the avoidance of doubt, the
provisions of this Paragraph 5(c) shall supersede any similar
non-solicitation restrictions in the IP Agreement.
(d) Except
as provided below, you further agree that during the Restricted
Period you shall not, directly or indirectly, contact or accept
business that the Company could otherwise perform from any of the
Company’s customers or prospective customers with whom you
communicated within the last two (2) years of your employment. For
the purposes of this Paragraph 5(d), “business that the
Company could otherwise perform” includes, but is not limited
to, (i) loan management; (ii) loan servicing; (iii) asset recovery
services, including debt collection and default prevention services
for government and non-government entities; (iv) business process
servicing on behalf of municipalities, public authorities and
hospitals; and (v) any other business substantially similar to that
in which the Company is engaged at the time of your termination.
Notwithstanding the foregoing, the provisions of this Paragraph
5(d) shall not apply to business solicitations on behalf of First
Data for student loan servicing and other business processing
services, provided that such services are delivered by utilizing
(i) the student loan processing platform conveyed pursuant to the
First Data Agreement, and/or (ii) other loan processing platforms
owned by First Data. For the avoidance of doubt, the provisions of
this Paragraph 5(d) shall supersede any similar non-solicitation
restrictions in the IP Agreement.
(e) You
expressly agree that the markets served by the Company extend
nationally are not dependent on the geographic location of the
personnel or the businesses by which they are employed and that the
restrictions set forth in this Paragraph 5 have been designed to be
reasonable and are no greater than are required for the protection
of the Company and do not prevent you from earning a livelihood by
working in positions that do not compete with the Company. In the
event that a court shall determine that any provision of this
Agreement is unenforceable, the parties shall request that the
court construe this Agreement in such a fashion as to render it
enforceable and to revise time, geographic and functional limits to
those minimum limits that the court believes are reasonable to
protect the interests of the Company. You acknowledge and agree
that this covenant has unique, substantial and immeasurable value
to the Company, that you have sufficient skills to provide a
livelihood for yourself while this covenant remains in force, and
that this covenant will not interfere with your ability to work
consistent with my experience, training, and
education.
(f) To
enable the Company to monitor compliance with the obligations
imposed by this Agreement, you further agree to notify in writing
the Company’s Chief Human Resources Officer if your
responsibilities at First Data extend beyond the development,
operation and marketing of (i) the student loan processing platform
conveyed pursuant to the First Data Agreement, and/or (ii) other
student loan processing platforms owned by First Data. In addition,
if your employment with First Data ends, you agree to inform the
Company’s Chief Human Resources Officer of the identity of
any subsequent employer(s) and your prospective job title(s) and
responsibilities prior to beginning employment. You agree that
these notice requirements shall remain in effect for twelve (12)
months following your Separation Date.
(g) In
the event that the Board of Directors of Navient Corporation
(“Board”) or its successor reasonably determines that
you have violated any of the post-employment restrictions of this
Agreement and the Board’s determination is upheld through
arbitration under Paragraph 6 of this Agreement, or if a court at
your request determines that all or a substantial part of such
restrictions are held to be unenforceable, you will return to the
Company the cash Consideration (less withholdings previously
withheld by law).
(i) The
illegality, unenforceability, or ineffectiveness of any provision
of this Paragraph 5 shall not affect the legality, enforceability,
or effectiveness of any other provision of this
Agreement.
(j) Notwithstanding
these confidentiality provisions, you may disclose these
restrictive covenants to prospective employers and agree that the
Company may provide a copy of this Agreement to your prospective or
future employers.
6. Arbitration of Disputes. You
agree to resolve any disputes with the Company regarding this
Agreement through final and binding arbitration, to the fullest
extent permitted by law. For example, you agree to arbitrate any
dispute about the validity of this Agreement and any claim you may
bring, which means that an Arbitrator and not another tribunal will
decide issues of arbitrability and of liability with respect to any
claim you may bring; provided, however, that either party may
pursue a temporary restraining order and/or preliminary injunctive
relief, with expedited discovery where necessary, in a court of
competent jurisdiction to protect common law or contractual trade
secret or confidential information rights and to enforce the
post-employment restrictions in Paragraph 5. Arbitrations shall be
conducted by JAMS (also known as Judicial Arbitration &
Mediation Services) in accordance with its employment dispute
resolution rules. This agreement to arbitrate does not apply to
government agency proceedings, but does apply to any action you
might bring, including but not limited to any lawsuit related to a
government agency proceeding, to the fullest extent permitted by
law. By agreeing to this Agreement, you understand that you are
waiving your right to a jury trial.
7. Statement of Non-Admission.
Nothing in this Agreement is intended as or will be construed as an
admission or concession of liability or wrongdoing by you, the
Company or any of the Released Parties. Rather, the proposed
Agreement is being offered for the sole purpose of settling
cooperatively and amicably any and all possible disputes between
the parties.
8. No Actions Pending Against the
Company. You expressly acknowledge and represent that: (a)
you have received all wages to which you were entitled as an
employee of the Company; and (b) you are not aware of any facts
that may constitute violations of the Company’s policies
and/or legal obligations.
9. Governing Law. This Agreement
will be governed by and construed in accordance with the laws of
the State of Indiana.
10. Entire Agreement. This
Agreement constitutes the entire agreement between the parties
relating to the matters contained herein and supersedes any and all
prior representations and agreements, written or oral, expressed or
implied.
11. Headings; Days. Headings
contained in this Agreement are for convenience of reference only
and are not intended, and shall not be construed, to modify,
define, limit, or expand the intent of the parties as expressed in
this Agreement, and they shall not affect the meaning or
interpretation of this Agreement. All references to a number of
days throughout this Agreement refer to calendar days.
12. Representations. You agree and
represent that (a) you have read carefully the terms of this
Agreement, including the general release; (b) you have had an
opportunity to and have been advised by the Company to review this
Agreement, including the general release, with an attorney; (c) you
understand the meaning and effect of the terms of this Agreement,
including the general release; (d) you were given twenty-one (21)
days to determine whether you wished to sign this Agreement,
including the general release; (e) your decision to sign this
Agreement, including the general release, is of your own free and
voluntary act without compulsion of any kind; (f) no promise or
inducement not expressed in this Agreement has been made to you;
and (g) you have adequate information to make a knowing and
voluntary waiver.
13. Revocation Period. If you sign
this Agreement, you will retain the right to revoke it for seven
(7) days (“Revocation Period”). If you revoke this
Agreement, you are indicating that you have changed your mind and
do not want to be legally bound by this Agreement. This Agreement
shall not be effective until after the Revocation Period has
expired without your having revoked it. To revoke this Agreement,
you must send a letter to the attention of Jon Kroehler, Chief
Human Resources Officer, Navient, 11100 USA Parkway, Fishers, IN
46037. The letter must be received within seven (7) days of your
execution of this Agreement. If the seventh day is a Sunday or
federal holiday, then the letter must be received on the following
business day. If you revoke this Agreement on a timely basis, you
shall not be eligible for the Consideration set forth in Paragraph
2 above.
14. Expiration Date. As noted
above, you have twenty-one (21) days to decide whether you wish to
sign this Agreement. If you do not sign this Agreement on or before
that time, then this Agreement is withdrawn and you will not be
eligible for the Consideration set forth in Paragraph 2
above.
[Signature Page Follows]
IN
WITNESS WHEREOF, and intending to be legally bound hereby, you and
the Company hereby execute the foregoing Separation and Release
Agreement as of the Execution Date set forth below.
NAVIENT
CORPORATION
By:
__________________________
Jon
Kroehler
Chief
Human Resources Officer
I HAVE READ THIS AGREEMENT. I HAVE BEEN ADVISED BY THE COMPANY TO
CONSULT WITH AN ATTORNEY OF MY OWN CHOOSING DURING THE TWENTY-ONE
(21)-DAY CONSIDERATION PERIOD. I SIGN THIS AGREEMENT FREELY AND
VOLUNTARILY, WITHOUT DURESS OR COERCION.
______________________________
John F.
(Jeff) Whorley, Jr.
______________________________
Execution
Date