Exhibit 10(Q) Key Advisor Agreement dated as of October 1, 1995 between
Compuflight, Inc. and Xxxxxxx X. Xxxxxx
KEY ADVISOR AGREEMENT
KEY ADVISOR AGREEMENT ("Agreement") made as of October 1, 1995 between
COMPUFLIGHT, INC., a company incorporated under the laws of the State of
Delaware with offices at 00 Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
("Compuflight"), and XXXXXXX XXXXXX, whose address is Xxxx 00, 000 Xxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 (the "Representative").
Compuflight desires to engage the Representative to perform certain
consulting, advisory, marketing and corporate finance services, and the
Representative desires to perform such services, on the terms and conditions
hereinafter set forth.
1. ENGAGEMENT; TERM
1.1 Compuflight hereby engages the Representative to perform, and the
Representative hereby agrees to perform, certain consulting, advisory, marketing
and corporate finance services on behalf of Compuflight, on the terms and
conditions of this Agreement, for a period commencing on the date hereof and
ending at the close of business on the date set forth on Exhibit A attached
hereto, subject to extension as set forth in Exhibit A (as extended, the
"Engagement Period"), unless terminated sooner as set forth in paragraph 8
hereof.
2. DUTIES AND SERVICES
2.1 During the Engagement Period, the Representative shall provide
those certain consulting, advisory, marketing and corporate finance services to
Compuflight set forth on Exhibit B attached hereto (the "Services"). The
Representative agrees to devote such time and effort, and assign such resources
as set forth on Exhibit B, as is required to perform the Services hereunder.
All Services required hereunder shall be performed to the best of the
Representative's abilities and to Compuflight's satisfaction, and shall be of
the highest professional standards. In providing Services hereunder, the
Representative shall be subject to the direction of the Chairman of the
Executive Committee of Compuflight (or, if there is no Executive Committee, then
the Chairman of the Board of Directors of Compuflight) or his designee. The
Representative acknowledges and agrees that his engagement hereunder is on a
non-exclusive basis. Accordingly, Compuflight may utilize its own employees,
and may engage and utilize other independent contractors, to provide consulting,
advisory, marketing and/or corporate finance services on its behalf.
3. COMPENSATION; EXPENSE REIMBURSEMENT
3.1 As sole compensation (the "Compensation") for the
Representative's Services during the Engagement Period and in consideration of
the Representative's representations, warranties and covenants herein,
Compuflight shall pay to the Representative a certain sum in accordance with the
Compensation schedule set forth on Exhibit C attached hereto, subject to the
provisions of this paragraph 3.
3.2 In the event that any of the Compensation involves the payment of
a finder's fee ("Finder's Fee") to the Representative, such Finder's Fee shall
be based on "Representative-Introduction Proceeds" to Compuflight, which term
shall mean monies actually received by Compuflight from equity and/or debt
financings, provided that Compuflight's initial business meeting with the
provider of the financing (the "Lender") (the "Initial Business Meeting")
resulted solely and directly from the Representative's efforts performed on or
after the date hereof on behalf of Compuflight and the Representative materially
assisted in the negotiation, consummation and implementation of the transaction.
3.3 No Finder's Fee shall be payable under this Agreement with
respect to a particular Lender unless the Initial Business Meeting is held, and
the funds are received, during the Engagement Period.
3.4 Finder's Fees shall be payable by wire transfer or certified
check contemporaneous with the receipt of Compuflight of the financing proceeds.
3.5 Notwithstanding the foregoing, in the event, as of any
Compensation payment date, there is then payable by the Representative to
Compuflight any amount relating to any obligation, Compuflight shall have the
right to offset the amount of such obligation against any Compensation otherwise
payable to the Representative.
3.6 Nothing contained herein shall require Compuflight to consent or
agree to any particular transaction with any potential Lender and Compuflight
shall have the right, in its sole discretion, to reject any and all proposals
and transactions, and to refuse to initially meet with or negotiate, and/or
terminate discussions or negotiations, at any time regardless of the terms
thereof. In such event, the Representative shall not be entitled to any
Finder's Fee with regard to the proposed transaction.
3.7 The Representative shall be entitled to be reimbursed by
Compuflight for all reasonable and necessary expenses incurred for and on behalf
of Compuflight in the performance of his duties under this Agreement, including
those incurred for travel and accommodations if he is required to perform any of
his duties away from his primary place of residence, but excluding any incurred
in
connection with seeking to obtain financing for Compuflight. All reimbursable
expenses must be documented and submitted with appropriate receipts in
accordance with Compuflight's normal expense policies.
3.8 The Representative shall not be entitled to any additional
compensation for service as a director of Compuflight or any subsidiaries,
parents or affiliated entities of Compuflight in existence from time to time
(collectively "Affiliates"), including without limitation, Navtech Systems
Support Inc. ("Support") and all subsidiaries, parents and affiliated entities
of Support in existence from time to time.
4. Representations and Warranties of the Representative
4.1 The Representative represents and warrants to Compuflight that
(a) he has received all authorizations, permits and licenses necessary to enter
into this Agreement and perform his duties and obligations hereunder, (b) all
Services performed by the Representative under this Agreement shall be performed
in a professional and highly skilled manner and (c) the Representative is not
under any physical or mental disability that would hinder his performance under
this Agreement. In addition, the Representative hereby represents and warrants
to Compuflight that neither the execution of this Agreement nor his performance
hereunder will (a) violate, conflict with or result in a breach of any
provision of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under the terms, conditions or
provisions of any contract, agreement or other instrument or obligation to which
the Representative is a party, or by which he may be bound, or (b) violate any
order, judgment, writ, injunction or decree applicable to the Representative.
4.2 In the event of a breach of paragraph 4.1, in addition to
Compuflight's right to terminate this Agreement, the Representative shall
indemnify Compuflight and hold it harmless from and against any and all claims,
losses, liabilities and expenses (including legal fees) incurred or suffered in
connection with or as a result of Compuflight's entering into this Agreement or
engaging the Representative hereunder.
4.3 Compuflight represents and warrants to the Representative that
neither the execution of this Agreement nor its performance hereunder will (a)
violate, conflict with or result in a breach of any provision of, or constitute
a default (or an event which, with notice or lapse of time or both, would
constitute a default) under the terms, conditions or provisions of any contract,
agreement or other instrument or obligation to which Compuflight is a party, or
by which it is bound or (b) violate any order, judgment, writ, injunction or
decree applicable to Compuflight.
4.4 In the event of a breach of paragraph 4.3, in addition to the
Representative's right to terminate this Agreement, Compuflight shall indemnify
the Representative and hold it harmless from and against any and all claims,
losses, liabilities and expenses (including legal fees) incurred or suffered in
connection with or as a result of the Representative entering into this
Agreement.
5. [intentionally omitted]
6. RESTRICTIVE COVENANT
6.1 In consideration for the Compensation to be received hereunder by
the Representative and in view of (a) the unique and valuable services it is
expected that the Representative will render and (b) the knowledge of the
Representative of the business, services, customers, trade secrets, and other
proprietary information relating to the business of Compuflight, and its
customers and suppliers, that it is expected the Representative will obtain, the
Representative agrees that he will not, during the Engagement Period, without
the prior written approval of Compuflight, directly or indirectly, anywhere in
the world, whether individually or as a principal, officer, employee, partner,
director, representative or agent of or consultant for any entity, do any of the
following:
(i) engage or participate in the ownership, management, operation
or control of, or otherwise be connected with, a business which is similar to or
competitive with, directly or indirectly, that engaged in by Compuflight at any
time during the Engagement Period and shall not make any investments in any such
similar or competitive entity (except that the foregoing shall not restrict the
Representative from owning not more than five percent (5%) of the outstanding
Common Stock of any corporation, the Common Stock of which is listed on a
national securities exchange of NASDAQ);
(ii) cause or seek to persuade any director, officer, employee,
customer, subscriber, account, agent or supplier of Compuflight to discontinue
the status, employment or relationship of such person or entity with
Compuflight, or to become employed in any activity similar to or competitive
with the activities of Compuflight;
(iii) cause or seek to persuade any prospective customer,
subscriber or account of Compuflight to determine not to enter into a business
relationship with Company;
(iv) hire or retain any director, officer or employee of
Compuflight; or
(v) solicit or cause or authorize to be solicited, for or on
behalf of him or any third party, any business which is competitive, directly or
indirectly, with Compuflight from others who are, at any time during the
Engagement Period, (a) customers, subscribers or accounts of Compuflight, or
(b) prospective customers, subscribers or accounts of Compuflight who are
actively being solicited by Compuflight.
6.2 (a) The Representative represents that he has been informed that
it is the policy of Compuflight to maintain as secret all confidential
information relating to Compuflight, including, without limitation, any and all
knowledge or information with respect to secret or confidential methods,
processes, plans, materials, customer lists or data, or with respect to any
other confidential or secret aspect of Compuflight's activities, and further
acknowledges that such confidential information is of great value to
Compuflight. The Representative recognizes that, by reason of his engagement by
Compuflight, he has acquired and will acquire confidential information as
aforesaid. The Representative confirms that it is reasonably necessary to
protect Compuflight's goodwill, and, accordingly, hereby agrees that he will
not, directly or indirectly (except where authorized by the Board of Directors
of Compuflight for the benefit of Compuflight), at any time during the term of
this Agreement or thereafter divulge to any person, firm or other entity, or
use, or cause or authorize any person, firm or other entity to use, any such
confidential information.
(b) The Representative agrees that he will not, at any time,
remove from Compuflight's premises any drawings, notebooks, data or other
confidential information relating to the business and procedures heretofore or
hereafter acquired, developed and/or used by Compuflight, except where necessary
in the fulfillment of his duties hereunder.
(c) The Representative agrees that, upon the expiration or
termination of this Agreement for any reason whatsoever, he shall promptly
deliver to Compuflight any and all drawings, notebooks, data and other documents
and material, including all copies thereof, in his possession or under his
control relating to any confidential information or discoveries, or which is
otherwise the property of Compuflight.
(d) For purposes hereof, the term "confidential information"
shall mean all information given to the Representative, directly or indirectly,
by Compuflight and all other information relating to Compuflight otherwise
acquired by the Representative during the course of his engagement by
Compuflight, other than information which (i) was in the public domain at the
time furnished to, or acquired by, the Representative, or (ii) thereafter enters
the public domain other than through disclosure, directly or indirectly, by the
Representative or others in violation of an agreement of confidentiality or
nondisclosure.
6.3 For purposes of this Paragraph 6, the term "Compuflight" shall
mean and include any and all Affiliates including, without limitation, Support
and all subsidiaries, parents and affiliated entities of Support in existence
from time to time.
7. INDEPENDENT CONTRACTOR; INDEMNIFICATION
7.1 The Representative shall perform the specified Services as an
independent representative, and nothing contained in this Agreement shall be
construed to create or imply a joint venture, partnership, or employment
relationship between Compuflight and the Representative. Without express
written authorization from Compuflight, the Representative shall not take nay
action or permit any action to be taken on its behalf which purports to be done
in the name of or on behalf of Compuflight and shall have no power or authority
to bind Compuflight or to assume or create any obligation or responsibility,
express or implied, on Compuflight's behalf or in its name, nor shall the
Representative represent to anyone that he has such power or authority. The
Representative shall not, in any sense, be considered an employee of
Compuflight, nor shall the Representative be eligible or entitled to any
benefits, perquisites or privileges given or extended to Compuflight's
employees. No oral representations by employees of Compuflight shall have the
effect of overriding this Agreement.
7.2 The Representative agrees to indemnify and hold harmless
Compuflight and its officers, directors and employees from and against any and
all claims, losses, liabilities, expenses and costs (including, without
limitation, legal fees) which they or any of them may suffer or become liable
for as a result of, or in connection with, any representation, express or
implied, of the Representative that it has any authority to bind Compuflight to
any agreement or obligation with any third party or which arise by reason of the
Representative being considered an agent, representative or employee of
Compuflight, including liability for notice of termination or severance pay,
statutory or otherwise. If a competent governmental authority should assert
that Compuflight is responsible for making any source deductions for the
Representative, then Compuflight shall be entitled to commence making any source
deductions from any amounts then payable by Compuflight to the Representative
hereunder. Further, if a competent governmental authority asserts that
Compuflight is retroactively responsible for any of such deductions or other
payments that should have been made but were not made, Compuflight shall be
entitled to make such payments retroactively and to deduct an amount equal to
such payments, together with any and all costs and expenses (including, without
limitation, legal fees) incurred by Compuflight related to such assertions or
deductions, from any amounts then payable by Compuflight to the Representative
hereunder. To the extent that such amounts are not recoverable by Compuflight
by way of set-off as aforesaid, the Representative will promptly indemnify
Compuflight for such amounts following receipt of written demand for the same
from Compuflight.
7.3 The provisions of this Paragraph 7 shall apply to Compuflight's
Affiliates in the same manner as they apply to Compuflight.
8. TERMINATION
8.1 Notwithstanding anything herein contained, at any time prior to
the end of the Engagement Period, Compuflight shall have the right to
immediately terminate this Agreement for "cause". As used in this Agreement,
"cause" shall include, but not necessarily be limited to, (a) the
Representative's commission of any act in the performance of his duties
constituting common law fraud, a felony or other gross malfeasance of duty, (b)
any material misrepresentation or breach of any covenant on the Representative's
part herein set forth, (c) the Representative's engagement in misconduct which
is materially injurious to Compuflight or its Affiliates, (d) the appointment
of a receiver for any part of the Representative's property, an assignment for
the benefit of the Representative's creditors or the commencement of any
proceedings under any bankruptcy, reorganization or arrangement laws by or
against the Representative, (e) the death of the Representative, or (f) the
mental or physical incapacity of the Representative to provide Services for a
continuous period of three (3) months or for at least seventy-five (75) business
days during any six (6) month period.
9. INJUNCTIVE RELIEF
9.1 The Representative acknowledges and agrees that, in the event he
shall violate any of the restrictions of Paragraph 6 or 7 hereof, Compuflight
will be without an adequate remedy at law and will therefore be entitled to
enforce such restrictions by temporary or permanent injunctive or mandatory
relief in any court of competent jurisdiction without the necessity of proving
damages and without prejudice to any other remedies which it may have at law or
in equity. No bond or other security shall be required to be posted by
Compuflight in connection therewith.
10. NOTICES
10.1 Any notice required or permitted to be given pursuant to this
Agreement shall be deemed to have been duly given when delivered by hand or sent
by certified or registered mail, return receipt requested and postage prepaid,
overnight mail or courier, or telecopier to each party at its address set forth
above, or at such other address as any party shall designate by notice to the
other party given in accordance with this Paragraph 10.
11. GOVERNING LAW
11.1 This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of New York applicable to agreements
made and to be performed entirely in New York.
12. WAIVER OF BREACH; PARTIAL INVALIDITY
12.1 The waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. If any provision, or part thereof, of
this Agreement shall be held to be invalid or unenforceable, such invalidity
or unenforceability shall attach only to such provision and not in any way
affect or render invalid or unenforceable any other provisions of this
Agreement, and this Agreement shall be carried out as if such invalid or
unenforceable provision, or part thereof, had been reformed, and any court of
competent jurisdiction is authorized to so reform such invalid or unenforceable
provision, or part thereof, so that it would be valid, legal and enforceable to
the fullest extent permitted by applicable law.
13. THIRD PARTY BENEFICIARIES
13.1 All Affiliates of Compuflight, including, without limitation,
Support, are intended third party beneficiaries of this Agreement.
14. ENTIRE AGREEMENT
14.1 This Agreement and the exhibits hereto constitute the entire
agreement between the parties and there are no representations, warranties or
commitments except as set forth herein. This Agreement supersedes all prior
agreements, understandings, negotiations and discussions, whether written or
oral, of the parties hereto relating to the matters covered by this Agreement.
This Agreement may be amended only by a writing executed by the parties hereto.
15. BINDING AGREEMENT; NO ASSIGNMENT
15.1 This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties hereto; provided, however,
that the obligations of the Representative under this Agreement shall not be
delegated without the prior written consent of Compuflight.
16. UNITED STATES DOLLARS
16.1 Except as expressly set forth herein or in an exhibit hereto, all
dollar amounts expressed herein are United States dollars.
17. COUNTERPARTS
17.1 This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument.
18. FACSIMILE SIGNATURES
18.1 Signatures transmitted by facsimile transmission shall be deemed
original signatures.
19. Headings
19.1 The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
COMPUFLIGHT, INC.
By: /s/ Xxxxxxx X.Xxxx
---------------------------------------------
Xxxxxxx X. Xxxx, Chairman of the Board
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxx
EXHIBIT A
The initial term of this Agreement shall expire on the first anniversary of the
date thereof. The Representative shall have the option to extend the term of
this Agreement for an additional six (6) months (through March 31, 1997), by
giving written notice to Compuflight, no later than August 31, 1996, of the
exercise of such option. In the event the term of this Agreement is extended
pursuant to the foregoing, Compuflight shall have the option to extend the term
of this Agreement for a further six (6) months (through September 30, 1997) by
giving written notice to the Representative, no later than February 28, 1997, of
the exercise of such option.
EXHIBIT B
1. DESCRIPTION OF SERVICES GENERALLY.
During the Engagement Period, the Representative shall perform the
following consulting, advisory, marketing and corporate finance services for
Compuflight and, at the request of Compuflight, for Support and their respective
Affiliates:
(a) Perform a comprehensive review of Compuflight's business
requirements in order to develop action plans with quantitative goals and
performance indicators for short to medium term implementation;
(b) Advise Compuflight on the implementation of action plans designed
to improve the Company's performance;
(c) Advise Compuflight on the implementation of action plans designed
to improve various aspects of its management processes and use of technology;
(d) Advise Compuflight on strategies and methodologies which may
apply to mergers, acquisitions, teaming arrangements, and corporate finance, and
the effective implementation of various aspects of these strategies and
methodologies which may benefit Compuflight in its planning process; and
(e) Where applicable and upon prior written authorization of
Compuflight management, attempt to bring new sources of debt or equity financing
to Compuflight's consideration.
2. CORPORATE FINANCE SERVICES. Corporate finance activities may
include, but would not be limited to, the negotiation of financing arrangements
and the introduction and implementation of business combinations. The parties
agree that initial corporate finance efforts will be targeted at government
funding initiatives and private capital sources which could assist in furthering
Compuflight's business objectives.
3. DEVOTION OF TIME. During the Engagement Period, the Representative
shall expend at least seventy-five percent (75%) of his working time in the
fulfillment of his duties and obligations under the Agreement.
4. NATURE OF SERVICES TO COMPUFLIGHT AND ITS AFFILIATES. In the event
the Representative provides Services to Affiliates of Compuflight hereunder,
the nature and mode of such Services shall be, unless otherwise directed by
Compuflight, the same as that provided to Compuflight hereunder.
EXHIBIT C
1. COMPENSATION. In consideration of the provision of Services under and
in accordance with the terms and conditions of this Agreement, including Exhibit
B thereto, the Representative shall be entitled to receive a fee of Eleven
Thousand Dollars ($11,000) per month (plus any applicable Canadian Goods and
Services Taxes), payable on a weekly basis.
2. FINDER'S FEES. In addition to the Compensation described in Paragraph
1 of this Exhibit C, the Representative shall be entitled to receive a Finder's
Fee equal to five percent (5%) of Representative-Introduction Proceeds;
provided, however, that in no event shall the Representative be entitled to any
Finder's Fee in excess of Seventy-Five Thousand Canadian Dollars (CDN $75,000)
with respect to any particular financing transaction.
