EXHIBIT 10.23
TRANSPORTATION SERVICES AGREEMENT
THIS TRANSPORTATION SERVICES AGREEMENT (this "Agreement") is entered
into as of December 18, 2003, by and between KANDERS AVIATION, LLC, a Delaware
limited liability company with offices at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 ("Kanders Aviation"), and CLARUS CORPORATION, a Delaware
corporation with offices at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000
("Clarus").
WITNESSETH:
WHEREAS, Kanders Aviation owns a fractional interest in, operates and
maintains certain aircraft (collectively, the "Aircraft"), to provide
transportation services for the use of, among others, Kanders Aviation and
certain of its direct or indirect affiliates; and
WHEREAS, Clarus may, from time to time, desire to utilize such
transportation services from Kanders Aviation, and Kanders Aviation may, in its
discretion, elect to provide such services to Clarus, upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, representations and warranties contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Services. Upon Clarus' request, Kanders Aviation may, in its sole
discretion, but shall not be obligated to, provide Clarus with airport to
airport air transportation services via its Aircraft, or other Aircraft it may
cause to be made available, as the parties may agree upon.
2. Term. This Agreement shall be effective as of January 1, 2003 and
shall be terminable by either party upon written notice to the other party (the
"Term").
3. Fees. During the Term, Clarus shall pay and reimburse Kanders
Aviation for the following costs and fees associated with the provision of any
requested air transportation services:
(a) an amount equal to the fair market value of such air
transportation services based upon the number of hours of
service provided as reasonably determined by Kanders
Aviation, but which will in no event exceed the NetJets'
published rates for such services, to the extent such
published rates are available, and
(b) any additional expenses incurred by Kanders Aviation in
connection with such air transportation services, including,
but not limited to, fuel, catering, telephone, ground
transportation, taxes (including federal excise, navigation
and foreign fuel taxes), surcharges, airport fees, hangering
fees, pilot fees, administrative fees and other fees and
expenses associated with each individual flight.
4. Payment. Clarus shall pay Kanders Aviation, or otherwise make
mutually satisfactory arrangements for the payment to Kanders Aviation, for the
provision of air transportation services as herein set forth within thirty (30)
days of its receipt of proper invoices from Kanders Aviation, and in accordance
with such guidelines as may be established from time to time by the Board of
Directors of Clarus.
5. Use of Services. Clarus shall utilize the services provided by
Kanders Aviation hereunder to provide transportation services for necessary and
proper corporate purposes.
6. Notices. All notices required herein shall be in writing and shall
be sent by (i) certified mail, return receipt requested, (ii) overnight courier,
(iii) personal delivery, (iv) facsimile, or (v) such other means as are mutually
acceptable, to a party at the address set forth in the preamble to this
Agreement, or to such other person or place as shall be designated in writing by
either party, any such notice to be deemed received upon receipt or refusal of
delivery.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of laws thereunder.
8. Severability. If any provision of this Agreement shall for any
reason or to any extent be invalid or unenforceable, the remainder of this
Agreement shall continue in full force and effect and in no way be impaired or
invalidated.
9. Amendment. This Agreement comprises the entire contract between the
parties, and it may not be changed or modified except pursuant to an instrument
in writing signed by both Kanders Aviation and Clarus.
10. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
11. Approvals. Each party hereto represents and warrants to the other
that the execution, delivery and performance of this Agreement by such party has
been duly authorized by all necessary corporate and/or limited liability company
action on behalf of such party.
12. Limitations. The parties hereto acknowledge that this agreement
consists solely of an agreement by Clarus to reimburse Kanders Aviation for
certain agreed upon expenses incurred by Kanders Aviation or its affiliates in
connection with providing the services described herein. The parties hereto
agree and acknowledge that Clarus shall not have any liability or obligation to
NetJets International, Inc., its affiliates or any other person or entity as a
result of the arrangements contemplated hereby. Nothing herein shall be deemed
to obligate Clarus to secure the use of any Aircraft for use by any person or to
provide, or obtain, any services in connection therewith, including, but not
limited to, insurance, maintenance, repairs or inspections, nor shall anything
contained herein obligate Kanders Aviation to provide any services to Clarus or
any other party, other than as expressly agreed by Kanders Aviation. This
agreement shall not be deemed to establish a joint venture or partnership
between Clarus and
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Kanders Aviation or its affiliates with respect to the ownership, leasing,
operation or maintenance of any Aircraft. This agreement shall constitute a
non-exclusive arrangement among the parties hereto, and nothing herein shall be
deemed to prohibit either party from obtaining service from, or providing
services to, any other parties not contemplated hereby.
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first set forth above.
KANDERS AVIATION, LLC
By: Kanders & Company, Inc., its sole member
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
CLARUS CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: CAO
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