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EXHIBIT 10.38
AMENDED AND RESTATED DIRECTOR
ADVISORY AGREEMENT dated as of October 15,
1997 between K & F INDUSTRIES, INC., a
Delaware corporation (the "Company"), and
XXXXXXX X. XXXXXXXX ("BLS"),
individually and on behalf of the
individuals listed on Exhibit A hereto
(and/or their respective successors) (herein
collectively the "Directorate").
WHEREAS, on April 27, 1989 the Company acquired substantially
all of the assets of the Aircraft Braking Systems Division and the Engineered
Fabrics Division (collectively the "Subsidiaries") of Loral Corporation, a New
York corporation;
WHEREAS, at such time, the Company desired to avail itself of
certain advisory services of BLS and other members of the Directorate in their
capacity as members of the Board of Directors of the Company and/or the
Subsidiaries, and consequently requested BLS to constitute the Directorate to
provide it with advisory services on an ongoing basis with respect to the
business and affairs of the Company and/or the Subsidiaries;
WHEREAS, at that time, the Company and BLS agreed that it was
in their respective best interests to enter into the Director Advisory Agreement
dated as of April 27, 1989 (the "Director Advisory Agreement") whereby BLS and
other members of the Directorate would serve as directors of the Company and/or
its Subsidiaries and provide advisory services as aforesaid to the Company
and/or its Subsidiaries; and
WHEREAS, the parties desire to update the Director Advisory
Agreement to reflect the changed name of the Company as well as to reduce the
stock ownership trigger for termination of the Director Advisory Agreement in
view of the decrease in the number of issued and outstanding shares of capital
stock of the
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Company after giving effect on the date hereof to the recapitalization of the
Company;
ACCORDINGLY, in consideration of the mutual covenants
hereinafter set forth, the Company and BLS (individually and on behalf of the
Directorate) hereby agree as follows:
1. COMPOSITION/COMPENSATION OF THE DIRECTORATE; SUCCESSORS.
The initial members of the Directorate shall be BLS and the persons designated
by BLS on Exhibit A hereto. The aggregate compensation hereinafter provided for
the Directorate pursuant to Paragraph 4 hereof shall be conclusively allocated
by BLS to and among the members of the Directorate (to include BLS). In the
event of the death, disability or termination (voluntary or involuntary) of any
initial member of the Directorate, his successor, if any, shall be conclusively
designated by BLS. Nothing contained herein shall entitle any person (other than
BLS) to continue (absent the approval of BLS) as a member of the Directorate.
2. ADVISORY SERVICES OF THE DIRECTORATE. During the term of
this Agreement, members of the Directorate shall serve as directors of the
Company and/or its Subsidiaries (as conclusively determined by BLS) and shall
advise the Company and/or its subsidiaries with respect to such matters
regarding the business and affairs of the Company and its Subsidiaries as are
normally within the purview of a director and/or as the Company may reasonably
request.
3. TERM. This Agreement shall commence on the date hereof and
shall continue until the date BLS dies or is disabled or ceases to own at least
100,000 shares of common stock of the Company.
4. COMPENSATION. The Company shall, as compensation for the
services provided by the Directorate hereunder, pay to
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the members of the Directorate (as constituted at such time and in such
proportion as BLS shall, in his sole discretion, determine), on the first day of
each month during the term of this Agreement, an aggregate of $200,000.00, in
cash.
5. NOTICES. All notices, requests and other communications
required or permitted hereunder will be in writing and will be deemed given
either when delivered personally or five days after being mailed by certified or
registered U.S. mail, return receipt requested, postage prepaid, or on the next
business day after the sending thereof by prepaid air courier guaranteeing next
day delivery, or when answered back if sent by telex, or when receipt is
acknowledged if sent by telecopier, addressed as follows:
If to the Directorate:
Xxxxxxx X. Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to the Company:
K & F Industries, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
In either case, with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. X'Xxxxxxxx, Esq.
provided, that a party by giving notice to the other party may change the
address for notice set forth above.
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6. ASSIGNMENT. This Agreement may not be assigned by any
party signatory hereto without the consent of the other party signatory hereto.
7. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York.
8. HEADINGS. Section headings are used for convenience only
and shall in no way affect the construction of this Agreement.
9. ENTIRE AGREEMENT. This Agreement contains the entire
agreement among the parties signatory hereto with respect to the subject matter
hereof and supersedes all prior arrangements or understandings with respect
thereto.
10. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts shall constitute but one
agreement.
11. AMENDMENTS. Neither this Agreement nor any part of it may
in any way be altered, amended, extended, waived, discharged or terminated
except by a written agreement signed by BLS and the Company.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amended and Restated Director Advisory Agreement as of the date first above
written.
K & F INDUSTRIES, INC.
By /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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