CONSULTING AND NON-COMPETITION AGREEMENT
CONSULTING AND NON-COMPETITION AGREEMENT made and entered into as of
this day of April 8, 1997 (the "Consulting Agreement"), by and between
PROFLIGHT MEDICAL RESPONSE, INC., a corporation organized under the laws of
the state of Colorado, with its principal offices at 00000 X. Xxxxxxx Xxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the "Company") and XXXXX X. XXXXXX,
XX., residing at 00000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 (the
"Consultant").
WHEREAS, the Company is engaged in air ambulance transport services
("the Business"); and
WHEREAS, the Company is desirous of engaging the Consultant on the terms
and conditions hereinafter set forth; and
WHEREAS, the Consultant is desirous and willing to provide such services
as hereinafter set forth.
NOW, THEREFORE, the Company and Consultant, each intending to be legally
bound hereby agree as follows:
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1. ENGAGEMENT.
The Company agrees to engage Consultant and Consultant agrees to provide
consulting services to the Company as set forth in Section 3 hereof.
2. TERM.
The term of this Consulting Agreement shall commence on the closing date
of the Company's initial public offering (the "Commencement Date") and shall
continue until the third anniversary of the Commencement Date unless this
Consulting Agreement is terminated sooner as hereinafter provided. This
Consulting Agreement may be canceled by either party after the first year upon
sixty (60) days prior notice.
3. EXTENT OF SERVICES.
During the term, the Consultant shall be required to devote a minimum of
100 hours per month to the performance of Consulting services hereunder
concerning Company management. Nothing in this Consulting Agreement shall
preclude the consultant from devoting time to managing his personal investments,
provided that such investments are not in competition with the business of the
Company and that such activities do not unreasonably interfere with the
performance of his duties hereunder.
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4. COMPENSATION.
The Consultant shall be paid an annual consulting fee of Fifty Two
Thousand Dollars ($52,000) payable in 26 equal payments commencing two (2) weeks
from the Commencement Date.
5. REIMBURSEMENT OF EXPENSES.
The Corporation shall reimburse the Consultant for all reasonable
expenses that Consultant shall incur on behalf of the Company in performing
services under this Consulting Agreement provided that said expenses are
approved by the Company beforehand and the Consultant submits receipts in form
reasonably satisfactory to the Company.
6. LIFE INSURANCE.
The Corporation, in its discretion, may apply for and procure as owner
and for its own benefit insurance on the life of the Consultant, in such amounts
and in such form or forms as the Corporation may choose.
7. COVENANT NOT TO COMPETE.
Consultant hereby acknowledges and recognizes the highly competitive and
confidential nature of the Company's business, and for the consideration stated
above, accordingly agrees that he will not for a period of five years following
the Commencement date, directly or indirectly:
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(a) engage in any capacity in any business endeavor which has
among its purposes and/or endeavors air ambulance services within
100 miles of any geographical area, city and/or state in which
the Company's services have been provided within the last year;
(b) induce employees of the Company, or any of its respective
subsidiaries, to terminate their employment or to engage in any
activities hereby prohibited to the Consultant;
(c) contact, communicate or solicit any customer list, customer
lead, mail, printed material or other information of the Company
with any other party;
(d) discuss any activities, methods of operation, finances,
confidential practices and private business information of the
Company with any other party, except as necessary and reasonable
to the performance of the Consultant's duties in the ordinary
course of his business.
It is expressly understood and agreed that although Consultant and the
Company consider the covenant not to
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compete to be reasonable, if a final judicial determination is made by a Court
having jurisdiction as to the restrictions agreed to by the parties hereto, the
provisions of such restriction clauses by this Consulting Agreement shall not be
rendered void, but shall be deemed amended to apply as to such maximum time and
territory and to such other extent as such Court may judicially determine or
indicate to be reasonable.
Consultant further represents that he is capable of making a living in
areas other than the air ambulance business engaged in by the Company, and that
the non-competition and restrictive covenants contained herein will not in the
least manner impair or interfere with Consultant's ability to earn a living.
Notwithstanding the foregoing, in the event the Company is in material
default of this Consulting Agreement, the provisions of this Section 7 shall be
deemed null and void.
8. CONFIDENTIALITY.
The Consultant acknowledges that the Company's trade secrets, private or
secret processes as they may exist from time to time, and confidential
information concerning their services, development, all technical information,
procurement and sales activities and procedures, promotion and pricing
techniques and credit and financial data concerning customers and other trade
secrets are valuable, special and unique
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assets of the Company and its subsidiaries, access to and knowledge of which are
essential to the performance of the Consultant's duties hereunder. In light of
the highly competitive nature of the industry in which the Company and its
subsidiaries' business is conducted, the Consultant further agrees that all
knowledge and information described in the preceding sentence not in the public
domain and heretofore or in the future obtained by him as a result his
consulting duties with the Company or its subsidiaries shall be considered
confidential information. In recognition of this fact, the Consultant agrees
that he will not, during or for five (5) years after the Term, disclose any such
secrets, processes or information to any person or entity for any reason or
purpose whatsoever, except as is necessary in the performance of his duties as a
consultant of the Company or its subsidiaries and then only upon a written
confidentiality agreement in such form and content as requested by the Company
from time to time; nor shall the Consultant make use of any such secrets,
processes or information (other than information in the public domain) for his
own purposes or for the benefits of any person or other entity (except the
Company and its subsidiaries) under any circumstances during or for five (5)
years after the Term.
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9. COMPANY'S RIGHT TO APPROVE TRANSACTIONS.
The Company expressly retains the right to approve, in its sole
discretion, each and every transaction introduced by Consultant that involves
the Company as a party to any agreement. The Consultant and the Company mutually
agree that Consultant is not authorized to enter into any agreements on behalf
of the Company.
10. CONSULTANT NOT AN AGENT OR EMPLOYEE.
The Consultant's obligations under this Consulting Agreement consist
solely of the services described herein. In no event shall the Consultant be
considered to be acting as an employee or agent of the Company or otherwise
representing or binding the Company. For the purposes of this Consulting
Agreement, Consultant is an independent contractor. All final decisions with
respect to acts of the Company or its affiliates, whether or not made pursuant
to or in reliance on information or advice furnished by the Consultant
hereunder, shall be those of the Company or such affiliates and Consultant
shall, under no circumstances, be liable for any expenses incurred or losses
suffered by the Company as a consequence of such actions. Consultant agrees that
all of his work product relating to the services to be rendered pursuant to this
Consulting Agreement, shall become the exclusive property of the Company.
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11. TERMINATION.
Notwithstanding anything herein to the contrary, this Consulting
Agreement shall automatically terminate upon the death of the Consultant.
12. ARBITRATION.
Any and all disputes between the Consultant and the Company arising
under this Consulting Agreement, shall be submitted to binding, expedited
arbitration in Denver, Colorado under the then prevailing rules of the American
Arbitration Association.
13. ASSIGNMENT.
This Consulting Agreement shall not be assignable by the Consultant.
This Consulting Agreement is assignable by the Company and/or any of its
subsidiaries to any successor in interest of the Company or any of its
subsidiaries, provided any such assignment shall not result in a material change
in the ability of the assignee to perform the assignor's obligations hereunder.
14. NOTICES.
All notices, requests, demands and communications under or in respect
hereof shall be deemed to have been duly given and made if in writing (including
fax) if delivered by hand or by pre-paid registered or certified mail to the
party
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concerned at its address appearing below or sent by fax to the number and with a
copy as indicated below. Service shall be deemed to be effective: so far as
delivery by hand is concerned when handed to the recipient or left at the
recipient's address; by post two days after posting; by fax on the same day as
dispatch and receipt is confirmed. The said addresses and fax numbers are as
follows:
If to the Consultant:
Xxxxx X. Xxxxxx, Xx.
00000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Company:
Proflight, Inc.
00000 X Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
15. COMPLETE AGREEMENT; AMENDMENTS.
This Consulting Agreement contains the full and complete understanding
of the parties pertaining to the subject matter hereof and supersedes all prior
and contemporaneous agreements and understandings of the parties in connection
therewith. No amendment or modification of this Consulting Agreement shall be
valid unless made pursuant to an instrument signed by the Company and the
Consultant.
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16. GOVERNING LAW.
This Consulting Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
17. SEVERABILITY.
If any one or more of the terms, provisions, covenants or restrictions
of this Consulting Agreement shall be determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Consulting Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated. If any one or more of the provisions contained in this Consulting
Agreement shall for any reason be determined by a court of competent
jurisdiction to be excessively broad or vague as to duration, geographical
scope, activity or subject or otherwise, this Consulting Agreement shall be
construed by limiting, reducing or defining it, so as to be enforceable to the
fullest extent compatible with then applicable law.
18. HEADINGS.
The descriptive headings of the several Paragraphs of this Consulting
Agreement are inserted for convenience only and do not constitute a part of this
Consulting Agreement.
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19. WAIVER OF BREACH.
The waiver by the Company or the Consultant of a breach of any provision
of this Consulting Agreement by the Company or the Consultant shall not operate
or be construed as a waiver of any subsequent breach by the Company or the
Consultant.
20. COUNTERPARTS.
This Consultant Agreement may be executed in any number of counterparts,
each of which shall be an original, and all of which shall constitute one and
the same agreement.
IN WITNESS WHEREOF the parties hereto have duly executed this Consulting
Agreement as of the day and year first above written.
Proflight Medical Response, Inc.
By /s/ Xxxxx X. Xxxxxxxxx
______________________________
Xxxxx X. Xxxxxxxxx, President
By /s/ Xxxxx X. Xxxxxx, Xx.
_______________________________
Xxxxx X. Xxxxxx, Xx., Consultant
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