MEDBOX, INC. DIRECTOR RETENTION AGREEMENT
Exhibit 10.1
THIS MEDBOX, INC. DIRECTOR RETENTION AGREEMENT (“Agreement”) is entered into by and between, on one hand, Medbox, Inc., a Nevada corporation with principal executive offices in California (“Medbox” and or “Company”) and, on the other hand, Xxx X. Xxxxxx (“Director”) as of April 1, 2014. Medbox and Director are sometimes referred to herein, from time to time, collectively, as the “Parties.”
Recitals
WHEREAS, Director has been elected as a member of the board of directors of Medbox for a term beginning as of April 1, 2014;
WHEREAS, Director has agreed to serve as a member of the board of directors of Medbox for the aforementioned term and subject to its in-force articles and bylaws and governing law; and,
WHEREAS, Medbox wishes to compensate and arrange for compensation for Director as consideration for his expected service as a member of the board of directors of Medbox.
Terms And Conditions
NOW THEREFORE, in consideration of the mutual promises, agreements and or covenants set forth in this Agreement, the Parties agree as follows:
1. Services Provided By Director. Director agrees to serve as a member of the board of directors of the Company (the “Board”) and, subject to his election thereto, any committee of the Board comprised of Company Board members (“Committee”) as may be formed and as to which he may be elected, and to provide those services (the “Services”) required of a director and, as may be the case Committee member under the Company’s articles and bylaws (“Articles and Bylaws”), as both may be amended from time to time, and under the corporate law of the State of Nevada, the federal securities laws and other state and federal laws and regulations, as may be applicable. Presently. Director is a member of the following board committees: governance (Chairman), nominating (Chairman), audit (member), compensation (member). It is contemplated that Director will provide guidance to the Company regarding vertical strategies, manufacturing, marketing and other matters within his experience and background, and the Director agrees to be available as the Company needs his time, as requested by the CEO/President and Chairman of the Board.
2. Nature of Relationship. Director will not be deemed an employee of the Company.
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3. Company Information. The Company will supply to Director, at the Company’s expense:
(a) periodic briefings on the business and operations of the Company;
(b) director packages for each Board and Committee meeting, at a reasonable time before each meeting;
(c) copies of minutes of all stockholders’, Board and Committee meetings;
(d) any other materials that are required under the Articles and Bylaws or the charter of any Committee on which the Director serves; and,
(e) any other materials which may, in the reasonable judgment of Director, be necessary or desirable for performing the Services.
4. Representations, Warranties and Covenants of Director.
(a) Director represents and warrants that the performance of the Services will not violate any written agreement to which Director is a party;
(b) If in the reasonable discretion of the Director, a potential conflict of interest regarding his other work comes to the attention of Director, Director agrees to disclose same to the Company in a timely manner; and,
(c) Director further agrees that he will comply with all applicable state and federal laws and regulations.
5. Director Compensation.
5.1 Monthly Director Fee. The Company shall pay Director a fee of $4,000 per month during the term of this Agreement, and as otherwise provided herein, payable monthly on a day of the month established by the Company so as to be convenient to its affairs, but which shall be consistent each month, from month to month. This amount can be adjusted to $5,000 as determined by the CEO/President of the Company and the Director.
5.2 Reasonable and Customary Expenses. The Company will reimburse Director for reasonable and customary expenses incurred in the performance of the Services for travel (coach airfare paid by Company and any upgrades paid by Director), lodging (maximum reimbursement $350.00 per night), meals and otherwise promptly, but in no event later than fifteen business days, upon submission of invoices and receipts for such expenses in a commercially reasonable form.
5.3 Stock. Director shall receive stock from the Company as set forth herein specifically below, which shall be in accord with any applicable stock plan of the Company’s in force and effect as of the date of this Agreement, and the Director shall be permitted to sell stock in the Company owned by the Director in accord with the Company’s applicable Xxxxxxx Xxxxxxx Policy, and any other applicable plan or policy, and in accord with Director’s Sales Plan (a true and correct copy of which is attached hereto as Exhibit A).
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More specifically, the Director shall receive the following stock from the Company on the following dates and with the following terms:
a. First Year Inducement Grant - 225,000 shares comprised of:
| (i) | 168,750 shares of Restricted Stock (“RS”), 42,187.5 shares of which vest on each of September 1, 2014, September 30, 2014, January 1, 2015 and March 31, 2015. |
| (ii) | 56,250 Restricted Stock Units (“RSUs”), 14,062.5 of which vest on each of September 1, 2014, September 30, 2014, January 1, 2015 and March 31, 2015. |
| • | Each vested RSU is payable in one share of common stock. |
| • | All 56,250 vested RSUs will be paid out on April 1, 2015. |
b. Annual Equity Grant in second year of service and, if elected, in third year of service – 100,000 shares comprised of:
| (i) | 75,000 shares of RS, 18,750 shares of which vest on each of July 1, October 1, January 1, and April 1. |
| (ii) | 25,000 RSUs, 6,250 of which vest on each of July 1, October 1, January 1, and April 1. |
| • | Each vested RSU is payable in one share of common stock. |
| • | All 25,000 vested RSUs will be paid out on April 1 of the following year, 2016 and, if applicable, April 1 2017, respectively. |
Expiration of the Sales Plan currently in effect shall not limit the Director’s right or ability to make sales of his stock in the Company, nor his right or ability to receive stock in the Company in accord with the above schedule. Director shall have the right to extend the current Sales Plan after its expiration by providing an identical plan to the Company for its consent, which the Company agrees to approve provided that any such plan is otherwise identical to the existing Sales Plan except that it extends for a period of time no greater than the Director’s then existing term as a Director of the Company.
6. Indemnification and Insurance.
(a) The Company shall indemnify the Director to the fullest extent of the law and its articles and bylaws then in effect, and further in accord with the Company’s broadest outstanding form of indemnification agreement;
(b) In addition, the Company shall, at its expense and immediately upon execution of this Agreement, if that has not already occurred, cause Director to be covered as an insured under a directors’ and officers’ liability insurance policy commercially reasonable as to coverage limitations and amounts, taking into account the Company’s business and stage of development, but with at least $2 million in aggregate limits; provided, however, that the Company will make good faith efforts to explore and put in place a policy with higher coverage limits at the renewal stage.
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7. Term and Termination.
(a) This Agreement shall be effective beginning as of April 1, 2014 until March 31, 2016. If elected for an additional term beyond March 31, 2016, this Agreement will remain in full force and effect until March 31, 2017.
(b) This Agreement shall automatically terminate upon the death or disability of Director or upon his resignation or removal from the Board. For purposes of this Section 7(b), “disability” shall mean the inability of Director to perform the Services for a period of at least 90 consecutive days, as determined by the Company’s board of directors.
(c) In the event of any termination of this Agreement, Director agrees to return any materials received from the Company pursuant to Section 3 (“Company Information”) of this Agreement except as may be necessary to fulfill any outstanding obligations hereunder, if any, and as to those, those shall be returned promptly upon completion of said obligations. Director agrees that the Company has the right of injunctive relief to enforce this provision without need to show irreparable harm, immediacy of harm and without posting any bond.
(d) Upon termination of this Agreement, the Company shall promptly pay Director all unpaid, but due, fees and expense reimbursements accrued through the date of termination, if any.
8. Confidentiality, Inventions and Non-Competition.
Director agrees to keep all Company Information provided to him or learned by him in connection with his Service on the Board confidential, subject only to applicable mandatory legal disclosure requirements. Further, any inventions related to the Company’s business regarding which the Director provides advice, input, direction or Services shall belong exclusively to the Company. And, Director agrees not to compete with the Company during the term of this Agreement and for a period of two years after his Board Services terminate. Director agrees that the Company has the right of injunctive relief to enforce this provision without need to show irreparable harm, immediacy of harm and without posting any bond.
9. Assignment.
This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns and, except as otherwise expressly provided herein, neither this Agreement, nor any of the rights, interests or obligations hereunder shall be assigned by either of the Parties without the prior, express written consent of the other party.
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10. General.
10.1 Governing Law. Except as to matters concerning arbitration, and the separable arbitration provision set forth in this Agreement, which shall be governed by California law, this Agreement shall otherwise be governed by and construed in accordance with and governed by the laws of the State of Nevada without giving effect to the conflict of law principles of the said state.
10.2 Notices. In order to be effective, all notices and other communications required or permitted hereunder must be in writing and must be delivered by hand or by overnight courier, or certified mail, return receipt requested as follows:
If to the Company:
Mail/delivery address:
Attention: Chief Executive Officer
0000 X. Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxxxxx, Xx 00000
If to Director:
Mail/delivery address:
Each party may furnish an address substituting for the address given above by giving notice to the other party in the manner prescribed by this Section 10.2 (“Notice”). All notices and other communications will be deemed to have been given upon actual receipt by (or tender to and rejection by) the intended recipient or any other person at the specified address of the intended recipient.
10.3 Disputes. In the event of any dispute or controversy arising out of, or relating to, this Agreement, the parties hereto agree to submit such dispute or controversy to binding arbitration pursuant to either the JAMS Streamlined (for claims under $250,000.00) or the JAMS Comprehensive (for claims over $250,000.00) Arbitration Rules and Procedures, except as modified herein, including the Optional Appeal Procedure. A sole neutral arbitrator shall be selected from the list (the “List”) of arbitrators supplied by J.A.M.S. (“JAMS”) Los Angeles County, California office, or any successor entity, or if it no longer exists, from a List supplied by the ADR Services. Inc., in Los Angeles, California (“ADR”) following written request by any party hereto. If the parties hereto after notification of the other party(-ies) to such dispute cannot agree upon an arbitrator within thirty (30) days following receipt of the List by all parties to such arbitration, then either party may request, in writing, that JAMS or ADR, as appropriate, appoint an arbitrator within ten (10) days following receipt of such request (the “Arbitrator”). The
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arbitration shall take place in Los Angeles County, California, at a place and time mutually agreeable to the parties or if no such agreement is reached within ten (10) days following notice from the Arbitrator, at a place and time determined by the Arbitrator. Such arbitration shall be conducted in accordance with the Streamlined Arbitration Rules and Procedures of JAMS then in effect, and Section 1280 et seq. of the California Code of Civil Procedure, or if applicable, the Commercial Arbitration Rules of ADR then in effect. The preceding choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this Section. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Section, and stipulates that the Arbitrator shall have in personam jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement. The decision of the Arbitrator shall be final and binding on all the parties to the arbitration, shall be non-appealable and may be enforced by a court of competent jurisdiction. The prevailing party shall be entitled to recover from the non-prevailing party reasonable attorney’s fees, as well as its costs and expenses. The Arbitrator may grant any remedy appropriate including, without limitation, injunctive relief or specific performance.
10.4 Severability. In the event that any provision of this Agreement is held to be unenforceable under applicable law, this Agreement will continue in full force and effect without such provision and will be enforceable in accordance with its terms.
10.5 Construction. The titles of the sections of this Agreement are for convenience of Reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole, (b) references to one gender include all genders, (c) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (d) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (e) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or Agreement as it may be modified, varied, amended or supplemented from time to time.
10.6 Entire Agreement. This Agreement embodies the entire agreement and understanding between the parties hereto with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements and understanding other than this Agreement relating to the subject matter hereof.
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10.7 Amendment and Waiver. This Agreement may be amended only by a written agreement executed by the parties hereto. No provision of this Agreement may be waived except by a written document executed by the party entitled to the benefits of the provision. No waiver of a provision will be deemed to be or will constitute a waiver of any other provision of this Agreement. A waiver will be effective only in the specific instance and for the purpose for which it was given, and will not constitute a continuing waiver.
10.8 Counterparts. This Agreement may be in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one instrument.
IN WITNESS WHEREOF, the undersigned have
executed this Agreement as of
the date first written above.
| MEDBOX, Inc. (“Medbox” or “Company”) | ||
| By: | /s/ Xxx Xxxxxxx | |
| Name: | Xxx Xxxxxxx | |
| Title: | CEO | |
| DIRECTOR: | ||
| By | /s/ Xxx X. Xxxxxx | |
| Xxx X. Xxxxxx | ||
| Shareholder consent by Xxxxxxx Xxxxxxxxxx personally and on behalf of any entity he owns or controls which is a Medbox, Inc. shareholder: | ||
| By | /s/ Xxxxxxx Xxxxxxxxxx | |
| Xxxxxxx Xxxxxxxxxx | ||
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