Atomic Paintball, Inc.
Consultant Agreement
February 18, 2010
Xxxx Xxxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Dear Xx. Xxxxxxx,
Please allow this letter to serve as the entire agreement between Atomic
Paintball, Inc., (the "Company") and you, Xxxx Xxxxxxx (the "Consultant") with
respect to certain aspects of your consulting engagement with the Company.
RECITALS
WHEREAS, Consultant has developed an expertise in the areas of marketing,
project planning and development analysis, and intellectual asset development
which is of interest to the Company;
WHEREAS, The Company desires to obtain the services of Consultant and Consultant
desires to provide the Company with consultancy and advisory services as
contemplated pursuant to the terms and conditions contained herein; and
WHEREAS, the undersigned Parties desire to formalize such consultancy
relationship;
NOW, THEREFORE, in consideration of the promises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties to the
Agreement agree as follows:
1. Engagement of Services. The Company hereby engages Consultant as an
independent contractor to provide consulting and advisory services as
set forth herein. All such consulting and services shall be performed
in accordance with the terms and conditions contained herein.
Consultant shall report to the Board of Directors, or it's designate.
Consultant hereby accepts such engagement in accordance with such
terms and conditions.
2. Services of Consultant. Consultant shall provide consultancy and
advisory services and shall remain an independent contractor. Attached
hereto as Schedule "A", and incorporated herein by reference, is a
service request form specifying the initial scope of work to be
rendered by Consultant. The Company may, but is not obligated to,
provide additional project and/or service requests to Consultant. Any
subsequent service request will be governed by this Agreement.
Consultant shall provide such services incident thereto as may be
necessary from time to time which services shall include, without
limitation, providing the Company with his best efforts and technical
expertise.
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Atomic Paintball, Inc.
Consultant Agreement
Consultant shall provide such other related services as may be
requested of Consultant by the Company and as are not inconsistent with the
provisions of this Agreement. Consultant agrees to devote Consultant's best
efforts, skills, and technical expertise to the business of the Company, to do
Consultant's utmost to further enhance and develop the interests and welfare of
the Company, and to devote necessary time and attention to the business of the
Company, while recognizing Consultant's duties to its other professional
responsibilities.
Consultant shall truthfully and accurately make, maintain and preserve all
records and reports, equipment, materials or other property belonging to the
Company of which Consultant may have custody and shall pay over and deliver same
promptly whenever and however Consultant may be directed to do so.
Consultant shall make available to the Company any and all
information of which Consultant has knowledge that is
relevant to the Company's business, but is not otherwise
prohibited from disclosing, and make all suggestions and
recommendations which Consultant believes will be of benefit
to the Company.
3. Duty to Other Parties. The parties recognize that Consultant
may provide consultancy or be employed by other parties, and
that as such, Consultant may devote time and effort to the
business of other parties. Notwithstanding the same,
Consultant shall align Consultants' conduct to the fiduciary
duties of confidentiality and loyalty owed to the Company.
In that regard, Consultant shall inform the Company at the
earliest opportunity at such time as consultant may perceive
a potential conflict of interest with regard to Consultant's
duties to other parties and Consultant's duties to the
Company. Consultant shall not make any unauthorized
disclosure of the confidential information of other parties
to the Company. Consultant shall not make any unauthorized
disclosure of the confidential information of the Company to
other parties (or any other party not permitted to receive
such information).
4. Compensation. For and inconsideration of the performance by
Consultant of the services, terms, conditions, covenants and
promises herein recited, the Company agrees and promises to
pay to Consultant at the times and in the manner herein
stated and as set forth below:
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Atomic Paintball, Inc.
Consultant Agreement
Consultant shall earn equity equivalent to 100,000 shares of Common Stock
with reasonably required restrictions.
Consultant shall xxxx the Company monthly for services rendered based on
work product provided or delivered as a result of Company authorized projects or
service request. Except as otherwise set forth herein, the payment of invoices
shall constitute the sole compensation of Consultant hereunder.
The Company shall reimburse Consultant, from time to time, upon
Consultants' submission of expense account and supporting documents as required
by the Internal Revenue Service, for all reasonable out of town travel,
entertainment, long distance telephone charges, mailing, and other ordinary,
reasonable and necessary business expenses incurred by Consultant as part of and
in connection with the direct performance of duties specified herein.
5. Relationship of the Parties
5.1 Legal Status. Consultant shall be an independent contractor of the
Company. It is expressly declared that such independent contractor
status is bona fide and not a subterfuge to avoid employee status.
This Agreement shall not create an employer-employee relationship and
shall not constitute a hiring of such nature by either party.
5.2 Consent of Company. Consultant shall have no right or authority at any
time to make any contract or binding promise of any nature on behalf
of the Company, whether oral or written, without the express prior
written consent of the Company.
5.3 Manner of Performing Services. Consultant shall retain all discretion
and judgment in regard to the manner and means of carrying out its
duties hereunder subject however, to the reasonable requests of the
Company. Consultant shall have the right to control and discretion as
to the manner of performance of its services hereunder in that the
result of the work and not the means by which it is accomplished shall
be the primary factor for which the parties have bargained hereunder.
Consultant shall have no obligation to work any particular hours or
days or any particular number of hours or days. The Company shall have
no right to control or direct the details, manner or means by which
Consultant accomplishes the results of the services performed
hereunder.
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Atomic Paintball, Inc.
Consultant Agreement
5.4 Payment of Taxes. Consultant shall be responsible for and pay
Consultant's own self-employment taxes, estimated tax liabilities,
business equipment or personal property taxes and other similar
obligations, whether federal, state or local. The Company shall not
pay or withhold any FICA, SDI, Federal or State Income Tax or
Unemployment Insurance or tax or any other amounts because the
relationship of the parties hereto is not that of employer-employee,
but that of independent contractor. Consultant shall be solely
responsible for the payment of all taxes, withholdings and other
amounts due in regard to Consultant's own employee.
5.5 Employees of Consultant. Consultant may subcontract with and/or employ
such parties upon such terms and conditions as it may deem proper or
necessary.
6. Warranties and Indemnification
6.1 Warranties. Consultant warrants and represents that the services of
Consultant's subcontractors or employees shall be performed in full
compliance with the terms and conditions of this Agreement, and, that
all services performed hereunder shall be performed in accordance with
all federal, state and local laws, rules or regulations.
6.2 Indemnification by Consultant. Consultant shall indemnify, defend and
hold the Company and the property of the company, free and harmless
from any and all claims, losses, damages, injuries, and liabilities,
including the Company's reasonable attorney fees and cost (the Company
may choose its own counsel when defending hereunder), arising from or
in any way connected with the performance of services under this
Agreement or any other act of omission by Consultant, its agents,
subcontractors, or employees.
6.3 Indemnification by the Company. The Company shall indemnify, defend
and hold Consultant and the property of consultant, free and harmless
from any and all claims, losses, damages, injuries, and liabilities,
including Consultant's reasonable attorney fees and cost, arising from
or in any way connected with any act or omission on the part of the
Company, its constituent partners, agents, subcontractors, or
employees.
7. Term. Consultant's engagement pursuant to this Agreement shall be
month to Month and project based and shall commence upon the date of
execution hereof (the "Commencement Date").
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Atomic Paintball, Inc.
Consultant Agreement
7. Termination. Notwithstanding any other provision of this Agreement to
the contrary, either party may terminate this Agreement at any time
upon ten (10) days prior written notice to the other. This Agreement
is terminable at the will of either party for any cause whatsoever.
8. Contemporaneous Agreements This Consultant Agreement is executed
contemporaneously with a Non-Compete, Non-Solicitation, and No Trade
Agreement between the parties and attached as "Exhibit A".
9. Confidentiality. All information derived or provided to Consultant
under the terms and specific to the performance of this Agreement,
including lists and databases, and any part of such lists, databases,
or information, pertaining to customers, merchants, salespersons,
financial records, computer software programs, strategic plans,
contracts, agreements, literature, manuals, brochures, books, records,
correspondence, computer programs, software, source codes,
computations, data files, algorithms, techniques, processes, designs,
specifications, drawings, charts, plans, schematics, computer disks,
magnetic tapes, books, files, records, reports, documents,
Instruments, Agreements, contracts, letters, memoranda, financial,
accounting, sales, purchase and consultant data, capital structure
information pertaining to, Shareholders, Directors, Officers,
Consultants, Contractors, Vendors, Suppliers, Customers, Clients,
Lenders, Financing and Business Participants, and all persons
associated with the Company, information pertaining to business
models, business plans, projections, assumptions and analyses,
particular projects, and all other data and information and similar
items relating to the business of the Company and all other data and
information and similar items relating to the Company of whatever kind
or nature and whether or not prepared or compiled by the Company and
all other materials furnished or made available to Consultant by the
Company or any of its affiliates (as hereinafter defined) relating to
the business conducted by the Company ("Confidential Information"), is
and are proprietary and confidential and are shall remain the sole
property of the Company. Affiliate as used in this section shall mean
the Company, any entity in which Company owns a majority ownership
(directly or indirectly), or any entity which owns a majority
ownership of Company (directly or indirectly). Consultant acknowledges
that the Confidential Information derives independent economic value,
actual or potential, from not being generally known to the public or
to other persons who can obtain economic value from its disclosure or
use and that this confidentiality provision constitutes efforts that
are reasonable under the circumstances to maintain the secrecy
thereof. Consultant further acknowledges that the Confidential
Information constitutes trade secrets pursuant to California Civil
Codess.3425.1. Consultant shall not, directly or indirectly, at any
time during or after termination of consultant use or reveal, divulge,
disclose, disseminate, distribute, license, sell, transfer, assign or
otherwise make known, directly or indirectly, the Confidential
Information to any person or entity not expressly authorized by the
Company to receive such Confidential Information
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Atomic Paintball, Inc.
Consultant Agreement
9.1 Consultant shall exercise the highest degree of care and discretion in
accordance with the duty of Consultant hereunder to prevent improper
use or disclosure of the Confidential Information and will retain all
such Confidential Information in trust in a fiduciary capacity unless:
(i) such use or disclosure has been authorized in writing by the
Company through an officer or director, or (ii) is required to be
disclosed by law, a court of competent jurisdiction or a governmental
or regulatory agency. Further, Consultant shall return and deliver all
such materials, including all copies, remnants, or derivatives thereof
to the Company upon the termination of consultant with the Company or
at any other time upon request by the Company.
10. Assignment. The obligations of Consultant under this Agreement are
unique and may not be assigned.
11. Amendments. This Agreement may be amended only in writing executed by
Consultant and Company and approved in writing by the majority vote of
the Board of Directors of the Company.
12. Effect of headings. The subject headings of the paragraphs and
subparagraphs of this Agreement are included for purposes of
convenience only, and shall not affect the construction or
interpretation of any of its provisions.
13. Parties in Interest. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it
and their respective successors and assigns, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability
of any third persons to any party to this Contract, nor shall any
provision give any third person any right of subrogation or action
over against any party to this Agreement.
14. Recovery of Litigation Costs. If any legal action or any arbitration
or other proceeding is brought for the enforcement of this Agreement,
or because of an alleged dispute, breach, default or misrepresentation
in connection with any of the provisions of this Agreement, the
successful or prevailing party or parties shall be entitled to recover
as an element of their damages, reasonable attorneys' fees and other
costs incurred in that action or proceeding, in addition to any other
relief to which they may be entitled.
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Atomic Paintball, Inc.
Consultant Agreement
15. Gender; Number. Whenever the context of this Contract requires, the
masculine gender includes the feminine or neuter gender, and the
singular number includes the plural.
16. Time of Essence. Time shall be of the essence in all things pertaining
to the performance of this Agreement unless waived in writing by the
undersigned parties.
17. Authority. The parties to this Agreement warrant and represent that
they have the power and power and authority to enter into this
Agreement in the names, titles and capacitates herein stated and on
behalf of any entities, persons or firms represented or purported to
be represented by each respective party.
18. Waiver. A Waiver by either party of any of the terms and conditions of
this Agreement in any instance shall not be deemed or construed to a
waiver of such terms of condition for the future, or of any subsequent
breach thereof, or of any other term and condition of this Agreement.
All Waivers must be made in writing executed by the waiving party.
19. Entire Agreement. This Agreement constitutes the entire agreement
between the parties respecting the subject matter hereof, and there
are no other representations, warranties, agreements or commitments
between the parties hereto except s set forth herein. This Agreement
cancels and shall supersede and control any previous agreements
between the Parties. This Agreement shall control over any and all
provisions or guidelines contained in any Consultant Manual,
Consultant Handbook, Company Policy Manual or other similar document.
Consultant expressly acknowledges that no Consultant Manual,
Consultant Handbook, Company Policy manual or other similar document
is or shall become a contract between the Company and Consultant.
20. Notices. Any notice, request, demand or other communication permitted
to be given hereunder shall be in writing and shall be deemed to be
duly given when personally delivered to an Consultant Officer of the
Company or to Consultant, as the case may be, or when deposited in the
United States mail, by certified or registered mail, return receipt
requested, postage prepaid, at the respective addresses of the Company
and consultant as shown on the signature page hereto. Either party may
change by notice the address to which notices are to be sent.
21. Severability. If any provision of this Agreement shall, for any
reason, be held unenforceable, such provision shall be severed from
the contract. The invalidity of such specific provision, however,
shall not affect the enforceability of any other provision herein, and
the remaining provision shall remain in full force and effect.
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Atomic Paintball, Inc.
Consultant Agreement
22. Choice of Law. This Agreement shall, to the fullest extent allowed by
Law, be construed, interpreted and enforced in accordance with the
Laws of the State of Texas.
IN WITNESS WHEREOF, this Agreement is made effective by Consultant and the
Company on the date set first forth above.
COMPANY: CONSULTANT:
Atomic Paintball, Inc. Xxxx Xxxxxxx
BY: _______________________ BY: _______________________
Xxxxx Xxxxxxxx, Director CEO, as Consultant
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Atomic Paintball, Inc.
Consultant Agreement
Schedule A
Duties, Responsibilities and Objectives
1. Consultant is to serve initially in a role typically associated with
the duties of a Chief Executive Officer of 4G Paintball, Inc. Those
duties shall consist of the following:
1. The Chief Executive Officer shall follow the guidelines and
instructions issued by the Board of Directors.
2. The Chief Executive Officer represents the Company externally in
matters which form part of the day-to-day management.
3. The Chief Executive Officer shall ensure that the operations of the
Company are carried out in accordance with all applicable laws and
high ethical standards.
4. The Chief Executive Officer shall ensure that the Company's accounts
are in accordance with existing regulations and other relevant laws,
and that the assets of the Company are soundly managed.
5. The Chief Executive Officer may not receive remuneration from any
other party in connection with his work for the Company.
2. DUTIES TOWARDS THE BOARD OF DIRECTORS
1. The Chief Executive Officer shall carry out her work in accordance
with the guidelines and instructions issued by the Board of Directors.
2. The Chief Executive Officer shall ensure that the resolutions of the
Board of Directors are carried out.
3. The Chief Executive Officer is responsible for, in co-operation with
the Chairman of the Board of Directors, the preparation of matters
which are to be considered by the Board of Directors. Such matters
shall be prepared and presented in such a way that the Board of
Directors has satisfactory grounds on which to base its discussion.
4. The Chief Executive Officer shall make a statement on the Company's
activities, positions and profit/loss development to the Board of
Directors at least every month.
5. The Board of Directors may at any time require the Chief Executive
Officer to report to the Board of Directors on specific matters.
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6. The Chief Executive Officer shall have a right and an obligation to
participate in meetings of the Board of Directors, and to make
comments, unless otherwise decided by the Board of Directors on a
case-by-case basis.
7. Additional duties as directed by the Board of Directors
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Atomic Paintball, Inc.
Consultant Agreement
Schedule B
1 First Refusal on CityplaceSale of Shares. If the Consultant or a
transferee or assignee of Consultant (the "Selling Shareholder"),
proposes to sell all or part of his shares of Common Stock, the
following provisions shall apply:
(a) Notice: The Selling Shareholder shall first give written notice
(the "Option Notice") to the Company, which notice shall identify
the prospective purchaser and shall set forth in reasonable
detail the terms and conditions upon which such sale is proposed
to be made, and shall be accompanied by copies of the bona fide
offer and any other information furnished to or by the
prospective purchasers. Such notice shall automatically grant the
Company an option to purchase that portion of the Shares of the
Selling Shareholder proposed to be assigned or sold upon the same
terms and conditions as contained in the bona fide offer.
(b) Shares Covered by Option: The option granted herein to the
Company must be exercised by the Company as to the entire
interest being offered (the "Offered Shares"), unless the Selling
Shareholder consents to a sale or transfer of less than the
entire interest.
(c) Exercise of Option: The company, at its sole discretion, may,
within thirty (30) days after receipt of the Option Notice (the
"Option Period"), give written notice to the Selling Shareholder
)the "Acceptance Notice"), signed by the Company, that the
Company elects to exercise such option, evidencing its agreement
to purchase the Offered Shares.
(d) Closing of Sale: Closing on the sale of the Offered Shares to the
Company shall take place at the principal place of business of
the Company ten (10) days after the expiration of the Option
Period or at such other place and time as agreed to by the
Selling Shareholder and the Company.
(e) Failure to Exercise Option: If the option is not exercised within
the Option Period as to the Offered Shares, the Selling
Shareholder may sell or transfer the Offered Shares within sixty
(60) days thereafter to the prospective purchaser named in the
Option Notice at a price and on terms no more favorable than
described in the Option Notice.
(f) Subsequent Transfers: The Selling Shareholder shall not otherwise
sell or transfer the Offered Shares to any person after the
termination of said sixty (60) day period without again complying
with this Section.
(g) No Pledges: the Consultant and each transferee or assignee of the
Employee further agrees and covenants not to pledge, lend,
hypothecate or otherwise grant any interest in the shares of the
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Common Stock, without the prior written consent of the Company,
in its sole discretion. The Company shall be entitled to redeem
the shares of Common Stock at the purchase price thereof in the
event of any breach of this section
2. Repurchase Rights. The Shares owned by the Consultant are subject to
forfeiture and restrictions on transfer in accordance with the terms
and conditions of the Agreement. Subject to the terms of this
Agreement, on each month anniversary of the date of this Agreement, on
twelfth (1/12) of the Shares shall no longer be subject to the
repurchase right set forth herein. Other than as expressly reserved or
restricted by this Agreement, the Consultant shall have all the rights
of a stockholder with respect to the Shares unless and until the
Company exercises its repurchase rights. The Shareholders may not
sell, transfer, alienate pledge, or otherwise encumber (i) any Share
or fraction thereof, or any interest in a Share or (ii) any other
interest in this Agreement, until such Shares are no longer subject to
the Company's repurchase rights as set forth herein. Dividends paid
with respect to Shares in cash or property other than shares or rights
to acquire shares will be paid to the Consultant at the time such
dividends are paid to other stockholders. Dividends with respect to
Shares paid in shares or rights to acquire shares will be added to and
become a part of the Shares.
a) If this Agreement or the Consulting engagement hereunder, is
terminated the Company will have the right (the "Repurchase
Right"), but not the obligation, to purchase from the Consultant
(or any person to whom Consultant shall have transferred any such
Shares) all or any portion of the Shares as to which the
Company's repurchase right has not expired as set forth above
(the "Repurchased Stock").
b) If the Company intends to exercise its Repurchase Right with
respect to such Repurchased Stock, the Company must give the
Shareholder written notice (the Repurchase Notice") within 60
days after the applicable Severance Date, that the Company is
exercising its Repurchase Right with respect to the Repurchased
Stock, which Repurchase Notice will constitute exercise of the
Repurchase Rights. The Company may exercise each Repurchase Right
with respect to all or any portion, of the Repurchased Stock
subject to such Repurchase Right. Such Repurchase right will
expire with respect to the Repurchased Stock subject to such
Repurchase Right to the extent not exercised by the Company
within 60 days after the Severance Date. The price per share for
the Repurchased Stock will be $.001 per share (the "Repurchase
Price").
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c) If the Company exercises a Repurchase Right with respect to any
Repurchased Stock, within 30 days after the date of a Repurchase
Notice the Company shall deliver to Consultant the Repurchase
Price for the Shares of Repurchased Stock being purchased and
Consultant shall deliver to the Company certificates, if any,
previously delivered to Consultant representing such Repurchased
Stock, duly endorsed for transfer to the Company, or such
certificates and a duly executed Stock power transferring such
shares of Repurchased Stock to the Company.
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"EXHIBIT A"
NON-COMPETE, NON-SOLICITATION AND NO TRADE AGREEMENT
For
Atomic Paintball, Inc.
February 18, 2010
Xxxx Xxxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Xx. Xxxxxxx
In connection with the evaluation of a proposed relationship with
Atomic Paintball, Inc. (herein referred to as "Company"), has or is prepared to
make available to you certain proprietary information of the Company. As a
condition to such information being furnished to you and your directors,
officers, or employees (collectively, the "Representatives"), you agree to treat
any information concerning the Company (whether prepared by the Company, its
advisors or otherwise and irrespective of the form of communication) which has
been or will be furnished to you or your Representatives by or on behalf of the
Company (herein collectively referred to as the "Confidential Information") in
accordance with the provisions of this letter agreement, and to take or abstain
from taking certain other actions hereinafter set forth.
The term "Confidential Information" means nonpublic information
relating to the Company's business, including, without limitation, invention
(whether or not patentable), trade secrets, techniques, processes,
methodologies, know-how, ideas, schematics, testing procedures, process design
and architecture, design and functional specifications, analysis and performance
information, user documentation and the features, mode of operation and other
details of its processes, products and services, as well as names and expertise
of employees, consultants, suppliers, customers and prospects, partners,
proposed partners, and technical, business, financial, marketing, customer and
product development plans, forecasts, strategies and other information, which to
the extent previously, presently or subsequently disclosed in any manner,
including (without limitation) in writing, orally, electronically, or by visual
inspection, to you or your representatives. Confidential information disclosed
to you or your representatives by the Company and/or its agents is covered by
this agreement. The term "Confidential Information" shall be deemed to include
all notes, analyses, compilations, studies, interpretations or other documents,
prepared by you or your representatives which contain, reflect or are based
upon, in whole or in part, the information furnished to you or your
representatives pursuant to this letter agreement.
The term "Confidential Information" does not include information which
(i) is or becomes generally available to the public other than as a result of an
unauthorized disclosure by you or your representatives, (ii) was within your
possession prior to its being furnished to you by the Company pursuant hereto,
provided that the source of such information was not known by you to be bound by
a confidentiality agreement with or other contractual, legal, or fiduciary
obligation of confidentiality to the Company or any other party with respect to
such information, (iii) becomes available to you on a non-confidential basis
from a source other than the Company or any of its Representatives, provided
that such source is not bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to any other party
with respect to such information, (iv) is independently developed by you without
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access to the Confidential Information, or (v) is disclosed by you to others in
accordance with the terms of prior written authorization of the Company.
You hereby agree that you and your representatives shall use the
Confidential Information solely for the purpose of determining whether to enter
into a relationship with the Company, that the Confidential Information will be
kept confidential and that you and your representatives will not disclose any of
the Confidential Information in any manner whatsoever, provided, however, that
(i) you may make any disclosure of such information to which the Company gives
its prior written consent and (ii) any of such information may be disclosed to
your representatives who need to know such information for the sole purpose of
determining whether to enter into a relationship with the Company, who agree to
keep such information confidential and who are provided with a copy of this
letter agreement and agree to be bound by the terms hereof to the same extent as
if they were parties to this letter agreement. In any event, you shall be
responsible for any breach of this letter agreement by any of your
representatives and agree at your sole expense, to take all reasonable measures
(including but not limited to court proceedings) to restrain your
representatives from prohibited or unauthorized disclosure or use of the
Confidential Information.
In the event that you or any of your representatives is requested or
required (by deposition, interrogatories, requests for information or documents
in legal proceedings, subpoena, civil investigative demand or other similar
process) to disclose any of the Confidential Information, you shall provide the
Company with prompt written notice of any such request or requirement so that
the Company may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this letter agreement. If, in the absence of a
protective order or other remedy or the receipt of a waiver by the Company, you
or any of your representatives are nonetheless, in the written opinion of your
counsel, legally compelled to disclose Confidential Information to any tribunal
or else stand liable for contempt or suffer other censure or penalty, you or
your representative may, without liability hereunder, disclose to such tribunal
only that portion of the Confidential Information which your counsel advises is
legally required to be disclosed, provided that you exercise your best efforts
to preserve the confidentiality of the Confidential Information, including,
without limitation, by cooperating with the Company to obtain an appropriate
protective order or other reliable assurance that confidential treatment will be
accorded the Confidential Information by such tribunal.
If you decide that you do not wish to proceed with entering into a
relationship with the Company, you will promptly inform the Company of that
decision. In that case, or at any time upon the request of the Company for any
reason, you will promptly deliver to the Company all documents (and all copies
thereof) furnished to you or your representatives by or on behalf of the Company
pursuant hereto. In the event of such a decision or request, all other
Confidential Information prepared by you or your representatives shall be
destroyed and no copy thereof shall be retained. Notwithstanding the return or
destruction of the Confidential Information, you and your representative will
continue to be bound by your obligations of confidentiality and other
obligations hereunder.
You understand and acknowledge that neither the Company nor any of its
representatives make any representation or warranty, expressed or implied, as to
the accuracy or completeness of the Confidential Information. You agree that
neither the Company nor any of its representatives shall have any liability to
you or to any of your representatives relating to or resulting from the use of
the Confidential Information.
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You further agree that, without the prior written consent of the Board
of Directors of the Company, until such time as any and all material non-public
information contained in the Confidential Information has been disclosed
publicly , neither you nor any of your affiliates (as such term is defined in
Rule 12b-2 of the Securities Exchange Act of 1934, as amended), acting alone or
as part of a group, will: (a) acquire, propose, or offer to acquire, or agree to
acquire, directly or indirectly, by purchase or otherwise, any securities or
direct or indirect rights to acquire any securities of the Company other than
through a direct issuance by the Company, or (b) sell any securities or direct
or indirect rights to sell any securities or the Company.
It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
It is further understood and agreed that money damages would not be a
sufficient remedy for any breach of this letter agreement by you or any of your
representatives and that the Company shall be entitled to equitable relief,
including injunction and specific performance, as a remedy for any such breach.
Such remedies shall not be deemed to be the exclusive remedies for a breach of
this letter agreement but shall be in addition to all other remedies available
at law or in equity. In the event of litigation relating to this letter
agreement, if a court of competent jurisdiction determines that you or any of
your representatives have breached this letter agreement, and then you shall be
liable and pay to the Company the reasonable legal fees incurred by the Company
in connection with such litigation, including any appeal there from.
This letter agreement shall be governed by and constructed in
accordance with the laws of the State of StateplaceTexas. This letter agreement
may be executed in one or more counterparts, all of which shall be considered
one and the same agreement.
Please confirm your agreement with the foregoing by signing and
returning one copy of this letter to the undersigned, whereupon this letter
agreement shall become a binding agreement between you and the Company.
Atomic Paintball, Inc.
--------------------------
Xxxxx Xxxxxxxx, Director
Agreed and accepted on _________________.
Signed: ________________________
Printed Name Xxxx Xxxxxxx
Title: Chief Executive Officer
______Initials 16 _______Initials
