EXHIBIT 10.2
AGREEMENT BOARD OF DIRECTORS
THIS AGREEMENT is made and entered into effective as of December 3, 2009
(the "Effective Date"), by and between Atomic Paintball, Inc., a Texas
corporation, ("Company") and Xxxxx Xxxxxxx, an individual ("Director").
1. Term
(a) This Agreement shall continue for a period of one (1) year
from the Effective Date and shall continue thereafter for as long as Director is
elected as Board Member or Member of the Board of Directors
2. Position and Responsibilities
(a) Position. Company hereby retains Director to serve as Board
Members. Director shall perform such duties and responsibilities as are normally
related to such position in accordance with Company's bylaws and applicable law,
including those services described on Exhibit A, (the "Services"), and Director
hereby agrees to use his best efforts to provide the Services. Director shall
not allow any other person or entity to perform any of the Services for or
instead of Director. Director shall comply with the statutes, rules, regulations
and orders of any governmental or quasi-governmental authority, which are
applicable to the performance of the Services, and Company's rules, regulations,
and practices as they may from time-to-time be adopted or modified.
(b) Other Activities. Director may be employed by another
company, may serve on other Boards of Directors or Advisory Boards, and may
engage in any other business activity (whether or not pursued for pecuniary
advantage), as long as such outside activities do not violate Director's
obligations under this Agreement or Director's fiduciary obligations to the
shareholders. The ownership of less than a 5% interest in an entity, by itself,
shall not constitute a violation of this duty. Director represents that, to the
best of his knowledge, Director has no outstanding agreement or obligation that
is in conflict with any of the provisions of this Agreement, and Director agrees
to use his best efforts to avoid or minimize any such conflict and agrees not to
enter into any agreement or obligation that could create such a conflict,
without the approval of the Chief Executive Officer or a majority of the Board
of Directors. If, at any time, Director is required to make any disclosure or
take any action that may conflict with any of the provisions of this Agreement,
Director will promptly notify the Chief Executive Officer or the Board of such
obligation, prior to making such disclosure or taking such action.
(c) No Conflict. Except as set forth in Section 2(b), Director
will not engage in any activity that creates an actual conflict of interest with
Company, regardless of whether such activity is prohibited by Company's conflict
of interest guidelines or this Agreement, and Director agrees to notify the
Board of Directors before engaging in any activity that creates a potential
conflict of interest with Company. Specifically and except as set forth in
Section 2(b) of this Agreement, Director shall not engage in any activity that
is in direct competition with the Company or serve in any capacity (including,
but not limited to, as an employee, consultant, advisor or director) in any
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company or entity that competes directly with the Company, as reasonably
determined by a majority of Company's disinterested board members, without the
approval of the Chief Executive Officer.
3. Compensation and Benefits
(a) Director's Fee. In consideration of the services to be
rendered under this Agreement, Company shall pay Director a fee at the rate of
Five Hundred Dollars ($500) per quarter, which shall be paid in accordance with
Company's regularly established practices regarding the payment of Directors'
fees, but in no event later than 12 months after the Effective Date of this
Agreement and each of its subsequent anniversaries, if any.
(b) Stock and Stock Options. Company acknowledges that Director
is an owner of both Common and Preferred Stock and holds an option to purchase
stock in Company, and that the rights attributable to these securities (the
"Securities") shall not be affected by the execution of this Agreement. In
addition, in consideration of the services to be rendered under this Agreement,
Company agrees to grant Director the following grant of 100,000 shares of
Company's Common Stock.
(c) Expenses. The Company shall reimburse Director for all
reasonable business expenses incurred in the performance of his duties hereunder
in accordance with Company's expense reimbursement guidelines.
(d) Indemnification. Company will indemnify and defend Director
against any liability incurred in the performance of the Services to the fullest
extent authorized in Company's Articles of Incorporation, as amended, bylaws, as
amended and applicable law. Company will purchase Director's and Officer's
liability insurance, and Director shall be entitled to the protection of any
insurance policies the Company maintains for the benefit of its Directors and
Officers against all costs, charges and expenses in connection with any action,
suit or proceeding to which he may be made a party by reason of his affiliation
with Company, its subsidiaries, or affiliates.
(e) Records. Director shall have reasonable access to books and
records of Company, as necessary to enable Director to fulfill his obligations
as a Director of Company.
4. Termination
(a) Right to Terminate. At any time, Director may be removed as
Board Member as provided in Company's Articles of Incorporation, as amended,
bylaws, as amended, and applicable law. Director may resign as Board Member or
Director as provided in Company's Articles of Incorporation, as amended, bylaws,
as amended, and applicable law. Notwithstanding anything to the contrary
contained in or arising from this Agreement or any statements, policies, or
practices of Company, neither Director nor Company shall be required to provide
any advance notice or any reason or cause for termination of Director's status
as Board Member, except as provided in Company's Articles of Incorporation, as
amended, Company's bylaws, as amended, and applicable law.
(b) Effect of Termination as Director. Upon a termination of
Director's status as a Director, this Agreement will terminate; Company shall
pay to Director all compensation and expenses to which Director is entitled up
through the date of termination; and Director shall be entitled to his rights
under any other applicable law. Thereafter, all of Company's obligations under
this Agreement shall cease, except as provided in Sections 1(b), 3(b), 3(d),
3(e) and 5.
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5. Termination Obligations
(a) Director agrees that all property, including, without
limitation, all equipment, tangible proprietary information, documents, records,
notes, contracts, and computer-generated materials provided to or prepared by
Director Incident to his services belong to Company and shall be promptly
returned at the request of Company.
(b) Upon termination of this Agreement, Director shall be deemed
to have resigned from all offices then held with Company by virtue of his
position as Board Member, except that Director shall continue to serve as a
director if elected as a director by the shareholders of Company as provided in
Company's Articles of Incorporation, as amended, Company's bylaws, as amended,
and applicable law. Director agrees that following any termination of this
Agreement, he shall cooperate with Company in the winding up or transferring to
other directors of any pending work and shall also cooperate with Company (to
the extent allowed by law, and at Company's expense) in the defense of any
action brought by any third party against Company that relates to the Services.
(c) The Company and Director agree that their obligations under
this Section, as well as Sections 1(b), 3(b), 3(d), 3(e), 4(b), and 7, shall
survive the termination of this Agreement.
6. Nondisclosure Obligations
Director shall maintain in confidence and shall not, directly or
indirectly, disclose or use, either during or after the term of this Agreement,
any Proprietary Information (as defined below), confidential information, or
trade secrets belonging to Company, whether or not it is in written or permanent
form, except to the extent necessary to perform the Services, as required by a
lawful government order or subpoena, or as authorized in writing by Company.
These nondisclosure obligations also apply to Proprietary Information belonging
to customers and suppliers of Company, and other third parties, learned by
Director as a result of performing the Services. "Proprietary Information" means
all information pertaining in any manner to the business of Company, unless (i)
the information is or becomes publicly known through lawful means; (ii) the
information was part of Director's general knowledge prior to his relationship
with Company; or (iii) the information is disclosed to Director without
restriction by a third party who rightfully possesses the information and did
not learn of it from Company.
7. Dispute Resolution
(a) Jurisdiction and Venue. The parties agree that any suit,
action, or proceeding between Director (and his attorneys, successors, and
assigns) and Company (and its affiliates, shareholders, directors, officers,
employees, members, agents, successors, attorneys, and assigns) relating to the
Services or the termination of those Services shall be brought in either the
United States District Court for the State of Texas or in a Texas state court
and that the parties shall submit to the jurisdiction of such court. The parties
irrevocably waive, to the fullest extent permitted by law, any objection the
party may have to the laying of venue for any such suit, action or proceeding
brought in such court. If any one or more provisions of this Section shall for
any reason be held invalid or unenforceable, it is the specific intent of the
parties that such provisions shall be modified to the minimum extent necessary
to make it or its application valid and enforceable.
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(b) Attorneys' Fees. Should any litigation, arbitration or other
proceeding be commenced between the parties concerning the rights or obligations
of the parties under this Agreement, the party prevailing in such proceeding
shall be entitled, in addition to such other relief as may be granted, to a
reasonable sum as and for its attorneys' fees in such proceeding. This amount
shall be determined by the court in such proceeding or in a separate action
brought for that purpose. In addition to any amount received as attorneys' fees,
the prevailing party also shall be entitled to receive from the party held to be
liable, an amount equal to the attorneys' fees and costs incurred in enforcing
any judgment against such party. This Section is severable from the other
provisions of this Agreement and survives any judgment and is not deemed merged
into any judgment.
8. Entire Agreement
This Agreement is intended to be the final, complete, and exclusive
statement of the terms of Director's relationship solely with respect to his
position as Board Member or Director for The Company. This Agreement entirely
super cedes and may not be contradicted by evidence of any prior or
contemporaneous statements or agreements pertaining to Director's relationship
as Board Member or Director. Agreements related to Director's ownership of the
Securities are not affected by this Agreement.
9. Amendments; Waivers
This Agreement may not be amended except by a writing signed by
Director and by a duly authorized representative of the Company other than
Director. Failure to exercise any right under this Agreement shall not
constitute a waiver of such right.
10. Assignment
Director agrees that Director will not assign any rights or
obligations under this Agreement, with the exception of Director's ability to
assign rights with respect to the Securities. Nothing in this Agreement shall
prevent the consolidation, merger or sale of Company or a sale of all or
substantially all of its assets.
11. Severability
If any provision of this Agreement shall be held by a court or
arbitrator to be invalid, unenforceable, or void, such provision shall be
enforced to fullest extent permitted by law, and the remainder of this Agreement
shall remain in full force and effect. In the event that the time period or
scope of any provision is declared by a court or arbitrator of competent
jurisdiction to exceed the maximum time period or scope that such court or
arbitrator deems enforceable, then such court or arbitrator shall reduce the
time period or scope to the maximum time period or scope permitted by law.
12. Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas.
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13. Interpretation
This Agreement shall be construed as a whole, according to its fair
meaning, and not in favor of or against any party. Captions are used for
reference purposes only and should be ignored in the interpretation of the
Agreement.
14. Binding Agreement
Each party represents and warrants to the other that the person(s)
signing this Agreement below has authority to bind the party to this Agreement
and that this Agreement will legally bind both Company and Director. This
Agreement will be binding upon and benefit the parties and their heirs,
administrators, executors, successors and permitted assigns. To the extent that
the practices, policies, or procedures of Company, now or in the future, are
inconsistent with the terms of this Agreement, the provisions of this Agreement
shall control. Any subsequent change in Director's duties or compensation as
Board Member will not affect the validity or scope of the remainder of this
Agreement.
15. Director Acknowledgment
Director acknowledges Director has had the opportunity to consult
legal counsel concerning this Agreement, that Director has read and understands
the Agreement, that Director is fully aware of its legal effect, and that
Director has entered into it freely based on his own judgment and not on any
representations or promises other than those contained in this Agreement.
16. Counterparts
This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
17. Date of Agreement
The parties have duly executed this Agreement as of the date first
written above.
Atomic Paintball, Inc., Director:
a Texas corporation:
By:
---------------------------- --------------------------------
Name: Xxxxx Xxxxxx Xxxxx Xxxxxxx
Title: Director Title: Director
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EXHIBIT A
DESCRIPTION OF SERVICES
Responsibilities as Director. Director shall have all responsibilities
of a Director of the Company imposed by Texas or applicable law, the Articles of
Incorporation, as amended, and Bylaws, as amended, of Company. These
responsibilities shall include, but shall not be limited to, the following:
1. Attendance. Use best efforts to attend scheduled meetings of Company's Board
of Directors;
2. Act as a Fiduciary. Represent the shareholders and the interests of Company
as a fiduciary; and
3. Participation. Participate as a full voting member of Company's Board of
Directors in setting overall objectives, approving plans and programs of
operation, formulating general policies, offering advice and counsel, serving on
Board Committees, and reviewing management performance.
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