AGREEMENT FOR CHAIRMAN OF BOARD OF DIRECTORS
Exhibit 10.1
This
Agreement for Chairman of Board of Directors (the "Agreement") is effective
[DATE],
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BETWEEN:
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Cinnabar
Ventures, Inc. (the
"Company"), a company organized and existing under the laws
of Nevada, with its head office located
at:
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00000
X Xxxxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxxx, XX 00000
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AND:
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Xxxxx
Xxxxx (the
"Director"), an individual located at:
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4415
Lago Viento
Xxxxxx,
XX 00000
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THIS
AGREEMENT is made and entered into effective as of February 7, 2010 (the
"Effective Date"), by and between Cinnabar Ventures, Inc. a Nevada corporation,
("Company") and Xxxxx Xxxxx, an individual ("Director").
1.
` TERM
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a)
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This
Agreement shall continue for a period of three years from the Effective
Date and shall continue thereafter for as long as Director is elected as
Chairman of the Board of Directors ("Chairman") of
Company.
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b)
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Notwithstanding
the foregoing and provided that Director has neither voluntarily resigned
nor been terminated for "cause", Company agrees to use its best efforts to
reelect Director to the Board for a period of two years at the 2013 Annual
Meeting of the Shareholders.
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2. POSITION AND
RESPONSIBILITIES
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a)
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Position.
Company hereby retains Director to serve as Chairman of the Board of
Directors. 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 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.
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b)
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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, except as set forth in Exhibit B. The ownership of less than
a 6 % interest in an entity, by itself, shall not constitute a violation
of this duty.
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c)
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Except
as set forth in Exhibit B, 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.
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| Agreement For Chairman Of Board Of Directors | Page 1 of 8 |
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d)
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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.
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3. COMPENSATION
AND BENEFITS
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a)
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Director's
Fee. In consideration of the services to be rendered under this Agreement,
Company shall pay Director a fee at the rate of $120,000 per year, which
shall be paid monthly, in advance, at a rate of $10,000 per
month.
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b)
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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 500,000 stock
options subject to the approval of the Board of Directors (the "Options"):
(1) an option to purchase 500,000 shares of Company's Stock at an exercise
price of $0.01 per share, which shall be fully vested on the Effective
Date.
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c)
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In
the event (i) of a merger, change in control or sale of Company or (ii)
Director either is terminated as a board member or is not reelected, where
the Director has not engaged in conduct during his tenure on the board
which would constitute "cause" for such termination, as determined by a
majority vote of the disinterested board members, any additional shares
granted which are unvested shall immediately become fully
vested.
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d)
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Termination
for Cause. Company shall have the right to terminate this Agreement and
Executive's employment hereunder for cause upon written notice to
Executive. The term "cause" shall mean Executive must have (i) been
willful, gross or persistent in Executive's inattention to Executive's
duties or Executive committed acts which constitute willful or gross
misconduct and, after written notice of the same has been given to
Executive and he has been given an opportunity to cure the same within
thirty (30) days after such notice; or (ii) committed fraud against the
Company. If Executive's employment is terminated for cause, as defined
above, and Executive does not consent to such termination, the existence
of such cause shall be determined by an independent arbitrator appointed
by the American Arbitration Association. In connection with the
appointment of an arbitrator, both parties agree to submit the question to
final and binding arbitration by an appointee of the American Arbitration
Association and to cooperate with the arbitrator, with all costs of
arbitration paid by the Company.
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e)
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The
removal of Director as Chairman, by itself, shall not affect the vesting
schedule. The Options shall be subject to the terms and conditions of
Company's standard Stock Option Agreement, as modified by this Agreement.
During the term of this Agreement, Director may be granted additional
stock options or other equity rights, as determined by Company's
Compensation Committee, in its sole
discretion.
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f)
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Benefits.
Company will provide Director and their household with medical, dental,
eye-care, disability and life insurance benefits in accordance with the
benefit plans established by Company for its senior executives (as may be
amended from time to time in Company's sole discretion) to the extent
allowed under the terms of such plans and will pay all premiums for
coverage of Director and his family, including his domestic partner.
Director shall also be eligible to participate in any additional benefits
made generally available by Company to its senior executives, to the
extent allowed by the benefit plans established by Company, which may be
amended or terminated at any time in Company's sole discretion; except
that Director shall not be entitled to any paid vacation
leave.
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g)
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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
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h)
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Indemnification.
Company shall defend and indemnify Director at Company's sole expense to
the full extent of applicable state, federal, and international law with
respect to all claims, causes of action and adversarial proceedings of
every nature to which Executive is or may become subjected in her role as
an Officer or Director of Company and Executive shall have the right to
select his own counsel. Company's indemnification duty shall survive the
termination or expiration of this Agreement. In the event that Company
elects to change coverage or carriers for its Directors and Officers
insurance ("D & 0 Insurance"), Company shall notify Executive of such
change and arrange to purchase, at a minimum, a five-year tail policy for
such former insurance policy at the sole expense of Company and deliver
evidence of such tail policy to Executive within five (5) days after
termination of Company's existing D & 0
Insurance.
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i)
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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.
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4. TERMINATION
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a)
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Right
to Terminate. At any time, Director may be removed as Chairman as provided
in Company's Certificate of Incorporation, as amended, bylaws, as amended,
and applicable law. Director may resign as Chairman or Director as
provided in Company's Certificate 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 Chairman, except as provided in Company's Certificate
of Incorporation, as amended, Company's bylaws, as amended, and applicable
law.
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b)
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Effect
of Termination as Chairman Upon a termination of Director's status as
Chairman, in which Director remains a Director, this Agreement will
terminate, and the Company and Director will sign the Company's standard
Director's Agreement, in effect at the time of the termination, subject to
any modifications to which both parties mutually agree; provided, however,
following such termination and for as long as Director continues to serve
as a Director of the Company, the Company will continue to provide
Director
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c)
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and
his household with medical, dental and eye-care benefits provided by
Section 3(g) and will pay all premiums for coverage of Director and his
family, including his household members under such benefit plans as
provided in Section 3(g) to the extent allowed under applicable law.
Except as provided herein, the Company shall pay to Director all
compensation and benefits to which Director is entitled up through the
date of termination, and thereafter, all of the Company's obligations
under this Agreement shall cease.
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d)
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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 benefits to which Director is entitled up through the
date of termination; and Director shall be entitled to his rights under
Florida and any other applicable law. Thereafter, all of Company's
obligations under this Agreement shall cease, except as provided in
Sections Section 5.
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5. TERMINATION
OBLIGATIONS
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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.
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b)
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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
Chairman, 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 Certificate of Incorporation, as amended, Company's bylaws, as
amended, and applicable law.
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c)
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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.
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d)
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The
Company and Director agree that their obligations under this Section, as
well as Section 6, shall survive the termination of this
Agreement.
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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
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i)
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the
information is or becomes publicly known through lawful
means;
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ii)
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the
information was part of Director's general knowledge prior to his
relationship with Company; or
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iii)
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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.
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7. DISPUTE
RESOLUTION
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a)
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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 determined by an independent
arbitrator appointed by the American Arbitration Association. In
connection with the appointment of an arbitrator, both parties agree to
submit the question to final and binding arbitration by an appointee of
the American Arbitration Association and to cooperate with the arbitrator,
with all costs of arbitration paid by the
Company.
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b)
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The
parties irrevocably waive, to the fullest extent permitted by Florida 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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c)
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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.
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d)
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.
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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 Chairman
with Company. This Agreement entirely supersedes and may not be contradicted by
evidence of any prior or contemporaneous statements or agreements pertaining to
Director's relationship as Chairman 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 Florida without regards to principles of conflicts of law.
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 Chairman 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. Facsimile or PDF copies shall be considered originals for all
purposes.
17. DATE
OF AGREEMENT
The
parties have duly executed this Agreement as of the date first written
above.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
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COMPANY
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DIRECTOR
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| /s/ Xxxxx Xxxxx | ||
| Authorized Signature | Authorized Signature | |
| XXXXX XXXXX, DIRECTOR | ||
| Print Name and Title | Print Name and Title | |
EXHIBIT
A
DESCRIPTION OF
SERVICES
Responsibilities
as Director. Director shall have all responsibilities of a Director of the
Company imposed by Nevada or applicable law, the Certificate 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.
EXHIBIT
B
AUTHORIZED
ACTIVITIES
