Reimbursment Agreement



 EXHIBIT 10.2 
  
 REIMBURSEMENT AGREEMENT 
  
 THIS REIMBURSEMENT AGREEMENT (the “Agreement”) is made and entered into as of this 28th day of October 2003, by and between Richard J. Heckmann (“Heckmann”), and K2, Inc., a Delaware corporation (“K2”).

  
 In consideration of the mutual promises, agreements,
covenants, warranties, representations and provisions contained herein, the parties agree as follows: 
  
 1. Reimbursement of Aircraft Expense. Subject to the terms and conditions contained herein, if during the Term (as defined hereafter) Heckmann uses
his aircraft in connection with his travel on K2 business, K2 agrees to reimburse to Heckmann the expense of such use. Heckmann’s aircraft is identified as a Challenger CL600-2B16 aircraft, serial number 5111, Federal Aviation Administration
registration number N502HE (the “Aircraft”). 
  
 2. Term. The term of this Agreement (the “Term”) shall commence on September 3, 2003 (the “Commencement Date”) and end on December 31, 2003 (the “Initial Term Expiration Date”)
– it is intended that this Agreement shall reimburse Heckmann as set forth below for the period from September 3, 2003 until the date hereof provided that this reimbursement is no more than $100,000 in the aggregate. Notwithstanding
the foregoing, and unless this Agreement has earlier been terminated in accordance with its terms, the Term shall continue after the Initial Term Expiration Date on an annual basis. Either party may terminate this Agreement any time during the Term
upon not less than thirty (30) days written notice to the other. This Agreement shall terminate on the termination of Heckmann’s employment by K2. 
  
 3. Base of the Aircraft. K2 acknowledges that Heckmann currently bases the Aircraft at Palm Springs International Airport, Palm Springs, California
(the “Base”), and that Heckmann’s use of the Aircraft for K2 business travel shall include ferry flights to and from the Base at the beginning and end of such business travel. 
  
 4. Reimbursement. 
  
 (a) K2 shall reimburse to Heckmann in connection with his
use of the Aircraft during the Term for K2 business travel the following amounts (referred to collectively as the “Reimbursement Amounts”) within 30 days of receipt of an invoice from Heckmann or his representative with respect to
such use: 
  
 (i) $2,200 per operating hour for
use of the Aircraft, as such rate may be adjusted periodically by the mutual consent of the parties; 
  









 (ii) all fees, including fees for landing, parking, hangar, tie-down, handling, customs,
use of airways and permission for overflight; 
  
 (iii) all expenses for in-flight catering; 
  
 (iv) all travel expenses for pilots, flight attendants and other flight support personnel, if any, including food, lodging and ground transportation; and 
  
 (v) all communications charges, including in-flight telephone. 
  
 Heckmann’s invoices shall include the date, departure point, arrival
point, number of passengers and number of operating hours for each flight by K2 and documentation of the other expenses to be reimbursed hereunder. 
  
 (b) In no event shall the amount reimbursed under this Agreement on an annual basis exceed $1.0 million without the further written
consent of K2’s Board of Directors. 
  
 5. Pilots. For
all flights of the Aircraft by K2 pursuant to this Agreement, Heckmann shall cause the Aircraft to be operated by pilots who are duly qualified under the Federal Aviation Regulations, including without limitation, with respect to currency and
type-rating, whose licenses and certificates are in good standing, and who meet all other requirements established and specified by the FAA and the insurance policies required hereunder. 
  
 6. Operation and Maintenance Responsibilities of Heckmann. This Agreement is not intended to constitute a lease of
the Aircraft. Heckmann shall be in operational control of the Aircraft at all times during the Term. Heckmann shall be solely responsible for the operation and maintenance of the Aircraft and shall operate and maintain such Aircraft in compliance
with all applicable laws and regulations. 
  
 7. Insurance.
Heckmann shall maintain in effect at his own expense throughout the Term, insurance policies containing such provisions and providing such coverages as Heckmann deems appropriate. Notwithstanding the foregoing, Heckmann shall maintain property
damage and personal injury aviation liability insurance with coverage in the amount of no less than $50,000,000 combined single limit per occurrence (the “Required Insurance”). Heckmann shall cause the policies providing the
Required Insurance to (a) name K2 as an additional insured, (b) not be subject to any offset by any other insurance carried by Heckmann or K2, (c) contain a waiver by the insurer of any subrogation rights against K2, (d) insure the interest of K2,
regardless of any breach or violation by the Heckmann or of any other person (other than is solely attributable to the gross negligence or willful misconduct of K2) of any warranty, declaration or condition contained in such policies, (e) include a
severability of interests endorsement providing that such policy shall operate in the same manner (except for the limits of coverage) as if there were a separate policy covering each insured and (f) not be subject to cancellation 
  

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 or material modification without at least 30 days’ written notice to K2. K2 acknowledges that Heckmann does not
maintain and is not required to maintain insurance against perils covered by “war risk” insurance, including acts of war, hijacking, nuclear detonation, strikes, sabotage, confiscation, and terrorism. 
  
 8. Indemnity; Loss or Damage 
  
 (a) Heckmann shall indemnify, defend and hold harmless K2
and its officers, directors, agents and employees from and against any and all liabilities, claims (including, without limitation, claims involving or alleging K2’s negligence and claims involving strict or absolute liability in tort), demands,
suits, causes of action, losses, penalties, fines, expenses (including, without limitation, attorneys’ fees) or damages (collectively, “Claims”), to the extent relating to or arising out of Heckmann’ breach of this
Agreement if and to the extent that K2 would have had the benefit of insurance coverage for such Claims but for Heckmann’ breach but not including circumstances in which a Claim is solely attributable to the gross negligence or willful
misconduct of K2. K2 agrees to seek recovery for any Claims from all available insurance before seeking indemnification from Heckmann hereunder. The maximum amount of Heckmann’ liability hereunder shall be $50,000,000. 
  
 (b) K2 shall indemnify, defend and hold harmless Heckmann
and his agents and employees from and against any and all Claims to the extent relating to or arising out of K2’s breach of this Agreement. 
  
 (c) In the event of loss or destruction of all or a portion of the Aircraft, or in the event of confiscation or seizure of the Aircraft,
this Agreement shall automatically terminate; provided, however, that such termination of this Agreement shall not affect K2’s obligation to pay Heckmann all unpaid Reimbursement Amounts. 
  
 9. General Provisions 
  
 (a) Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the construction or interpretation of this Agreement. 
  
 (b) Partial Invalidity. If any provision of this Agreement, or the application thereof to any person, place or circumstance, shall
be held by a court of competent jurisdiction to be illegal, invalid, unenforceable or void, then such provision shall be enforced to the extent that it is not illegal, invalid, unenforceable or void, and the remainder of this Agreement, as well as
such provision as applied to other persons, shall remain in full force and effect. 
  
 (c) Waiver. With regard to any power, remedy or right provided in this Agreement or otherwise available to any party, (i) no waiver
or extension of time 
  

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 shall be effective unless expressly contained in a writing signed by the waiving party, (ii) no
alteration, modification or impairment shall be implied by reason of any previous waiver, extension of time, delay or omission in exercise or other indulgence, and (iii) waiver by any party of the time for performance of any act or condition
hereunder does not constitute waiver of the act or condition itself. 
  
 (d) Notices. Any notice or other communication required or permitted under this Agreement shall be in writing and shall be deemed duly given upon actual receipt, if delivered personally, by overnight courier or
by telecopy; or three (3) days following deposit in the United States mail, if deposited with postage pre-paid, return receipt requested, and addressed to such address as may be specified in writing by the relevant party from time to time, and which
shall initially be as follows: 
  

	 To Heckmann at:
	 	 Richard J. Heckmann
 c/o K2
Inc.
 2051 Palomar Airport Road
 Carlsbad, CA
 Tel.: (760) 494-1000
 Fax: (760) 494-1099

		
	 To K2 at:
	 	 K2 Inc.
 2051 Palomar Airport
Road
 Carlsbad, CA
 Attn: General Counsel
 Tel.: (760) 494-1000
 Fax: (760) 494-1099


  
 No
objection may be made to the manner of delivery of any notice or other communication in writing actually received by a party. 
  
 (e) California Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California,
regardless of the choice of law provisions of California or any other jurisdiction. 
  
 (f) Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter
contained in this Agreement and supersedes any prior or contemporaneous agreements, representations and understandings, whether written or oral, of or between the parties with respect to the subject matter of this Agreement. There are no
representations, warranties, covenants, promises or undertakings, other than those expressly set forth or referred to herein. 
  
 (g) Amendment. This Agreement may be amended only by a written agreement signed by all of the parties. 
  
 (h) Binding Effect; Assignment. This Agreement shall
be binding on, and shall inure to the benefit of, the parties to it and their respective successors 
  

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 and assigns; provided, however, that K2 may not assign any of its rights under this Agreement, and any
such purported assignment shall be null, void and of no effect. 
  
 (i) Attorneys’ Fees. Should any action (including any proceedings in a bankruptcy court) be commenced between any of the parties to this Agreement or their representatives concerning any provision of this
Agreement or the rights of any person or entity thereunder, solely as between the parties or their successors, the party or parties prevailing in such action as determined by the court shall be entitled to recover from the other party all of its
costs and expenses incurred in connection with such action (including, without limitation, fees, disbursements and expenses of attorneys and costs of investigation). 
  
 (j) Remedies Not Exclusive. No remedy conferred by any of the specific provisions of this Agreement
is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity by statute or otherwise. The election of
any one or more remedies shall not constitute a waiver of the right to pursue other remedies. 
  
 (k) No Third Party Rights. 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 person other than the parties to this Agreement 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 Agreement, nor shall any provision give any third person any right of subrogation or action over or against any party to this Agreement. 
  
 (l) Counterparts. This Agreement may be executed in one or more counterparts, each of which
independently shall be deemed to be an original, and all of which together shall constitute one instrument. 
  
 (m) Relationship of the Parties. Nothing contained in this Agreement shall in any way create any association, partnership, joint
venture, or principal-and-agent relationship between the parties hereto or be construed to evidence the intention of the parties to constitute such. 
  
 (n) Limitation of Damages. Each party waives any and all claims, rights and remedies against the other, whether express or implied,
or arising by operation of law or in equity, for any punitive, exemplary, indirect, incidental or consequential damages whatsoever. 
  
 (o) Survival. All representations, warranties, covenants and agreements, set forth in Sections 4, 7, 8 and 9 contained in this
Agreement shall survive the expiration or termination of this Agreement. 
  

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 IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be duly executed effective as
of the day and year first written above. 
  

	HECKMAN	 	 	 	 K2:

	 	 	 	 	 
	 	 	 	 	 K2 INC.

				
	 	 	 	 	By:	 	 
	
	 	 	 	 	

	Richard J. Heckman	 	 	 	 	 	 
				
	 	 	 	 	Its:	 	 
	 	 	 	 	 	


  

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