Unassociated Document


    Exhibit
10.4

     

    
      	
               

              

            	
               

              Board
      Member Agreement

               

            


    

    


    
      	
              PokerTek, Inc.
      

              1150 Crews
      Road,
      Suite F

              Matthews, NC
      28105

              (704)
      849-0860

                Referred
      to as “the Company”

            	
              Gehrig H
      White

              6207 Glynmoor Lakes
      Drive

              Charlotte, NC 28277

              (704)
      756-2774

              Referred
      to as “the Director”

            


    

    


    This
Board Member Agreement (the “Agreement”) is effective as of the 1st day of July,
2009, by and between PokerTek, Inc., a North Carolina corporation (the
“Company”), and Gehrig H White, an individual resident of the State of North
Carolina (the “Director”).

     

    WHEREAS,
the Company engaged in the development, manufacture and marketing of electronic
products for use in the gaming and amusement markets (the
“Business”).

     

    WHEREAS,
the Company has established a Board of Directors to assist the Company in its
endeavors to manage the Business so as to maximize returns for the Company’s
shareholders; and

     

    NOW
THEREFORE, in consideration of the mutual promises contained herein, and
intending to be legally bound, the parties hereto hereby declare and agree as
follows:

     

    
      	
               
      

            	
              1.

            	
              Term. The term of this
      Agreement shall commence on the date hereof (the “Effective Date”), and
      shall continue until the Director no longer serves on the Company’s Board
      of Directors (the “Term”), it being understood that the Director shall
      remain on the Company’s Board of Directors at the discretion of the
      Company’s shareholders.

            


    

     

    
      	
               
      

            	
              2.

            	
              Compensation.

            


    

     

    
      	
               
      

            	
              a.

            	
              Director's Fees. In
      consideration of the services to be rendered under this Agreement as a
      member of the Board of Directors and for serving on various committees of
      the Board of Directors, Director shall receive annual compensation of
      $48,000, payable in quarterly installments of $12,000 per quarter. At the
      Director’s election, such fees shall be payable either in cash or in
      shares of Company stock. After an election is made by the Director, the
      Director can change his election upon 30 days prior written notice to the
      Chief Financial Officer of the Company, or in his absence, to another
      appropriate officer of the Company, and the new payment election shall be
      effective for the next payment date after the notice was given. In the
      event that such fees are paid in the form of common stock, the number of
      shares issued will be determined by dividing $12,000 by the average
      closing price on the NASDAQ Capital Market of PokerTek common stock for
      the 10 business days preceding the end of the quarterly period; provided,
      however, that if such average price per share calculation is less than the
      closing bid price on the effective date of this agreement, such closing
      bid price on the date of this agreement shall be
  used.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
               
      

            	
              i.

            	
              On
      July 31, 2009, Director will no longer be an at-will employee of the
      Company. In consideration of Director’s services as a founder and employee
      of the Company, Company will pay Director a severance fee of $100,000 over
      a 12 month period beginning at the effective date of this agreement
      (August 1, 2009 – July 31, 2010).

            


    

     

    
      	
               
      

            	
              ii.

            	
              Company
      will reimburse Director for COBRA premiums for 12 months (August 1, 2009
      to July 30, 2010).

            


    

     

    
      	
               
      

            	
              iii.

            	
              In
      exchange for the consideration under Section 2.a.i and 2.a.ii Director
      hereby generally and completely releases the Company and its directors,
      officers, employees, shareholders, partners, agents, attorneys,
      predecessors, successors, parent and subsidiary entities, insurers,
      affiliates, and assigns from any and all claims, liabilities and
      obligations, both known and unknown, that arise out of or are in any way
      related to events, acts, conduct, or omissions occurring at any time prior
      to and including the date Director signs this Agreement. This general
      release includes, but is not limited to: (a) all claims arising out of or
      in any way related to your employment with the Company or the termination
      of that employment; (b) all claims related to your compensation or
      benefits from the Company, including salary, bonuses, commissions,
      vacation pay, expense reimbursements, severance pay, fringe benefits,
      stock, stock options, or any other ownership interests in the Company;
      (c) all claims for breach of contract, wrongful termination, and
      breach of the implied covenant of good faith and fair dealing;
      (d) all tort claims, including claims for fraud, defamation,
      emotional distress, and discharge in violation of public policy; and (e)
      all federal, state, and local statutory claims, including claims for
      discrimination, harassment, retaliation, attorneys’ fees, or other claims
      arising under the federal Civil Rights Act of 1964 (as amended), the
      federal Americans with Disabilities Act of 1990, the federal Age
      Discrimination in Employment Act of 1967, as amended (“ADEA”), and the
      California Fair Employment and Housing Act (as
  amended).

            


    

     

    
      	
               
      

            	
              b.

            	
              Stock and Stock Options.
      Company acknowledges that Director is an owner of Common Stock and may
      hold options 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.

            


    

     

    
      	
               
      

            	
              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 and hold Director harmless against any
      liability incurred in the performance of Director’s service on the Board
      of Directors pursuant to this Agreement (the “Services”) to the fullest
      extent authorized in Company's Certificate of Incorporation, as amended,
      bylaws, as amended, applicable law and as provided in any individual
      indemnification agreements the Company many enter into with the Director.
      Company has purchased 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 or Director’s Services
      hereunder.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
               
      

            	
              3.

            	
              Termination.

            


    

     

    
      	
               
      

            	
              a.

            	
              Right to Terminate. At
      any time, Director may be removed as Director as provided in Company's
      Certificate of Incorporation, as amended, bylaws, as amended, and
      applicable law. Director may resign as 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, except as provided in Company's Certificate 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 to which Director is entitled up through the date of
      termination. Thereafter, all of Company's obligations under this Agreement
      shall cease.

            


    

     

    
      	
               
      

            	
              4.

            	
              Non−Disclosure, Ownership of
      Intellectual Property

            


    

     

    
      	
               
      

            	
              a.

            	
              Director
      covenants and undertakes that, during the term of this Agreement and
      thereafter, absent the Company’s prior written consent, all information,
      written or oral, relating to the Company, its parents, subsidiaries or
      affiliates, the Company’s Business or condition (actual or planned),
      disclosed to him by the Company, or which otherwise became known to him in
      connection with the performance of the Services (the “Information”), shall
      be maintained by him in full and absolute confidence, and he shall not use
      such Information, directly or indirectly, in whole or in part, for his own
      benefit or any purpose whatsoever except as specifically and explicitly
      provided hereunder. Director’s undertaking hereunder shall not apply to
      Information which is in, or becomes part of, the public domain, or which
      was known by Director before the time of
  disclosure.

            


    

     

    
      	
               
      

            	
              b.

            	
              Director
      agrees and undertakes that, so long as this Agreement is in effect and for
      a period of one year thereafter, neither he, nor any entity in which he
      holds a majority of the equity interest or voting control (either directly
      or through other entities in which he holds a majority of the equity
      interest or voting control) (each a “Controlled Entity”), shall engage in
      the marketing and distribution of poker tables featuring automated live
      poker games through the use of a simulated dealer and an electronic
      facsimile of chips and playing cards (such activities, the “Competing
      Activities”). The Company acknowledges that Director has ownership
      interests in or other relationships with entities that are not Controlled
      Entities (each a “Non−Controlled Entity”), and the restriction in the
      preceding sentence does not apply to activities of Non−Controlled
      Entities. However, Director agrees to inform the Company at such time as
      the Non−Controlled Entity commences Competing Activities, provided that he
      is aware of the Competing Activities and the disclosure would not violate
      a non−disclosure agreement with the Non−Controlled
  Entity.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	
               
      

            	
              5.

            	
              Miscellaneous. This
      Agreement constitutes the entire agreement between the parties with
      respect to the matters referred to herein, and no other arrangement,
      understanding or agreement, verbal or otherwise, shall be binding upon the
      parties hereto. This Agreement may not be assigned by any of the parties
      hereto, and may not be amended or modified, except by the written consent
      of both parties hereto. No failure or delay on the part of any party
      hereto in exercising any right, power or remedy hereunder shall operate as
      a waiver thereof. Headings to Sections herein are for the convenience of
      the parties only, and are not intended to be or to affect the meaning or
      interpretation of this Agreement. The Parties shall have the right to
      enforce this Agreement and any of its provisions by injunction, specific
      performance or other equitable relief, without bond and without prejudice
      to any other rights and remedies that the Parties may have for the breach
      of this Agreement. In the event that any covenant, condition or other
      provision contained in this Agreement is held to be invalid, void or
      illegal by any court of competent jurisdiction, the same shall be deemed
      severable from the remainder thereof, and shall in no way affect, impair
      or invalidate any other covenant, condition or other provision therein
      contained. If such condition, covenant or other provisions shall be deemed
      invalid due to its scope or breadth, such covenant, condition or other
      provision shall be deemed valid to the extent permitted by law. All
      notices required to be delivered under this Agreement shall be effective
      only if in writing and shall be deemed given when received by the party to
      whom notice is required to be given and shall be delivered personally, or
      by registered mail to the addresses set forth above. The parties agree
      that any suit, action or proceeding between Director (and his attorneys,
      successors, and assigns) and the 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 Western District of North Carolina or in a North Carolina state
      court in the county of Mecklenburg 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. This Agreement shall be
      construed and interpreted in accordance with the laws of the State of
      North Carolina.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    Executed
as of this 15th day of July, 2009.

    


    
      	
              POKERTEK:

            	 
      	
              DIRECTOR:

            
	 	 	 
	
              By:

            	
              /s/
      Mark D Roberson

            	 
      	
              By:

            	
              /s/
      Gehrig H White

            
	
              Print
      Name:

            	
              Mark
      D Roberson

            	 
      	
              Print
      Name:

            	
              Gehrig
      H White

            
	
              Title:

            	
              Acting
      CEO & CFO

            	 
      	
              Title:

            	
              Director

            
	
              Date:

            	
              7/15/09

            	 
      	
              Date:

            	
              7/15/09