AMENDED AND RESTATED AGREEMENT TO SERVE AS MEMBER OF THE BOARD OF DIRECTORS
AMENDED AND
RESTATED
This
Amended and Restated Agreement to Serve as Member of the Board of
Directors (the “Agreement”) is entered into by and between PREMIER
POWER RENEWABLE ENERGY, INC. (hereinafter referred to as PPRE) and Xxxxxx
(“Xxx”) Xxxxxxxx (hereinafter referred to as XXXXXXXX) and replaces
in its entirety the Agreement to Serve as Member of the Board of Directors dated
October 30, 2008 (the “Original Agreement”) and previously executed by the
parties to this Agreement. This Agreement is dated as of December 19,
2008.
WHEREAS
PPRE is a corporation duly organized and existing under the laws of the State of
Delaware.
WHERAS XXXXXXXX
is an individual who has vast corporate executive
experience
WHEREAS
as a result of XXXXXXXX qualifications, PPRE desires nominate and to
elect XXXXXXXX to serve on its Board of Directors (hereinafter
referred to as BOARD)
WHEREAS
XXXXXXXX is willing to accept said nomination and election as a member of the
BOARD
WHEREAS
the Original Agreement did not take effect and the parties now desire to enter
into this Agreement to memorialize the parties’ understandings and agreements
regarding XXXXXXXX’ service on the BOARD.
NOW IN
CONSIDERATION FOR THE MUTUAL PROMISES, COVENANTS, AND CONDITIONS CONTAINED
HEREIN , IT IS AGREED AS FOLLOWS:
|
|
1.
|
Should
XXXXXXXX be elected by the required vote of PPRE shareholders or by the
BOARD to serve on the BOARD, XXXXXXXX hereby agrees to accept his
membership on the BOARD and to dutifully serve. XXXXXXXX agrees
to continue to accept his election of said member of the
BOARD and to so serve for a period of no
less through October 15, 2011, subject to re-election by the
required vote of PPRE shareholders at PPRE’s annual meeting of
shareholders.
|
|
|
2.
|
XXXXXXXX
or his authorized designee Xxxxxx Xxxxxxxx shall be required to attend at
least Two (2) “In Person” BOARD Meetings, and
two (s) additional Telephonic BOARD Meetings per year,
provided, however, that XXXXXXXX agrees that he shall not delegate to
Xxxxxx Xxxxxxxx any and all of his managerial duties and obligations as a
director including but not limited to XXXXXXXX personally reviewing all
information provided to each member of the BOARD for review and XXXXXXXX
personally making all of his own decisions required of him as a director
(including but not limited to director voting decisions) regarding PPRE’s
business and management.
|
|
|
3.
|
PPRE
shall pay to XXXXXXXX as and for his compensation to serve as a member of
its BOARD the following:
|
|
|
a.
|
One
Thousand Two Hundred and Fifty Dollars ( $1,250.00) for
Telephonic Board Meetings, and Two Thousand Five Hundred
Dollars ($2,500.00) per in Person BOARD Meeting plus
travel expenses to and back from said BOARD Meeting. Such
Travel shall include a Coach Air Line Ticket, and “On
Ground” transportation, to and back from the respective
Airports and BOARD Meeting Rooms. XXXXXXXX shall receive no
additional compensation hereunder for attending the “Telephonic
BOARDMeetings”
|
|
|
b.
|
The
right to receive Fifty Thousand (50,000) of Common Class “A” Voting
Stock. Said Stock shall vest to XXXXXXXX as
follows:
|
|
|
i)
|
Upon
the completion of first full year of service on the BOARD, 33% of the
total shares due to XXXXXXXX shall
vest,
|
|
|
ii)
|
Upon
the completion of the second full year of service on the BOARD 33% of the
total shares due to XXXXXXXX shall vest,
|
|
iii)
|
The remaining shares shall vest to XXXXXXXX after the completion of third full year of service. |
For
purposes of this Provision, XXXXXXXX shall be required to use reasonable best
efforts to serve at each of the Board Meetings described in Paragraph 2 above,
in order for said shares to vest. However not withstanding anything to the
contrary XXXXXXXX may have Xxxxxx Xxxxxxxx substitute for XXXXXXXX in attending
the Board meetings for up to 50% of such Board meetings, provided, however, that
XXXXXXXX will subsequently obtain and review all information provided to Xxxxxx
Xxxxxxxx at the Board meetings and XXXXXXXX further agrees that he will not
delegate to Xxxxxx Xxxxxxxx and he will personally perform any and all of his
duties as a director, including but not limited to any voting decisions
regarding the corporation and its business that are raised for consideration at
the Board meetings.
However
notwithstanding the foregoing, should the shareholders , for any reason, other
than for cause, fail or refuse to nominate and elect XXXXXXXX, after his first
full year of service as a member of the BOARD, then so long as XXXXXXXX remains
ready, willing and able to so serve, he shall be deemed to have so satisfied the
provisions of attendance and dutiful service so as to obtain the
herein described shares.
2
The
shareholders failure of refusal to nominate and elect XXXXXXXX shall be
considered “for cause” if any of the following events
are discovered and or occur:
|
i)
|
XXXXXXXX
or his designee Xxxxxx Xxxxxxxx either fails to attend the minimum number
of board meetings, or fails to act in an responsible and
professional manner at each such subject BOARD Meeting,
and/or
|
|
ii)
|
XXXXXXXX
commits a felony or some other act against public and/or moral decency
which would cast a negative publicity light or stigma on
the PPRE, and/or
|
|
iii)
|
XXXXXXXX
breaches the fiduciary obligation that he owes to PPRE by
virtue of the fact that his is an elected member of the BOARD
by disclosing any Corporate proprietary information to any third party,
and/or conducts any deal and/or transaction that in any way
conflicts and or competes with the business of
PPRE
|
|
4.
|
In
addition to the compensation provided above, PPRE shall maintain, at its
own costs and expense Directors Errors and Omission Insurance in an amount
of no less than Two
Million Dollars ($2,000,000), specifically including XXXXXXXX and the
other BOARD Members as insured. Should the subject insurance
coverage not be sufficient to cover any losses occasioned by
actions of the BOARD, then PPRE agrees to indemnify and hold
XXXXXXXX harmless from and against any loss, damages, costs, expenses,
liabilities, and or causes of action, which may arise as a result of his
dutiful and responsible performance of his duties as a member of the
BOARD.
|
|
5.
|
MISCELLANEOUS
PROVISIONS:
|
a) The
parties hereto agree to execute any and all documents necessary to effectuate
the intent of this Agreement. Furthermore, the parties
hereto agree to comply with all statutory requirements with respects to the
transfer of the shares.
b) This Agreement
shall be the full and final Agreement between the parties and shall constitute
the full and final Agreement between the parties with respect to the subject
matter of this Agreement. This Agreement shall supersede
any prior or contemporaneous Agreement, oral or written, between the
parties.
c) If
any provision of this Agreement shall be found to be invalid or
unenforceable in any respect, the remainder of the Agreement shall remain in
full force and effect. The Agreement shall be interpreted to provide
a full and reasonable commercial interpretation.
d) Any
and all modifications to this Agreement must be undertaken in
writing and signed by all parties.
e) This Agreement
shall be interpreted according to the laws of the State of
California. If any suit or litigation is instituted it shall be
brought in Sacramento, California. The prevailing party in any such
litigation shall be entitled to their reasonable attorney’s fees and
costs.
f) All
parties warrant that they possess the full authority and capacity to enter into
this Agreement and bind their respective associates.
g) This
Agreement may not be assigned by XXXXXXXX and services
contracted for herein are specific to XXXXXXXX and may not be
delegated
and or assigned to any other person other than XXXXXXXX except as detailed
herein.
|
PREMIER
POWER RENEWABLE
ENERGY,
INC.
|
XXXXXX
XXXXXXXX
|
|
|
/s/ Xxxx Xxxxx
|
/s/ Xxxxxx Xxxxxxxx
|
|
|
By:
Xxxx Xxxxx, Chief Executive Officer
|
3
