SECOND AMENDED AND RESTATED AGREEMENT TO SERVE AS MEMBER OF THE BOARD OF DIRECTORS
SECOND AMENDED AND
RESTATED
This
Second 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
Amended and Restated Agreement to Serve as Member of the Board of Directors
dated December 19, 2008 (the “First Amendment”) and previously executed by the
parties to this Agreement. This Agreement is dated as of March 25,
2010.
WHEREAS,
PPRE is a corporation duly organized and existing under the laws of the State of
Delaware;
WHEREAS,
XXXXXXXX was elected to serve on PPRE’s Board of Directors (hereinafter referred
to as BOARD) on December 8, 2008; and
WHEREAS,
the parties now desire to enter into this Agreement to memorialize the parties’
understandings and agreements regarding amendments to the First Amendment in
connection with 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
shall be required to attend at least Two (2) “In Person” BOARD Meetings, and two
(2) additional Telephonic BOARD Meetings per year.
3. PPRE
shall pay to XXXXXXXX as and for his compensation to serve as a member of its
BOARD the following:
a. Two
Thousand Five Hundred Dollars ($2,500.00) per BOARD Meeting attended In Person
or Telephonically, plus travel expenses to and back from a BOARD Meeting
attended In Person. Such Travel shall include a Coach Air Line
Ticket, and “On Ground” transportation, to and from the respective Airports and
BOARD Meeting Rooms. A BOARD Meeting attended Telephonically for
which compensation under this Paragraph 3(a) is due shall be a meeting
considered, at PPRE’s sole discretion, to be of substantive significance and not
incidental to XXXXXXXX’ role on the BOARD.
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.
c. One
Thousand Dollars ($1,000) per month of service on the BOARD, commencing with the
date of this Agreement.
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
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.
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:
x. XXXXXXXX
either fails to attend the minimum number of board meetings, or fails to act in
a responsible and professional manner at each such subject BOARD Meeting,
and/or
x. 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
x. 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 no less
than Five Million Dollars ($5,000,000), 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.
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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.
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PREMIER
POWER RENEWABLE
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XXXXXX
XXXXXXXX
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ENERGY,
INC.
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/s/
Xxxx
Xxxxx
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/s/
Xxxxxx
Xxxxxxxx
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By:
Xxxx Xxxxx
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Its:
Chief Executive Officer
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