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 (“Agreement”) is entered into by and between PREMIER POWER RENEWABLE
ENERGY, INC. (hereinafter referred to as PPRE) and Xxxxx Xxxxxx (hereinafter
referred to as XXXXXX) 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,
XXXXXX 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 XXXXXX’x service on the BOARD.
NOW IN
CONSIDERATION FOR THE MUTUAL PROMISES, COVENANTS, AND CONDITIONS CONTAINED
HEREIN, IT IS AGREED AS FOLLOWS:
1. Should
XXXXXX be elected by the required vote of PPRE shareholders or by the BOARD to
serve on the BOARD, XXXXXX hereby agrees to accept his membership on the BOARD
and to dutifully serve. XXXXXX 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 the annual meeting of shareholders.
2. XXXXXX
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 XXXXXX 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 XXXXXX’x role on the BOARD.
b. The right
to receive Fifty Thousand (50,000) of Common Class “A” Voting
Stock. Said Stock shall vest to XXXXXX as
follows:
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i)
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Upon
the completion of the first year of service on the BOARD, 33% of the total
shares due to XXXXXX shall
vest,
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ii)
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Upon
the completion second full year of service on the BOARD 33% of the total
shares due to XXXXXX shall
vest,
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iii)
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The
remaining shares shall vest to XXXXXX upon the completion of third full
year of service.
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iv)
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XXXXXX
may elect to take his cash compensation in the form of solar integration
into his home or property provided at a standard employee discount,
provided Premier is active in the area of his
property.
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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, XXXXXX 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 XXXXXX, after his first
full year of service as a member of the BOARD, then so long as XXXXXX 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 XXXXXX shall be considered
“for cause” if any of the following events are discovered and or
occur:
x. XXXXXX
either fails to attend, or fails to act in a responsible and professional manner
at each such subject BOARD Meeting, and/or
x. XXXXXX
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. XXXXXX
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 XXXXXX 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 XXXXXX 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
instant 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 XXXXXX and services contracted for herein are
specific to XXXXXX and may not delegated and or assigned to any other person
other than XXXXXX
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PREMIER
POWER RENEWABLE
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XXXXX
XXXXXX
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ENERGY,
INC.
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/s/
Xxxx
Xxxxx
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/s/
Xxxxx
Xxxxxx
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By:
Xxxx Xxxxx
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Its:
Chief Executive Officer
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