Smart Energy Solutions Inc. Director Agreement Mike Ben-Ari
Smart
Energy Solutions Inc.
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This
letter agreement (this "Agreement") will confirm our agreement with respect
to
your services to Smart Energy Solutions Inc. (the "Company") under the terms
and
conditions that follow:
1.
Position and Duties.
(a)
As a
director of the Company, you are expected to maintain loyalty to the Company
and
to not take any action that would directly or indirectly promote any competitor
or impair the Company's interests. Subject
to the foregoing, you may engage in other business or charitable activities
to
the extent that they do not interfere or create a conflict with your fiduciary
obligations to the Company.
(b)
Specifically, but not exclusively, your duties and responsibilities will include
the following: (i) to participate in all meetings of the Board and stockholders;
(ii) to serve on such committees of the Board as required by the Company(iii)
to
provide strategic guidance and advice to the senior management of the Company
with respect to the management of the operations of the Company; (iv) and to
provide support and guidance to the senior management of the Company in their
efforts You will report directly to the Board unless notified
otherwise.
2.
Compensation; Time Commitment.
For
all
services that you perform for the Company and its affiliates as a Director,
the
Company will provide you as compensation (i) Four Thousand Dollars ($4,000)
per
year, plus a fee of One Thousand Dollars ($1,000) per Board meeting or Committee
meeting (if held at a date and time separate from the Board meeting) where
you
are physically present. Fees are payable quarterly in arrears (this cash
compensation plus any other compensation provided for herein shall be referred
to as the "Compensation").
3.
Stock
Options.
The
Company will issue you stock options for 540,000 shares of company stock with
a
strike price of
$0
.35.
These options will vest 45,000 each quarter for the next three years commencing
with the date of your signature below, and are exercisable for three years
after
vesting. If
the
company has a Change of Control (as defined below), all remaining Options will
automatically vest on the effective date of the Change.
“Change
of Control”
shall
mean the occurrence of any of the following events:
| (i) | The acquisition, other than from the Company (which term for purposes of this Subsection (i) includes any successor corporation), or any subsidiary thereof by any person or group (as such terms are used for the purposes of Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the ▇▇▇▇ ▇▇▇) of securities with voting power equal to fifty percent (50%) or more of the combined voting power of the Company’s then outstanding voting securities; |
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(ii)
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Approval
by the Company’s stockholders of (a) a merger or consolidation of the
Company with or into another corporation if the stockholders of the
Company, immediately before such merger or consolidation do not,
immediately after such merger or consolidation, own, directly or
indirectly, more than fifty percent (50%) of the combined voting
power of
the then outstanding voting securities of the corpora-tion resulting
from
such merger or consolidation in substantially the same proportion
as their
ownership of the combined voting power of the voting securities of
the
Company outstanding immediately before such merger or consolidation
or
(b) dissolution of the Company or an agreement for the sale or other
disposition of all or substantially all of the assets of the Company.
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Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
fifty percent (50%) or more of the combined voting power of the Company’s then
outstanding securities is acquired by (i) a trustee or other fiduciary
holding securities under one or more employee benefit plans maintained by the
Company or any of its subsidiaries or (ii) any corporation which,
immediately prior to such acquisition, is owned directly or indirectly by the
stockholders of the Company in the same proportion as their ownership of stock
in the Company immediately prior to such acquisition.
For
purposes of the foregoing definition, the Company’s stockholders are deemed to
be the indirect owners of any assets, including stock interests, held by the
Company or any subsidiary thereof.
4.
Term;
Termination; Effect of Termination. Unless earlier terminated pursuant to this
Paragraph 4, your position as Director of the Company shall expire at the Annual
Meeting of Stockholders of the Company held in 2007, unless you are elected
by
the shareholders as a director for another term (such period shall be referred
to herein as the "Term" of this Agreement").
a.
The
Board may remove you from your position as Director any time upon an affirmative
vote of the majority of the members of the Board. The shareholders of the
Company may vote to remove you at any time upon an affirmative vote of the
holders of the issued and outstanding shares of the Company.
b.
You
may resign from your position as Director at any time to the Company; however,
we would hope that you provide us with reasonable notice prior thereto.
5.
In the
event your service as Director is terminated or you resign from the Board or
are
removed from the Board, then the Company shall have no further obligation to
you
other than for compensation earned through the date of such resignation.
Notwithstanding anything in this Agreement to the contrary, any shares of Common
Stock which have vested prior to such termination shall remain exercisable
for a
period of one (1) year from such date.
6.
Indemnification; Legal Fees. During the term of your service and thereafter,
the
Company shall indemnify you to the full extent permitted by law and the by-laws
of the Company for all expenses, costs, liabilities and legal fees which you
may
incur in the discharge of your duties hereunder . In addition, the Company
shall
pay any reasonable legal fees which you may incur related to the negotiation
and
consummation of this Agreement, such payments to be made directly to your
counsel in accordance with the Company's normal accounting practices upon
receipt of a detailed copy of the ▇▇▇▇ for services rendered from your
counsel.
Notwithstanding
the foregoing, you shall not be entitled to any indemnification with respect
to
any claim arising directly or indirectly if (i) your acts were committed in
bad
faith or were the result of active and deliberate dishonesty, (ii) you gained
any financial profit or other advantage to which you were not legally entitled;
(i)
you
made profits from the purchase or sale of securities of the Company within
the
meaning of Section 16 of the Securities Exchange Act of 1934 or similar
provisions of any state; or (iv) payment by the Company under this Agreement
is
not permitted by applicable law.
7.
No
Employment. Execution of this Agreement in no way creates, norshall this
Agreement be interpreted as creating, an employment, agency, partnership or
joint venture between you and the Company.
8.
Assignment. Neither you nor the Company may make any assignment of this
Agreement or any interest herein, by operation of law or otherwise, without
the
prior written consent of the other; provided, however, that the Company may
assign its rights and obligations under this Agreement without your consent
to any person with whom the Company shall hereafter affect a reorganization,
consolidation or merger or to whom the Company transfers all or substantially
all of its properties or assets. This Agreement shall insure to the benefit
of
and be binding upon you and the Company and each of your respective successors,
executors, administrators, heirs and permitted assigns.
9.
Waiver. Except as otherwise expressly provided in this Agreement, no waiver
of
any provision hereof shall be effective unless made in writing and signed by
the
waiving party. The failure of either party to require performance of any term
or
obligation of this Agreement, or the waiver by either party of any breach of
this Agreement, shall not prevent any subsequent enforcement of such term or
obligation or be deemed a waiver of any subsequent breach.
10.
Severability. If any portion or provision of this Agreement shall to any extent
be declared illegal or unenforceable by a court of competent jurisdiction,
then
the remainder of this Agreement, or the application of such portion or provision
in circumstances other than those as to which it is so declared illegal or
unenforceable, shall not be affected thereby, and each portion and provision
of
this Agreement shall be valid and enforceable to the fullest extent permitted
by
law.
11.
Notices. Except as otherwise expressly provided herein, any notices, requests,
demands and other communications provided for by this Agreement shall be in
writing and shall be effective when delivered in person or deposited in the
United States mail, postage prepaid, registered or certified, and addressed
to
you at your last known address on the books of the Company or, in the case
of
the Company, at its main office, attention of the President & Chief
Executive Officer, with a copy to the Company's Secretary.
12.
Captions. The captions and headings in this Agreement are for convenience only
and in no way define or describe the scope or content of any provision of this
Agreement.
13.
Entire Agreement. This Agreement sets forth the entire agreement and
understanding between you and the Company and supersedes all prior
communications, agreements and understandings, written and oral, with respect
to
the terms and conditions of your position as a member of the Board of Directors.
This Agreement may not be amended or modified, except by an agreement in writing
signed by you and the President & Chief Executive Officer or other
specifically authorized representative of the Company.
14.
Governing Law. This Agreement shall be governed, construed and enforced in
accordance with the laws of New Jersey, without regard to the conflict of laws
principles thereof. To the extent applicable, the federal laws of the United
States and the corporate laws of the State of Nevada (or whatever state the
Company is incorporated in and subject to) shall govern your rights and duties
as a director of the Company.
15.
No
Conflicting Agreements. You hereby represent to the Company that neither your
execution and delivery of this Agreement nor your acceptance of the position
of
Director for the Company nor your performance under this Agreement and the
law
will conflict with or result in a breach of any of the terms, conditions or
provisions of any agreement to which you are a party or are bound or any order,
injunction, judgment or decrees of any court or governmental authority or any
arbitration award applicable to you.
16.
Compliance with Agreement. The Company's obligations under this Agreement and
its obligation to deliver stock under the terms of the stock options granted
pursuant to the terms of this Agreement are conditioned on your compliance
with
the terms and conditions of this Agreement.
If
the
foregoing is acceptable to you, please sign the enclosed copy of this letter
in
the space provided below and return it to me (Fax ▇▇▇-▇▇▇-▇▇▇▇), whereupon
this
letter and such copy will constitute a binding agreement between you and the
Company on the basis set forth above as of the date first above
written.
Sincerely
yours,
Smart
Energy Solutions Inc.
By:
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▇▇▇▇▇▇▇
Chief
Financial Officer
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Accepted
and Agreed:
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/s/
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Date:
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