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Exhibit 10.9
AGREEMENT FOR A MEMBER OF THE BOARD OF BUSINESS
ADVISORS
THIS AGREEMENT FOR A
MEMBER OF THE BOARD OF BUSINESS ADVISORS
(“Agreement”) is made and entered into as of this
____ day of July, 2007, (the “Effective
Date”), by and between Sun Energy Solar, Inc., a
Delaware corporation, (“Company”) and Kenneth I.
Juster, an individual (“Advisor”).
Recital
As
part of its ongoing business, the Company desires to retain
highly qualified individuals to advise the Company with
respect to certain aspects of the Company’s
business. In furtherance thereof, the Company
desires to retain Advisor as a consultant and member of the
Company’s Advisory Board, and the Company and Advisor
desire to enter into this Agreement.
1. Term.
(a) This
Agreement shall commence upon the Effective Date and shall
continue thereafter for a period of three (3) years, unless
earlier terminated in accordance with this
Agreement.
(b) Notwithstanding
the foregoing and provided that Advisor has neither resigned
nor been terminated in accordance with this Agreement,
Company agrees to use its best efforts to retain the Advisor
at least for a period of one (1) year following expiration of
the Agreement.
2. Position
and Responsibilities.
(a) Commencing
on the Effective Date, the Company hereby retains Advisor,
and Advisor hereby agrees to serve, as a member of the
Company’s Advisory Board (the “Advisory
Board”) and as a consultant to the
Company. As consultant and member of the Advisory
Board, Advisor agrees to devote his best efforts to provide
the following services: (a) attending any meetings
of the Advisory Board; (b) performing the duties of an
Advisory Board member at such meetings as established from
time to time by mutual agreement of the Parties, including,
without limitation, meeting with Company employees,
consultants and others, reviewing the Company’s goals
and assisting in the planning for and execution of the
Company’s goals and providing advice, support,
techniques and improvements in the Company’s business
activities; and (c) providing consulting services to the
Company at the Company’s request, including a
reasonable amount of informal consultation over the telephone
or in person one day per month or otherwise as requested by
the Company. The services to be provided by
Advisor hereunder are referred to collectively herein as the
“Services.”
(b) Advisor
represents that Advisor’s performance of all of the
terms of this Agreement and the performance of the Services
for the Company do not and will not breach or conflict with
any agreement with a third party, including an agreement to
keep in confidence any proprietary information of another
entity acquired by Advisor in confidence or in trust prior to
the date of this Agreement or during the term
hereof.
3. Compensation
and Benefits.
(a) Advisor’s
Fee (the “Advisor’s Fee”). In
consideration of the services to be rendered under this
Agreement, Company shall provide to Advisor upon the
Effective Date a non-employee Advisor’s Fee
of (1) one million (1,000,000) shares of Sun Energy Solar,
Inc. restricted common stock that shall vest immediately upon
issuance, and (2) a nonstatutory option to acquire two
million (2,000,000) shares of Sun Energy Solar, Inc. common
stock, vesting one-half (1/2) on the first anniversary of the
Effective Date and one-half (1/2) on the second anniversary
of the Effective Date, in each case provided that Advisor
remains an advisor to the Company on the applicable vesting
date. Each such option shall have an exercise
price equal to the fair market value of the common stock on
the date of the grant.
(b) Benefits. Advisor
shall not be eligible to participate in any benefits made
generally available by Company, including, but not limited
to, vacation leave and pay, sick leave and pay, retirement
plan and related benefits, social security, workers
compensation insurance, disability insurance, employment
insurance benefits, and other benefits of any kind provided
by the Company to its employees.
(c) Expenses. The
Company shall reimburse Advisor for his reasonable,
out-of-pocket, pre-approved expenses as incurred by Advisor
in connection with its performance under this
Agreement. Advisor shall not incur any expenses
without prior consent of the Company. Advisor
agrees to provide the Company with access to such receipts,
ledgers and other records as may be reasonably appropriate
for the Company to verify the amount and nature of such
expenses.
(d) Taxes. Advisor
shall be responsible to pay any and all applicable taxes that
result from this Consulting Agreement including, but not
limited to, federal and state income taxes. Advisor shall
have sole responsibilities for the withholding of any and all
applicable federal and state income taxes, unemployment
insurance tax, social security tax, and other withholding
with respect to payments made by Advisor under this
Agreement.
(e) Indemnification. Company
will indemnify and defend Advisor against liability incurred
in the performance of the Services, as set forth in the
attachment in Exhibit A
.
4. Independent
Contractor.
The Parties understand and
agree that Advisor is an independent contractor and not an
employee of the Company. Advisor has no authority
to obligate or bind the Company by contract or
otherwise. Advisor will not be eligible for any
employee benefits, nor will Company make deductions from
Advisor’s fees for taxes (except as otherwise required
by applicable law or regulation). Any taxes
imposed on Advisor due to activities performed hereunder will
be the sole responsibility of Advisor.
5. Termination.
(a) Right
to Terminate. At any time, Advisor may be
terminated and this Agreement shall automatically terminate
upon the effective date of such termination.
Advisor may resign at any
time during the term of this Agreement, and this Agreement
shall automatically terminate upon the effective date of such
resignation. Notwithstanding anything to the
contrary contained in or arising from this Agreement or any
statements, policies, or practices of Company, neither
Advisor nor Company shall be required to provide any advance
notice or any reason or cause for termination of
Advisor’s status.
(b) Effect
of Termination as Advisor. Upon termination of
this Agreement, Company shall pay to Advisor all compensation
and benefits to which Advisor is entitled up through the date
of termination. Thereafter, all of Company’s
obligations under this Agreement shall cease, except as
provided in Sections 3(a), 3(c), 3(e) and 6.
6. Termination
Obligations.
(a) Advisor
agrees that all property, including, without limitation, all
equipment, tangible proprietary information, documents,
records, contracts, and computer-generated materials provided
to or prepared by Advisor incident to his services belong to
Company and shall be promptly returned at the request of
Company within a reasonable period following termination of
this Agreement.
(b) Upon
termination of this Agreement, Advisor shall be deemed to
have resigned from all offices then held with Company by
virtue of his position. Advisor agrees that
following any termination of this Agreement, he shall
cooperate with Company in the winding up or transferring to
other advisors of any pending work and shall also cooperate
with Company (to the extent allowed by law, and at
Company’s expense) in the defense of any action brought
by any third party against Company that relates to the
Services.
(c) The
Company and Advisor agree that their obligations under this
Section, as well as Sections 3(b), 3(c), 3(d), 3(e), 5(b), 7
and 8, shall survive the termination of this
Agreement.
7. Nondisclosure
Obligations.
(a) Receipt
of Proprietary Information. Advisor recognizes and
acknowledges that, in the course of the engagement of Advisor
by the Company, and as a result of the confidential
relationship with the Company established thereby, Advisor
shall be receiving proprietary information of the Company and
other confidential information, including without limitation,
technology and information relating to the Company’s
business or its patents, inventions, software, know-how and
other property rights (“Proprietary Information”),
and developing additional know-how and proprietary information
owned by the Company which will become Proprietary
Information, and that such Proprietary Information are highly
valuable assets of the Company; provided, that technology and
information shall not be considered Proprietary Information of
the Company which are (1) known to Advisor prior to execution
of this Agreement or the Non-Disclosure Agreement, defined
herein, (2) divulged by the Company to another without
confidentiality restrictions; (3) disclosed to Advisor by a
third party or otherwise who is not in breach of any
confidentiality obligation to the Company; (4) publicly used,
known or available, not due to any unauthorized act by
Advisor; or (5) disclosed by operation of law or in response
to a subpoena or order by a court of proper
jurisdiction.
(b) Nondisclosure. Advisor
shall retain in strict confidence and shall not use for any
purpose whatsoever or divulge, disseminate or disclose to any
third party (other than in the furtherance of the business
purposes of the Company and at the express, written request of
the Company) any Proprietary Information, all of which are
deemed confidential and proprietary.
(c) Ownership. Any
methods, developments, know-how, inventions and/or
improvements whether or not patentable or subject to
intellectual property protection including, but not limited
to, the Proprietary Information, and all related materials
that are (1) developed by Advisor in connection with the
performance of the Services after the Effective Date; or (2)
paid for or provided by the Company in connection with the
performance of the Services before or after the Effective
Date, (collectively “Developed Property”) shall be
and remain the property of the Company.
(d) Works
Made for Hire. In no way limiting the foregoing,
all Developed Property conceived or made by Advisor in
connection with the Services are “supplementary
works” and “works made for hire” (as those
terms are defined in the United States Patent Trademark and
Copyright Laws, 17 U.S.C. § 101) and owned by the
Company; and Advisor hereby assigns to the Company all
Developed Property which Advisor may conceive of or make in
connection with the performance of the Services.
(e) Disclosure;
Assignment. Advisor shall immediately disclose to
Company all Developed Property. Advisor shall
promptly shall execute and deliver to the Company any
instruments deemed necessary by the Company to effect
disclosure and assignment by Advisor to the Company of any
Developed Property. Upon the request of the Company
and at the Company’s expense, Advisor shall execute
patent and copyright applications and any other instruments
deemed necessary by the Company for the prosecution of such
patent applications or the acquisition of letters patent or
registration of copyrights in the United States and/or foreign
countries which may be based in whole or in part on Developed
Property. Notwithstanding the fact that Company may
request additional written assignments or applications, this
assignment shall be deemed sufficient to convey all of
Advisor’s right, title and interest in any Developed
Property.
(f) Prior
Non-Disclosure Agreement. The parties acknowledge
entering into a separate non-disclosure agreement relating to
the Company’s confidential information, attached as
Exhibit
B (“Non-Disclosure
Agreement”). The terms of the Non-Disclosure
Agreement are incorporated herein by this
reference. In the event of a conflict between the
Non-Disclosure Agreement and this Agreement, the terms
providing greater protection to the Company and its
confidential information and Proprietary Information shall be
determinative.
(g) Injunctive
Relief. If Advisor violates this Section 7 of this
Agreement, the Company (in addition to any other and
additional rights or remedies it may have at law, in equity or
by statute) shall be entitled to immediate and permanent
injunctive relief, it being agreed that the damages which the
Company would sustain upon such violation are difficult or
impossible to ascertain in advance. The posting of
a bond shall not be required as a pre-condition to such
injunctive relief.
8. Dispute
Resolution.
(a) Jurisdiction
and Venue. The parties agree that any suit,
action, or proceeding between
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