SERVICE AND CONSULTING AGREEMENT
THIS AGREEMENT is made this 10th day
of April 2013
Blue Sphere Corporation,
a Nevada company with a business office in Even Yehuda, 35 Asuta Street, Israel.and/or Eastern Sphere Ltd. And /or Bino Sphere
and/or any present and/or future subsidiary of Blue Sphere Corporation (the “Company”)
Mark Radom from 1/2 Nachal
Maor, Bet Shemesh 99623, Israel (the “Consultant”).
|A.||The Company wishes to engage the Consultant to provide the services described herein (the “Services”)
and the Consultant agrees to provide the Services for the compensation and otherwise in accordance with the terms and conditions
contained in this Agreement;|
|B.||The Consultant represents that he possesses all experience, ability and skills relating to the
Company's business that are necessary to render the Services to the Company and the Consultant has been and is in the business
of providing such Services; |
|C.||The Consultant has been providing the Company with services since February 2010 based on certain
written agreements signed between the Company and the Consultant in the past; and|
|D.||The Consultant and the Company wish to
cancel such and all prior written agreements and set forth below the terms and conditions upon which the Consultant will continue
his services for and with the Company. |
in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, accepted and agreed to, the Parties, intending to be legally bound, agree to the terms set forth below.
The independent contractual relationship pursuant to this Agreement will commence on ___ March 2013 (the “Effective Date”)
and shall remain in force unless terminated pursuant to Section 4 hereof (the “Term”).
as set forth herein, the parties hereby declare and confirm that all previous agreements between them and/or Eastern Sphere Ltd,
are hereby terminated.
to the terms and conditions set forth herein, the Company hereby retains Consultant to provide the Company with the Services and
Consultant hereby accepts such engagement. The Consultant will report directly to the CEO of the Company and to the Company's Board
of Directors (the “Board”).
Services shall be provided solely and exclusively by the Consultant. The Consultant shall not subcontract, assign, transfer or
otherwise delegate performance of any Services without the prior written consent of the Board.
the term of this Agreement, the Consultant shall devote the necessary time and attention to the business of the Company according
to the needs of the Company from time to time. The Consultant is permitted to pursue other business or legal activities so long
as the same do not conflict or compete with the business of the Company or the Consultant’s ability to provide the Services
to the Company. For the avoidance of doubt, it is agreed that Consultant will devote at least 75% of his time to the Company.
Consultant shall perform the Services in an efficient, expeditious and professional manner. In performance of the Services and
this Agreement, the Consultant shall comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits
and other governmental requirements (including, but not limited to, any such requirements imposed upon the Company with respect
to the Services).
Consultant represents and warrants to the Company that he is under no contractual or other restrictions or obligations which are
inconsistent with the execution and delivery of this Agreement, or which may interfere with the performance of the Services and
that this Agreement constitutes the valid and binding obligation of the Consultant. In addition, the Consultant represents and
warrants that the execution, delivery and performance of this Agreement will not (i) violate any policies or procedures of any
other person or entity for which he performs services concurrently with those performed herein (ii) constitute a default under
or conflict with other business or legal activities or any other agreement, understanding or commitment, to which he is a party,
or by which he is bound and (iii) does not require the consent of any person or entity.
"Services" in this agreement consist of:
|·||The Consultant will provide legal services as general counsel to the Company and to Eastern Sphere
Ltd. In this connection, it is agreed and acknowledged that certain legal matters will be outsourced to external counsel based
on the recommendation of the Consultant and acceptance thereof by the Company’s management.. The Company will work in full
transparency with the Consultant in order to facilitate his work and will disclose to him all information, data, agreements that
are material to the Company's business and/or necessary for the Consultant's successful work. For the avoidance of doubt, it is
agreed that Consultant shall not be required to provide any legal services that fall outside his competency – by way of example
(without limitation), taxation.|
|·||The Consultant will assist the Company and Eastern Sphere Ltd in the process of taking strategic
decisions, business development, project appraisal, project management and development, monetization of emissions reductions and
offsets, financial analysis and transaction negotiation and structuring both in the USA and in other countries.|
|·||Any other services the Company or Eastern Sphere will require in their business activities.|
to the performance of the Services to be rendered hereunder, subject to the following sentence, the Company shall pay to the Consultant
for all Services rendered hereunder a monthly fee in an aggregate amount of 7,000 USD (the "Compensation"). Starting
from the first full calendar month after financial closing of the Company’s first project, Consultant’s Compensation
shall become 10,000 USD per month so long as the Company has the cash to pay such amount. If not, Consultant’s Compensation
shall become 10,000 USD per month immediately from the day on which the Company obtains or receives any funds whatsoever and the
compensation paid to all other officers and advisors is increased. Should VAT be imposed on Compensation, Such VAT will be added
to the Compensation and paid by the Company. The Compensation will be paid in NIS translated pursuant to the official representative
rate of exchange of the US$ as published by the Bank of Israel on the payment date. Subsequently, at the same time as the compensation
to be paid to the other officers and advisors are increased from their already increased rates after the financial closing, Consultant’s
Compensation will be increased, as well.
Compensation shall be paid to the Consultant against an invoice validly issued, in accordance with applicable law, at the end of
each calendar month under this Agreement, and the Company will pay Consultant the Compensation within 5 business days from the
receipt of any such invoice.
as provided herein or as otherwise offered by the Company, the Compensation shall constitute the full and total compensation due
to the Consultant under this Agreement and the Consultant shall not be entitled to any other form of compensation, commission,
fee, bonus, options, securities, remuneration, reimbursement or any other form of payment or consideration for the provision of
Consultant shall be solely responsible for, and will make proper and timely payment of, any and all withholding, taxes, duties,
fees and/or other impositions that may be levied pursuant to applicable law upon the Consultant in connection with the provision
of the Services hereunder, the fulfillment of the Duties of Consultant. In the event that pursuant to any law or regulation, tax
is required to be withheld at source from any payment made to the Consultant, the Company shall withhold said tax at the rate set
forth in the certification issued by the appropriate taxing authority or at the rate determined by said law or regulation. Consultant
agrees to indemnify the Company against all claims, liabilities or expenses the Company incurs as a result of a breach of Consultants
obligations under this sub-Section 3.4.
Consultant will be reimbursed by the Company for all reasonable business expenses incurred by the Consultant and pre-approved by
the Company in connection with his duties. This includes, but is not limited to, payments of expenses incurred when traveling abroad,
per diem payments for travel abroad according to the rules set forth by the Israeli Tax Authorities and others.
All expenses will be reimbursed in accordance with the Company’s standard policies and procedures. Reimbursement pursuant
to this sub-Section 3.5 shall be effected at the same time as the Consultant’s monthly Compensation is paid.
3.6. Consultant will be entitled to participate in any and all bonus, stock, option, incentive or other compensation plans for its executives
or consultants adopted by the Company or any of its subsidiaries.
Company acknowledges that Consultant offered (i) Dela Wosornu 2.5% of the net profits of any project introduced to the Company
by Mr. Wosornu and (ii) Alex Antobre Seinuah .00375% of the net profits of any project in respect of which Mr. Seinuah provides
services to the Company or its subsidiaries and, in this connection, will promptly indemnify and hold harmless Consultant from
any and all claims made by Dela Wosornu and Alex Antobre Seinuah against the Consultant in respect of any revenues to be earned
or any business activities to be conducted in Ghana or elsewhere in Africa and/or any losses, damages, expenses, costs (including
reasonable costs of counsel), fees and/or indebtedness to be incurred by Consultant on account of the same.
Company will insure the Consultant (including his heirs, executors and administrators) with coverage under a standard directors'
and officers' liability insurance policy at the Company's expense..
Company acknowledges that it owes Consultant compensation in respect of back-pay and services provided to-date.
parties shall be entitled to terminate this Agreement, for any reason and at any time with prior notice of 90 days.
the above, the Company shall be entitled to terminate this Agreement with immediate effect and without prior notice, at any time,
(i) for Cause or (ii) due to the death or Disability (as defined below) of the Consultant.
4.3. For the purpose
of this Section 4,
|4.3.1.||“Disability” means: (i) any physical or mental illness or injury, as
a result of which the Consultant fails to render the Services required of him pursuant to this Agreement, for a period of two (2)
successive months, or an aggregate of two (2) months in any twelve (12) month period. Disability pursuant to this alternative (i)
shall be deemed to occur upon the end of such two-month period, (ii) any case where the Consultant is unable or fails, for any
reason, to render the Services required pursuant to this Agreement.|
|4.3.2.||‘Cause' shall mean the occurrence of any (one or more) of the following circumstances:
(i) filing an indictment(s) against the Consultant for any crime, felony or offense (ii) the Consultant breached any of the material
terms or conditions hereof, provided that such breach, to the extent reasonably curable, is not cured within 14 days; (iii)
the Consultant has engaged in any act or omission which is gross negligence, in bad faith towards the Company or was taken by the
Consultant to intentionally harm the Company; (iv) act of fraud or embezzlement of funds of the Company by the Consultant; (v)
falsification of the Company's records or reports or any other willful misconduct by the Consultant in connection with the business
affairs of the Company.|
termination neither party shall have any further obligations under this Agreement, except for the obligations, which by their terms
survive this termination as noted in Section 5 hereof. Upon termination and, in any case, upon the Company’s request,
the Consultant shall return immediately to the Company or destroy all Confidential Information (as defined below) and copies thereof
and any other property belonging to the Company, including, but not limited to (if applicable), any confidential materials, keys,
documents, reports, research records, computer files and/or records, passwords for all computer records, bank statements, checks
or any other Company materials.
termination of this Agreement shall not affect the Consultant's eligibility to receive payment of Compensation and reimbursement
of expenses for Services already provided to the Company until such termination date.
|5.||CONFIDENTIALITY; PROPRIETARY RIGHTS; NON-COMPETE.|
of Confidential Information.
Consultant acknowledges that the Consultant will, either directly or indirectly, have access to and be entrusted with Confidential
Information (whether oral, written or by inspection) relating to the Company or its respective affiliates, associates or customers.
Consultant acknowledges that the Company’s Confidential Information constitutes a proprietary right, which the Company is
entitled to protect. Accordingly, the Consultant covenants and agrees that, as long as he works for the Company, the Consultant
will keep in strict confidence the Company’s Confidential Information and will not, without prior written consent of the
Company, disclose, use or otherwise disseminate the Company’s Confidential Information, directly or indirectly, to any third
Consultant agrees that, upon termination of his services for the Company, he will immediately surrender to the Company all Company
Confidential Information then in his possession or under his control.
The general prohibition contained in Section 5.1.1 against the unauthorized disclosure, use or dissemination of the Company’s
Confidential Information will not apply in respect of any Company Confidential Information that:
available to the public generally;
part of the public domain through no fault of the Consultant;
already in the lawful possession of the Consultant at the time of receipt of the Company’s Confidential Information; or
compelled by applicable law to be disclosed, provided that the Consultant gives the Company prompt written notice of such requirement
prior to such disclosure and provides assistance at the request and expense of the Company, in obtaining an order protecting the
Company’s Confidential Information from public disclosure.
Competition. The Consultant agrees and undertakes that he will not, so long as this agreement is in force, become financially
interested in, be employed by or give service to any business or venture that competes directly with the Company’s business.
For the purposes of this Agreement, “Customer” means any Person who is, at any time during the Term of this
agreement, a customer of the Company.
Consultant covenants and undertakes that he will not, at any time during the Term of this Agreement for any reason, directly or
indirectly, in any way:
hire or engage the services of any employee of the Company or its affiliates or persuade or attempt to persuade any such individual
to terminate his employment or relationship with the Company or any of its Affiliates;
or attempt to persuade any Customer to restrict, limit or discontinue purchasing or retaining the services provided by the Company
or any of its affiliates to any such Customer or to reduce the amount of business which any such Customer has customarily done,
or contemplates doing, with the Company or any of its affiliates in respect of the Company’s business, or to solicit or take
away, or attempt to solicit or take away, from the Company or any of its affiliates any of its Customers in respect of the Company’s
|6.||THE NATURE OF THE CONTRACTUAL RELATIONSHIP |
The Consultant shall
at all times act as an independent contractor, and shall not be, and/or claim to be, an employee of the Company and of Eastern
Sphere Ltd. The Consultant warrant that he is aware that this Agreement is only an agreement for the provision of consulting services
on a strictly contractual basis, and does not create employer-employee relations between him and the Company or Eastern Sphere
Ltd and does not confer upon him any rights, except for those set forth herein explicitly.
Relief. The Consultant agrees that any breach of Section 5 above by him would cause irreparable damage to the Company
and that, in the event of such breach, the Company shall have, in addition to any and all remedies of law, the right to an injunction,
specific performance or other equitable relief to prevent the violation or threatened violation of the Consultant's obligations
Any waiver by a Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent
breach of the same or any other provision hereof. All waivers by any Party shall be in writing.
Reformation. In case any one or more of the provisions (or parts of a provision) contained in this Agreement shall,
for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision (or part of a provision) of this Agreement; and this Agreement shall, to the fullest extent
lawful, be reformed and construed as if such invalid or illegal or unenforceable provision (or part of a provision), had never
been contained herein, and such provision (or part of the provision) reformed so that it would be valid, legal and enforceable
to the maximum extent possible, provided that the same does not curtail the original intent of the Parties as evidenced
herein. Without limiting the foregoing, if any provision (or part of provision) contained in this Agreement shall for any reason
be held to be excessively broad as to duration, activity or subject, it shall be construed by limiting and reducing it, so as to
be enforceable to the fullest extent compatible with then existing applicable law.
The Company shall be permitted to assign its rights and obligations under this Agreement. The Consultant shall not have the right
to assign his rights or obligations under this Agreement without the prior written consent of the Company.
Interpretation. Headings and subheadings are for convenience only and shall not be deemed to be a part of this
Agreement. The preamble, exhibits and schedules to this Agreement constitute an integral part hereof. Words in the singular shall
include the plural and vice versa; and reference to a person shall also include corporate bodies and other legal entities.
This Agreement may be amended or modified, in whole or in part, only by an instrument in writing signed by the Company and the
Any notices or other communications required hereunder shall be in writing and shall be deemed given when delivered in person or
when mailed, by certified or registered first class mail, postage prepaid, return receipt requested, addressed to the parties at
their addresses specified in the preamble to this Agreement or to such other addresses of which a party shall have notified the
others in accordance with the provisions of this Section 7.7, and shall be deemed effectively given upon the earlier of
actual receipt or: (a) personal delivery to the party to be notified, (b), if sent by electronic mail or facsimile (with electronic
confirmation of receipt) on the recipient’s next business day, (c) three (3) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized
overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.
Law. This Agreement shall be governed by the laws of Israel. The competent courts of the city of Tel Aviv, shall have exclusive
jurisdiction over any matter in connection with this Agreement.
Agreement. This Agreement supersedes all prior agreements, written or oral, between the parties hereto relating to the subject
matter of this Agreement.
This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be
deemed a single agreement.
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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed and delivered on and as of the Effective Date.
|Blue Sphere Corporation
[Signature Page- Service and Consulting