CONSULTING AGREEMENT
Exhibit
10.9
This
Consulting Agreement is made by and between Xxxxxxxxxxx
x’Xxxxxx-Xxxxxx ("Consultant”), with offices at 000 Xxxx 00xx Xxxxxx,
Xxxxx 00X, Xxx Xxxx, XX 00000, Waste2Energy Group Holdings PLC, (“Group
Holdings”) an Isle of Man company with its principal offices located at Xxxxxxx
House, Lord Street, Xxxxxxx, Isle of Man IM1 2BF, British Isles, Maven Media
Holdings, Inc., (“Maven”) a Delaware corporation with offices located
at 1185 Avenue of the Americas, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and Waste2Energy, Inc. ("W2E"), a Delaware
corporation, with its principal offices located at 0000 Xxxxxx xx xxx Xxxxxxxx,
00xx
Xxxxx, Xxx Xxxx, XX 00000.
1. Retention
as Consultant and the services of Consultant.
a. Group
Holdings hereby retains Consultant and Consultant hereby accepts such engagement
and agrees to perform the services for Group Holdings as hereinafter set
forth.
b. During
the Term, Consultant shall devote a reasonable amount of Consultant’s business
time (which shall not be less than 60% of his business time), attention and
efforts to the business of Group Holdings and shall hold himself ready to and
shall provide advice to Group Holdings in connection with its business,
including, without limitation, evaluating particular contracts or transactions,
as requested by the officers of Group Holdings (the “Consulting
Services”). Should Consultant so desire, Group Holdings shall provide
him with adequate work space and administrative support as are reasonably
necessary for carrying out the functions of his consulting
work.
c. Consultant, Group
Holdings, Maven and W2E agree that Consultant may render services to Group
Holdings that are outside the scope of this Agreement. Such services
would be the subject of separate agreements between the Consultant and Group
Holdings that would define the nature and scope of such services and the
compensation to be paid to Consultant for such services.
2. Compensation.
a. For all
services to be rendered by Consultant pursuant to this Agreement, Consultant
shall, beginning on the Effective Date, be paid by Group
Holdings an annual fee of $300,000 exclusive of business expenses as hereinafter
defined which shall paid on the first and the fifteenth of each
month in accordance with Group Holdings payment
policies. The payments to Consultant shall from time to time be
adjusted (upward, but not downward) at the discretion of the Board of Group
Holdings. The first such review shall be no later than the first
anniversary of this Agreement.
b. Group
Holdings shall reimburse Consultant for his reasonable out-of-pocket expenses
incurred with respect to the performance of Consultant’s consulting activities
hereunder upon Consultant's presentation of vouchers, receipts, and such other
evidence of expenses incurred as shall be reasonably required by Group
Holdings.
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c. Maven may
grant Consultant such stock options and warrants at such times, in such amounts
and with such exercise prices as the Board of Directors of Maven may from time
to time determine.
d. Group
Holdings shall reimburse Consultant for the costs of Consultant’s health
insurance.
e. Maven and
W2E shall be jointly and severally liable for making any payments due to the
Consultant hereunder (including payments for expenses and for the reimbursement
of Consultant’s health insurance) on a timely basis.
3. Term.
(a) The term
of this Agreement shall commence as of the date of the final closing of the
offering of up to 4,000,0000 Units (with an over-subscription option of up to an
additional 1,000,000 Units) of Maven pursuant to the Confidential Private
Offering Memorandum, dated May 7, 2009, as amended by Amendment No. 1 dated May
26, 2008, “Effective
Date”) and
shall end on the date which is the third anniversary of the Effective Date
unless Consultant’s retention is terminated earlier in accordance with this
Agreement (the “Initial
Term”);
provided, however, that the term of this Agreement shall automatically be
extended beyond the Initial Term for a one year period, effective upon the third
anniversary of the Effective Date (the “Renewal
Term”) unless
either party notifies the other by a date which is ninety (90) days prior to the
expiration of the Initial Term that such party desires not to extend the Initial
Term beyond the third anniversary of the Effective Date. This
Agreement shall continue for successive one-year Renewal Terms unless and until
either party gives ninety (90) days notice to the other of its desire not to
extend further the term of this Agreement beyond the end of the then-current
Renewal Term, or this Agreement is otherwise terminated. The term of
this Agreement, whether during the Initial Term or any Renewal Term, shall be
referred to as the “Term.”
(b) Death. The
death of Consultant shall immediately and automatically terminate Consultant’s
obligations to perform the Consulting Services under this
Agreement. If Consultant dies during the Term, any unvested equity
compensation granted to Consultant pursuant to an equity compensation plan
(“Plan”) shall immediately vest and any vested warrants may be exercised on or
before the earlier of (i) the warrant’s expiration date or (ii) eighteen months
after Consultant’s death. Any warrant that remains unexercised after
this period shall be forfeited. Upon Consultant’s death, Consultant’s legal
representative shall receive: (1) any compensation earned but not yet
paid and any unreimbursed business expenses, which amounts shall be promptly
paid in a lump sum, and (2) any other amounts or benefits owing to Consultant
pursuant to this Agreement (subsections (1) and (2) shall be collectively
referred to as, the “Accrued
Amounts”). Other than the benefits described above, no further
compensation or benefits shall be due or owing upon Consultant’s
death.
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(c) Disability. If
as a result of incapacity due to physical or mental illness or injury,
Consultant shall have been absent from Consultant’s duties hereunder for six
months, then thirty (30) days after receiving written notice (which notice may
occur before or after the end of such six month period, but which shall not be
effective earlier than the last day of such six month period, Group Holdings may
terminate this Agreement provided Consultant is unable to substantially perform
his duties hereunder at the conclusion of such notice period (a “Disability”),
as determined by a physician mutually selected by the parties
hereto. In the event this Agreement is terminated as a result of
Disability, Consultant shall receive from Group Holdings, in a lump-sum payment
due within ten (10) days of the effective date of termination, an amount equal
to the Accrued Amounts. Additionally, if Consultant is terminated due
to a Disability, any unvested equity compensation granted to Consultant pursuant
to a Plan shall immediately vest and any vested warrants may be exercised on or
before the earlier of: (i) the warrant’s expiration date or (ii) eighteen months
after Consultant’s termination due to the Disability. Any warrant
that remains unexercised after this period shall be forfeited. Other
than the benefits described above, no further compensation or benefits shall be
due or owing upon Consultant’s termination due to Disability.
(d)
Cause. Group
Holdings may terminate this Agreement immediately upon written notice to
Consultant for “Cause,” which shall mean: (i) Consultant’s willful, material,
and irreparable breach of this Agreement; (ii) Consultant’s willful misconduct
in the performance of any of his material duties and responsibilities hereunder
that has a material adverse effect on Group Holdings; (iii)
Consultant’s intentional and continued non-performance (other than by
reason of disability or incapacity) of any of Consultant’s material duties and
responsibilities hereunder or of any reasonable, lawful instructions from the
board of Group Holdings, which continues for ten (10) days after receipt by
Consultant of written notice from Group Holdings; (iv) Consultant’s material and
willful dishonesty or fraud with regard to Group Holdings (other than good faith
expense account disputes) that has a material adverse effect on Group
Holdings (whether to the business or reputation of Group
Holdings); or (v) Consultant’s conviction of a felony (other than as a result of
vicarious liability or a traffic related offense). For purposes of
this paragraph, no act, or failure to act, on Consultant’s part shall be
considered “willful” unless done or omitted to be done, by him not in good faith
and without reasonable belief that his action or omission was in the best
interests of Group Holdings. In the event of that Agreement is
terminated by Group Holdings for Cause, Consultant shall receive only the
Accrued Amounts.
Notwithstanding
the foregoing, following Consultant’s receipt of written notice from Group
Holdings of any of the events described in subsections (i) through
(iv) above, Consultant shall have ten (10) days in which to cure the alleged
conduct (if curable).
(e) Without
Cause . At
any time after the effectiveness of this Agreement, Group Holdings may, without
Cause, terminate Consultant’s employment, effective thirty (30) days after
written notice is provided to Consultant. In the event Consultant is
terminated by Group Holdings without Cause, Consultant shall receive from Group
Holdings within ten (10) days after such termination, in a lump sum payment, an
amount equal to the sum of the compensation and bonus, if any, that would have
been paid to consultant through the end of the then remaining Term if Consultant
had not been terminated or for twelve months, whichever is
less. Consultant shall also receive the Accrued
Amounts. Additionally, if Consultant is terminated by Group Holdings
without Cause, any unvested equity compensation granted to Consultant pursuant
to a Plan shall immediately vest and any vested warrants may be exercised on or
before the earlier of: (i) the warrant’s expiration date or (ii)
eighteen months after the termination of this Agreement pursuant to his
Subsection. Any warrant that remains unexercised after this period shall be
forfeited.
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(f) Resignation
for Good Reason.
At any time after the effective date of this Agreement, Consultant may terminate
this Agreement for Good Reason (as defined below) effective thirty (30) days
after written notice is provided to Group Holdings. Upon the
termination of this Agreement for Good Reason, Consultant shall be entitled to
all payments and benefits as if this was terminated by Group Holdings Without
Cause as provided in subsection (e) above. For purposes of this
Agreement, Good Reason means: (ii) any change in
Consultant’s reporting relationship or a material diminution of his
then duties, responsibilities or authority or the assignment to
Consultant of duties or responsibilities that are inconsistent with
this Agreement; (iiii) the failure by Group Holdings to continue in effect
any material compensation or benefit plan or arrangement in which
Consultant participates unless an equitable and substantially
comparable arrangement (embodied in a substitute or alternative plan) has been
made with respect to such plan or arrangement, or the failure by Group Holdings
to continue Consultant’s participation therein (or in such substitute
or alternative plan or arrangement) on a basis not less favorable, both in terms
of the amount of benefits provided and the level of participation relative to
other participants, as existed at the time of the termination of this Agreement;
(iii) any breach of this Agreement (or any other written agreement entered
into between Consultant and Group Holdings) by Group Holdings; or
(iv) failure of any successor to Group Holdings (whether direct or indirect
and whether by merger, acquisition, consolidation or otherwise) to assume in a
writing delivered to Consultant upon the assignee becoming such, the obligations
of Group Holdings hereunder.
Notwithstanding
the foregoing, following Group Holdings’ receipt of written notice from
Consultant of any of the events described in subsections (i) through (iv) above,
Group Holdings shall have ten (10) days in which to cure the alleged
conduct (if curable).
(g) Resignation
without Good Reason.
Consultant may terminate this Agreement without Good Reason or retire upon
thirty (30) days’ written notice, and upon such termination of this Agreement,
he shall receive the Accrued Amounts.
(h) No
Duty to Mitigate. In the event of any termination of this
Agreement under this Section, Consultant shall be under no obligation to seek
other employment and there shall be no offset against amounts due Consultant
under this Agreement on account of any remuneration attributable to any
subsequent employment that Consultant may obtain. Any
amounts due under this Section are in the nature of severance payments, or
liquidated damages, or both, and are not in the nature of a
penalty.
4. Non-Disclosure. Consultant
will not at any time (a) use any Confidential Information for his own
benefit or for the benefit of any person or entity other than Group Holdings,
(b) disclose to any person or entity any Confidential Information; or (c) remove
from Group Holdings’ premises or make copies of any Confidential Information, in
any form; except, in each case, as may be required within the scope of
Consultant's duties during the term of this Agreement, in which event Consultant
will maintain and safeguard the confidentiality of such Confidential Information
and will secure from any third parties to whom Consultant may in their best
judgment disclose such information their written agreement expressly inuring to
the benefit of Group Holdings to maintain and safeguard their confidentiality
and not to use it for the benefit of any person other than Group
Holdings. For purposes of this Agreement, "Confidential Information"
means any trade secrets and all technical, research, operational, manufacturing,
marketing, sales and financial policies, plans or information of Group
Holdings. Confidential Information does not include information,
knowledge or data that was in Consultant’s possession prior to the commencement
of this Agreement or information, knowledge or data which was or is in the
public domain by reason other than the wrongful acts of Consultant; provided,
however, that “Confidential Information” shall include information, knowledge
and data that was in Consultant’s possession prior to the commencement of this
Agreement (other than information, knowledge or data which was or is in the
public domain other than by reason of the wrongful acts of Consultant) that
Consultant was prohibited form disclosing or using by reason of any fiduciary
obligation of Consultant to Group Holdings or any agreement between Consultant
and Group
Holdings.
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5. Relationship. Consultant
and Group Holdings are and shall be independent contractors in their
relationship with each other and neither is nor shall be considered an agent,
employee, or legal representative of the other for federal or state tax purposes
or for any other purposes whatsoever. Consultant has no express or implied
authority to assume or create any obligation or responsibility on behalf of
Group Holdings or to bind Group Holdings in any way.
6. General
Provisions.
a. Notices. Any
notice required or desired to be given hereunder shall be effective if in
writing and delivered personally or by certified mail, postage prepaid and
return receipt requested, to a party hereto at the address for such party set
forth herein or to such other address as a party may specify by written notice
to the other party similarly given, and shall be effective when mailed or, if
delivered by hand, when received.
b. Benefit. This
Agreement and the rights and obligations contained herein shall be binding upon
and inure to the benefit of Group Holdings, their successors and assigns, and
upon Consultant, their/her legal representatives, heirs and
distributees.
c. Waiver. The
waiver by either party of a breach of any provision of this Agreement shall not
operate as or be construed as a waiver of any subsequent breach.
d. Entire
Agreement. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and may not be altered
or amended except by an instrument in writing signed by both parties
hereto.
e. Severability. The
invalidity or unenforceability of a particular provision hereof shall not affect
the other provisions of This Agreement, and it shall be construed in all
respects as if such invalid or unenforceable provision were
omitted.
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f. Applicable
Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York, without application of the
choice of law provisions, and each of the parties to this Agreement hereby
consent to the jurisdiction of the appropriate courts of the State of New York
with respect to any disputes relating to this Agreement.
g. Disputes. In
the event that a dispute arises relating to this Agreement, the parties
agree to attempt to resolve the dispute informally, including through mediation.
In the event that the parties are unable to resolve such disputes informally,
the courts of New York shall have exclusive jurisdiction over any suits arising
from or relating to such a dispute.
h.. Headings. The
headings contained herein are inserted for convenience only and do not
constitute a part of this Agreement.
i.. Counterparts. This
Agreement may be executed in one or more counterparts, each one of which shall
be deemed an original instrument and all of which together shall constitute one
and the same document.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of May
28, 2009.
| WASTE2ENERGY, INC. | WASTE2ENERGY GROUP HOLDINGS PLC | |||
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| MAVEN MEDIA HOLDINGS, INC. | CONSULTANT | |||
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