THT HEAT TRANSFER TECHNOLOGY, INC. INDEPENDENT DIRECTOR AGREEMENT
Exhibit 10.2
THT HEAT TRANSFER TECHNOLOGY, INC.
INDEPENDENT DIRECTOR AGREEMENT
THIS AGREEMENT (The “Agreement”) is made as of the 25th day of September, 2009 and is by and between BTHC VIII, Inc., a Delaware corporation (hereinafter referred to as the “Company”), and Xxxxxxx Xxxx (hereinafter referred to as the “Director”).
BACKGROUND
The Board of Directors of the Company desires to appoint the Director to fill an existing vacancy and to have the Director perform the duties of an independent director and the Director desires to be so appointed for such position and to perform the duties required of such position in accordance with the terms and conditions of this Agreement.
On September 23, 2009, the Company filed a preliminary Information Statement on Schedule 14C (the “Information Statement”) with the U.S. Securities and Exchange Commission. The Information Statement describes a written consent of the holders of a majority of the outstanding common stock of the Company which approves the reincorporation of the Company (the “Reincorporation Transaction”) in the State of Nevada and the change of the Company’s name to THT Heat Transfer Technology, Inc. (“THT Nevada”).
This Agreement will be assumed by THT Nevada by operation of law as a result of the Reincorporation Transaction. The Reincorporation Transaction is expected to close on November 11, 2009. Accordingly, references in this Agreement to the Company are deemed to be references to THT Nevada following the Reincorporation Transaction. Section 17 of this Agreement addresses the treatment of references to Nevada law and the NRS (as defined below) prior to the effective date of the Reincorporation Transaction.
AGREEMENT
In consideration for the above recited promises and the mutual promises contained herein, the adequacy and sufficiency of which are hereby acknowledged, the Company and the Director hereby agree as follows:
1.
DUTIES. The Company requires that the Director be available to perform the duties of an independent director customarily related to this function as may be determined and assigned by the Board of Directors of the Company and as may be required by the Company’s constituent instruments, including its certificate or articles of incorporation, bylaws and its corporate governance and board committee charters, each as amended or modified from time to time, and by applicable law, including the Nevada Revised Statutes (the “NRS”). The Director agrees to devote as much time as is necessary to perform completely the duties as the Director of the Company, including duties as a member of the Audit Committee and such other committees as the Director may hereafter be appointed to. The Director will perform such duties described herein in accordance with the general fiduciary duty of directors arising under the NRS.
2.
TERM. The term of this Agreement shall commence as of the date of the Director’s appointment by the Board of Directors of the Company and shall continue until the Director’s removal or resignation.
3.
COMPENSATION. For all services to be rendered by Director in any capacity hereunder, the Company agrees to pay Director a fee of $36,000 in cash per year payable in equal quarterly installments (the “Cash Compensation”) paid on or prior to January 1, April 1, July 1 and October 1.
4.
EXPENSES. In addition to the compensation provided in paragraph 3 hereof, the Company will reimburse the Director for pre-approved reasonable business related expenses incurred in good faith in the performance of the Director’s duties for the Company. Such payments shall be made by the Company upon submission by the Director of a signed statement itemizing the expenses incurred. Such statement shall be accompanied by sufficient documentary matter to support the expenditures. The Company shall also cover two round-trip business class flights for the Director to travel from the United States to the Company’s headquarters every year. International travel related expenses for additional trips to the Company’s corporate headquarters will be pre-approved by the company.
5.
CONFIDENTIALITY. The Company and the Director each acknowledge that, in order for the intents and purposes of this Agreement to be accomplished, the Director shall necessarily be obtaining access to certain confidential information concerning the Company and its affairs, including, but not limited to business methods, information systems, financial data and strategic plans which are unique assets of the Company (“Confidential Information”). The Director covenants not to, either directly or indirectly, in any manner, utilize or disclose to any person, firm, corporation, association or other entity any Confidential Information.
6.
NON-COMPETE. During the term of this Agreement and for a period of twelve (12) months following the Director’s removal or resignation from the Board of Directors of the Company or any of its subsidiaries or affiliates (the “Restricted Period”), the Director shall not, directly or indirectly, (i) in any manner whatsoever engage in any capacity with any business competitive with the Company’s current lines of business or any business then engaged in by the Company, any of its subsidiaries or any of its affiliates (the “Company's Business”) for the Director’s own benefit or for the benefit of any person or entity other than the Company or any subsidiary or affiliate; or (ii) have any interest as owner, sole proprietor, shareholder, partner, lender, director, officer, manager, employee, consultant, agent or otherwise in any business competitive with the Company's Business; provided, however, that the Director may hold, directly or indirectly, solely as an investment, not more than two percent (2%) of the outstanding securities of any person or entity which are listed on any national securities exchange or regularly traded in the over-the-counter market notwithstanding the fact that such person or entity is engaged in a business competitive with the Company's Business. In addition, during the Restricted Period, the Director shall not develop any property for use in the Company’s Business on behalf of any person or entity other than the Company, its subsidiaries and affiliates.
7.
TERMINATION. With or without cause, the Company and the Director may each terminate this Agreement at any time upon ten (10) days written notice, and the Company shall be obligated to pay to the Director the compensation and expenses due up to the date of the termination. Nothing contained herein or omitted herefrom shall prevent the shareholder(s) of the Company from removing the Director with immediate effect at any time for any reason.
8.
INDEMNIFICATION. The Company shall indemnify, defend and hold harmless the Director, to the full extent allowed by the law of the State of Nevada, and as provided by, or granted pursuant to, any charter provision, bylaw provision, agreement (including, without limitation, the Indemnification Agreement executed herewith), vote of stockholders or disinterested directors or otherwise, both as to action in the Director’s official capacity and as to action in another capacity while holding such office. The Company and the Director are executing an indemnification agreement in the form attached hereto as Exhibit A.
9.
EFFECT OF WAIVER. The waiver by either party of the breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach thereof.
10.
NOTICE. Any and all notices referred to herein shall be sufficient if furnished in writing at the addresses specified on the signature page hereto or, if to the Company, to the Company’s address as specified in filings made by the Company with the U.S. Securities and Exchange Commission and if by fax to (00) 000-0000000.
11.
GOVERNING LAW. This Agreement shall be interpreted in accordance with, and the rights of the parties hereto shall be determined by, the laws of the State of Nevada without reference to that state’s conflicts of laws principles.
12.
ASSIGNMENT. The rights and benefits of the Company under this Agreement shall be transferable, and all the covenants and agreements hereunder shall inure to the benefit of, and be enforceable by or against, its successors and assigns. The duties and obligations of the Director under this Agreement are personal and therefore the Director may not assign any right or duty under this Agreement without the prior written consent of the Company.
13.
MISCELLANEOUS. If any provision of this Agreement shall be declared invalid or illegal, for any reason whatsoever, then, notwithstanding such invalidity or illegality, the remaining terms and provisions of the this Agreement shall remain in full force and effect in the same manner as if the invalid or illegal provision had not been contained herein.
14.
ARTICLE HEADINGS. The article headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
15.
COUNTERPARTS. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one instrument. Facsimile execution and delivery of this Agreement is legal, valid and binding for all purposes.
16.
ENTIRE AGREEMENT. Except as provided elsewhere herein, this Agreement sets forth the entire agreement of the parties with respect to its subject matter and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party to this Agreement with respect to such subject matter.
17.
REINCORPORATION TRANSACTION. All references in this Agreement and in the attached Indemnification Agreement to Nevada law (including references in Section 11 hereof) or to the NRS shall be deemed to be references to Delaware law and the most applicable section of the Delaware General Corporation law prior to the effective date of the Reincorporation Transaction. After the effective date of the Reincorporation Transaction, all references to Nevada law or the NRS shall be as expressly set forth herein.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Independent Director Agreement to be duly executed and signed as of the day and year first above written.
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THT HEAT TRANSFER TECHNOLOGY, INC.
By: /s/ Xxxxxxx Xxxx
Independent Director
/s/ Xxxxxxx Xxxx
0000 Xxxxx Xxxx Xxxx., Xxxxx #0000 Xxxxx, XX 00000-0000 |
[Signature Page to Independent Director Agreement]
EXHIBIT A
Form of Indemnification Agreement
(See Attached)
