Contract
This
Board Advisory Agreement (“Agreement”) is made and
entered into as of the 9th day of November, 2010, by and between
Abtech Holdings, Inc., a Nevada corporation (the “Company”), and Xxxxx Xxxxxx,
LLC, and shall have an effective date of November 1, 2010 (the “Effective Date”).
Recitals
WHEREAS,
Xxxxx Xxxxxx is a member of Xxxxx Xxxxxx, LLC;
WHEREAS,
the Company desires to engage Xxxxx Xxxxxx of Xxxxx Xxxxxx, LLC (“Advisor”) to perform certain
advisory services for the Company and Advisor is willing to perform such
services, on terms set forth more fully below; and
WHEREAS,
Xxxxx Xxxxxx, LLC shall exclusively appoint Advisor to perform such advisory
services for the Company on behalf of the Xxxxx Xxxxxx, LLC and agrees that
Advisor will be the only contact person with the Company for purposes of this
Agreement.
NOW
THEREFORE, in consideration of the mutual promises contained herein, the parties
agree as follows:
1. Services and
Compensation.
(a)
Advisor agrees to perform for the Company the services in connection with being
a founding member of the advisory board of the Company (“Services”) described in Exhibit A, attached
hereto.
(b) The
Company agrees to pay Advisor the compensation set forth in Exhibit A for the
performance of the Services.
(c) The
Company shall pay or reimburse Advisor for all reasonable and necessary travel,
business and other expenses incurred by Advisor in connection with the
performance of Services hereunder as previously approved by the Company in
writing.
2. Confidentiality.
(a)
“Confidential
Information” means any Company proprietary information, technical data,
trade secrets or know-how, including, but not limited to, research, services,
current and prospective customers and partners, customer and partner lists,
markets, processes, financial information, marketing, or other business
information developed by Advisor pursuant to this Agreement or disclosed by the
Company either directly or indirectly in writing, orally or by
drawings.
(b)
Advisor will not, during or subsequent to the term of this Agreement, use the
Company’s Confidential Information for any purpose whatsoever other than the
performance of the Services on behalf of the Company or disclose the Company’s
Confidential Information to any third party. It is understood that
said Confidential Information shall remain the sole property of the
Company. Advisor further agrees to take all reasonable precautions to
prevent any unauthorized disclosure of such Confidential
Information. Confidential Information does not include information
which (i) is known to Advisor at the time of disclosure to Advisor by the
Company as evidenced by written records of Advisor, (ii) has become publicly
known and made generally available through no wrongful act of Advisor, or (iii)
has been rightfully received by Advisor from a third party who is authorized to
make such disclosure. Without the prior written approval of the other
party, each party will not directly or indirectly disclose to anyone the
contents of this Agreement.
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(c)
Advisor recognizes that the Company has received and in the future will receive
from third parties their confidential or proprietary information subject to a
duty on the Company’s part to maintain the confidentiality of such information
and to use it only for certain limited purposes. Advisor agrees that,
to the extent that Advisor is aware that such information is confidential,
non-public information acquired by the Company from such third party under a
confidentiality agreement, Advisor owes the Company and such third parties,
during the term of this Agreement and thereafter, a duty to hold all such
confidential or proprietary information in the strictest confidence and not to
disclose it to any person, firm or corporation or to use it except as necessary
in carrying out the Services for the Company consistent with the Company’s
agreement with such third party.
(d) Upon
the termination of this Agreement, or upon Company’s earlier request, Advisor
will deliver to the Company all of the Company’s property or Confidential
Information that Advisor may have in Advisor’s possession or
control.
3. Ownership. Advisor
agrees that all copyrightable material, notes, records, drawings, designs,
inventions, improvements, developments, discoveries and trade secrets conceived,
made or discovered by Advisor, solely or in collaboration with others, during
the period of this Agreement which relate in any manner to the business of the
Company that Advisor may be directed to undertake, investigate or experiment
with, or which Advisor may become associated with in work, investigation or
experimentation in the line of business of Company in performing the Services
hereunder are the sole property of the Company.
4. Term and Termination.
This Agreement will commence on the Effective Date and will continue until
terminated by either party for breach or upon thirty (30) days prior written
notice. Notwithstanding the foregoing, the Company will
not terminate this Agreement during the first year other than for “Cause”
which shall be defined as: (a) conviction of Advisor of a felony or
entry of a plea of guilty or nolo contendere to a felony;
(b) Advisor’s repeated refusal to perform or disregard of his duties
and responsibilities, or failure to adhere to the Company’s corporate
codes or policies or procedures, as in effect or amended from time to time
after reasonable notice from Company; (c) Advisor’s material breach
of any material provision of this Agreement; (d) Advisor’s engaging,
during the term of this Agreement, in activities that are prohibited by state
and/or federal laws prohibiting discrimination based on gender, age, race,
religion, or national origin or engaging in conduct that constitutes sexual
harassment; or (e) if Advisor no longer serves as the primary contact for the
Company for purposes of this Agreement; provided, that in each case the Company
has provided written notice to Advisor of such Cause and provided a reasonable
opportunity to cure.
5. Independent
Contractor. Advisor shall perform the Services hereunder as an
independent contractor. Advisor acknowledges and agrees that Advisor is
obligated to report as income all compensation received by Advisor pursuant to
this Agreement, and Advisor agrees to and acknowledges the obligation to pay all
self-employment and other taxes thereon. Advisor further agrees to
indemnify the Company and hold it harmless to the extent of any obligation
imposed on Company (i) to pay in withholding taxes or similar items or (ii)
resulting from Advisor’s being determined not to be an independent
contractor.
6. Miscellaneous.
(a) This
Agreement is the entire agreement of the parties and supersedes any prior or
contemporaneous agreements whether oral or written between them with respect to
the subject matter hereof. This Agreement may be changed only if
agreed to in writing by both parties.
(b) This
Agreement may be executed in one or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
(c) If
any provision of this Agreement is held to be unenforceable for any reason, such
provision shall be adjusted rather than voided, if possible, in order to achieve
the intent of the parties to the maximum extent possible. In any
event, all other provisions of this Agreement shall be deemed valid and
enforceable to the full extent possible.
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(d) The
waiver of any term or condition contained in this Agreement by any party to this
Agreement shall not be construed as a waiver of a subsequent breach or failure
of the same term or condition or a waiver of any other term or condition
contained in this Agreement.
(e) This
Agreement shall be construed in accordance with the laws of the State of New
York applicable to contracts executed and to be wholly performed within such
State.
(f) The
Recitals of this Agreement are hereby incorporated herein by reference as
agreements of the parties.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
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COMPANY:
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By:
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/s/ Xxxxx
Xxxx
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Name: Xxxxx
Xxxx
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Title: President
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By:
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/s/ Xxxxx
Xxxx
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Name: Xxxxx
Xxxx
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Title: Director
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XXXXX
XXXXXX, LLC
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By:
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/s/ Xxxxx
Xxxxxx
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Name: Xxxxx
Xxxxxx
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Title: Manager/Member
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EXHIBIT
A
SERVICES AND
COMPENSATION
1. Services. Advisor
will render to the Company the following Services:
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·
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Serve
on the Advisory Board of the
Company
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·
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Advise
the Board of Directors of the Company and the President of the Company on
strategic matters
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2. Compensation. The
Company shall pay Advisor as follows:
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·
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$15,000
per quarter for two years payable on the last day of each quarter for
attending quarterly meetings in person or over the phone; provided,
however, that in the event of Advisor’s resignation or termination from
such advisory board position for any reason, the Company’s obligation to
pay Advisor such amounts shall cease. The first payment due
under this Agreement shall be payable on January 31, 2011, and thereafter
on the last day of each quarter.
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·
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Subject
to approval by the Board of Directors of the Company and execution of a
non-qualified stock option agreement acceptable to Advisor and the
Company, the Company will grant Advisor an option award to purchase
240,000 shares of the Company’s common stock, par value $.001, with such
award vesting 12.5% on January 31, 2011, and thereafter on the last day of
each quarter. The vesting of the option shall accelerate in
full if the Company is acquired (whether by share purchase, merger,
consolidation, asset purchase, or any other form of transaction) or if the
Company terminates Advisor’s advisory board position in connection with
any such acquisition. The option will be granted within
ten (10) business days following the Effective Date of this
Agreement. The option shall be exercisable for a period of five
years following the date of grant. In the event of Advisor’s
resignation or termination from such advisory board position for any
reason, any unvested portion of the option shall expire
thereafter. The exercise price of the option will be the fair
market value of a share of the Company’s common stock on the date of
grant.
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