Exhibit 10.28
**CONSULTING AGREEMENT**
     This Agreement (this “Agreement”), dated as of November 19, 2004, between Save the World Air,Inc., a Nevada corporation (the “Company”), and London Aussie Marketing, Ltd. (the “Consultant”).
RECITALS
     WHEREAS, the Company is in the business, among other things, of supplying the goods describedon Exhibit A attached hereto (the “Goods”).
     WHEREAS, Consultant has provided services to the Company including the introduction of theCompany to a strategic partner (the “Strategic Partner”);
     WHEREAS, the Company and Consultant desire to enter into a relationship whereby Consultantwill provide services to the Company on the terms and conditions set forth herein.
AGREEMENT
     NOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
     1. Scope of Services to Be Provided. Consultant shall provide to theCompany, on an as needed basis, assistance, advice and support relating to the Company’s business,as the Company may request from time to time. Without limiting the generality of the foregoing,Consultant shall:
       (a) Shall undertake and perform the following tasks and such additional or otherresponsibilities as may be reasonably assigned to Consultant from time to time by the Company’sChief Executive Officer, Chief Operating Officer, or Director of Research and Development:
          (i) Managing the Company’s relationship with the Strategic Partner, includingmanagement services already provided by Consultant.
          (ii) Assisting the Strategic Partner in soliciting orders for, and generatingcontracts with respect to, the Products, including assistance already provided by Consultant.
       (b) Assist in the preparation of regular monthly reports to the Company on the effortsexpended and undertaken on each project assigned to or undertaken by Consultant.
     2. Term.
       (a) This Agreement shall continue in full force for a period of  7, years unlessearlier terminated in accordance with this Section 2 or Section 6. The obligations of Consultantupon the termination of this Agreement for any reason are described in Section 7.
       (b) This Agreement shall be automatically renewed for successive one-year
1

 

terms unless eitherparty provides written notice of its election not to renew this Agreement at least 60 days prior tothe expiration of the then current term, in which case the Agreement shall terminate uponexpiration of such term.
     3. Compensation of Consultant.
       (a) Royalties. In full consideration of all rights granted herein and all servicesperformed and to be performed hereunder, the Company will pay to Consultant royalties from revenuesderived from contracts with customers generated by the Strategic Partner, provided that theStrategic Partner was instrumental in generation of such contracts, subject to the Company’sacceptance of the Strategic Partner and entry into a binding joint venture, strategic alliance orsimilar agreement of Strategic Partner, as follows.
          (i) Consultant shall be paid a royalty equal to 1.25% of Gross Receipts (as definedbelow) from revenues derived from contracts generated by the Strategic Partner.
          (ii) “Gross Receipts” shall mean 100% of all sums received by or credited to theCompany and its affiliates from unrelated third parties from revenues that are derived fromcontracts generated by the Strategic Partner and that originate from the country inwhich such contract is located. Gross Receipts shall be deemed to exclude sums received bythe Company and/or its affiliates which represent sales taxes, value added taxes, excise taxes, andsimilar taxes which are collected by the Company and its affiliates as required by any requisitetaxing authorities of any government, but limited to the extent that such taxes are paid and notreturned or credited to the Company or an affiliate. Gross Receipts shall also be deemed toexclude foreign currencies to the extent any foreign licensing society or organization collects orwithholds any portion thereof on behalf of or for the benefit of the Company. With respect toforeign currencies received by the Company and its affiliates in connection herewith, it is agreedand understood that such sums received shall be included in Gross Receipts hereunder, whether ornot such sums have been received in U.S. dollars in the United States, and whether or not such sumswhich are capable of being remitted to the United States have yet been remitted. Gross Receiptsare not subject to retroactive adjustments for returns, refunds, credits, settlements, rebates anddiscounts.
          (iii) Royalties shall be payable pursuant to this Section 8(a) during the periodbeginning on the date of this Agreement and ending on the date occurring ten years thereafter.
          (iv) All amounts payable to Consultant pursuant to this Section 8(a) shall be paidby the Company no later than 30 days after the end of each calendar quarter in respect of theapplicable Gross Receipts amounts actually received by the Company in such quarter. A statement ofaccount prepared by the Company shall accompany each such payment to Consultant.
2

 

       (b) Warrants. Subject to compliance with applicable securities laws, the Company shallissue to Mark Thornton, an individual, warrants to purchase shares of common stock of the Companyas follows:
          (i) Warrants to purchase 50,000 shares of common stock of the Company issuable uponthe date hereof in exchange for the Consultant’s introduction of the Strategic Partner to theCompany. Such warrants shall have a term of five years and have an exercise price of $1.00 pershare.
          (ii) Warrants to purchase 450,000 shares of common stock of the Company, subject toand issuable upon the Company making a formal public announcement that it has entered into abinding joint venture, strategic alliance or similar agreement with the Strategic Partner. Suchwarrants shall have a term of five years and have an exercise price of $1.00 per share. Sharesshall be in the name of London Ausie Marketing Ltd.
       (c) Form S-8 Registration. The Company agrees to file with the Securities andExchange Commission as soon as practicable a registration statement on Form S-8 (or other availableform) registering the resale of the shares of common stock issuable upon exercise of the warrantsto be issued pursuant to Section 3(b).
     4. Nondisclosure. Without the express prior written consent of the Company,Consultant shall not reveal to any third party any information of the Company that is identified bythe Company as being of a confidential or proprietary nature (the “Confidential Information”).Confidential Information may be used by Consultant only with respect to performance of itsobligations under this Agreement, and only by those employees of Consultant who have a need to knowsuch information for the purposes related to this Agreement. Consultant shall protect theConfidential Information by using the same degree of care (but no less than a reasonable degree ofcare) to prevent the unauthorized use, dissemination or publication of such ConfidentialInformation that the Company uses. Consultant’s obligation with respect to any ConfidentialInformation under this Section 5 shall continue after and survive the termination of thisAgreement.
     5. No Servicing by Consultant. It is understood by Consultant that it isnot authorized by this Agreement to perform servicing of any kind upon any Goods in the Territoryor elsewhere, absent the express prior written approval of the Company.
3

 

     6. Termination.
       (a) The Company shall have the right to terminate this Agreement effective immediately bywritten notice to Consultant if:
          (i) Consultant engages in any conduct which threatens injury to the good name andreputation of the Company;
          (ii) the Company has reasonable grounds to believe that Consultant will be unable,whether because of financial difficulty or otherwise, to fulfill satisfactorily its obligationsunder this Agreement;
          (iii) Consultant fails to conduct its business in accordance with all applicablelaws or regulations.
       (b) Either party to this Agreement may terminate this Agreement effectively immediately uponwritten notice if the other party becomes insolvent, discontinues its business, has a receiverappointed for it, any petition is filed by or against it in accordance with the bankruptcy laws, orany assignment is made by it for the benefit of creditors.
       (c) In the event either party to this Agreement shall fail to perform or fulfill any of itsresponsibilities as set forth herein, the other party may notify such defaulting party of thematter in breach and if such matter is not cured within 30 days after receipt of such notice thecomplaining party may by further written notice immediately terminate this Agreement.
       (d) Either party may terminate this Agreement in its sole discretion by giving to the otherparty no less than 90 days written notice thereof.
     7. Effect of Termination. Consultant shall immediately upon terminationreturn to the Company all Confidential Information within its possession, including any documentsof a confidential or proprietary nature concerning the Goods which it has in its possession and allforms, brochures and samples pertaining to the Goods. Any and all amounts due to Consultantpursuant to this Agreement in respect of orders that were placed prior to the date of terminationshall be paid to Consultant pursuant to the manner described in Section 8.
     8. Applicable Law. This Agreement shall be construed in accordance with,and shall be governed by, the laws of the State of California.
     9. Counterparts. This Agreement may be executed in one or morecounterparts, each of which shall be deemed an original, but all of which together shall constituteone and the same instrument.
     10. Amendments. The provisions of this Agreement may be waived, altered,amended or repealed in whole or in part only on the written consent of all the parties to thisAgreement.
4

 

     11. Notice. All notices, demands, and other communications under this Agreementshall be in writing and shall be deemed to have been duly given (i) on the date of delivery ifdelivered in person to the party to whom such notice is given, (ii) on the date such notice isposted by mail, postage prepaid, registered mail, properly addressed to the party receiving suchnotice, or (iii) upon the date of telex transmission, if by telex. Any notices hereunder shall besent to the following addresses and telex numbers or such other addresses or telex numbers as maybe designated by a party in writing from time to time in accordance with the procedure statedherein:      If to the Company:        Save the World Air, Inc.   5125 Lankershim Boulevard   North Hollywood, CA 91601   Facsimile: 818-487-8003   Attention: Eugene Eichler        If to Consultant:        London Aussie Marketing, Ltd.   2053 8th Avenue #2C   New York, NY 10026   Telephone: 212-222-0440   Attention: Mark Thornton  
     12. Divisibility. If any of the terms, provisions, covenants or conditionsof this Agreement is held by a court of competent jurisdiction to be invalid, void, orunenforceable, the remainder of the provisions shall remain in full effect and shall in no way beaffected, impaired or invalidated.
     13. Final Agreement of the Parties. This Agreement supersedes andterminates any and all prior agreements or contracts, written or oral, entered into between theparties hereto with respect to the subject matter hereof.
     14. Assignment. This Agreement may not be assigned by Consultant, in wholeor in part, to any other party without the express written consent of the Company.
     15. Headings. The Section headings in this Agreement are for convenience ofreference only and shall have no bearing on the enforcement or interpretation of this Agreement.
     16. Waiver. No waiver, forbearance or failure by either party of its rightsto enforce any provision of this Agreement shall constitute a waiver or estoppel of such party’sright to enforce such provision thereafter or to enforce any other provision of this Agreement.
     17. Jurisdiction. The parties hereby unconditionally and irrevocably agreethat the state and federal courts of California and any California or federal court competent tohear appeals therefrom shall have the exclusive jurisdiction over any and all actions arising outof or
5

 

in relation to this Agreement, or for the breach hereof.
     18. Relationship of the Parties. Consultant is not an employee of theCompany for any purpose whatsoever, but is an independent contractor. The parties, by thisAgreement, have not entered into any form of joint venture or any other mutual enterprise, otherthan the rendering by Consultant of the services for the Company in accordance with the termshereof. All expenses and disbursements, including, but not limited to, those for travel andmaintenance, entertainment, office, clerical, and general selling expenses, that may be incurred byConsultant in connection with this Agreement shall be born wholly and completely by Consultant, andthe Company shall not be in any way responsible or liable therefore. Consultant does not have, norshall it hold itself out as having, any right, power, or authority to create any contract orobligation, either expressed or implied, on behalf, in the name of, or binding upon the Company.Any and all agents and employees of Consultant shall be at Consultant’s own risk, expense andsupervision, and the agents and employees of Consultant shall not have any claim against theCompany for salaries, commissions, items of cost, or any other form of compensation. Consultantshall indemnify and hold the Company harmless from any cost and liability caused by anyunauthorized act of Consultant, its agents or employees.
[remainder of page intentionally left blank]
6

 

     IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first writtenabove.         “Company”           SAVE THE WORLD AIR, INC.          By: /s/ Eugene Eichler            Name: Eugene E. Eichler     Title: President and Chief Financial Officer           “Consultant”           LONDON AUSSIE MARKETING, LTD.          By: /s/ Mark Thornton            Name     Title:  
7

 

**Exhibit A**
Description of the Goods
1. ZEFS devices
2. CAT-MATE devices
A-1