EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT
(this "Agreement") is made and entered
into this 25th day of January, 2008 (the
"Commencement Date"), by and between
ENTECH, Inc., a Delaware corporation
(hereinafter called "ENTECH" or the
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"Company"), and Mark J. O'Neill
(hereinafter called the "Executive").
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W I T N E S S E
T H.
WHEREAS, the Executive
desires to enter into an executive
employment
relationship with the Company;
WHEREAS, on October
29, 2007, ENTECH, Inc., a Delaware corporation and
predecessor to the Company ("Original
ENTECH"), all of the shareholders of
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Original ENTECH (the "Shareholders"), including
Executive, WorldWater & Solar
Technologies Corp., a Delaware corporation ("WorldWater"), and
WorldWater Merger
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Corp., a Delaware corporation ("Merger
Corp."), consummated the transactions
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contemplated by that certain Agreement and Plan of
Merger, dated as of October
29, 2007 (the "Merger Agreement"), pursuant to which Original
ENTECH was merged
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with and into Merger Corp.;
WHEREAS, upon the
closing of the merger of Original ENTECH with and into
Merger Corp., the name of
Merger Corp. was changed to ENTECH, Inc.;
and
WHEREAS, both the Company and
Executive have read and understood the terms
and provisions set forth in this
Agreement, have been afforded a reasonable
opportunity to review this Agreement with their
respective advisors and intend
that this Agreement supersede and replace in their entirety
any and all written
or oral employment or other compensation agreements between
Original ENTECH and
Executive, except that Original ENTECH's
agreements with Administaff for the
provision of certain payroll, insurance and
retirement benefit administration
services shall remain in effect together
with the accompanying co-employment
agreement among Executive, Original
ENTECH and Administaff.
WHEREAS, the Executive
was the President and a stockholder of Original
ENTECH, and, but for the Executive's entering
into this Agreement, WorldWater
would not have entered into the
Merger Agreement;
WHEREAS, the Company and the Executive
desire that the Executive enter into
an executive employment relationship
with the Company on the terms
and
conditions set forth herein.
NOW, THEREFORE, in consideration of
the mutual promises of each, and other
good and valuable consideration, the
parties hereby covenant and agree as
follows:
<PAGE>
1. SERVICES AND DUTIES
a. POSITIONS. The
Executive shall serve as President of the Company. The
Executive shall report to the Chief Executive Officer of WorldWater
and shall
perform such duties, functions and responsibilities consistent with
this
position and as shall be prescribed from time to time by the Chief
Executive
Officer of WorldWater or the Board of Directors of the Company (the
"Board"),
except that in no circumstances shall the Executive be required to
relocate
his residence from Tarrant County, Texas (or any county contiguous
thereto).
b. DEVOTION OF TIME.
During the Employment Period (as defined below)
excluding periods of paid time off and holidays, the Executive
shall (i) devote
substantially all of his time, during normal working hours and at
such other
times as the Executive's duties may require, to the business and
affairs of the
Company, (ii) discharge the responsibilities assigned to the
Executive under
this Agreement and (iii) use the Executive's reasonable best
efforts to perform
faithfully, effectively and efficiently such responsibilities.
During the
Employment Period, it shall not be a violation of this Agreement
for the
Executive to (1) serve on corporate, civic or charitable boards or
committees,
(2) deliver lectures or fulfill speaking engagements and (3) manage
personal
investments, so long as any of the foregoing activities do not
materially
interfere with the performance of the Executive's responsibilities
in accordance
with this Agreement.
2. TERM; CONTINUATION OF
PRIOR AGREEMENTS
a. Subject to Section
4, the Company agrees to employ
the
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Executive, and the Executive agrees to be employed by the Company,
in accordance
with the terms of this Agreement, for the period commencing
on the Commencement
Date and ending on the three year
anniversary of the Commencement Date (the
"Original Term" and as extended or
shortened in accordance with the terms of
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this Agreement, the "Employment
Period"). Thereafter, this Agreement shall
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automatically renew for successive
one (1) year term(s) (each, a "Renewal
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Term"), unless either party provides at
least sixty (60) days' prior written
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notice of his or its desire not to so renew the then current term
(in which case
the term shall expire without
renewal.
b. This Agreement is in addition to that
certain co-employment
agreement among Executive, as an Original ENTECH employee, and
Administaff,
dated January 6, 1999, and that certain agreement between Original
ENTECH and
Administaff for the provision of certain payroll, insurance and
retirement
benefit administration services, originally signed January 6, 1999
and subject
to an updated rate schedule effective January 7, 2008 through
January 6, 2009
(collectively, the "Prior Agreements"); provided, however, that in
the event of
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any conflict between this Agreement and the Prior Agreements, the
terms of this
Agreement shall control and the Prior Agreements shall be amended
as necessary
to conform to the terms of this Agreement. The Company, as
successor in
interest to Original ENTECH shall be bound by the terms of such
Prior
Agreements
<PAGE>
3. COMPENSATION AND
RELATED MATTERS
a. BASE SALARY. During
the Employment Period, the Executive shall receive
an initial base salary (the "Base Salary")
payable by the Company of no less
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than $16,354.00 per month (i.e., $196,248.80 per annum),
payable in immediately
available funds as and when the Company regularly pays
payroll, but in no
case less frequently than biweekly.
The Executive's Base Salary shall be
reviewed periodically and may be adjusted upward, but not
downward, as shall be
determined in the sole discretion
of the Board.
b. BONUS. The Executive may receive a
bonus at any time during the
Employment Period if the Board, in its sole discretion, determines
that a bonus
should be paid to the Executive on the basis of the Executive's
performance
and/or the Company's performance.
c. STOCK OPTIONS. The Executive shall
receive an initial grant of 300,000
stock options, vesting 1/3rd simultaneously with the execution of
this
Agreement, 1/3rd on the first anniversary and 1/3rd on the second
anniversary
according to the terms of the WorldWater 1999 Incentive Stock
Option Plan, as
the same may be amended from time to time.
d. MANAGEMENT INCENTIVE COMPENSATION.
In addition to the other compensation
described in this Section 3, the Company will pay to Executive , as
additional
consideration, Incentive Compensation (herein so called),
calculated as 0.2% of
Gross Revenues (defined below). Incentive Compensation will be paid
until the
accumulated total of such Incentive Compensation paid by the
Company to the
Executive equals $1,000,000, after which no additional Incentive
Compensation
will be paid pursuant to this Section.
i. GROSS REVENUES. As used herein,
the term "Gross Revenues"
shall mean all gross revenues, determined in accordance with
generally accepted
accounting principles, of the Company, and all gross revenues
of WorldWater and
all affiliates of the Company and WorldWater arising from the
sale or licensing
of products, services or assets
of the Company.
ii. COMPUTATION AND PAYMENT.
Incentive Compensation will be
computed on a quarterly basis, within 30
days after the end of each calendar
quarter. The Company will cause Incentive Compensation in respect
of any quarter
to be delivered to the Executive within 45 days after
the end of such quarter.
Payments will be made by certified or cashier's check,
payable to the order of
the Executive, or by wire transfer to an account
designated by the Executive.
Each such payment shall be
accompanied by a report, certified by the Chief
Financial Officer of WorldWater, providing in reasonable detail a
summary of the
computation of the Earn-Out Payment
(which shall include a summary of the
components of Gross Revenues upon which the payment is
based). Upon request,
but not more than twice per
year, the Company and WorldWater will allow
Executive to review the consolidated
financial records of WorldWater and the
Company related to Gross Revenues, at the expense of the Executive,
for purposes
of determining compliance with the
provisions of this Section 3(d).
iii. CHANGE IN CONDUCT
OF COMPANY'S BUSINESS. It is the
intent of the parties that the Incentive
Compensation payable to Executive be
based on the success of the business
and operations of the Company, as such
business and operations may change following the
Closing. Accordingly, if for
any reason part or all of the business of the Company
immediately following the
execution of this Agreement is conducted by any
entity other than the Company
(whether voluntary, or involuntary,
by license, agreement, franchise or
otherwise), the provisions of this Section
3(d) shall apply to the business,
operations (and gross revenues) of such other entity,
with the intent that the
Executive will be afforded the full benefit of
the provisions of this Section
3(d) as these provisions would
apply to such other entity and based on the
assumption that Executive was
employed by such other entity.
e. EXPENSES. During the Employment
Period, the Executive shall be entitled
to receive prompt reimbursement for all reasonable business and
entertainment
expenses incurred by him in performing services hereunder, provided
that the
Executive properly accounts therefor to the Company in accordance
with Company's
policy concerning reimbursement of business expenses.
f. OTHER BENEFITS. During
the Employment Period, the Executive shall be
entitled to participate in and shall
receive full benefits under the benefit
plans established by the Board for the employees and
executives of the Company
(including without limitation medical,
dental, disability and group life
insurance plans and programs), and all incentive, savings and
retirement plans,
practices, policies and programs
applicable to other employees and
executives of the Company (collectively, the "Company Benefits"),
provided, that
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the Company Benefits shall be no less favorable in any
manner to the Executive
than the benefits provided by Original ENTECH to the Executive
immediately prior
to the Commencement Date (the
"Existing Original ENTECH Benefits"), a
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description of which is set forth on Exhibit A hereto.
If the Company Benefits
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are at any time less favorable
to the Executive than the Existing Original
ENTECH Benefits, the Company may fulfill its obligations under this
Section 3(e)
by either providing to the Executive or reimbursing the
Executive for the costs
of benefits no less favorable
than the Existing Original ENTECH Benefits.
g. PAID TIME OFF &
HOLIDAYS. During the Employment Period, the Executive
shall be entitled to reasonable Paid Time
Off (PTO) and holidays, consistent
with his position and the Company's vacation
policy as determined in the sole
discretion of the Board. The Executive shall be
entitled to a minimum of four
(4) weeks (160 hours) of PTO
and ten (10) days for holidays during
any
employment year without loss or diminution of compensation.
The PTO policies of
the Company as determined by the Board in accordance
with this Agreement,
shall apply to the Executive, and shall supersede
and replace the policies of
Original ENTECH in all respects, provided that the
Executive will be deemed to
have served as of the Commencement Date the same number
of years of employment
for the Company as he previously served as an employee of
Original ENTECH. All
days of PTO shall accrue to
the Executive, and the Executive, at his sole
option, shall be able to either: (i)
carry-forward any unused days that were
earned during a calendar year into the next
succeeding calendar year, but not
thereafter, or (ii) as an alternative, Executive may elect to be
paid in full on
December 31st for unused days that he earned during the
same calendar year (or
the days carried forward from the prior
year), if Executive provides written
notice to the Company prior to
December 15th of the then current year of
Executive's election to receive
payment in lieu of carry-forward.
<PAGE>
4. TERMINATION
The
Executive's employment hereunder may be terminated by the
Company
or the Executive under the
following circumstances:
A. MUTUAL AGREEMENT. The
Executive's employment shall terminate upon the
execution of a mutual written agreement between the
Executive and the Company.
B. DEATH. The Executive's
employment shall terminate upon the death of the
Executive.
C. DISABILITY. The Company may
terminate the Executive's employment if the
Executive is unable to perform
his duties on a full-time basis because of
the Executive's inability, during the Employment
Period, to perform his duties
under this Agreement, with or without reasonable
accommodation, for a period of
more than one hundred eighty (180) days due to mental or
physical incapacity as
determined by a physician selected by the Company or its insurers
and reasonably
acceptable to the Executive or
the Executive's legal representative
("Disability"). In the event of a Disability, the
Executive's employment with
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the Company shall terminate effective
on the 30th day after receipt of such
notice by the Executive so long
as Executive has not returned to full-time
performance within thirty (30) days
of his receipt of such notice.
D. TERMINATION FOR CAUSE.
The Company may terminate the
Executive's
employment for "Cause." For purposes
of this Agreement, "Cause" means:
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i. the failure by
the Executive to substantially perform his duties
as
outlined hereunder or to follow the
reasonable directions of the Board after
written demand for substantial performance is delivered by the
Board and failure
to substantially perform such duties
or follow such directions within
thirty (30) days following receipt
of such written demand;
ii. the engaging by the Executive in
conduct that is materially injurious to
the Company, monetarily
or otherwise, including, without
limitation,
conduct which violates Sections 1(a) or
10(a) of this Agreement, or Sections
7.1, 7.2 or 7.3 of the
Merger Agreement, or any other material breach of
Executive's post-closing covenants and
obligations thereunder, and failure to
desist from such conduct after being notified in
writing that such conduct is
materially injurious to the Company;
iii. the engaging by
the Executive in criminal conduct
or conduct
constituting moral turpitude; or
iv. the engaging by
the Executive in employment practices which violate
federal, state or local law.
e. TERMINATION WITHOUT
CAUSE. Notwithstanding any provisions
of this
Agreement to the contrary, the Company may terminate the
Executive's employment
Without Cause. For purposes of this Agreement, "Without
Cause" shall mean
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a termination by the Company of the Executive's employment
for no reason or for
any reason other than those specified in the foregoing
paragraphs (a), (b), (c)
or (d) at any time effective upon delivery of thirty (30) days
written notice by
the Chief Executive Officer of
the Company or the Board.
<PAGE>
f. TERMINATION WITH "GOOD
REASON." Notwithstanding any provision of this
Agreement to the contrary, Executive may terminate his
employment hereunder for
Good Reason, subject to the requirement that
Executive shall provide the
Company with a minimum of thirty (30) days prior written notice of
his intent to
terminate, except in the case of nonpayment of
compensation hereunder in which
event Executive may terminate on fifteen (15)
days prior written notice. For
purposes of this Agreement, Executive shall have "Good
Reason" to terminate his
employment hereunder upon the occurrence, without
Executive's written consent,
of any of the following: (i) a failure by the
Company to pay to Executive any
amounts due under this Agreement in
accordance with the terms hereof, which
failure is not cured within fifteen (15) days following
receipt by the Company
of written notice from Executive of such failure; (ii) any other
material breach
by the Company of this Agreement that remains uncured for thirty
(30) days after
written notice thereof by Executive to the Company (provided, the
mere change or
rearrangement of the Executive's title, responsibilities or
duties shall not be
considered a breach by the Company of this
Agreement as long as the Executive
continues in a capacity as a
part of the executive management team of the
Company following such change); (iii) WorldWater's material
breach of Section 2
of the Merger Agreement or any other post closing
covenants and obligations of
WorldWater thereunder or WorldWater's material breach
of its obligations under
that certain Registration Rights Agreement, dated of even date
herewith, between
WorldWater and the stockholders of Original
ENTECH; or (iv) the relocation of
the Company's principal offices to a location outside Tarrant
County, Texas (or
any county contiguous thereto), or a requirement by the Board that
the Executive
relocate the Executive's residence, from Tarrant
County, Texas (or any county
contiguous thereto).
g. VOLUNTARY RESIGNATION.
The Executive may terminate this
Agreement
("Voluntary Resignation"), effective upon thirty
(30) days' written notice to
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the Board.
5. COMPENSATION AND
PAYMENTS UPON TERMINATION
The
Executive shall be entitled to the following compensation from
the
Company (in lieu of all other sums payable to the Executive
hereunder) upon the
date of termination of Executive's
employment (the "Termination Date").
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a. MUTUAL AGREEMENT. If
the Executive's employment is terminated as
a
result of mutual agreement, the Company shall pay to
Executive the Executive's
Base Salary through the Termination Date as and when the
Company regularly pays
payroll, and the
Company shall pay within thirty (30) days
after the
Termination Date, a lump sum payment for the
value of all accrued, earned and
unused benefits under the Company Benefits through the Termination
Date, and the
Executive will be entitled to receive any vested pension and
retirement benefits
(for all purposes of this Agreement, all such accrued, vested,
earned and unpaid
items through the applicable
Termination Date, other than Base Salary, are
referred to as the "Earned
Amounts").
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b. DEATH. If the Executive's
employment is terminated as a result of death,
the Company shall pay the Executive's Base Salary
through the Termination
Date as and when the Company regularly pays payroll,
and the Company shall pay
within thirty (30) days after the Termination Date the
remaining Earned Amounts
to the Executive's estate.
c. DISABILITY. If the Executive's
employment is terminated as a result of
Disability, the Executive will be provided all short and long term
disability
benefits to which he may be eligible (if any) in accordance with
the Company's
then existing Company Benefits, and the Company shall pay the
Executive's Base
Salary through the Termination Date as and when the Company
regularly pays
payroll, and the Company shall pay within thirty (30) days after
the Termination
Date the remaining Earned Amounts.
d. WITHOUT CAUSE; GOOD REASON.
If the Executive's employment is terminated
Without Cause, or if the
Executive terminates his employment for Good
Reason and Executive is not in material breach of this
Agreement or the Merger
Agreement, and no grounds exist
for the Company to terminate Executive for
Cause, the Company shall pay to the Executive: (i) the
Executive's Base Salary
through the Termination Date as and when the Company regularly pays
payroll (ii)
the remaining Earned Amounts in a lump sum in cash within thirty
(30) days after
the Termination Date; and (iii) beginning on the day after the
Termination Date,
and payable as and when the Company regularly pays
payroll, an amount equal to
the aggregate total of the
Executive's then current Base Salary as would
otherwise be payable for the
period from the Termination Date until
the
expiration of the Original Term
or the Renewal Term in effect when
the
Termination Date occurs. If the Company fails to make any payment
required to be
made pursuant to this Section 5(d) and such
failure continues for a period of
three days after notice of such failure is provided in
writing by Executive to
the Company, then in such event the Company
shall be deemed not to have made
"timely payments in full compliance with its
obligations under Section 5(d) of
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this Agreement".
e. TERMINATION FOR CAUSE
OR WITHOUT GOOD REASON. If the
Executive's
employment is terminated for Cause or the
Executive terminates his employment
without Good Reason, or Executive voluntarily elects to terminate
this Agreement
pursuant to the provisions of
Section 4(g), the Company shall pay the
Executive the Earned Amounts in a lump sum in cash within thirty
(30) days after
the Termination Date and the Company shall have
no further obligations to the
Executive, except as provided under
Section 5(f) below.
f.
