EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT
(this "Agreement"), is
entered into as of April 2, 2009, by and between Waste2Energy,
Inc., a Delaware corporation (the "Company"), and Peter
Bohan (the "Executive "),
WHEREAS, Company desires to employ Executive, and
Executive desires to be employed by Company, upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the
covenants herein contained, and other good and valuable
consideration, the receipt and adequacy of which are hereby forever
acknowledged, the parties, with the intent of being legally bound
hereby, agree as follows:
1. Term. The
term of this Agreement shall be deemed to have commenced on the
fifteen (15 m )
day of September, 2008 (the "Effective Date") and shall end
on the date which is the second anniversary of the Effective Date
unless Executive's employment 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
second anniversary of the Effective Date (the "Renewal
Term") unless either party notifies the other by a date which
is thirty (30) days prior to the expiration of the Initial Term
that such party desires not to extend the Initial Term beyond the
second anniversary of the Effective Date. This Agreement shall
continue for successive one-year Renewal Terms unless and until
either party gives thirty (30) 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 pursuant to Section 5 hereof. The term
of this Agreement, whether during the Initial Term or any Renewal
Term, shall be referred to as the "Term."
Position and
Responsibilities.
2.1
Position. Executive will be employed by Company to render
services to Company in the position of President and Chief
Operating Officer reporting to the Company's Chairman and CEO. In
that capacity, Executive shall be responsible for Company's
implementation of all corporate strategic plans including
marketing, sales, design, manufacturing and fulfillment, which
includes, but is not limited to overseeing the daily operations of
all operating units, budget management activities and
implementation of its budgets. Executive shall also perform such
other duties as may be consistent with Executive's position.
Executive shall report directly to the CEO. Executive shall, in all
material respects, abide by all material and written Company rules,
policies, and practices as adopted or modified, from time to time,
in Company's sole discretion; and Executive shall attempt to use
his best efforts in the performance of his duties hereunder.
Executive's principal place of business in the performance of his
duties and obligations under this Agreement shall be in the New
York City metropolitan area. Notwithstanding the preceding
sentence, Executive will engage in such travel and spend such time
in other places as may be necessary or appropriate in furtherance
of his duties hereunder.
2.2 Other Activities. While employed by
Company, Executive shall devote substantially all of his work time
to Company's business utilizing his full, attention, and skill to
perform his assigned duties, services, and responsibilities
hereunder, and shall act at all times in the furtherance of
Company's business and interests. Executive shall not, during the
term of this Agreement engage, directly, in any other business
activity which could reasonably be expected to materially interfere
with Executive's duties and responsibilities hereunder or create a
conflict of interest with Company. The foregoing limitations shall
not prohibit Executive from making and managing his personal and
family investments in such form or manner as will neither require
Executive's services in the operation or affairs of the companies.
Company acknowledges that Executive will from time-to-time serve on
the boards of corporations, advisory committees, trade
organizations,philanthropic organizations or
other entities, provided such service does not
present a
conflict of interest with the Company.
2.3 No Conflict. Executive represents and
warrants that Executive's execution of this Agreement, Executive's
employment with Company, and the performance of Executive's duties
under this Agreement shall not violate any obligations Executive
may have to any other employer, person, or entity, including but
not limited to any obligations with respect to not disclosing any
proprietary or confidential information of any other person or
entity.
3.Compensation
and Benefits.
3.1 Base Salary. In consideration of the
services to be rendered under this Agreement, Company shall pay
Executive an initial base salary of two hundred seventy five
thousand dollars ($275,000.) per annum. ("Base Salary"), exclusive
of Business Expenses as defined in Article 3.5, andin accordance
with Company's standard payroll and expense reimbursement policies.
Executive's Base Salary will be reviewed, from time to time, and
may be adjusted (upward, but not downward) at the discretion of the
Board of Directors or any committee thereof. The first such review
shall be September 14, 2009 Salary shall be paid in arrears on the
1st and 15th of each month commencing on the effective date
hereof.
3.2 Cashless Warrants. In consideration
of the services to be rendered under this Agreement, Company hereby
grants Executive "cashless" warrants to purchase 1,000,000 shares
of Company's Common Stock at a price of $0.50 per share vested upon
execution of this Agreement. Such Warrants shall be more fully
documented in the actual Warrant agreement. The warrants set forth
in this Section 3.1 shall expire on the fifth (5th) anniversary of
the Effective Date.
3.3 Additional Incentives, Bonuses and
Benefits. Executive understands that there are no additional
incentive, bonus or benefits plans in effect at the Effective Date.
During the Employment Period, subject to, and to the extent
Executive is eligible under their respective terms, Executive shall
be entitled to receive such fringe benefits as are, or are from
time to time hereafter, generally provided by Company to Company's
employees of comparable status (other than those provided under or
pursuant to separately negotiated individual employment agreements
or arrangements and other than as would duplicate benefits
otherwise provided to Executive) under any pensionor retirement
plan, disability plan or insurance, group life insurance, medical
insurance, travel accident insurance, or other similar plan or
program of Company.
3.5 Vacation. During the Term, Executive
shall be entitled to vacation each year in accordance with
Company's policies in effect from time to time, but in no event
less than three (3) weeks paid vacation per calendar year, to be
taken at such times a reasonably approved by the CEO or the Board
of Directors.Executive shall also be entitled to such periods of
sick leave as is customarily provided by Company for its senior
executive employees.
3.6 Business Expenses. Throughout
the term of Executive's employment hereunder, Company shall
promptly reimburse Executive for all reasonable and necessary
travel, entertainment, promotional, and other business expenses
that may be incurred by Executive in the course of performing
Executive's duties, including but not limited to cell phone
service, portable e-mail service and such other customary expenses
incurred by principal executive officers. Authorized expenses shall
be reimbursed by Company in accordance with policies and practices
adopted, from time to time, by Company concerning expense
reimbursement for employees and shall be reimbursed upon timely
presentation to Company of an itemized expense statement with
respect thereto, including substantiation of expenses incurred and
such other documentation as may be required by Company's
reimbursement policies from time to time and in accordance with US
Internal Revenue Service guidelines.
3.7 Additional Benefits. Upon the
request of the Executive, the Company shall be required to maintain
a directors and officers' insurance policy covering the executives
with a minimum total combined coverage of $5,000,000.
4.
Nondisclosure of Confidential and
Proprietary Information. At all times before and after the termination of
Executive's service (for any reason by Company or by Executive),
Executive agrees to keep all Confidential or Proprietary
Information in strict confidence and secrecy, and not to disclose
or use the Confidential or Proprietary Information in any way
outside of Executive's assigned responsibilities for Company.
"Confidential or Proprietary Information" means any non-public
information or idea (whether or not a trade secret) relating to the
business of Company that is not generally known outside Company or
not generally known in the industry or by persons engaged in
businesses similar to that of Company (including information which
may be available from sources outside Company, but not in the form,
arrangement, or compilation in which it exists within Company) that
Company considers confidential, including, but not limited to: (i)
customer lists and records of current, former, and prospective
customers; (ii) special needs and characteristics of current,
former, or prospective customers; (iii) present or future business
plans; (iv) trade secrets, proprietary, or confidential information
of any customer or other entity to which Company owes an obligation
not to disclose such information; (v) marketing, financing,
business development, or strategic plans; (vi) sales methods,
practices, and procedures; (vii) personnel information; (viii)
research and development data and projections; (ix) information or
data concerning Company's competitive position in its various lines
of business; (x) existing, new, or envisioned products, programs,
services, methods, techniques, processes, projects, or systems; and
(xi) sales, pricing, billing, costs, and other financial data and
projections. All documents containing this information will be
considered Confidential or Proprietary Information whether or not
marked with any proprietary or confidential notice or legend.
Notwithstanding the foregoing, nothing herein shall prohibit
Executive from disclosing any information: (1) in connection with
performance of his duties hereunder as he deems in good faith to be
necessary or desirable; or (2) if compelled pursuant to the order
of a court or other governmental or legal body having jurisdiction
over such matter. In the event Executive is compelled by order of a
court or other governmental or legal body to communicate or divulge
any such information, knowledge or data, he shall promptly notify
Company.
5.
Termination; Rights and
Obligations on Termination. Executive's employment under this
Agreement may be terminated in any one of the followings
ways:
(a) Death. The death of Executive shall
immediately and automatically terminate Executive's employment
under this Agreement. If Executive dies while employed by Company,
any unvested equity compensation granted to Executive under any
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 Executive's death.
Any warrant that remains unexercised after this period shall be
forfeited. Upon Executive's death, Executive's legal representative
shall receive: (1) any compensation earned but not yet paid,
including and without limitation, any bonus if declared or earned
but not yet paid for a completed fiscal year, any amount of Base
Salary earned but unpaid, any accrued vacation pay payable pursuant
to Company's policies, and any unreimbursed business expenses,
which amounts shall be promptly paid in a lump sum, and (2) any
other amounts or benefits owing to Executive under any then
applicable employee benefit plans, long term incentive plans or
equity plans and programs of Company which shall be paid or treated
in accordance with the terms of such plans and programs
(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
Executive's death.
(b)
Disability. If as a result of incapacity due to physical or
mental illness or injury, Executive shall have been absent from
Executive'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,
Company may terminate Executive's employment hereunder provided
Executive 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 Executive's employment is terminated as a result of
Disability, Executive shall receive from Company, 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 Executive is terminated due to a Disability, any unvested equity
compensation granted to Executive under any 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 Executive'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 Executive's
termination due to Disability.
(c)
Cause. Company may terminate this Agreement immediately upon
written notice to Executive for "Cause," which shall mean: (i)
Executive's willful and material breach of this Agreement; (ii)
Executive's willful misconduct in the performance of any of his
material duties and responsibilities hereunder that has or could
have a material adverse effect on Company; (iii) Executive's
intentional and continued non-performance (other than by reason of
disability or incapacity) of any of Executive's material duties and
responsibilities hereunder or of any reasonable, lawful
instructions from the Board, which continues for ten (10) days
after receipt by Executive of written notice from Company; (iv)
Executive's material and willful dishonesty or fraud with regard to
Company (other than good faith expense account disputes) that has
or could have a material adverse effect on Company (whether to the
business or reputation of Company; or (v) Executive'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 Executive'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 Company. In the event of Executive's
termination of employment by Company for Cause, Executive shall
receive only the Accrued Amounts.
Notwithstanding the foregoing, following
Executive's receipt of written notice from Company of any of the
events described in subsections (i) through (iv) above, Executive
shall have ten (10) days in which to cure the alleged conduct (if
curable).
(d) Without Cause. At any time after
Executive's commencement of employment, Company may, without Cause,
terminate Executive's employment, effective thirty (30) days after
written notice is provided to Executive. In the event Executive is
terminated by Company without Cause, Executive shall receive from
Company within ten (10) days after such termination, in a lump sum
payment, an amount equal to the sum of the Base Salary and
bonus,
if any, that
would have been paid to Executive through the end of the then
remaining Term if Executive had not been terminated plus twelve
months compensation. Executive shall also receive the Accrued
Amounts. Additionally, if Executive is terminated by Company
without Caus
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