Exhibit 10.1
MANAGEMENT SERVICES AGREEMENT
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THIS MANAGEMENT SERVICES AGREEMENT (this "Agreement") dated as of the 14th day
of April, 2008, between ReEnergy Advisory Group LLC, having an address at 000
Xxxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000 ("ReEnergy"), and World Waste Technologies,
Inc., having an address at 00000 Xxxxxxx Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000 ("WDWT").
W I T N E S S E T H :
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
1. SCOPE OF SERVICES. WDWT and ReEnergy agree that ReEnergy will be
responsible for implementing all of the activities relating to WDWT's
biomass renewable energy business, which will include performing the
services generally described on Exhibit A hereto. While the parties
acknowledge that ReEnergy will continue its other activities during the
term of this Agreement (subject to the provisions of Section 14 below), it
is understood that ReEnergy's principals will commit at least an aggregate
of approximately 250 hours per month to WDWT's business activities.
ReEnergy will also provide such additional services for WDWT as are agreed
to from time to time by the parties in writing.
2. REPORTING. ReEnergy will report to, and take direction from, the CEO and
Board of Directors of WDWT. ReEnergy will update the CEO and Board of
Directors of WDWT on a periodic basis regarding ReEnergy's activities
hereunder, and at any time upon request of the Board. Within 30 days after
the date of this Agreement, ReEnergy will work with existing WDWT
resources to develop and present a formal business plan for review and
approval by WDWT's Board of Directors.
3. FEES FOR SERVICES. So long as this Agreement is in effect, WDWT will pay
ReEnergy a monthly retainer of $35,000 to be applied to the services of
ReEnergy's principals (Xxxxx Xxxxxxxxxx, Xxx Xxxx and Xxxx Xxxxxxx) under
this Agreement for up to an aggregate of 250 hours each month. Payments
for any partial month shall be appropriately pro rated. In the event said
individuals provide more than an aggregate of 250 hours of services under
this Agreement in any month, WDWT will pay ReEnergy for such excess hours
at the rate of $150 per hour. In addition, WDWT will pay ReEnergy for any
services provided by its senior advisors (Xxxx Xxxxxx and Xxx Xxxxx) under
this Agreement at the rate of $130 per hour. Notwithstanding the
foregoing, ReEnergy agrees that (i) no more than 40 hours per week will be
charged to WDWT for any of ReEnergy's principals or senior advisors, and
(ii) the total labor charges in any month for its principals and senior
advisors will not exceed $60,000 (inclusive of the retainer payment)
without WDWT's prior written approval.. WDWT will also reimburse ReEnergy
for all reasonable out-of-pocket expenses incurred by ReEnergy in
connection with the performance of its services (provided that any expense
over $1,500, other than travel expenses, shall require WDWT's prior
written approval). Upon request of WDWT, ReEnergy will provide appropriate
supporting documentation for all reimbursable expenses.
On the date hereof, and on the first day of each month hereafter during
the term of this Agreement, WDWT will pay ReEnergy the monthly retainer
described above. ReEnergy will submit monthly invoices to WDWT for any
fees due for the services of its principals in excess of 250 hours in any
month and the services of its senior advisors, setting forth the number of
hours worked per week per individual (subject to the 40-hour per person
per week limitation), and the reimbursable expenses incurred in such month
(provided that in no event will the amount due on any invoice attributable
to such fees exceed $25,000 in any month without WDWT's prior written
approval). WDWT will pay each such invoice within 20 days of receipt
thereof. If ReEnergy does not receive payment of the monthly retainer
within 20 days after the first day of the month for which such payment is
due, or for any invoice for the other amounts described above within 20
days after WDWT's receipt thereof, the amount due will bear interest at
the rate of 1.5% per month or the highest rate that may then be lawfully
charged, whichever is less, from the date such payment was due.
4. INDEPENDENT CONTRACTOR. ReEnergy is an independent contractor of WDWT.
ReEnergy shall not be deemed to be an agent of WDWT, and shall not have
the authority to enter into any agreements on behalf of WDWT. ReEnergy's
services under this Agreement are solely for the benefit of WDWT, and
nothing contained in this Agreement shall be deemed to create any duty on
the part of ReEnergy to any other party.
5. WORKS. (a) WORKS RETAINED AND LICENSED. ReEnergy represents that it has no
inventions, processes, designs, algorithms, methods, techniques,
discoveries, formulae, code or computer software which were made by it
prior to its engagement with WDWT (collectively referred to as "Prior
Works"), which belong to it and which relate to WDWT's current business,
products or research and development. If in the course of its engagement
with WDWT, ReEnergy incorporates into any WDWT product, process or machine
a Prior Work owned by it or in which it has an interest, WDWT is hereby
granted and shall have a nonexclusive, royalty-free, irrevocable,
perpetual, worldwide license to make, have made, modify, revise, reverse
decompile, use and sell such Prior Work as part of or in connection with
such product, process or machine or for any other purpose of any kind or
nature for which WDWT seeks to utilize such Prior Works.
(b) WORK MADE FOR HIRE. All original inventions, production processes,
products, processes, designs, algorithms, methods, techniques,
discoveries, formulae, code or computer software, whether or not
patentable or registrable under copyright, trademark or similar laws),
which are or have been conceived, prepared, created, composed, developed,
or reduced to practice, in whole or in part by ReEnergy and/or by other
contributors at any time in connection with any and all work commissioned,
conceived, prepared, created, composed, or developed by or for ReEnergy or
within the scope of its engagement with WDWT (all of the foregoing,
collectively, "Works") (i) was intended at all times prior to its creation
to constitute, (ii) since its creation has constituted and (iii) shall in
the future constitute, a "work made for hire" for WDWT and WDWT shall
forever be deemed the exclusive owner thereof, and has and shall have any
and all right, title, and interest of any kind or nature in and to the
Works (the "Rights").
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(c) ASSIGNMENT, FURTHER EXECUTION AND ASSISTANCE. Notwithstanding the
foregoing, if for any reason the Works (or any portion thereof heretofore
or hereafter created) is not deemed a "work made for hire" or if under any
applicable law the fact that the Works is a "work made for hire" is not
effective to place ownership of the Works and all rights therein in WDWT,
in consideration of its engagement by WDWT and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged,
ReEnergy hereby assigns and transfers to WDWT in perpetuity the Works and
all Rights therein and in any other works now or hereafter created
containing the Works, without reservation, condition or limitation, and no
right of any kind, nature or description is reserved by ReEnergy. If WDWT
shall desire to secure separate assignments of or for any of the
foregoing, or if WDWT shall desire further documents that it deems
reasonably necessary to protect any of the Rights in the Works in any and
all countries, ReEnergy shall execute and shall cause any contributors
engaged by ReEnergy to execute the same upon WDWT's request.
(d) REPRESENTATIONS, WARRANTIES AND COVENANTS. ReEnergy represents and
warrants that the Works have been, is and will be wholly original with
ReEnergy and not copied in whole or in part from, or based on, any other
work except that submitted to ReEnergy by WDWT as a basis for the Works,
if any, or material in the public domain. ReEnergy further represents and
warrants that the Works have not, does not and will not infringe upon the
copyright or otherwise violate any Rights of any person, firm or
corporation. ReEnergy hereby represents, warrants, and covenants that it
does not have, shall not have or be deemed to have any lien, charge or
other encumbrance upon any of the Works or Rights conveyed to WDWT herein
or proceeds derived therefrom, and that no act of or omission by WDWT, nor
any other act, omission or event of any kind, shall terminate or otherwise
adversely affect WDWT's ownership of the Works or Rights. ReEnergy shall
indemnify and hold WDWT, and its successors, licensees and assigns
harmless from and against all damages, losses, costs and expenses
(including reasonable outside attorneys' fees and costs) which WDWT, or
any of its successors, licensees or assigns may suffer or incur by reason
of the breach of any of ReEnergy's representations or warranties
hereunder.
6. RETURN OF WDWT PROPERTY. ReEnergy agrees that at the time its engagement
by WDWT ends, it will deliver to WDWT (and will not keep in its
possession, recreate or deliver to anyone else) any and all property of
WDWT, and all Confidential Information (as defined in the NDA), received
by ReEnergy pursuant to its engagement with WDWT or otherwise belonging to
WDWT, its successors or assigns.
7. SOLICITATION OF EMPLOYEES. ReEnergy agrees that during the term of this
Agreement and for a period of twelve (12) months immediately following the
termination of ReEnergy's relationship with WDWT for any reason, it shall
not either directly or indirectly solicit, induce, recruit or encourage
any of WDWT's employees to leave their employment, either for their own
employment or engagement or for any other person or entity.
8. REENERGY RESPONSIBLE FOR ITS AGENTS AND EMPLOYEES. ReEnergy shall select
and shall have full and complete control of and responsibility for all
agents, employees and subcontractors employed or used by ReEnergy and for
the conduct of ReEnergy's independent business and none of said agents,
employees or subcontractors shall be, or shall be deemed to be, the agent,
employee or subcontractor of WDWT for any purpose whatsoever, and WDWT
shall have no duty, liability or responsibility, of any kind, to or for
the acts or omissions of ReEnergy or such agents, employees or
subcontractors, or any of them.
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9. REENERGY RESPONSIBLE FOR TAXES AND INDEMNIFICATION. Without limiting any
of the foregoing, ReEnergy agrees to accept exclusive liability for the
payment of taxes or contributions for unemployment insurance or old age
pensions, annuities or social security payments, or other statutory
employer obligations or contributions which are measured by the wages,
salaries or other remuneration paid to ReEnergy or the employees of
ReEnergy and to reimburse and indemnify WDWT for such taxes or
contributions or penalties which WDWT may be compelled to pay. ReEnergy
also agrees to comply with all valid administrative regulations respecting
the assumption of liability for such taxes and contributions.
10. ARBITRATION AND EQUITABLE RELIEF. (a) Arbitration. Except as provided in
Section 10(b) below, it is agreed that any dispute or controversy arising
out of or under or relating to this Agreement or any interpretation,
construction, performance or breach thereof or otherwise arising out of or
relating to this engagement or its termination shall be settled by
arbitration to be held before a single arbitrator in accordance with the
Arbitration Rules then in effect of the American Arbitration Association.
The arbitrator may grant injunctions or other relief in such dispute or
controversy. The decision of the arbitrator shall be final, conclusive and
binding on the parties to the arbitration. Judgment may be entered on the
arbitrator's decision in any court having jurisdiction. Unless otherwise
provided by statute, WDWT and ReEnergy shall each pay one-half of the
costs and expenses of such arbitration, and each shall separately pay its
own counsel fees and expenses.
(b) Equitable Remedies. ReEnergy agrees that it would be impossible or
inadequate to measure and calculate WDWT's damages from any breach of the
covenants set forth in Sections 5, 6, or 7 herein. Accordingly, ReEnergy
agrees that if it breaches any of such Sections, WDWT will have available,
in addition to any other right or remedy available, the right to obtain an
injunction from a court of competent jurisdiction restraining such breach
or threatened breach and to specific performance of any such provision of
this Agreement. ReEnergy further agrees that no bond or other security
shall be required in obtaining such equitable relief and ReEnergy hereby
consents to the issuance of such injunction and to the ordering of
specific performance.
11. STANDARD OF CARE. ReEnergy will perform services under this Agreement with
the degree of skill and diligence normally practiced by consultants
performing the same or similar services in the renewable energy and waste
management industries. Except as specifically set forth in this Agreement,
no warranty or guarantee, express or implied, is made with respect to the
services to be provided by ReEnergy under this Agreement. Without limiting
the foregoing, WDWT acknowledges that ReEnergy does not control the cost
of labor, materials, equipment or services provided by third parties, and
any estimates of operating or capital costs prepared by ReEnergy represent
its best judgment and are not a guarantee of costs.
12. REPERFORMANCE OF SERVICES; LIMITATION OF LIABILITY. If WDWT believes that
the services provided by ReEnergy hereunder do not comply with the terms
of this Agreement, WDWT will promptly notify ReEnergy in writing
describing the manner in which ReEnergy's services are non-compliant. If
the services do not meet the applicable standard of care, ReEnergy will
promptly reperform the deficient services at no additional cost to WDWT.
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If WDWT fails to provide ReEnergy with said notice and the opportunity to
reperform said services, ReEnergy's total liability to WDWT will be
limited to the costs ReEnergy would have incurred to reperform the
services.
The total aggregate liability of ReEnergy for any and all claims arising
out of this Agreement, including attorneys' fees, and whether arising from
breach of contract, negligence, indemnity claims, strict liability or
otherwise, shall not exceed the fees paid to ReEnergy hereunder or
$100,000, whichever is greater. Furthermore, in no event shall ReEnergy be
liable to WDWT for any consequential, special, indirect or incidental loss
or damages by reason of any breach hereunder or otherwise in connection
with this Agreement.
13. CONFIDENTIAL INFORMATION. The parties agree that the Mutual Non-Disclosure
Agreement dated as of January 1, 2008 (the "NDA") executed by the parties
shall apply to the services to be performed by ReEnergy under this
Agreement.
14. CONFLICTING EMPLOYMENT. ReEnergy agrees, on behalf of itself and its
principals and advisors, that, during the term of its engagement with
WDWT, neither it nor any of its principals or advisors will engage in any
other employment, occupation, consulting or other business activity
competitive with WDWT's current renewable energy business, nor will it or
any of them engage in any other activities that conflict with it or their
obligations under this Agreement.
15. INDEMNITY. ReEnergy agrees to indemnify and hold WDWT harmless from and
against any liability, including reasonable attorneys' fees, incurred by
WDWT to the extent caused by ReEnergy's, or any of its employee's or
subcontractor's, negligence or willful misconduct in connection with the
performance of services under this Agreement. WDWT agrees to indemnify and
hold ReEnergy harmless from and against any liability, including
reasonable attorneys' fees, incurred by ReEnergy in connection with the
performance of services under this Agreement to the extent caused by
WDWT's negligence or willful misconduct.
16. TERMINATION. This Agreement may be terminated by either party at any time
upon 10 days written notice to the other party. This Agreement will
terminate on May 31, 2008 unless prior to such date the parties agree to
extend the term WDWT will pay ReEnergy for all services rendered up to the
date of termination of this Agreement. In addition to the foregoing, if at
any time either party defaults in its obligations hereunder, the
non-defaulting party may, after giving 10 days written notice of its
intent to do so, either suspend performance under this Agreement until
said default is cured, or terminate this Agreement unless such default is
cured within said 10 day period, and the taking of either of such actions
shall not in any way impair the rights of the non-defaulting party with
respect to such default.
17. MISCELLANEOUS PROVISIONS.
This Agreement is binding upon, and shall inure to the benefit of, WDWT
and ReEnergy and their respective successors and assigns. Neither party
may assign its rights or obligations under this Agreement without the
prior written consent of the other party.
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Notices and all other communications provided for in this Agreement shall
be in writing, shall be deemed to have been given when received, and shall
be delivered personally, sent by certified mail, return receipt requested,
or sent via a reputable overnight carrier that provides evidence of
receipt, in each case addressed to WDWT, Attention: CEO, or to ReEnergy at
the respective addresses first above set forth, or to such other address
as either party may have furnished to the other in writing in accordance
herewith.
This Agreement supersedes all prior agreements and understandings between
WDWT and ReEnergy (except for the NDA, which shall remain in effect in
accordance with its terms), and may not be modified unless in writing
signed by the party against whom the same is sought to be enforced.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York. In any action to enforce or interpret this
Agreement, the prevailing party shall be entitled to recover, as part of
its judgment, reasonable attorneys' fees and expenses. The parties agree
that, notwithstanding any statute to the contrary, any action to enforce
or interpret this Agreement shall be initiated within two years from the
time the party knew or should have known of the fact giving rise to its
action.
In the event that any of the provisions of this Agreement are held to be
unenforceable or invalid by any court of competent jurisdiction, ReEnergy
and WDWT shall negotiate an equitable adjustment to the provisions of this
Agreement with a view toward effecting the purpose of this Agreement, and
the validity and enforceability of the remaining provisions hereof shall
not be affected thereby.
This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original instrument, and all of which taken
together shall be deemed to constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
ReEnergy Advisory Group LLC World Waste Technologies, Inc.
By: /s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxx Xxxxxxxx
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Title: Principal Title: Chairman
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