EXHIBIT I EMPLOYMENT AGREEMENT
Exhibit 10.4
EXHIBIT I
This Employment Agreement (this “Agreement”) is made and entered into effective as of the Effective Time (the filing of the Certificate of Merger as set forth herein) by and between Lime Truck Acquisition Corporation, a Delaware corporation (“Employer”) and a wholly-owned subsidiary of Ariel Way, Inc., a Florida corporation, and Xxxxxx Xxxxx (“Employee”), with reference to the following facts:
A.
Employer and Employee (through her association with Lime Media, LLC, a Texas limited liability company (“Lime Media”), among others, are parties to an Agreement and Plan of Merger, dated April 28, 2008 (the “Merger Agreement”), pursuant to which Lime Media, located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000 (the “Premises”), agreed to merge with and into the Employer upon the terms and conditions set forth in the Merger Agreement (the “Merger”).
B.
In connection with the transactions contemplated by the Merger Agreement, Employer desires to employ Employee and Employee is willing to accept such employment, in each case, for the purposes and on the terms and conditions hereinafter described.
C.
Capitalized terms not defined herein shall have the meaning ascribed thereto in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and conditions set forth below, and for other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows:
1.
Employment. Employer hereby employs Employee to provide services at the Premises and to provide services as required by Employer and described in Section 2 hereof and Employee hereby accepts such employment upon the terms set forth in this Agreement. Employee shall perform her duties and responsibilities to the best of her abilities in a diligent, trustworthy, businesslike and efficient manner.
2.
Services.
2.1
Duties.
2.1.1
During the Term (as defined in Section 3.1) hereof, Employee shall hold the title “Chief Operations Officer” of Employer, successor to Lime Media, and shall provide the professional services necessary to continue the management and daily operations of Employer. With respect to all matters, Employee shall operate under the direction and supervision of the Chief Executive Officer or the designee of the Chief Executive Officer or the Board of Directors of Employer. Employee shall perform or cause to be performed such services as are generally performed and as are substantially consistent with the services performed by Employee at Lime Media prior to the Merger.
2.1.2
Employee shall, with the assistance of personnel hired by Employer, cause to be kept and maintained complete and accurate records of all the business transactions conducted at the Premises, and shall continue to operate Employer in a substantially similar manner as previously conducted by Lime Media prior to the Merger.
2.2
Hours. During the Term, Employee shall work five (5) days per week at an average of forty (40) hours per week during normal business hours on a schedule mutually agreed upon by the parties, at the Premises.
3.
Term.
3.1
Term. Unless earlier terminated as provided herein, the term of this Agreement shall commence on the date of the execution hereof and shall continue in full force and effect for a period of six (6) months from the date hereof (“Initial Term”). Following the expiration of the Initial Term, the term of this Agreement shall be extended automatically for successive additional twelve (12) month periods (each a “Renewal Period”) unless terminated prior thereto by the Employer or the Employee as provided herein. If the Employer or the Employee does not wish to renew this Agreement when it expires at the end of the Initial or any Renewal Period as provided herein or if either the Employer or the Employee wishes to renew this Agreement on different terms than those contained herein, the Employer or the Employee shall give written notice in accordance herewith of such intent to the other party at least 30 days prior to the expiration date (“Prior Written Notice”). Notwithstanding the foregoing, upon the expiration of the Initial Term and during any Renewal Period, the employment of Employee will be on an at-will basis and such employment may be terminated at any time by either party, either with or without cause, and without prior notice. The at-will nature of the employment relationship that will be in effect upon expiration of the Initial Term and during any Renewal Period, as applicable, cannot be changed except in writing signed by the Chief Executive Officer of Employer. The parties expressly agree that designation of a Term and a Renewal Term in this Agreement does not in any way limit the right of the parties to terminate this Agreement at any time as provided herein. Reference in this Agreement to the “Term” of this Agreement shall refer to both the Initial Term and any Renewal Period, as the context requires.
3.2
Termination. This Agreement shall terminate upon the earlier to occur of (i) the expiration of the Initial Term or any Renewal Period upon delivery of Prior Written Notice in accordance with Section 3.1 above, or (ii) upon the termination at any time, with or without cause, of Employee’s at-will employment following the expiration of the Initial Term and during any Renewal Period, or (iii) upon the death or Disability of Employee, or (iv) during the Initial Term, upon thirty (30) days prior written notice from Employer to Employee of the termination of Employee’s employment for “cause” (as defined below).
For purposes hereof, “cause” shall include (i) any conviction of Employee for the violation of any criminal statute constituting a felony; (ii) gross misconduct in the performance of Employee’s duties hereunder; (iii) the failure by Employee to follow or comply with the policies and procedures of Employer or its parent, Ariel Way, Inc. (“Ariel Way”), or the written directives of the Board of Directors of Employer; provided that such policies, procedures or directives are consistent with Employee’s duties hereunder and provided that such failure continues after Employee receives written notice from Employer concerning such failure and such failure is not cured within ten (10) business days; or (iv) the violation by Employee of any material provision of this Agreement.
For purposes hereof, “Disability” shall mean that by reason of physical or mental disability, Employee will be unable to perform the regular duties of employment under this Agreement for a continuous period of ninety (90) days.
4.
Compensation, Vacation and Benefits. During the Term, for all services the Employee performs hereunder, the Employer shall compensate and pay or provide the Employee, and the Employee will receive, the following compensation and benefits:
4.1
Salary. A base salary in the amount of Eight Thousand Five Hundred Dollars ($8,500) per month (the “Salary”) to be paid on a monthly basis in accordance with the Employer’s customary payroll practices.
4.2
Bonus.
Employee shall participate in an annual performance bonus plan, for an additional up to 50% of the Salary per year, subject to achieving certain gross margin performance
2
metrics per targets and objectives set forth in Exhibit A hereto and incorporated herein by reference thereto.
4.3
Time Off. Employee will be entitled to two (2) weeks paid vacation after six (6) months and an additional one (1) week paid vacation after twelve (12) months for a total of three (3) weeks annually.
4.4
Benefit Plans. Employee shall be entitled to participate in all operative individual employee benefit and welfare plans of Employer as then in effect. Employee shall be entitled to participate in Ariel Way’s ordinary Executive Stock Option plan as filed with the Securities and Exchange Commission. Notwithstanding the foregoing, nothing contained herein shall, in any manner whatsoever, require or obligate Employer to adopt or implement, or to prevent, preclude or otherwise prohibit Employer from amending, modifying, curtailing, discontinuing or otherwise terminating any Benefit Plan at any time. Employee acknowledges that, in order to maintain eligibility for healthcare benefits, Employee must work on a full-time basis, which means that Employee must work an average of 32 hours per week during any rolling four week period (it being understood that Employee is not penalized in such regard for vacation and other time off provided for herein).
4.5
Expenses.
Employee shall be entitled to reimbursement for cell phone, Sprint air computer card, and gas reimbursement for travel related to the business operation of the Employer, subject to such reasonable documentation and other limitations as may be established by the policies of the Employer from time to time.
5.
Termination of Employment. If Employee terminates employment for any reason (either as a result of a breach or otherwise), then Employer’s obligations under this Agreement shall cease immediately and permanently. Employer shall pay Employee such compensation owed as of the date of termination on the next payday following the month of such termination. This termination shall be in addition to any and all remedies available to Employer at law or in equity resulting from such breach.
6.
Miscellaneous.
6.1
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. No party may assign any of its rights, or delegate any of its duties or obligations, under this Agreement without the prior written consent of the other party, and any such purported assignment or delegation shall be void. Notwithstanding the foregoing, Employer, its affiliates, and its successors and assigns, may assign its rights and delegate its duties to any successor entity resulting from any liquidation, merger, consolidation, reorganization, or transfer of all or substantially all of the assets or stock of Employer, but such assignment and delegation shall not release the original party from such obligations and duties if the assignee/transferee fails to honor such obligations and duties.
6.2
Notices. All notices, demands and other communications (collectively, “Notices”) given or made pursuant to this Agreement shall be in writing and shall be deemed to have been duly given if sent by registered or certified mail, return receipt requested, postage and fees prepaid, by overnight service with a nationally recognized “next day” delivery company such as Federal Express or United Parcel Service, or otherwise actually delivered to the following addresses:
(a)
if to Employer:
Ariel Way, Inc.
0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Chief Executive Officer
3
(b)
if to Employee:
Xxxxxx Xxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Any Notice shall be deemed duly given when received by the addressee thereof, provided that any Notice sent by registered or certified mail shall be deemed to have been duly given two (2) business days from the date of deposit in the United States mail, unless sooner received. Any of the parties to this Agreement may from time to time change its address for receiving Notices by giving written notice thereof in the manner set forth above.
6.3
Amendment; Waiver. No provision of this Agreement may be waived unless in writing signed by all of the parties to this Agreement, and the waiver of any one provision of this Agreement shall not be deemed to be a waiver of any other provision. This Agreement may be amended only by a written agreement executed by all of the parties to this Agreement.
6.4
Governing Law. This Agreement shall be governed by and construed both as to validity and performance and enforced in accordance with the laws of the State of Texas without giving effect to the choice of law principles thereof.
6.5
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. A party may deliver this Agreement by transmitting a facsimile of this Agreement signed by such party to the other party, which facsimile signature shall be deemed an original for all purposes.
6.6
Remedies Cumulative. Each of the various rights, powers and remedies shall be deemed to be cumulative with, and in addition to, all the rights, powers and remedies which each party may have hereunder or under applicable law relating hereto or to the subject matter hereof, and the exercise or partial exercise of any such right, power or remedy shall constitute neither an exclusive election thereof nor a waiver of any other such right, power or remedy.
6.7
Headings. The section and subsection headings contained in this Agreement are included for convenience only and form no part of the agreement between the parties.
6.8
Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be or become prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.
6.9
Expenses. Each party shall pay its own costs and expenses, including, without limitation, the fees and expenses of their respective counsel and financial advisors.
6.10
Entire Agreement. This Agreement, including the Merger Agreement, Collateral Agreements and other agreements and schedules to be entered into in connection with the transactions contemplated by the Merger Agreement, constitutes and embodies the entire understanding and agreement of the parties hereto relating to the subject matter hereof and there are no other agreements or understandings, written or oral, in effect between the parties relating to such subject matter except as expressly referred to herein.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY.]
4
IN WITNESS WHEREOF, the parties hereto have duly executed this Employment Agreement as of the date first above written.
| EMPLOYEE | |
|
|
|
|
|
|
|
| /s/ Xxxxxx Xxxxx |
|
| Xxxxxx Xxxxx |
|
|
|
|
|
|
| Lime Truck Acquisition Corporation, a Delaware corporation | |
|
|
|
|
| /s/ Xxxx Xxxxxx |
| By: | Xxxx Xxxxxx |
| Its: | President |
|
|
|
5
EXHIBIT A
BONUS CRITERIA
6
Exhibit A
Bonus Criteria
Bonus.
Employee shall participate in an annual performance bonus plan, for an additional up to 50% of the Salary per year, subject to achieving certain gross margin performance metrics per targets and objectives set forth and incorporated herein in accordance with the Exhibit F - Business plan attached to the Agreement and Plan of Merger. The actual bonus criteria will be paid based upon a 30% increase in the net profit of 2008 Pro Forma.
7
