This Executive Employment Agreement involves
Title: AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
Governing Law: Nevada Date: 7/15/2011
Industry: Misc. Capital Goods Sector: Capital Goods
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the “ Agreement ”) is made as of September 22, 2010 (the “ Effective Date ”) and amended on July 15, 2011 by and between Arcis Resources Corporation, with its principal executive offices at 4320 Eagle Point Parkway Suite A Birmingham Al 35242 (the “ Company ”) and Kenneth A Flatt Jr. an individual residing at 1079 Legacy Drive, Birmingham AL 35242 (the “ Executive ”).
WHEREAS, the Executive has been offered the position of Chief Executive Officer (“ CEO ”) of the Company and will begin to serve in such capacities on the Effective Date;
WHEREAS, the Company wishes to assure itself of the services of the Executive for the period provided for herein and the Executive is willing to serve in the employ of the Company for said period upon the terms and conditions hereinafter provided; and
WHEREAS, the Company’s Board of Directors has determined that the best interests of the Company and its shareholders would be served by providing for the terms and conditions of the Executive’s employment as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and intending to be legally bound hereby, the Company and the Executive hereby agree as follows:
Section 1. Definitions . As used herein, the following terms shall have the meanings set forth below.
“ Closing Date ” shall mean the Closing Date defined in the Amended and Restated Exchange Agreement between the Company and the equity holders in American Plant Services, LLC, LLC.
“ Completion of an Secondary Offering ” shall mean the date upon which the Company receives the proceeds from a Secondary Offering (as defined herein).
“ Disability ” of the Executive means that, as a result of the Executive’s incapacity due to physical or mental illness, the Executive shall have been absent from his duties on a full time basis for thirty (30) days in any three (3) month period. If the Executive is prevented from performing his duties because of Disability, upon request by the Company, the Executive shall submit to an examination by a physician selected by the Company, at the Company’s expense, and the Executive shall also authorize his personal physician to disclose to the selected physician all of the Executive’s medical records.
“ Fiscal Year ” means any fiscal year of the Company, as applicable.
“ Secondary Offering ” means a sale by the Company of equity securities for which it receives gross proceeds in excess of a total of ten million dollars.
“ Net Income ” means the Company's net income as reported on the Statements of Operations filed by the Company with the Securities and Exchange Commission.
“ Net Income Threshhold ” means the time when the Company’s aggregate Net Income for a period of four consecutive quarters equals or exceeds two million five hundred thousand ($2,500,000) dollars. The Net Income Threshold shall be deemed to have been achieved upon the last day of the fourth quarter in the measurement period, notwithstanding the later filing of the Statement of Operations.
“ Person ” means any individual, sole proprietorship, general or limited partnership, joint venture, trust, unincorporated organization, association, corporation, institution, entity, party, limited liability company or government (whether territorial, national, federal, state, provincial, county, city, municipal or otherwise, including, without limitation, any instrumentality, division, agency, body or department thereof).
Section 2. Employment and Term . The Company hereby employs the Executive, and the Executive hereby accepts such employment by the Company, for the purposes and upon the terms and conditions contained in this Agreement and subject to the approval of the Company’s Board of Directors. Subject to the terms and conditions contained herein, the initial term of this Agreement shall be for a three (3) year period, commencing on Effective Date. The Executive will perform as the interim CEO of the Company for a period commencing on the Effective Date and ending no more than six months after the Closing Date. The Executive will also perform as the CEO of American Plant Services, LLC, a subsidiary of the Company (“APS”), for a period commencing on the Closing Date and ending on the Employment Termination Date. Thereafter, this Agreement shall automatically renew on its then-current terms and conditions for subsequent one (1) year periods unless either party elects to not renew for any subsequent one (1) year period by providing the other party with written notice at least ninety (90) days prior to the end of the initial term or any renewal term. The initial term hereof and any extension term are referred to herein as the “ Employment Period .”
Section 3. Employment Capacities and Duties . During the period when the Executive is employed as Chief Executive Officer of the Company, the Executive shall have the duties and responsibilities normally associated and incumbent with the position of Chief Executive Officer. Accordingly, and not by way of limitation, as CEO of the Company, the Chief Executive Officer shall attend all meetings of the shareholders of the Company and of the Board of Directors and, subject to the direction or approval of the Board of Directors, the Executive shall supervise and manage the day-to-day operations and business of the Company. The Company shall cause the Chief Executive Officer to be appointed to the Board of Directors and the Chief Executive Officer shall serve on the Board of Directors and any committee thereof to which he is appointed without further compensation. During the period when the Executive is employed as CEO of APS, the Executive shall serve as a Manager of APS and shall be designated as the Chief Executive Officer of APS, and shall have the duties and responsibilities normally associated with that position. As CEO of APS, the executive will report to the CEO and the Board of Directors of the Company, as well as to any other managers of APS to the extent mandated in the APS operating agreement.
Section 4. Executive Performance Covenants . The Executive accepts the employment described in Section 3 herein and agrees to devote his full working time and efforts (except for absences due to illness and appropriate vacations) to the business and affairs of the Company and the performance of the aforesaid duties and responsibilities set forth in Section 3 hereof.
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Section 5. Salary .
The Executive shall be paid a salary (the “ Salary ”) for the period commencing on the Closing Date at an annual rate of One Hundred Eighty Thousand Dollars ($180,000.00), payable in equal installments in accordance with the Company’s payroll policies. Upon the Completion of a Secondary Offering or achievement of the Net Income Threshold, the Executive’s Salary shall be increased to an annual rate of Four Hundred Thousand Dollars ($420,000.00) for the duration of the Employment Period. The Salary shall be pro-rated for any Fiscal Year hereunder which is less than a full Fiscal Year. The Salary will be subject to annual rate increases of 5% per year to compensate for inflation and cost of living expense increases. The Executive will not be required to relocate from his existing location in Birmingham, Alabama. In the event that relocation is deemed to be in the best interest of the Company, then an increased revised compensation package and relocation package will be required and will be negotiated at that time.
American Plant Services Compensation . Until the increase in compensation provided Section 5(a), APS shall pay the Executive additional salaried compensation. The additional compensation shall equal the lesser of (i) $120,000 or (ii) APS revenue generated cash flow during the period for which compensation is being paid. .
Section 6. Reimbursement of Expenses . The Company shall reimburse the Executive for expenses incurred in providing services to the Company, including travel expenses for round-trip coach airfare and hotel expenses incurred in connection therewith, upon the Executive’s submission of appropriate documentation evidencing such expenses in accordance with the Company’s reimbursement policies as determined from time to time by the Board of Directors. If there is a dispute as to the eligibility of an expense for reimbursement in accordance with the Company’s reimbursement policies, then such expense shall be determined to be reimbursable if approved by a majority of the Board of Directors.
Section 7. Employee Benefits, Vacations . During the Employment Period, in addition to any and all compensation and benefits required or permitted to be made by the Company to the Executive hereunder, the Executive shall receive the benefits and enjoy the perquisites described below:
a) Vacation . The Executive shall be entitled to six (6) weeks paid vacation per annum; and
b) Participation in Benefit Plans . The Executive shall be entitled to participate in the Company’s auto lease, group hospitalization, health, life or other insurance or death benefit plan, travel or accident insurance, restricted or stock purchase plan, stock option plan, retirement income or pension plan, 401(k) plan, or other present or future group employee benefit plan or program of the Company for which executives are or shall become eligible. Nothing contained in this Agreement shall prevent the Board from amending or otherwise altering any such plan, program or arrangement during the Employment Period. In addition, the Company will pay the premiums on the Executive’s life and disability insurance policies as in effect on the Effective Date not to exceed more than five thousand dollars ($5,000) per month. After the Closing Date, the Company shall maintain continuously for the Employment Period a director and officer insurance policy with limits of $3,000,000 per occurrence and $10,000,000 in the aggregate.
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c) Indemnification . The Executive shall be entitled to indemnification and protection from liability as set forth in Section 11.
d) Automobile Allowance. The Executive shall be entitled to fifteen hundred ($1500) per month car allowance.
Section 8. Termination of Employment .
a) Notice of Termination; Employment Termination Date .
(1) Any termination of the Executive’s employment by the Company or the Executive shall be communicated by written Notice of Termination to the other party hereto. For purposes of this Agreement, a “ Notice of Termination ” shall mean a notice which shall indicate the provision in this Agreement relied upon.
(2) “ Employment Termination Date ” shall mean the date on which the Employment Period and the Executive’s right and obligation to perform employment services for the Company shall terminate effective upon the first to occur of the following:
(i) If the Executive’s employment is terminated for Disability, the date on which the Notice of Termination is given;
(ii) If the Executive’s employment is terminated by voluntary action of the Executive (See Section 8(e)), the date specified in the Notice of Termination, which date shall be no more than fifteen (15) days after the date that the Notice of Termination is given;
(iii) The death of the Executive;
(iv) The expiration of the Employment Period;
(v) If the Executive’s employment is terminated by the Company for Cause (See Section 8(b)), the date on which a Notice of Termination is given; and
(vi) If the Executive’s employment is terminated by the Company other than for Cause, Disability or death of the Executive, the date specified in the Notice of Termination which date shall not be more than thirty (30) days after the date that the Notice of Termination is given.
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(vii) Termination for Cause.
(1) The Company may terminate the Executive’s employment for Cause. The Company shall have the option to terminate the Executive’s employment for “cause” if the Executive: (a) pleads guilty to or is convicted of a felony; (b) engages in grossly negligent conduct or willful misconduct in connection with the execution of his duties under this Agreement which materially and adversely affects the Company after written notice by the Company to the Executive of the specific acts that form the basis for the termination; or (c) materially fails to perform his duties under this Agreement, provided the nonperformance continues uncorrected for a period of thirty (30) days after written notice of such nonperformance by the Company to the Executive specifically identifying the manner in which the Company believes the Executive has not performed his duties. For purposes of this Section, no act, or failure to act, on the 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 act or omission was in the best interests of the Company.
(2) If the Executive’s employment shall be terminated for Cause, the Company shall pay the Executive (or his successors) his unpaid Salary through the Employment Termination Date and any Stock Options (as defined herein) which have not vested as of the Employment Termination Date shall be terminated.
b) Termination for Disability . The Company may terminate the Executive’s employment b