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AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Employee Retention Agreement

AMENDED AND RESTATED EMPLOYMENT AGREEMENT | Document Parties: Lions Gate Entertainment Corp You are currently viewing:
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Lions Gate Entertainment Corp

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Title: AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Governing Law: California     Date: 2/9/2009
Industry: Motion Pictures     Sector: Services

AMENDED AND RESTATED EMPLOYMENT AGREEMENT, Parties: lions gate entertainment corp
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Exhibit 10.58

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

     This Amended and Restated Employment Agreement (this “Agreement”) by and between Lions Gate Entertainment Corp. (“Lions Gate”) and Michael Burns (“Burns”) is entered into as of December 15, 2008. The employment agreement entered into as of September 1, 2006, between Burns and Lions Gate, as subsequently amended (the “Prior Agreement”), is hereby amended and restated in its entirety.

     This Agreement relates to the terms and conditions of Burns’ employment with Lions Gate for the term specified herein.

     The parties hereby agree as follows:

     1.  Employment . Lions Gate hereby employs Burns to serve in the capacity of Vice Chairman of Lions Gate on the terms and conditions set forth herein. Burns shall render such services as are customarily provided by persons in the capacity of Vice Chairman in the motion picture industry and as may be reasonably requested by Lions Gate. Burns hereby agrees to comply with all reasonable requirements, directions and requests, and with all reasonable rules and regulations made by Lions Gate in connection with the regular conduct of its business; to render services during Burns’ employment hereunder whenever and wherever and as often as Lions Gate may reasonably require in a competent, conscientious and professional manner, and as instructed by Lions Gate in all matters, including those involving artistic taste and judgment, but there shall be no obligation on Lions Gate to cause or allow Burns to render any services, or to include all or any of Burns’ work or services in any motion picture or other property or production. Notwithstanding the foregoing, Lions Gate acknowledges that Burns is a shareholder of Ignite Entertainment and the parties agree to negotiate at arms length any matters concerning Lions Gate and Ignite.

     2.  Term . Burns’ employment term under this Agreement shall commence on September 1, 2006 (the “Effective Date”) and continue through and including September 1, 2011, subject to early termination as provided in this Agreement (the “Term”).

     3.  Base Salary . Lions Gate shall pay Burns an annual fixed salary of US$750,000 from September 1, 2006 through September 9, 2008 (“Base Salary — Period 1”), US$925,000 from September 10, 2008 through September 1, 2010 (“Base Salary — Period 2”) and US$950,000 from September 2, 2010 through the end of the Term (“Base Salary — Period 3”) payable in equal installments in accordance with Lions Gate’s standard payroll practices (Base Salary — Period 1, Base Salary — Period 2 and Base Salary — Period 3 collectively referred to herein as the “Base Salary”).

     4.  Bonuses .

          (a) Discretionary Annual Bonus . During the Term, Burns shall be eligible to receive a discretionary annual bonus (the “Discretionary Bonus”) based on Lions Gate’s fiscal

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year. Lions Gate’s Chief Executive Officer shall recommend a bonus amount, if any, for Burns with input from Lions Gate’s Compensation Committee (“Compensation Committee”) and the Compensation Committee shall have sole and absolute discretion regarding the bonus amount and Burns’ entitlement to a bonus. Burns’ entitlement to a bonus and/or the amount of bonus shall be determined using the following criteria (with no emphasis to be derived from the order in which they appear): EBITDA; revenue and bottom line performance; Lions Gate’s ability to pay such bonus; earnings; free cashflow levels; debt reduction; and share price. Lions Gate will be guided, informally, by a formula of 100% of base salary, if annual targets are met, but the Compensation Committee will also consider other criteria, such as transformative transactions for which Burns is materially responsible. The Discretionary Bonus, if any, shall be payable in a timely manner, but in any event when bonuses, if any, are generally given to Lions Gate’s other senior-level employees. Burns shall be eligible for consideration by the Compensation Committee, at the end of the fiscal year, for a pro-rata Discretionary Bonus for those years in which he is employed for only a portion of the applicable fiscal year. All bonuses, if any, shall be payable at the time such bonuses are given to Lions Gate’s other senior-level employees.

     5.  Stock Price Bonus . If, during the Term, the volume-weighted average of the median (between the high and low of each trading day) daily Company stock price is not less than US$13.00 per share for a period of six (6) consecutive months, then Lions Gate shall pay Burns a one time bonus (in addition to any other compensation payable pursuant to this Agreement) in the sum of US$600,000 (the “Stock Price Bonus”) within five (5) business days following the satisfaction of the preceding condition.

     In addition, if during the Term the volume-weighted average of the median (between the high and low of each trading day) daily Company stock price is not less than US$16.00 per share for a period of six (6) consecutive months, then Lions Gate shall pay Burns a one time additional Stock Price Bonus of US$600,000 within five (5) business days following the satisfaction of the preceding condition.

     In addition, if during the Term the volume-weighted average of the median (between the high and low of each trading day) daily Company stock price is not less than US$19.00 per share for a period of six (6) consecutive months, then Lions Gate shall pay Burns a one time additional Stock Price Bonus of US$600,000 within five (5) business days following the satisfaction of the preceding condition.

     For the avoidance of doubt, Burns shall not be entitled to receive the Stock Price Bonus at any specified target more than one time and the maximum aggregate bonus that could be payable to Burns under any scenario pursuant to this Section 5 or any other provision of this Agreement is US$1,800,000; provided further that a single rise in stock price can trigger all three Stock Price Bonuses.

     Notwithstanding the foregoing, if on or before the time the Stock Price Bonus becomes payable an applicable bank has declared Lions Gate to be in material default of any of its bank covenants, and such default is directly attributable to Burns’ negligent disregard of any such covenants (of which he has received notice) or his negligent supervision of any of his direct reports, Burns shall not be entitled to the Stock Price Bonus; provided, however, the foregoing

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shall be subject to binding arbitration as set forth in Section 19(f) should Burns dispute Lions Gate’s position with respect thereto.

     6.  Restricted Stock Units .

          (a) Grant of Restricted Stock Units . Provided that Burns’ employment hereunder has not previously been terminated for Cause (as defined herein), death, or Disability (as defined herein) or at his own election and subject to regulatory approval, if required, Burns shall be granted a total of 666,666 Restricted Stock Units (“RSUs”) according to the following schedule: (i) 333,333 time vesting RSUs shall be granted as soon as practicable after the Effective Date (the “Time Vesting RSUs”); (ii) 333,333 performance vesting RSUs shall be granted in four (4) annual grants (one-fourth for each year) with the first such grant to be made as soon as practicable after the Effective Date and subsequent grants to be made on September 1, 2007, September 1, 2008, and September 1, 2009 (the “Performance Vesting RSUs”). Such RSUs shall be payable upon vesting in an equal number of common shares of Lions Gate. The foregoing RSUs shall be in addition to any equity interest (whether options, warrants or otherwise) previously granted to Burns pursuant to any previous employment agreement or otherwise, which expressly includes but is not limited to 375,000 phantom shares in favor of Burns granted by agreement dated December 11, 2001 (collectively, the “Pre-existing Equity”).

          (b) Date of Vesting . Subject to Burns’ continued employment hereunder through the relevant vesting date, the RSUs shall vest as follows:

          (i) The Time Vesting RSUs (333,333 RSUs) shall vest in four (4) equal annual installments with the first such installment vesting on September 1, 2007, and the last vesting on September 1, 2010;

          (ii) The Performance Vesting RSUs shall be eligible to vest on an annual schedule with the first grant being eligible to vest on September 1, 2007, the second on September 1, 2008, the third on September 1, 2009, and the fourth on September 1, 2010 (each, a “Performance Vesting Date”); provided, however, that the vesting of the RSUs on each such Performance Vesting Date shall be subject to satisfaction of annual Company performance targets approved in advance by the Compensation Committee for the twelve (12) month period ending on such Performance Vesting Date. The Performance Vesting RSUs provided for by this Section 6(b)(ii) shall vest on a sliding scale basis if the Company performance targets have not been fully met for a particular year. For purposes of example only, if seventy five (75) percent of Company targets have been met for a particular year, seventy five (75) percent of the grant for that year would vest. Notwithstanding the foregoing, the Compensation Committee may, in its sole discretion, provide that any or all of the RSUs scheduled to vest on any such Performance Vesting Date shall be deemed vested as of such date even if the applicable performance targets are not met. Furthermore, the Compensation Committee may, in its sole discretion, provide that any Performance Vesting RSUs scheduled to vest on any such Performance Vesting Date that do not vest because the applicable performance targets are not met may vest on any future Performance Vesting Date if the performance targets applicable to such future Performance Vesting Date are

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exceeded.

          (c) Acceleration of Vesting . If the vesting of the RSUs are accelerated pursuant to Section 8(b) or Section 12(b) below, then the foregoing requirement that Burns be an employee shall not apply with respect to any of the foregoing vesting dates.

          (d) Second Grant of Restricted Stock Units . Provided that Burns’ employment hereunder has not previously been terminated for Cause (as defined herein), death, or Disability (as defined herein) or at his own election and subject to regulatory approval, if required, Burns shall be granted, on or about September 22, 2008, a total of 274,285 Restricted Stock Units (“Second RSUs”) according to the following schedule: (i) 137,143 time vesting Second RSUs (the “Second Time Vesting RSUs”); (ii) 137,142 performance vesting Second RSUs (the “Second Performance Vesting RSUs”). Such Second RSUs shall be payable upon vesting in an equal number of common shares to Lions Gate. The foregoing Second RSUs shall be in addition to any Pre-existing Equity.

          (e) Date of Vesting . Subject to Burns’ continued employment hereunder through the relevant vesting date, the Second RSUs shall vest as follows:

          (i) The Second Time Vesting RSUs (137,143 RSUs) shall vest in three (3) equal annual installments with the first such installment vesting on September 1, 2009, and the last vesting on September 1, 2011;

          (ii) The Second Performance Vesting RSUs (137,142 RSUs) shall be eligible to vest in three (3) equal annual installments with the first installment being eligible to vest on September 1, 2009, the second on September 1, 2010, and the third on September 1, 2011 (each, a “Second Performance Vesting Date”); provided, however, that the vesting of the Second RSUs on each such Second Performance Vesting Date shall be subject to annual Company performance targets approved in advance by the Compensation Committee for the twelve (12) month period ending on such Second Performance Vesting Date. The Second Performance Vesting RSUs provided for by this Section 6(e)(ii) shall vest on a sliding scale basis if the Company performance targets have not been fully met for a particular year. For purposes of example only, if seventy five (75) percent of Company targets have been met for a particular year, seventy five (75) percent of the Second Performance Vesting RSUs eligible to vest for that year would vest. Notwithstanding the foregoing, the Compensation Committee may, in its sole discretion, provide that any or all of the Second Performance Vesting RSUs scheduled to vest on any such Second Performance Vesting Date shall be deemed vested as of such date even if the applicable performance targets are not met. Furthermore, the Compensation Committee may, in its sole discretion, provide that any Second Performance Vesting RSUs scheduled to vest on any such Second Performance Vesting Date that do not vest because the applicable performance targets are not met may vest on any future Second Performance Vesting Date if the performance targets applicable to such Second Performance Vesting Date are exceeded.

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          (f) Any and all references to RSUs in Sections 6(c), 8(b)(ii), 8(c), 12(a) and 12(b) of this Agreement shall include the Second RSUs set forth above, unless the context requires otherwise. Any and all references to the Time Vesting RSUs in Sections 8(b)(i) and 12(b) of this Agreement shall include the Second Time Vesting RSUs, unless the context requires otherwise. Any and all references to the Performance Vesting RSUs in Sections 8(b)(ii) and 12(b) of this Agreement shall include the Second Performance Vesting RSUs, unless the context requires otherwise. Any and all references to the Performance Vesting Date in Sections 8(b)(ii) and 12(b) of this Agreement shall include the Second Performance Vesting Date, unless the context requires otherwise.

          (g) Acceleration of Vesting Upon Death . In the event that this Agreement is terminated pursuant to Section 11(b) below, all RSUs and Options granted to Burns pursuant to this Agreement, to the extent then-outstanding and unvested, will immediately accelerate and become fully vested as of the date of death.

     7.  Options .

          (a) Grant of Options . Provided that Burns’ employment hereunder has not been terminated for Cause (as defined herein), death, or Disability (as defined herein) or at his own election and subject to regulatory approval, if required, Burns shall be granted, as soon as practicable after the Effective Date, an option to purchase 1,050,000 shares of Lions Gate stock (“the Option”) at a per-share exercise price equal to the closing price of a Lions Gate common share on the date the Option is granted. The foregoing Option shall be in addition to any Pre-existing Equity as well as the RSU grants provided for in this Agreement.

          (b) Date of Vesting; Date Exercisable . Subject to Burns’ continued employment hereunder, the Option shall vest and become exercisable as to 262,500 shares on each of September 1, 2007, September 1, 2008, September 1, 2009 and September 1, 2010; provided, however, if the vesting of the Option and rights to exercise are accelerated pursuant to Section 8(b) or Section 12(b) below, then the foregoing requirement that Burns be an employee shall not apply with respect to any of the foregoing vesting dates.

     8.  Change of Control . In the event of a “Change of Control” as defined below, the following shall apply:

          (a) Change of Control definition . For purposes of this Agreement, the term “Change of Control” shall mean:

          (i) if any person, other than a trustee or other fiduciary holding securities of Lions Gate under an employee benefit plan of Lions Gate, becomes the beneficial owner, directly or indirectly, of securities of Lions Gate representing 33% or more of the outstanding shares of common stock of Lions Gate as a result of one or more related transactions in the context of a merger, consolidation, sale or other disposition of equity interests or assets of Lions Gate;

          (ii) if, as a result of one or more related transactions in the context of a

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merger, consolidation, sale or other disposition of equity interests or assets of Lions Gate, there is a sale or disposition of 33% or more of Lions Gate’s assets (or consummation of any transaction, or series of related transactions, having similar effect);

          (iii) if, as a result of one or more related transactions in the context of a merger, consolidation, sale or other disposition of equity interests or assets of Lions Gate, there occurs a change or series of changes in the composition of the Board as a result of which half or less than half of the directors are incumbent directors;

          (iv) if, as a result of one or more related transactions in the context of a merger, consolidation, sale or other disposition of equity interests or assets of Lions Gate, a shareholder or group of shareholders acting in concert obtain control of 33% or more of the outstanding shares;

          (v) if, as a result of one or more related transactions in the context of a merger, consolidation, sale or other disposition of equity interests or assets of Lions Gate, a shareholder or group of shareholders acting in concert obtain control of half of the Board;

          (vi) if there is a dissolution or liquidation of Lions Gate; or

          (vii) if there is any transaction or series of related transactions that has the substantial effect of any one or more of the foregoing.

          (b) Unvested Restricted Stock Units/Options . If a Change of Control occurs while Burns is employed by Lions Gate hereunder:

          (i) Any then-unvested portion of the Time Vesting RSUs and any then-unvested portion of the Option shall immediately and fully vest, and the Option shall become immediately and fully exercisable.

          (ii) The Performance Vesting RSUs that are eligible to vest on the next Performance Vesting Date (as defined in the applicable award agreement) after the date of such Change of Control (but not including any Performance Vesting RSUs that were eligible to vest on any preceding Performance Vesting Date and did not vest on such date) shall immediately and fully vest. Unless otherwise provided by the Compensation Committee, any Performance Vesting RSUs that have not vested after giving effect to the foregoing sentence shall immediately terminate.

          (c) Severance .

          (i) If, in connection with a Change of Control, Burns’ employment is terminated by Lions Gate for any reason, excepting only termination for Cause (as set forth in Section 11(d) below) or due to Burns’ death or Disability, then, subject to Section 13(b) but notwithstanding any other provision to the contrary in Section 12 below, Burns shall be entitled, in addition to the Accrued Obligations, to the payment of US$1,800,000

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