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”).
(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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(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.
(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
Page 5 of 16
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.
(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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