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Exhibit
10.1
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT
(hereinafter referred to as “Agreement” ) is
entered into as of June 9, 2008, by and between SHERIF MITYAS
(hereinafter referred to as “Executive” ) and
MOVIE GALLERY, INC., a Delaware corporation, (hereinafter referred
to as the “Company” ).
1. Duties and Scope of
Employment.
(a) Position . For the
term of his employment under this Agreement, the Company agrees to
employ Executive in the position of Chief Operating Officer.
Executive shall report directly to the Company’s President
and Chief Executive Officer.
(b) Obligations to the
Company . During the term of his employment with the Company,
Executive shall devote his best efforts, talents and skills, and
substantially all of his time and attention to furthering the
Company’s success, and follow and abide by all Company
policies, rules, and procedures. Unless he obtains prior consent
from the Board of Directors of the Company (the
“Board” ), Executive shall not serve as an
employee, officer, or director of, or as a consultant or advisor
to, any other for-profit or not-for-profit entity, or in any
similar capacity.
(c) No Conflicting
Obligations . Executive represents and warrants to the Company
that he is under no obligations or commitments, whether contractual
or otherwise, that are inconsistent with his obligations under this
Agreement. Executive represents and warrants that he will not use
or disclose, in connection with his employment by the Company, any
trade secrets or other proprietary information or intellectual
property in which Executive or any other person has any right,
title or interest and that, his employment by the Company as
contemplated by this Agreement will not infringe or violate the
rights of any other person or entity. Executive represents and
warrants to the Company that he has returned all property and
confidential information belonging to any prior
employers.
(d) Commencement Date
. Executive shall commence full-time employment with the Company on
June 16, 2008 (hereinafter referred to as the
“Commencement Date” ).
2. Term of Employment
.
(a) At-Will Employment
. The term of Executive’s employment with the Company shall
be from the Commencement Date until the date when Executive’s
employment terminates pursuant to Section 2(b) below.
Executive’s employment with the Company shall be
EMPLOYMENT AGREEMENT - 1
“at will,” which means that
either Executive or the Company may terminate Executive’s
employment at any time, for any or no reason.
(b) Termination . The
Company may terminate Executive’s employment at any time and
for any or no reason, by giving Executive thirty (30) days
advance notice of termination of employment in writing (unless the
termination is for Cause in which case Executive’s
termination of employment may be effected by the Company
immediately pursuant to Section 8(d)). Executive may terminate
his employment at any time, for any or no reason, by giving the
Company sixty (60) days advance notice in writing.
Executive’s employment shall terminate automatically in the
event of his death or Permanent Disability as defined in
Section 8(a) herein.
(c) Termination of
Agreement . This Agreement shall terminate when all obligations
of the parties hereunder have been satisfied. The termination of
this Agreement shall not limit or otherwise affect any of
Executive’s obligations under Sections 9 and 10.
3. Compensation
.
(a) Salary . The
Company shall pay Executive as compensation for his services an
annual base salary in the amount of Four Hundred Fifty Thousand
Dollars ($450,000), less applicable taxes and withholdings (
“Base Salary” ), payable in accordance with the
Company’s standard payroll practices and
procedures.
(b) Bonus . Within two
and one-half (2-1/2) months from the Commencement Date, Executive
will be paid $450,000 (“Signing Bonus” ), less
applicable taxes and withholdings, and he shall not be eligible to
receive an Annual Bonus (defined below) for 2008. If prior to
December 31, 2009, Executive’s employment is terminated
for Cause or he resigns from his employment with the Company, he
shall refund a prorated portion of the Signing Bonus to the Company
in an amount equal to $450,000 multiplied by a fraction, the
numerator of which is the number of days from Executive’s
employment termination date through December 31, 2009 and the
denominator of which is the number of days from June 9, 2008
through December 31, 2009. For each calendar year after 2008,
in which Executive achieves his target performance goals as set by
the Board, Executive shall earn and be paid a bonus (the
“Annual Bonus” ) equal to 100% of Base Salary.
The amount of the Annual Bonus shall be determined based on the
achievement of performance goals established by the Board. The
Annual Bonus may be adjusted down from 100% for objectives not
achieved. The performance goals shall be determined by the Board no
later than ninety (90) calendar days after the first day of
each calendar year. The Annual Bonus for each calendar year after
2008 shall be paid no later than March 15 th following the calendar year to which the
Annual Bonus applies.
EMPLOYMENT AGREEMENT - 2
4. Equity .
(a) Stock Option Grant
. The Company shall grant Executive an option (the
“Option” ) to purchase shares of the
Company’s common stock equal to one percent (1%) of
23,366,498 (the common stock of the Company outstanding on
May 21, 2008), under the Company’s 2008 Omnibus Equity
Incentive Plan, as it may be amended from time to time (the
“Plan” ). The date on which any Option or
Additional Option (defined below) is granted shall be the
“Grant Date” . The Grant Date of the Option
shall be as soon as practical after the Commencement Date (the
“Option Grant Date” ). The per share exercise
price of the Option will be the Fair Market Value of a share of
common stock on the Option Grant Date. “Fair Market
Value” shall have the meaning given to it under the Plan.
The Executive shall vest in the Option over three (3) years in
equal installments of one-third (1/3) of the Option on each of
the first three anniversaries of the Option Grant Date. The Option
shall be subject to the terms of the Plan and the option agreement
pursuant to which the Option shall be granted to Executive, and
execution and delivery of such option agreement shall be a
condition of the grant of the Option.
(b) Executive shall be
entitled to receive an additional option (the “Additional
Option” ) to purchase shares of common stock in the
Company at an exercise price per share at the greater of
(i) the Fair Market Value on the Option Grant Date, or
(ii) the Fair Market Value on the Grant Date of any such
Additional Option, if the Company exceeds its 2009 business plan in
effect as of the date of this Agreement (the “2009
Business Plan” ) as follows:
More than $75 million and up
to $100 million over 2009 Business Plan EBITDA: An Additional
Option to purchase one-quarter of one percent (0.25%) of 23,366,498
(the common stock of the Company outstanding on May 21,
2008).
More than $100 million and up
to $125 million over 2009 Business Plan EBITDA: An Additional
Option to purchase one-half of one percent (0.5%) of 23,366,498
(the common stock of the Company outstanding on May 21,
2008).
More than $125 million and up
to $150 million over 2009 Business Plan EBITDA: An Additional
Option to purchase one percent (1%) of 23,366,498 (the common
stock of the Company outstanding on May 21, 2008).
More than $150 million over
2009 Business Plan EBITDA: An Additional Option to purchase one and
one-half percent (1.5%) of 23,366,498 (the common stock of the
Company outstanding on May 21, 2008).
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The Grant Date of any Additional Option
shall be as soon as practical after the achievement of performance
criteria related to the 2009 Business Plan EBITDA described above
are determined by the Board. The Executive shall vest in the
Additional Option over three (3) years in equal installments
of one-third (1/3) of the Additional Option on each of the
first three anniversaries of the Grant Date of the Additional
Option. The Additional Option shall be subject to the terms of the
Plan and the option agreement pursuant to which the Additional
Option shall be granted to Executive, and execution and delivery of
such option agreement shall be a condition of the grant of the
Additional Option. If there is a Change of Control in 2009 or soon
thereafter prior to the Grant Date of the Additional Option, and
the Executive is employed by the Company, and the Company is on
target to achieve the performance goals in the 2009 Business Plan
(as determined by the Board by looking at the twelve
(12) months immediately preceding the date of the Change of
Control), then the Executive shall vest in the proportion of the
applicable percentage of the Additional Option based on achievement
of performance goals in accordance with the following
schedule:
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Change of Control Date
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Proportion of Percentage Vested in
Additional Option (0.25%, 0.5%,
1%, or 1.5% Based on Achievement of
Performance Goals) |
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January 1, 2009 through
March 31, 2009
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25 |
% |
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April 1, 2009 through June 30,
2009
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50 |
% |
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July 1, 2009 through
September 30, 2009
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75 |
% |
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October 1, 2009 and
thereafter
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100 |
% |
(c) Change of Control
. In the event of a Change of Control during Executive’s
employment, Executive shall immediately and fully vest in his
Option and in any Additional Option granted to him.
“Change of Control” means the consummation and
completion of any fundamental transaction by which a change in
control of the Company occurs as follows: (i) consummation and
completion of a sale of all the equity securities of the Company to
an unrelated entity, (ii) consummation and completion of a
sale of substantially all the assets of the Company to an unrelated
entity, or (iii) consummation and completion of a merger,
consolidation or reorganization with an unrelated business
organization where less than forty percent (40%) of the voting
power and economic interest of the Company or the surviving entity
or the parent of either, are retained by the shareholders of the
Company immediately prior to such merger, consolidation or
reorganization.
5. Executive Benefits
. During the term of his employment, Executive shall be eligible to
participate in benefit programs available to senior executives of
the Company in accordance with the terms of such programs in effect
from time to time. During the term of his employment, the Company
shall provide Executive with the use of a Company car in accordance
with the terms of its policies as in effect from time to time.
During the term of his employment,
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the Company shall provide financial
planning assistance to Executive on an annual basis in accordance
with the terms of its policies as in effect from time to
time.
6. Business Expenses .
During the term of his employment, the Company shall reimburse
Executive reasonable and necessary business expenses incurred by
Executive in the performance of his duties subject to all
applicable Company policies regarding business expense
reimbursement.
7. Taxes and Applicable
Withholdings . All payments made under this Agreement shall be
subject to reduction to reflect taxes and other amounts required to
be withheld by law.
8. Termination
Benefits .
(a) Termination by Reason
of Death or Permanent Disability . Executive’s employment
hereunder shall automatically terminate in the event of
Executive’s death or Permanent Disability (as defined in this
Section 8(a)). Within thirty (30) calendar days after the
Executive’s death or Permanent Disability, Executive or
Executive’s estate (as applicable) shall receive
Executive’s accrued Base Salary earned through the date of
Executive’s death or Permanent Disability.
“Permanent Disability” means a mental or
physical condition that renders Executive unable to carry out his
duties, which condition has existed for at least three
(3) months, and which, in the opinion of a physician selected
by the Board, is permanent or expected to last for an indefinite
duration. Executive, or Executive’s estate, as the case may
be, shall have the right to exercise the vested portion of any
Option or Additional Option in accordance with the terms of the
Plan and applicable option agreement(s).
(b) Resignation by
Executive . Executiv
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