Exhibit 10.4
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT (this
“ Agreement ”) is made as of May 5, 2009,
by and between Regal Entertainment Group, a Delaware corporation
(the “ Company ”), and David H. Ownby (“
Executive ”).
RECITALS
In order to induce Executive to
serve as Executive Vice President and Chief Financial Officer of
the Company, the Company desires to provide Executive with
compensation and other benefits on the terms and conditions set
forth in this Agreement.
Executive is willing to accept such
employment and perform services for the Company as of the Effective
Date (as defined below), on the terms and conditions hereinafter
set forth.
It is therefore hereby agreed by and
between the parties as follows:
1.
Employment.
1.1
Position.
Subject to the terms and conditions
of this Agreement, the Company agrees to employ Executive during
the Term (as defined herein) as its Executive Vice President and
Chief Financial Officer. In his capacity as Executive Vice
President and Chief Financial Officer of the Company, Executive
shall have the powers, responsibilities and authorities of chief
financial officers of corporations of the size, type and nature of
the Company, as it exists from time to time, as are assigned by the
Chief Executive Officer consistent with Executive’s position.
At the request of the Company, Executive will serve as an officer
and/or director of any of the Company’s other subsidiaries
for no additional compensation.
1.2
Duties.
Subject to the terms and conditions
of this Agreement, Executive hereby agrees to be employed as
Executive Vice President and Chief Financial Officer of the Company
and agrees to devote such working time and efforts (except for
permitted vacation periods and reasonable periods of illness and
other incapacity), to the best of his ability, experience and
talent, to the performance of services, duties and responsibilities
in connection therewith so that such performance shall be his
primary business activity. Executive shall perform such duties and
exercise such powers with respect to the activities of the Company,
commensurate with his position, as Executive Vice President and
Chief Financial Officer of the Company, as the Chief Executive
Officer shall from time to time reasonably delegate to
him.
1.3
Other Service.
Nothing in this Agreement shall
preclude Executive from serving on boards of directors of other
companies or trade organizations and participating in charitable,
community or religious activities that do not substantially
interfere with his duties and responsibilities hereunder or
conflict with the interest of the Company.
1.4
Reporting.
Executive shall report
directly to (a) Amy E. Miles, Chief Executive Officer of the
Company or (b) if Ms. Miles is no longer employed by the
Company, the then existing Chief Executive Officer of the
Company.
2.
Term.
2.1
Term of
Employment. Executive’s term of employment under this
Agreement shall commence as of the Effective Date (as defined
below), and, subject to the terms hereof, shall terminate on the
earlier of (i) the third anniversary of the Effective Date, or
(ii) termination of Executive’s employment pursuant to
this Agreement (the “ Term ”); provided,
however, that any termination of employment by Executive (other
than for death or Permanent Disability) or by the Company may only
be made upon 90 days prior written notice to the other party
hereto. Executive shall resign from any and all positions,
including board memberships, held by him with the Company or any
subsidiary of the Company upon any termination of
employment.
2.2
Extensions.
On each anniversary of the date
hereof, commencing in 2010, one year shall be added to the
termination date specified in Section 2.1(i) hereof, so
that as of each anniversary of the date hereof the remaining Term
of Executive’s employment as determined under
Section 2.1(i) hereof shall be three
(3) years.
2.3
Effective Date.
This Agreement shall only be
effective and enforceable by the Company or Executive as of
June 30, 2009 (the “ Effective Date
”).
3.
Compensation.
3.1
Salary.
The Company shall pay Executive a
base salary (“ Base Salary ”) at the rate of
$350,000 per annum commencing on the beginning of Executive’s
term of employment hereunder. Base Salary shall be payable in
accordance with the ordinary payroll practices of the Company. The
Compensation Committee of the Board of Directors of the Company
will review Executive’s salary at least annually and may
increase (but not reduce) Executive’s Base Salary in its sole
discretion. Once increased such Base Salary shall not be reduced,
and, as so increased, shall constitute “Base Salary”
hereunder.
3.2
Annual Bonus.
In addition to his Base Salary,
Executive shall, commencing with the 2009 fiscal year and
continuing each fiscal year during the Term hereafter, be afforded
a reasonable opportunity to earn an annual cash bonus (the “
Bonus ”). The Company shall be deemed to have
provided Executive with such opportunity by establishing one or
more reasonable annual performance goals for the Company (the
“ Annual Performance Goals ”) under an annual
executive incentive plan (a “ Bonus Plan ”)
designed to pay a bonus should the Company meet or exceed such
goals. In determining Executive’s Bonus,
Executive’s target Bonus shall be at least 75% of Base Salary
(the “ Target Bonus ”). If in any year the
Annual Performance Goals for the Company are exceeded by a material
amount, the Company shall award Executive a “stretch”
Bonus of up to an additional 37.5% of Base Salary (for a total
Bonus of up to 112.5% of Base Salary) as determined by the
Compensation Committee of the Board. For 2009,
Executive’s Bonus shall be calculated in accordance with the
Company’s 2009 Bonus Plan as adopted by the Board prior to
the date hereof. After 2009, the Compensation Committee of
the Board, after consultation with management, will in the last
quarter of each year establish reasonable eligibility requirements
and Annual Performance Goals for the Bonus Plan for the next year
based on the actual and projected performance of the Company.
Executive shall be deemed to have earned an annual Bonus under the
Company’s Bonus Plan so long as Executive meets the Annual
Performance Goals established thereunder and is employed by the
Company as of the last day of the Company’s fiscal
year.
4.
Employee Benefits.
4.1
Employee Benefit Programs, Plans
and Practices. The
Company shall during the Term provide Executive with coverage under
all employee pension and welfare benefit programs, plans and
practices (to the extent permitted under any employee benefit plan)
in accordance with the terms thereof, which the Company generally
makes available to its senior executives.
4.2
Vacation.
While employed hereunder, Executive
shall be entitled to no less than 20 business days paid vacation in
each calendar year, which shall be taken at such times as are
consistent with Executive’s responsibilities
hereunder.
5.
Expenses.
Executive is authorized to incur
reasonable expenses in carrying out his duties and responsibilities
under this Agreement. The Company will reimburse Executive for such
expenses upon presentation by Executive from time to time of
appropriately itemized and approved (consistent with the
Company’s policy) accounts of such expenditures.
6.
Termination of
Employment.
6.1
Termination Without
Cause. Except as
provided in Section 6.3, if Executive’s employment is
terminated by the Company (other than for Permanent Disability,
death or Cause),
Executive shall receive such
payments, if any, under applicable plans or programs, including but
not limited to those referred to in Section 4.1 hereof, to
which he is entitled pursuant to the terms of such plans or
programs, and any unpaid payments of Base Salary previously earned,
any unpaid Bonus earned or awarded for prior periods, accrued
vacation and expense incurred for which Executive is entitled to
reimbursement hereunder. If Executive is terminated under this
Section 6.1, Executive shall also be entitled to
receive:
(a) an amount in lieu of any
other cash compensation beyond that provided in the immediately
preceding sentence, which amount shall be equal to the sum
of:
(i) the actual bonus, if any,
he would have received in respect of the fiscal year in which his
termination occurs, prorated by a fraction, the numerator of which
is the number of days in such fiscal year prior to the date of
Executive’s termination and the denominator of which is 365,
payable at the same time as bonuses are paid to other
executives;
(ii) two times
Executive’s annual Base Salary; plus one times
Executive’s Target Bonus; payable in a lump sum within 30
days following such termination of employment; provided that if
such termination occurs within 90 days prior to calendar year end,
amount shall be payable on January 1 of the year following the
date of Executive’s termination; and
(b) continued coverage for a
24-month period under any employee medical, health and life
insurance plans in accordance with the respective terms thereof
applicable to active employees (other than the requirement of
continued employment); provided, however, that payments and
benefits due hereunder shall be reduced by any amounts owed by
Executive to the Company.
In no event shall Executive be
obligated to seek other employment or take any other action by way
of mitigation of the amounts payable to Executive under any of the
provisions of this Agreement and such amounts shall not be reduced
whether or not Executive obtains other employment.
6.2
Termination For Good
Reason. Except as
provided in Section 6.3, Executive may resign for Good Reason
(as defined below) if Executive provides written notification to
the Company of the existence of a condition constituting Good
Reason (“ Notification ”) within ninety (90)
days of the initial existence of such condition (“
Existence Date ”) and the resignation occurs within
two (2) years of the Existence Date. If Executive
resigns for Good Reason, Executive shall receive such payments, if
any, under applicable plans or programs, including but not limited
to those referred to in Section 4.1 hereof, to which he is
entitled pursuant to the terms of such plans or programs, and any
unpaid payments of Base Salary previously earned, any unpaid Bonus
earned or awarded for prior periods, accrued vacation and expense
incurred for which Executive is entitled to reimbursement
hereunder. If Executive resigns under this Section 6.2,
Executive shall also be entitled to receive:
(a) an amount in lieu of any
other cash compensation beyond that provided in the immediately
preceding sentence, which amount shall be equal to the sum
of:
(i) the actual bonus, if any,
he would have received in respect of the fiscal year in which his
resignation occurs, prorated by a fraction, the numerator of which
is the number of days in such fiscal year prior to the date of
Executive’s resignation and the denominator of which is 365,
payable at the same time as bonuses are paid to other
executives;
(ii) two times
Executive’s annual Base Salary; plus one times
Executive’s Target Bonus; payable in a lump sum within 30
days following such resignation of employment; provided that if
such resignation occurs within 90 days prior to calendar year end,
amount shall be payable on January 1 of the year following the
date of Executive’s resignation; and
(b) continued coverage for a
24-month period under any employee medical, health and life
insurance plans in accordance with the respective terms thereof
applicable to active employees (other than
the requirement of continued
employment); provided, however, that payments and benefits due
hereunder shall be reduced by any amounts owed by Executive to the
Company.
Good Reason
shall be defined as one or more of
the following conditions arising without the consent of Executive
and which has not been remedied by the Company within thirty (30)
days after receipt of the Notification: (i) a material
reduction in Executive’s Base Salary or the establishment of
or any amendment to the annual cash bonus plan which
