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Exhibit
10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
This Employment Agreement
(this “ Agreement ”) is made and entered
into as of June 15, 2008 (the “ Effective
Date ”), by and between Multimedia Games, Inc., a
Delaware corporation (the “ Company
”), and Anthony Sanfilippo, an individual (“
Executive ”).
RECITALS
WHEREAS, the Company
desires to hire Executive and Executive desires to become employed
by the Company; and
WHEREAS, the Company
and Executive have determined that it is in their respective best
interests to enter into this Agreement to govern the employment
relationship on the terms and conditions set forth
herein.
AGREEMENT
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and promises
contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
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1. |
EMPLOYMENT TERMS AND DUTIES |
1.1
Employment . The Company hereby employs Executive,
and Executive hereby accepts employment by the Company, upon the
terms and conditions set forth in this Agreement.
1.2 Duties
. Executive shall serve as President and Chief Executive
Officer and shall report directly to the Company’s Board of
Directors (the “ Board of Directors ”).
Executive shall have the authority, and perform the duties
customarily associated with his titles and offices together with
such additional duties as may from time to time be assigned by the
Board of Directors. During the term of Executive’s employment
hereunder, Executive shall devote his full working time and efforts
to the performance of his duties and the furtherance of the
interests of the Company and shall not be otherwise employed or
engaged; provided, however, that, Executive may engage in personal
investing activities and, with prior approval of the Board of
Directors (which approval may subsequently be revoked by the Board
of Directors in its reasonable discretion): (i) Executive may
serve in any capacity Executive chooses with any boards of
charitable and not-for-profit organizations which serve community
interests, (ii) Executive may serve in an advisory and/or
board role with Wolf Creek Resort Properties, LLC;
(iii) Executive may serve on the boards of other for-profit
corporations and retain any compensation received as a result of
such service. While he remains an employee of the Company, the
Company will recommend that he be elected as a member of the Board
of Directors. Executive agrees to resign from the Board of
Directors immediately upon the termination of his employment for
any reason.
1.3 Term
. Subject to the provisions of Section 1.7 below,
the term of employment of Executive under this Agreement shall
commence on the Effective Date and shall continue until terminated
by either party (the “ Employment Term
”). Upon termination of this Agreement, this Agreement shall
expire and have no further effect, except as otherwise provided in
Section 5.5 below.
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1.4 Compensation
and Benefits .
1.4.1 Base
Salary . In consideration of the services rendered
to the Company hereunder by Executive and Executive’s
covenants hereunder and in the Company’s Agreement Regarding
Proprietary Developments, Confidential Information and
Non-Solicitation attached hereto as Exhibit A (the “
Proprietary Agreement ”), during the Employment
Term, the Company shall pay Executive a salary at the monthly rate
of $37,500.00 ($450,000.00 annualized) (the “ Base
Salary ”), less statutory and other authorized
deductions and withholdings, payable in accordance with the
Company’s regular payroll practices. The Board of Directors
or Compensation Committee will review the Base Salary
annually.
1.4.2 Bonus
. Executive shall receive an annual bonus equal to 150% of
Executive’s then current Base Salary (the “
Target Bonus ”) upon achievement of bonus plan
performance targets then in effect as approved by the Board of
Directors, which bonus may be as much as 300% of Executive’s
then current Base Salary for overachievement against said targets.
Any bonus payment shall be less statutory and other authorized
deductions and withholdings and payable at the times when other
management bonuses are paid; provided, however, that such Target
Bonus shall be paid before the latter of: (i) the 15th day of
the third calendar month following the calendar year that the
Target Bonus is earned; or (ii) the 15th day of the third
calendar month following the end of the fiscal year of the Company
that the Target Bonus is earned.
1.4.3 Benefits Package;
Vacation; Business Expenses . As an employee of the
Company, Executive will be eligible to enroll in the
Company’s benefit programs (including short and long term
disability plans and reasonable Directors’ and
Officers’ coverage) as they are established from time to time
for senior-level executive employees. In the event Executive is
unable, without impairing his existing health insurance, to
participate in the Company’s plans, the Company shall
reimburse Executive for the cost to purchase comparable coverage at
a benefit level consistent with other senior-level executive
employees. Executive shall be eligible for Company holidays and
paid vacation as set forth in the Company’s then current
policies for senior-level executive employees. Executive will
maintain his current health benefit plan for him and his family and
will not be accepting the Company’s plan at this time. In the
event Executive and/or his family are no longer covered by
Executive’s present health benefit plan, Executive and/or his
family would immediately become eligible for coverage under the
Company’s health benefit plan under the terms then applicable
to the Company’s other senior-level executive employees. The
Company will reimburse Executive for (i) the 20% co-pay owed
under his current medical plan and (ii) physical examinations
on an annual basis for Executive and his spouse. Upon receipt from
Executive of supporting receipts in accordance with the
Company’s reimbursement policies, the Company shall reimburse
Executive for all out-of-pocket business expenses reasonably
incurred by Executive in connection with his employment hereunder,
including reasonable travel to and from his home offices in
Germantown, Tennessee and Salt Lake City, Utah and Austin,
Texas.
1.4.4 Temporary
Commuting; Relocation Expenses . Executive’s
principal place of business shall be Austin, Texas, with home
offices in Germantown, Tennessee and Salt Lake City, Utah. For six
(6) months following the effective date of this Agreement,
Executive may commute to Austin, Texas. During such time, the
Company will pay or reimburse Executive for the reasonable costs of
a furnished executive apartment in Austin, Texas, car rental and
other related and reasonable expenses. When Executive relocates to
Austin, Texas, the Company will pay for the reasonable moving
expenses of Executive (excluding any costs associated with buying
or selling a home). Executive shall only be reimbursed for
commuting and relocation expenses upon receipt from Executive of
supporting receipts in accordance with the Company’s
reimbursement policies.
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1.5 Stock Grant
and Stock Option . Upon the Effective Date, Executive will
be granted one or more options (collectively, the “
Option ”) to purchase 1,300,000 shares of the
Company’s Common Stock. Such Option will be granted pursuant
to the Company’s 2008 Employment Inducement Award Plan (the
“ Plan ”). The exercise price for
the Option shall be equal to the fair market value of the
Company’s Common Stock on the date of grant of such Option.
The Option will be immediately exercisable, but the Option shares
initially will be unvested and will vest over four years in equal
quarterly installments during each of the four years. The Plan
documents shall provide that, in the event that, within one year
after a Change of Control, either (i) Executive is terminated
Without Cause pursuant to Section 1.7.4 , or
(ii) Executive resigns for Good Reason pursuant to
Section 1.8. 2, Executive shall acquire a vested
interest in, and the Company’s repurchase rights shall
terminate with respect to all unvested Option shares covered by the
Option. In the event Executive is terminated for any reason, then
such termination shall not affect in any manner Executive’s
right to receive or exercise the options which have vested as of
the date of termination pursuant to the provisions of this
Agreement. The terms of the Option will be as set forth in the Plan
documents. The Company will promptly prepare and file a
registration statement on Form S-8 with respect to the Plan, and
shall maintain the effectiveness of such registration statement
during the term of the Plan.
For purposes of this
Agreement, a “ Change of Control ” shall
mean: (a) the consummation of a merger, consolidation or
reorganization approved by the Company’s stockholders, unless
securities representing more than 50% of the total combined voting
power of the outstanding voting securities of the successor
corporation are immediately thereafter beneficially owned, directly
or indirectly and in substantially the same proportion, by the
persons who beneficially owned the Company’s outstanding
voting securities immediately prior to such transaction; or
(b) the sale, transfer or other disposition of all or
substantially all of the Company’s assets as an entirety or
substantially as an entirety to any person, entity or group of
persons acting in concert other than a sale, transfer or
disposition to an entity, at least 50% of the combined voting power
of the voting securities of which is owned by the Company or by
stockholders of the Company in substantially the same proportion as
their ownership of the Company immediately prior to such sale; or
(c) any transaction or series of related transactions within a
period of 12 months pursuant to which any person or any group of
persons comprising a “group” within the meaning of Rule
13d-5(b)(1) under the Securities Exchange Act of 1934, as amended
(other than the Company or a person that, prior to such transaction
or series of related transactions, directly or indirectly controls,
is controlled by or is under common control with, the Company)
acquires (other than directly from the Company) beneficial
ownership (within the meaning of Rule l3d-3 of the Securities
Exchange Act of 1934, as amended) of securities possessing more
than 35% of the total combined voting power of the Company’s
securities outstanding immediately after the consummation of such
transaction or series of related transactions.
1.6 Stock
Purchase . Executive hereby agrees to purchase 250,000
shares of the Company’s Common Stock pursuant to a Stock
Purchase Agreement in substantially the form attached hereto as
Exhibit B , effective contemporaneously with the execution
of this Agreement.
1.7
Termination . Executive’s employment and this
Agreement (except as otherwise provided hereunder) shall terminate
upon the occurrence of any of the following, at the time set forth
therefor (the time of any such termination being the “
Termination Date ”):
1.7.1 Death or
Disability . Immediately upon the death of Executive or in
the event that Executive has ceased to be able to perform the
essential functions of his duties, with or without reasonable
accommodation, for a period of not less than 180 days, due to a
mental or physical illness or incapacity; as determined in the good
faith judgment of the Board of Directors and confirmed by the
opinion of an independent medical physician (“
Disability ”) (termination pursuant to this
Section 1.7.1 being referred to herein as termination
for “ Death or Disability ”);
or
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1.7.2 Voluntary
Termination . Thirty days following Executive’s
written notice to the Company of termination of employment;
provided , however , that the Company may waive all
or a portion of the 30 days’ notice and accelerate the
effective date of such termination (and the Termination Date)
(termination pursuant to this Section 1.7.2 being
referred to herein as “ Voluntary ”
termination); or
1.7.3 Termination For
Cause . Immediately following notice of termination for
Cause given by the Company. As used herein, “
Cause ” means termination based on any one of
the following, as determined in good faith by the Board of
Directors: (i) any intentional act of misconduct or dishonesty
by Executive in the performance of his duties under the Agreement;
(ii) any willful failure or refusal by Executive to attend to
his duties under this Agreement; (iii) any material breach of
this Agreement; (iv) Executive’s conviction of or plea
of “guilty” or “no contest” to any crime
constituting a felony or a misdemeanor involving theft,
embezzlement, dishonesty, or moral turpitude; or
(v) Executive’s unsatisfactory performance of his duties
as determined by the Board of Directors and failure of Executive to
improve such performance in the reasonable judgment of the Board
following the 30-day period after Executive is provided written
notice of such unsatisfactory performance. In the event that the
Board of Directors believes that an event has occurred that would
constitute a termination for Cause pursuant to clauses (i),
(ii) or (iii), prior to terminating Executive, the Board of
Directors will notify Executive of such belief in writing,
including an explanation of the concern, and Executive will have 30
days to address the concern to the Board of Directors’
satisfaction prior to the effectiveness of the termination;
provided that the Board of Directors may instruct Executive to take
a paid leave of absence during such period.
1.7.4 Termination
Without Cause . Notwithstanding any other provisions
contained herein, including, but not limited to
Section 1.3 above, the Company may terminate
Executive’s employment following a thirty (30) day
written notice of termination without Cause given by the Company as
approved by the Board of Directors (termination pursuant to this
Section 1.7.4 being referred to herein as termination
“ Without Cause ”).
1.7.5 Other
Remedies . Termination pursuant to
Section 1.7.3 above shall be in addition to and without
prejudice to any other right or remedy to which the Company may be
entitled at law, in equity, or under this Agreement.
1.8 Severance and
Termination .
1.8.1 Voluntary
Termination, Termination for Cause, Termination for Death or
Disability . In the case of a termination of
Executive’s employment hereunder for Death or Disability in
accordance with Section 1.7.1 above, or
Executive’s Voluntary termination of employment hereunder in
accordance with Section 1.7.2 above, or a termination
of Executive’s employment hereunder for Cause in accordance
with Section 1.7.3 above, (i) Executive shall not
be entitled to receive payment of, and the Company shall have no
obligation to pay, any severance or similar compensation
attributable to such termination, other than Base Salary earned but
unpaid, accrued but unused vacation to the extent required by the
Company’s policies, vested benefits under any employee
benefit plan, and any unreimbursed expenses pursuant to
Section 1.4.3 or 1.4.4 hereof incurred by Executive as
of the Termination Date, and (ii) the Company’s other
obligations under this Agreement shall immediately
cease.
1.8.2 Termination
Without Cause; Resignation for Good Reason . Subject to the
provisions set forth in Section 1.8.3 , in the case of
a termination of Executive’s employment hereunder Without
Cause in accordance with Section 1.7.4 above, or
Executive’s resignation with Good Reason, the Company
(i) shall pay Executive (A) in the event that the
Termination takes place on or
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before June 15, 2009, one year of
Base Salary continuation (to be paid in accordance with the
Company’s normal payroll practices) and Target Bonus (Target
Bonus to be paid at the end of the fiscal year within the time set
forth in Section 1.4.2), subject to the tax withholding
specified in Section 1.4.1 above or (B) in the
event that the Termination takes place after June 15, 2009,
two years of Base Salary continuation (to be paid in accordance
with the Company’s normal payroll practice
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