EXHIBIT 10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
This Employment Agreement (this
“ Agreement ”) is made and entered into
as of September 14, 2008 (the “ Effective
Date ”), by and between Multimedia Games, Inc., a
Delaware corporation (the “ Company ”),
and Patrick Ramsey, 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.
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EMPLOYMENT TERMS AND DUTIES
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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 Senior Vice President and Chief Operating Officer
and shall report directly to the Company’s Chief Executive
Officer. 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
Chief Executive Officer. 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
1.3 Term . Subject to
the provisions of Section 1.6 below, the term of
employment of Executive under this Agreement shall commence on
September 14, 2008 (the “Start 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.
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 annual rate of $300,000.00 (the “
Base Salary ”), less statutory and other
authorized deductions and withholdings, payable in accordance with
the Company’s regular payroll practices. The Chief Executive
Officer will review the Base Salary annually.
1.4.2 Bonus .
Executive shall receive an annual bonus equal to 60% of
Executive’s then current Base Salary (the “
Target Bonus ”) upon achievement of bonus plan
performance targets then in effect as approved by the Chief
Executive Officer, which bonus may be as much as 100% 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. 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.
1.4.4 Temporary Commuting;
Relocation Expenses . 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 an apartment in Austin,
Texas, car rental, travel to and from Las Vegas, Nevada, and other
related and reasonable expenses. When Executive relocates to
Austin, Texas, the Company will pay for the reasonable moving
expenses of Executive. 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.
1.4.5 Relocation Expense
Reimbursement . To the extent that Executive’s
previous employer requires Executive to repay the previous employer
for the costs associated with Executive’s relocation (whether
through payment to or set off by Executive’s former employer
against payments owing to Executive), Company shall reimburse
Executive for the repayment of this expense in accordance to the
agreed upon payment or set off schedule with Executive’s
prior employer upon presentation of reasonable documentation
accounting for the repayment or set off .
1.5 Stock Grant and Stock
Option . Upon the Start Date, Executive will be granted one
or more options (collectively, the “ Option
”) to purchase 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 25% after one year, and will continue to
vest over three years in equal quarterly installments during each
of the following three 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 1.6.4, or (ii) Executive resigns for Good Reason
pursuant to Section 1.7.2, 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 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 ”):
1.6.1 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 Chief Executive Officer and confirmed by the opinion of an
independent medical physician (“ Disability
”) (termination pursuant to this Section 1.6.1
being referred to herein as termination for “ Death or
Disability ”); or
1.6.2 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 1.6.2 being
referred to herein as “ Voluntary ”
termination); or
1.6.3 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 Chief Executive
Officer: (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 Chief Executive Officer and failure of
Executive to improve such performance in the reasonable judgment of
the Chief Executive Officer following the 30-day period after
Executive is provided written notice of such unsatisfactory
performance. In the event that the Chief Executive Officer 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 Chief Executive Officer 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 Chief Executive Officer’s satisfaction prior to the
effectiveness of the termination; provided that the Chief Executive
Officer may instruct Executive to take a paid leave of absence
during such period.
1.6.4 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 1.6.4
being referred to herein as termination “ Without
Cause ”).
1.6.5 Other Remedies .
Termination pursuant to Section 1.6.3 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.
1.7 Severance and
Termination .
1.7.1 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 1.6.1 above, or Executive’s Voluntary
termination of employment hereunder in accordance with
Section 1.6.2 above, or a termination of
Executive’s employment hereunder for Cause in accordance with
Section 1.6.3 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.
1.7.2 Termination Without
Cause; Resignation for Good Reason . Subject to the
provisions set forth in Section 1.7.3 , in the case of
a termination of Executive’s employment hereunder Without
Cause in accordance with Section 1.6.4 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 before August 16, 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 August 16, 2009,
two years of Base Salary continuation (to be paid in accordance
with the Company’s normal payroll practices) and two years of
Target Bonus (Target Bonuses to be paid at the end of each fiscal
year within the time set forth in Section 1.4.2); and
(ii) if Executive elects to continue health coverage under the
Consolidated Omnibus Budget Reconciliation Act (“
COBRA ”), for a period up to one year after the
termination, the Company will pay Executive’s premiums, in an
amount sufficient to maintain the level of health benefits in
effect on Executive’s last day of employment. Further,
subject to the provisions set forth in Section 1.7.3 ,
in the event that there is a Change of Control and within one year
after the closing of the Change of Control, Executive is terminated
Without Cause or resigns for Good Reason, (i) the Company
shall pay Executive a lump sum equal to two years of Base Salary
continuation (to be paid in accordance with the Company’s
normal payroll practices) and two years of Target Bonus;
(ii) if Executive elects t