This
Employment Agreement dated and effective as of June 5, 2009
(the “Agreement”), is made between
IMAX
CORPORATION
a corporation incorporated
under the laws of Canada
(hereinafter referred to as the “Company” )
GARY
MOSS
of the City of Etobicoke in the
Province of Ontario
(hereinafter referred to as the “Executive”)
WHEREAS , the Company wishes to enter into this Agreement to
engage the Executive to provide services to the Company, and the
Executive wishes to be so engaged, pursuant to the terms and
conditions hereinafter set forth;
AND WHEREAS the Executive is engaged to provide services to
the Company as its Chief Operating Officer;
NOW, THEREFORE , in consideration of the covenants and
agreements hereinafter set forth, the parties hereto agree as
follows:
1.1
Employment. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to serve, as Chief
Operating Officer of the Company, upon the terms and conditions
herein contained. The Executive’s primary responsibilities
shall be to organize and manage the operations generally of the
Company and to perform such other duties commensurate with his
position with the Company as are reasonably designated by the Chief
Executive Officer of the Company. The Executive agrees to serve the
Company faithfully and
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to the best of
his ability under the direction of the Chief Executive Officer of
the Company. The Executive shall report to the Chief Executive
Officer of the Company on all of his activities.
1.2 Exclusive
Services. Except as may otherwise be approved in advance by the
Chief Executive Officer of the Company, the Executive shall devote
his full working time throughout his employment herein) to the
services required of him hereunder. The Executive shall render his
services exclusively to the Company and its subsidiaries and
affiliates, and shall use his best efforts, judgment and energy to
improve and advance the business and interests of the Company in a
manner consistent with the duties of his position.
1.3 Term of
Employment. The Executive’s employment under this
Agreement shall commence on July 20, 2009 (the
“Commencement Date”) and shall terminate on the
termination of the Executive’s employment pursuant to this
Agreement. The period commencing as of the Commencement Date and
ending on the termination of the Executive’s employment under
this Agreement is hereinafter referred to as the “Employment
Term”.
1.4 Place of
Employment. During the Employment Term the Executive will be
based at the Company’s offices in Mississauga with regular
travel to the offices of the Company in New York, Los Angeles, and
other parts of the world, as required.
1.5
Reimbursement of Expenses. The Company shall reimburse the
Executive for reasonable travel and other business expenses
incurred by him in the fulfilment of his duties hereunder in
accordance with Company practices consistently applied.
2.1 Base
Salary. During his employment under this Agreement, the
Executive shall be paid a base salary (“Base Salary”)
of no less than Cdn $400,000 subject to annual review as part of
the Company’s performance review process. The Executive shall
be paid no less frequently than monthly in accordance with the
Company’s payroll practices.
2.2 Bonus .
In addition to the Base Salary, the Executive shall be entitled to
participate in the management bonus plan of the Company which
applies to senior executives of the Company. The Executive shall
participate in that plan on the basis that the target annual bonus
pool eligibility of the Executive shall be 50% of his Base Salary
(the “Target Bonus”) in any year, which will entitle
the Executive to earn a bonus, according to the terms of the bonus
plan, of up to 75% of his Base Salary. Notwithstanding the
foregoing, the bonus to be paid to the Executive in respect of 2009
shall be not less than 50% of the Target Bonus, prorated for 2009,
(the “Guaranteed Bonus”), which shall be paid at the
time bonuses are scheduled to be paid to other senior managers
participating in the plan, normally in March of the following year.
The Executive acknowledges that the said bonus plan may be changed
from time to time by the Company without notice to or any
requirement to obtain the consent of the Executive and without the
Executive having any claim against the Company with respect to any
changes thereto, including any claims of constructive dismissal.
Following any changes to the said plan,
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the Executive
will be given notice of the changes in the same manner as are other
executives of the Company of the Executive’s
stature.
2.3 Stock
Options . Effective as soon as is practicable after the
Commencement Date, the Executive shall be granted non-qualified
options (the “Options”) to purchase 75,000 shares of
common stock of the Company (the “Common Shares”), at
an exercise price per Common Share equal to the Fair Market Value,
as defined in the Company’s Stock Option Plan (the
“Option Plan”). The Options shall vest and become
exercisable according to the following schedule:
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On the first anniversary of the grant
date
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10
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%
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On the second anniversary of the grant
date
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15
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%
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On the third anniversary of the grant
date
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20
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%
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On the fourth anniversary of the grant
date
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25
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%
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On the fifth anniversary of the grant
date
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30
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%
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The Options
granted hereunder shall be subject to the terms and conditions of
the Option Plan and the stock option agreement to be entered into
between the Company and the Executive as of the applicable date of
grant pursuant to, and in accordance with, the terms of the Option
Plan.
3.1
General. The Executive shall, during his employment, receive
Executive benefits including vacation time, medical benefits,
disability and life insurance, all at least consistent with those
established by the Company for its other key executives at a level
commensurate with that of the Executive. Without limitation,
however, the Executive shall be entitled to the following
benefits:
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(i)
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four (4) weeks’ paid
vacation in each year of employment, increasing in accordance with
the Company’s vacation policy;
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(ii)
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such audio/visual, computer, fax,
cellular telephone and other like equipment as may be necessary in
connection with the performance of the Executive’s
responsibilities shall be made available to the Executive;
and
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(iii)
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a
monthly automobile allowance of Cdn$ 850.00, together with all
associated operating expenses.
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4. TERMINATION
OF EMPLOYMENT
Definitions. As used in this Article 4, the following
terms have the following meanings:
(a) “Termination
Payment” means each of the following amounts to the extent
that such amounts are due to be paid to and including the date upon
which the Executive’s employment is terminated (i) Base
Salary and automobile allowance, (ii) unreimbursed business
expenses as outlined in Section 1.5, (iii) any amounts to
be paid pursuant to the terms of any benefit plans of the Company
in which the Executive participates or pursuant to any policies of
the Company applicable to the Executive, and (iv) any
outstanding vacation pay calculated up to and including such
date.
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(b) “Without
Cause” means termination of the Executive’s employment
by the Company other than for Cause (as defined in
Section 4.2), death or disability (as set forth in
Section 5).
4.1 Termination
Without Cause
4.1.1
General. Subject to the provisions of Sections 4.1.2,
4.1.3 and 6, if, , the Executive’s employment is terminated
at any time by the Company Without Cause, the Company shall pay the
Termination Payment within thirty (30) days of the date of
termination and shall continue to pay the Executive the Base Salary
and automobile allowance for the remainder of the severance period,
which, for the first year of employment shall be equal to six
(6) months in duration, increasing by one (1) month for
each additional year of employment to a maximum of twenty (20)
months (such period being referred to hereinafter as the
“Severance Period”), either at such intervals as the
same would have been paid had the Executive remained in the active
service of the Company or, at the option of the Company, by
immediate payment to the Executive. Upon any termination, the
Executive shall also be entitled to continue to receive his
employment benefits referred to in Section 3.1, other than
disability and life insurance, at the Company’s expense (to
the extent paid for by the Company as at the date of termination)
and subject to the consent of the applicable insurers.
The Executive
agrees that the Company may deduct from any payment of Base Salary
to be made during the Severance Period the benefit plan
contributions which are to be made by the Executive during the
Severance Period in accordance with the terms of all benefit plans
for the minimum period prescribed by law. The Executive shall have
no further right to receive any other compensation or benefits
after such termination of employment except as are necessary under
the terms of the Executive benefit plans or programs of the Company
or as required by applicable law. Payment of the Termination
Payment, Base Salary and automobile allowance during the Severance
Period and the continuation of the aforementioned Executive
benefits during the Severance Period as outlined above shall be
deemed to include all termination and severance pay to which the
Executive is entitled pursuant to applicable statute law and common
law. The date of termination of employment Without Cause shall be
the date specified in a written notice of termination to the
Executive and does not include the Severance Period.
4.1.2 Fair and
Reasonable The parties confirm that notice and pay in lieu of
notice provisions contained in Subsection 4.1.1 are fair and
reasonable and the parties a
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