EXHIBIT 10.3
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT is made and entered into as of the 11 th day of
August 2009, by and between Access Integrated Technologies, Inc., a
Delaware Corporation (the "Company"), and Adam M. Mizel (the
"Employee").
WITNESSETH:
WHEREAS , the Company wishes to employ the Employee as
Chief Financial Officer and Chief Strategy Officer of the Company
pursuant to an Employment Agreement effective August 11, 2009 (the
“Agreement”), upon the terms and conditions set forth
below;
NOW,
THEREFORE , in
consideration of the mutual covenants and agreements set forth
herein, and intending to be legally bound hereby, the parties agree
as follows:
1.
Employment . The Company agrees to employ
the Employee, and the Employee agrees to be employed by the
Company, for the period stated in Section 3 hereof and upon the
other terms and conditions herein provided.
2.
Position and Responsibilities . The
Employee shall serve as Chief Financial Officer and Chief Strategy
Officer of the Company and Member of the Board of Directors of the
Company (the “Board”). The Employee shall be
responsible for such duties as are commensurate with his office and
shall report to the Chief Executive Officer of the Company, who
shall have the power to expand the Employee’s duties,
responsibilities and authority and, when considered necessary or in
the best interests of the Company, to override the Employee’s
decisions and actions, including, without limitation, the
Employee’s recommendations to the Board of
Directors.
3.
Term . The term of this Agreement shall
be from August 11, 2009 (the “Effective Date”) through
August 31, 2012.
4.
Compensation, Reimbursement of Expenses.
(a)
Salary . For all services rendered by the
Employee in any capacity during his employment under this
Agreement, including, without limitation, service as an executive,
officer, director, or member of any committee of the Company or of
any subsidiary, affiliate, or division thereof, the Company shall
pay the Employee as compensation a salary (“Base
Salary”) at the minimum rate of $375,000 per year commencing
with the Effective Date, subject to increase for subsequent years
in the sole discretion of the Compensation Committee of the
Board.
(b)
Bonus . Employee shall be eligible for a
bonus based on overall Company performance with goals to be
established by the Committee.
(c)
Reimbursement of Expenses . The Company
shall pay, or reimburse the Employee for, all reasonable travel,
entertainment and other expenses incurred by the Employee in the
performance of his duties under this Agreement.
(d)
Stock Option Grant . Employee shall be
granted 450,000 stock options under the Second Amended and Restated
2000 Stock Option Plan of Access Integrated Technologies, Inc. (the
“Stock Option Plan”). To the extent the
Company does not have a sufficient number of shares authorized, any
excess grant will be subject to sufficient shares becoming
available. These options will be non-statutory options
and will represent a three-year grant. The grant date
shall be the Effective Date (“Grant Date”) and the
options will have a duration of six years. The options
shall have an exercise price equal to $1.37 which
shall in no event be less than 100% of the closing price of the
Company’s common stock on the last trading day preceding the
Grant Date. The options shall vest on the earliest
to occur of the third anniversary of the Grant Date, the death of
Employee, or a Change in Control, or the provisions of paragraphs
(i) through (vii) below, provided the Employee remains an employee
of the Company through such
date. Furthermore:
(i) on the first anniversary of the
Grant Date, one-third of the options will vest if shares of the
Company have traded at $2.75 or more for at least ten consecutive
trading days during the first year of this Agreement;
(ii) on the first anniversary of the
Grant Date, two-thirds of the options will vest if shares of the
Company have traded at $3.75 or more for at least ten consecutive
trading days during the first year of this
Agreement;
(iii) on the first anniversary of the
Grant Date, all of the options will vest if shares of the Company
have traded at $5.00 or more for at least ten consecutive trading
days during the first year of this
Agreement;
(iv) on the second anniversary of the
Grant Date, one-third of the options which have not previously
vested under (i) or (ii) will vest if shares of the Company have
traded at $2.75 or more for at least ten consecutive trading days
during the first two years of this Agreement;
(v) on the second anniversary of the
Grant Date, two-thirds of the options which have not previously
vested under (i) or (ii) will vest if shares of the Company have
traded at $3.75 or more for at least ten consecutive trading days
during the first two years of this Agreement; and
(vi) on the second anniversary of the
Grant Date, all of the options which have not previously vested
under (i) or (ii) will vest if shares of the Company have traded at
$5.00 or more for at least ten consecutive trading days during the
second year of this Agreement.
(vii) To the extent the Company
terminates Employee’s employment other than for reasons set
forth in Section 6(a), or Employee resigns for Good Reason (as
defined
in the last
paragraph of Section 6), prior to the forfeiture of his
stock options pursuant to paragraph (viii), all non-vested options
shall immediately vest. In addition, to the extent
Employee resigns other than for Good Reason, but absent any of the
reasons set forth in Section 6(a), (I) any stock options that would
have vested as of the next following anniversary of the Grant Date
pursuant to paragraphs (i)-(vi) of this Section 4(d), shall vest as
of Employee’s termination date, and (II) to the extent the
Employee has been employed by the Company for at least 12 months
from the Grant Date, then as of his termination date, Employee
shall be vested in 150,000 of the stock options granted under this
Section 4(d) (“Termination Vested Options”),
provided, however, that the number of Termination Vested
Options shall be reduced by the number of options otherwise vested
under this Section 4(d) (including subparagraph (II) of this
paragraph (vii)).
(viii) Except as otherwise provided
in this Section 4(d), upon Employee’s termination of
employment, any non-vested stock options shall be
forfeited.
5.
Participation in Benefit Plans . Employee
will be entitled to participate in all benefit plans provided to
senior executives of the Company; provided that:
(a)
The Company will pay the full cost of medical and dental coverage
for the Employee and his eligible dependents;
(b) The
Company will provide the Employee with an automobile allowance of
$12,000 annually adjusted for increases in the consumer price
index;
6.
Termination . (a) The Company shall have
the right to terminate this Agreement prior to the expiration of
the term set forth in Section 3 only upon the conviction in a
recognized court of law in the United States of Employee of theft
or embezzlement of money or property, fraud, unauthorized
appropriation of any tangible or intangible assets or property or
any other felony involving dishonesty or moral
turpitude. The Company shall have no obligations to the
Employee for any period subsequent to the effective date of any
termination of this Agreement pursuant to this Section 6, except
for the payment of salary and benefits earned prior to such
termination.
(b) &
