EXHIBIT 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made and entered into
as of the 15th day of December, 2005, by and between Access Integrated
Technologies, Inc., a Delaware Corporation (the "Company"), and A. Xxxx Xxxx
(the "Employee").
WITNESSETH:
WHEREAS, the Employee is employed as President, Chief Executive Officer
and Chairman of the Board of Directors of the Company pursuant to an Employment
Agreement effective in December, 2000, as amended the ("Original Agreement");
and
WHEREAS, the Company and the Employee wish to extend his employment by
entering into an Amended and Restated Employment Agreement (the "Agreement"),
upon the terms and conditions set 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 continue to employ the Employee,
and the Employee agrees to continue to be employed by the Company, for the
period stated in Paragraph 3 hereof and upon the other terms and conditions
herein provided.
2. POSITION AND RESPONSIBILITIES. The Employee shall serve as
President, Chief Executive Officer and Chairman of the Board of Directors of the
Company. The Employee shall be responsible for such duties as are commensurate
with his office and as may from time to time be reasonably assigned to the
Employee by the Board, as the case may be.
3. TERM. The term of this Agreement shall be from the date first above
written though December 31, 2008; provided, however, that the Agreement shall
thereafter be automatically extended for successive one-year terms unless notice
shall be given in writing by either of the Company or Employee at least six
months prior to the end of such term (as it may be extended) that such party
desires to terminate this Agreement.
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 at the rate described in the Original
Agreement for the remainder of 2005, and at the rate of $600,000 per year
commencing January 1, 2006, subject to increase for calendar years after 2006 in
the discretion of the Compensation Committee of the Board. (b) BONUS. Employee
shall receive a guaranteed bonus of $240,000 per year, payable in equal monthly
installments. Any bonus over and above the guaranteed amount shall be in the
sole discretion of the Compensation Committee of the Board.
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(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 obligations under this Agreement.
(d) STOCK OPTION GRANT. Employee shall be granted 300,000 non-qualified
stock options under the First Amended and Restated 2000 Stock Option Plan of
Access Integrated Technologies, Inc. The options shall vest at the rate of 1/3
of the total number on each anniversary of the date of grant. The options shall
have an exercise price equal to 110% of the closing price of the Company's
common stock on the last trading day preceding the grant date. The grant date
shall be the date first above written. The grant will be subject to approval of
shareholders to the extent required by law.
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 pay for a long term care policy for the Employee
which provides a monthly benefit of $10,200, with home care covered at 100%. The
policy has a waiting period of 90 days and a benefit period of seven years;
(c) The Company will provide the Employee with an automobile allowance
of $16,560 annually.
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 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 paragraph 6, except for
the payment of salary and benefits earned prior to such termination.
(b) In the event that the Company terminates the Employee's employment
for reason(s) other than those set forth in Section 6(a) prior to expiration of
this Agreement under Paragraph 3 hereof, the Employee shall be entitled to
continue to receive his salary (including bonuses calculated as set forth in
Section 4 hereof) until the expiration of this Agreement under Paragraph 3
hereof. During such period, the Employee shall have a duty to seek other
employment, but shall not be required to accept any position other than a
position (i) as a senior executive officer with the same general
responsibilities that the Employee possessed at the Company at the time of the
Employee's termination from the Company and (ii) with a company equal or larger
in earnings and tangible net worth than the Company at the time of the
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Employee's termination. The Employee may, however, accept any full-time position
at any level and at any salary with any entity, profit or non-profit, and the
Employee, by accepting such employment, shall be conclusively deemed to have
fulfilled his duty to seek employment under this Section 6. The Company shall be
entitled to reduce the salary (including bonus) paid to the Employee during his
employment by another entity by an amount equal to the amount earned by the
Employee from any such Employment during such period. In the event that a
dispute shall arise as to this Section 6(b), (i) the Company shall continue to
pay the Employee's salary (including bonus) into an escrow account not under the
control of the Company and (ii) the Company shall pay the legal fees and
expenses incurred by the Employee in litigating any dispute under this Section 6
in the event that the Employee prevails in such dispute.
7. DISABILITY. If the Employee is completely disabled in the written
opinion of a physician mutually agreeable to the Employee (or his legal
representative) and the Company, or in the event that no such physician is
chosen, if the Employee is unable to perform his services on substantially a
full-time basis for a period in excess of six consecutive months or 180 days in
any one year period, the Company shall be entitled to reduce the salary
(including bonus) paid to the Employee by subtracting from such salary and bonus
(i) the salary of such person as is hired by the Company to perform the office
of President, Chief Executive Officer, and Chairman of the Board of Directors
and (ii) any amounts received by the Employee from any disability insurance
policy maintained by the Company in favor of the Employee; provided, however,
that in no event shall the salary (including bonus) paid to the Employee plus
any disability insurance proceeds actually paid to the Employee be less than the
minimum annual salary applicable in such year.
8. DEATH. The Employee's employment shall be terminated upon the
Employee's death; provided, however, that in such event the Company shall pay to
the Employee's estate an amount equal to the Employee's salary plus bonus for a
six-month period immediately following the Employee's death. Such payment may be
made in a lump sum immediately following such termination or may be paid over
the six-month period in accordance with the normal payroll practices of the
Company.
9. CONFIDENTIAL INFORMATION; NON-COMPETITION; ENFORCEABILITY.
(a) The Employee shall not at any time, whether before or after the
termination of this Agreement, divulge, furnish or make accessible to anyone
(other than in the ordinary course of the business of the Company or any
subsidiary thereof) any knowledge or information with respect to confidential or
secret designs, processes, formulae, plans, devices, material, or research or
development work of the Company or any subsidiary thereof, or with respect to
any other confidential or secret aspect of the business of the Company or any
subsidiary thereof.
(b) For a period of one year after the termination of this Agreement,
the Employee shall not, directly or indirectly, engage or become interested in
(as owner, stockholder, partner or otherwise) the operation of any business
similar to or in competition (direct or indirect) with the Company within a 50
mile radius of any colocation facility then owned and/or operated by the Company
or any of its subsidiaries. If any court construes the covenant in this Section
7 or any part thereof, to be unenforceable because of its duration or the area
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covered thereby, the court shall have the power to reduce the duration or area
to the extent necessary so that such provision is enforceable.
(c) The covenants set forth in this Section 9 shall be deemed separable
and the invalidity of any covenant shall not affect the validity or
enforceability of any other covenant. If any period of time or limitation of
geographical area stated in paragraph 9(b) is longer or greater than the maximum
period or geographical area permitted by law, then the period of time or
geographical area stated therein shall be deemed to be such maximum permissible
period of time or geographical area, as the case may be. All parties recognize
that the foregoing covenants are a prime consideration for the Company to enter
into this Agreement and that the Company's remedies at law for damages in the
event of any breach shall be inadequate. In the event that there is a breach of
any of the foregoing covenants, the Company, shall be entitled to institute and
prosecute proceedings in any court of competent jurisdiction to enforce specific
performance of any such covenants by the Employee or to enjoin the Employee from
performing acts in breach of any such covenant.
10. TAX WITHHOLDING. The Company shall withhold from any benefits
payable under this Agreement all federal, state, local or other taxes as shall
be required pursuant to any law or governmental regulation or ruling.
11. EFFECT OF PRIOR AGREEMENTS. This Agreement contains the entire
understanding between the parties hereto and supersedes any prior employment
agreement between the Company or any predecessor of the Company and the
Employee.
12. GENERAL PROVISIONS.
(a) NONASSIGNABILITY. Neither this Agreement nor any right or interest
hereunder shall be assignable by the Employee or his beneficiaries or legal
representatives without the Company's prior written consent; provided, however,
that nothing in this Paragraph 9(a) shall preclude (i) the Employee from
designating a beneficiary to receive any benefit payable hereunder following his
death, or (ii) the executors, administrators, or other legal representatives of
the Employee or his estate from assigning any rights hereunder to the person or
persons entitled thereto.
(b) NO ATTACHMENT. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to execution, attachment, levy, or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect.
(c) BINDING AGREEMENT. This Agreement shall be binding upon, and inure
to the benefit of, the Employee and the Company and their respective permitted
successors and assigns.
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13. MODIFICATION AND WAIVER.
(a) AMENDMENT OF AGREEMENT. This Agreement may not be modified or
amended except by an instrument in writing signed by the parties hereto, and
approved by a majority of the members of the Board of Directors who were not
nominated by Employee.
(b) WAIVER. No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
14. SEVERABILITY. If, for any reason, any provision of this Agreement
is held invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each such other provision shall to the full
extent consistent with law continue in full force and effect. If any provision
of this Agreement shall be held invalid in part, such invalidity shall in no way
affect the rest of such provision not held so invalid, and the rest of such
provision, together with all other provisions of this Agreement, shall to the
full extent consistent with law continue in full force and effect
15. HEADINGS. The headings of sections herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
16. GOVERNING LAW. This Agreement has been executed and delivered in
the State of New York, and its validity, interpretation, performance, and
enforcement shall be governed by the laws of said State other than the conflict
of laws provisions of such laws.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its officers thereunto duly authorized, and the Employee has signed
this Agreement, all as of the day and year first above written.
ACCESS INTEGRATED TECHNOLOGIES, INC.
By:/s/ Xxxx X. Xxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxx
Title: Senior Vice President -- Business Affairs,
General Counsel and Secretary
EMPLOYEE
/S/ A. XXXX XXXX
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A. Xxxx Xxxx
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