FOURTH AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.12
FOURTH AMENDMENT TO EMPLOYMENT AGREEMENT
This Fourth Amendment (the “Fourth Amendment”) to that certain Employment Agreement dated as
of July 7, 2007 (“Employment Agreement”), by and between Xxxxx Xxxxxxx (“Employee”) and The Film
Department Holdings LLC, a Delaware limited liability company (the “Company”), is made as of as of
September 1, 2009 (the “Effective Date”), and is entered into by and between Company and Employee.
WHEREAS, Company and Employee have previously entered into the Employment Agreement, an
amendment thereto (“First Amendment”), a further amendment thereto (“Second Amendment”), and a
further amendment thereto (“Third Amendment”);
WHEREAS, Company is continuing its efforts to obtain sufficient equity capital to continue as
a going concern;
WHEREAS, Company has commenced negotiations with certain equity investors for the latter to
provide the aforesaid equity capital;
WHEREAS, in light of recent events, Company and Employee wish to clarify certain terms of
Employee’s employment and set forth those terms in this Fourth Amendment; and
WHEREAS, Company and Employee have agreed to amend specific terms of the Employment Agreement
in accordance with the terms set forth below. All capitalized terms not defined herein shall have
the meanings ascribed to such terms in the Employment Agreement.
NOW, THEREFORE, in consideration of the agreements made herein, the parties hereto agree as
follows:
1. As of the Effective Date, Employee’s Base Compensation shall be $243,000.
2. Notwithstanding anything to the contrary in the Employment Agreement, as amended (including
any “most favored nations” or other similar provisions), any increase in Employee’s Base
Compensation shall be at the sole and absolute discretion of the Chief Executive Officer and
President & Chief Operating Officer.
3. Notwithstanding anything to the contrary in the Employment Agreement, as amended (including
any “most favored nations” or other similar provisions), any bonus payable Employee shall be at the
sole and absolute discretion of the Chief Executive Officer and President & Chief Operating
Officer.
4. Notwithstanding anything to the contrary provided for in Paragraph 2 of the Employment
Agreement, the Employment Term, as defined therein, shall expire July 31, 2011 (“Expiration Date”),
without any option to extend further by either Company or
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Employee. For purposes of clarification, Company shall no longer have any right or option
whatsoever to extend the Employment Term beyond the Expiration Date.
This Employment Agreement is intended to comply with Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder
(collectively, “Code Section 409A”) and will be interpreted in a manner intended to comply with
Code Section 409A.
IN WITNESS WHEREOF, the parties have duly executed this Fourth Amendment as of the date first
above written.
THE FILM DEPARTMENT HOLDINGS LLC
| /s/ Xxxx Xxxxxx | /s/ Xxxxx Xxxxxxx | |
By: Xxxx Xxxxxx
|
XXXXX XXXXXXX | |
Its: President & COO |
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