Exhibit 10.02
AMENDMENT TO
EMPLOYMENT AGREEMENT
BETWEEN
NEW FRONTIER MEDIA, INC.
AND
XXXXXXX XXXXXX
(JULY 2007)
This Amendment to Employment Agreement is dated as of July 11, 2007
(this "Amendment") and amends the Employment Agreement dated as of February 17,
2003, as amended by all amendments thereto (collectively, the "Employment
Agreement"), between New Frontier Media, Inc. ("NFM") and Xxxxxxx Xxxxxx
("Executive"). Unless otherwise defined in herein, all capitalized terms used
herein shall have the meaning ascribed to them in the Employment Agreement.
Recitals
Executive and NFM have agreed to amend the Employment Agreement as set
forth in this Amendment.
Agreement
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, including Executive's continued employment with NFM, the
receipt and sufficiency of which are hereby acknowledged, Executive and NFM
hereby agree as follows:
1. Section 2(B)(ii) of the Employment Agreement is amended and restated
in its entirety to read as set forth below:
(ii) Bonus.
(a) Bonus based on objective criteria: In addition to
Executive's Base Salary, Executive shall be entitled to annual bonuses
for the fiscal years ending March 31, 2008 and March 31, 2009, in
amounts to be determined based on performance criteria established by
the NFM compensation committee of the Board of Directors (the
"Committee") in its sole discretion. The performance criteria for each
fiscal year covered by this Agreement shall be set by the Committee to
the extent reasonably practicable within 60 days of the commencement of
such fiscal year and in any event no later than 75 days after the
commencement of such fiscal year and shall be set in accordance with
the following process: After the Committee receives a budget for such
fiscal year, the Committee shall provide to Executive proposed
performance criteria for Executive's comments. Following receipt of the
proposed performance criteria,
1
Executive shall have two weeks to provide to the Committee Executive's
comments concerning the proposed performance criteria. The Committee
shall consider Executive's comments and shall thereafter provide to
Executive the final performance criteria as set by the Committee for
such fiscal year.
The bonus based on objective criteria shall be in an amount up
to, but no greater than, an amount equal to one-third of Executive's
Base Salary for the applicable fiscal year then ending.
(b) Discretionary bonus: In addition to Executive's Base
Salary and any bonus based on objective criteria, the Committee may, in
its sole discretion, award to Executive additional annual bonus(es).
Any discretionary bonus shall be shall be set by the Committee in an
amount up to, but no greater than, an amount equal to two-thirds of
Executive's Base Salary for the applicable fiscal year then ending.
(c) All bonuses payable to Executive pursuant to subsections
(a) and (b), above, shall be paid within two and one-half (2 1/2)
months of the end of the fiscal year for which they are awarded. No
discretionary bonus shall be payable to Executive in connection with a
fiscal year if Executive's employment terminates for Cause prior to the
end of the fiscal year. Discretionary bonuses following termination
prior to the end of the fiscal year for reasons other than Cause may be
paid depending upon the exercise of Committee discretion pursuant to
Section 2(B)(ii)(b) above. No bonus based on objective criteria shall
be payable to Executive if Executive's employment terminates for Cause
prior to the achievement of the performance criteria set by the
Committee. In the event of a termination for reasons other than Cause
in the last quarter of a fiscal year, bonuses based on objective
criteria shall be prorated based upon the number of months worked in
the fiscal year if Executive has achieved, or is on track to achieve,
the applicable criteria.
2. Section 4 of the Employment Agreement is amended by inserting a new
subsection (F) at the end thereof to read in its entirety as set forth below:
(F) If Executive is a "specified employee" within the meaning
of Section 1.409A-l(i) of the Treasury Regulations promulgated under
the Internal Revenue Code of 1986, as amended (the "Code"), as of the
Date of Termination, then payments to Executive hereunder shall not be
made before the date that is six months after the Date of Termination
(or if earlier, the date of death of Executive); provided, however,
that during such six-month period, NFM shall make any and all payments
contemplated hereunder to the extent such payments do not exceed two
times the lesser of (i) Executive's annualized compensation, based upon
the annual rate of compensation for the calendar year preceding the
year in which the Date of Termination occurs, or (ii) the maximum
amount that
2
may be taken into account under a qualified plan pursuant to Section
401(a)(l 7) of the Code for the year in which the Date of Termination
occurs; and provided further that any amounts deferred hereunder shall
be paid in a lump-sum amount at the expiration of such six-month
period.
3. Section 5(A)(iii) of the Employment Agreement is amended by
inserting immediately prior to the period at the end thereof the following
clause:
to an unrelated party (as contemplated by Section 1
.409A-3(i)(5)(vii)(3) of the Treasury Regulations promulgated under the
Code).
4. All other terms and conditions of the Employment Agreement shall
remain in full force and effect. This Amendment, together with the Employment
Agreement, contains all the terms and conditions agreed upon by the parties
hereto regarding the subject matter hereof and thereof. All prior agreements,
promises, negotiations and representations, either oral or written, relating to
the subject matter of this Amendment or the Employment Agreement not expressly
set forth in this Amendment or the Employment Agreement are of no force or
effect.
5. Any waiver, alteration or modification of any of the terms of this
Amendment or the Employment Agreement shall be valid only if made in writing and
signed by the parties hereto.
6. This Amendment shall be governed by and construed in accordance with
the internal laws of the State of Colorado applicable to agreements made and to
be performed entirely within the State, without regard to conflict of law
principles.
7. This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
NEW FRONTIER MEDIA INC. EXECUTIVE
By: /s/ Xxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
----------------- ------------------
Name: Xxxxx X. Xxxxxx Xxxxxxx Xxxxxx
---------------
Title: CFO
--------------
