THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.16
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This Third Amendment (the “Third Amendment”) to that certain Employment Agreement dated as of
June 27, 2007 (“Employment Agreement”), by and between Xxxxxx Xxxxx (“Employee”) and The Film
Department Holdings LLC, a Delaware limited liability company (the “Company”), is effective as of
July 16, 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”) and a further amendment thereto (“Second Amendment”);
WHEREAS, Company and Employee agree that Employee was induced to enter into the Second
Amendment upon the premise that Company would obtain sufficient equity capital to continue as a
going concern and enable it to finance and produce the motion picture “Earthbound” in the Fall of
2009 (“Going Concern Recapitalization”);
WHEREAS, Employee and Company acknowledge that the terms of the Second Amendment should not be
effective in the event that Company determines that the Going Concern Recapitalization will not
occur within a reasonable period of time following execution of the Second Amendment;
WHEREAS, Company and Employee wish to clarify therefore that the terms of the Second Amendment
shall be void and of no further force or effect in the event that Company determines that the Going
Concern Recapitalization will not occur; 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. Company and Employee agree that the terms of the Second Amendment shall be void ab initio,
and of no force or effect, immediately upon Company’s determination that the Going Concern
Recapitalization will not occur.
2. The reference in paragraph 8 of the Second Amendment to “Class M” is hereby replaced by
“Class H” in each place it appears.
3. The parties expressly agree and acknowledge that all provisions of the Employment Agreement
except those amended by this Third Amendment shall remain unchanged and in full force and effect.
3RD Amendment to Employment Agreement
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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 Third Amendment as of the date first
above written.
THE FILM DEPARTMENT HOLDINGS LLC
| /s/ Xxxx Xxxxxx |
/s/ Xxx Xxxxx |
|||
Its: President & COO |
3RD Amendment to Employment Agreement
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