SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.10
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This Second Amendment (the “Second 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 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, as
amended;
WHEREAS, Company is currently undergoing a recapitalization and restructuring;
WHEREAS, all of the current management incentive shares held by Employee and all other
employees of the Company will be converted to common stock in a capital structure to be determined
at the sole discretion of the Board of Directors of the Company;
WHEREAS, the Company is undertaking efforts to launch and operate a United States motion
picture distribution company (hereafter, “US Distribution”); and
WHEREAS, the Company and Employee have agreed to further 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 reduced and deferred by an
amount equal to ten percent (10%) of the Base Compensation payable to Employee currently in effect
prior to the Effective Date. The amount of compensation Employee would have earned from and after
the Effective Date and continuing until the Company has achieved US Distribution, if ever, but for
the compensation reduction referred to in the immediately preceding sentence, shall hereafter be
referred to as the “10% Deferment.” Company agrees that no other employee shall reduce/defer less
than 10% of his or her base compensation in
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connection with the Company overhead reduction occurring as part of this Second Amendment.
2. Company agrees that provided Employee is then-currently employed with Company, Employee
shall be paid an amount equal to the 10% Deferment promptly following such time, if ever, that
Company actually receives the funding required as part of US Distribution. In connection
therewith, Company agrees that Employee shall be paid the aforementioned 10% Deferment no later
than when any other employee receives any part of his or her 10% Deferment (or greater deferment,
if applicable).
3. Beginning in the immediately succeeding pay period following the commencement of US
Distribution, if ever, and on a going-forward basis thereafter, if Employee is still employed with
Company, Employee’s Base Compensation shall be increased to an amount equal to the Base
Compensation payable to Employee currently in effect immediately prior to the Effective Date
(hereafter, “Salary Readjustment”).
4. Employee further agrees that in the event Employee is entitled to payment of a Bonus at any
time following the Effective Date until the occurrence of US Distribution, if ever, Employee and
Company agree that such Bonus will be deferred and payable, if at all per the terms of the
Employment Agreement, upon the occurrence of US Distribution, if ever.
5. 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. For purposes of
clarification, Company shall no longer have the right or option to extend the Employment Term for a
second two (2) year period.
6. The following sentence shall be added immediately following the end of Paragraph 5(a) of
the Employment Agreement:
“Notwithstanding anything to the contrary herein, but specifically excluding the Salary
Readjustment, Employee acknowledges that any and all increases to Employee’s Base Compensation as
provided herein, shall occur only upon the express consent of the Board of Directors of the
Company, in each instance, in its sole and absolute discretion.”
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7. To the extent the payment of any Bonus is guaranteed to Employee or otherwise mandated by
the terms of the Employment Agreement during the period following US Distribution, if ever,
Employee hereby agrees that the payment of such Bonus shall be at the discretion of the CEO and the
President & COO notwithstanding any “most favored nations” clause or similar language, or any other
provision in the Employment Agreement to the contrary.
8. Employee hereby surrenders, assigns and transfers back to Company all right, title and
interest Employee may have in any management incentive shares. Employee is hereby granted
seventy-two (72) Class M units. Said Class M Units shall be issued on a common equivalent basis to
Class B equity. Vesting procedures and all other terms to be negotiated in good faith with
Sandeman, Inc.
9. The parties expressly agree and acknowledge that all provisions of the Employment Agreement
except those amended by this Second Amendment shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties have duly executed this Second Amendment as of the date first
above written.
THE FILM DEPARTMENT
HOLDINGS, LLC
HOLDINGS, LLC
/s/ Xxxx Xxxx |
/s/ Xxxxx Xxxxxxx | |
By: Xxxx Xxxx
|
XXXXX XXXXXXX | |
Its: CEO |
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