Employment Agreement [Amendment] - New Frontier Media Inc. and Ken Boenish
AMENDMENT TO
EMPLOYMENT AGREEMENT
BETWEEN
NEW FRONTIER MEDIA, INC.
AND
KEN BOENISH
(JULY 2007)
This Amendment to Employment Agreement is dated as of July 11, 2007
(this "Amendment") and amends the Employment Agreement dated as of April 1,
2003, as amended by all amendments thereto (collectively, the "Employment
Agreement"), between New Frontier Media, Inc. ("NFM") and Ken Boenish
("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 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-1(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 may be taken into account under a qualified plan pursuant
to Section 401(a)(17) 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.
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2. 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).
3. 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.
4. 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.
5. 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.
6. 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/ Michael Weiner /s/ Ken Boenish
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Name: Michael Weiner Ken Boenish
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Title: CEO
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