Exhibit 10.16.1
FIRST AMENDMENT
TO
EMPLOYMENT
AGREEMENT
This First Amendment to Employment
Agreement is entered into, among National CineMedia, Inc., a
Delaware corporation (the “ Company ” or “
NCM, Inc. ”), National CineMedia, LLC, a Delaware
limited liability company (“ NCM LLC ”), and
Gary W. Ferrera (the “ Executive ”) to be
effective as of January 1, 2009 (the “ Effective
Date ”), unless otherwise provided
RECITALS
A. The Executive currently serves as
the Executive Vice President and Chief Financial Officer of the
Company and the Company provides management services to NCM
LLC.
B. The terms of the
Executive’s employment are covered by an employment agreement
among the Executive, the Company and NCM LLC, effective
February 13, 2007 (the “ Agreement
”).
C. Section 409A of the Internal
Revenue Code of 1986, as amended (the “ Code ”)
requires a nonqualified deferred compensation plan to meet
specified design and operational requirements. The Agreement is
required to be amended for compliance with Section 409A of the
Code and the final Treasury Regulations thereunder (“
Section 409A ”).
D. The Executive, the Company and
NCM LLC desire to amend the Agreement for the purpose of bringing
the Agreement into compliance with the requirements of
Section 409A and to make technical changes to the
bonus-related provisions to comply with Section 162(m) of the
Code. The Agreement, as amended by this First Amendment, is
intended to comply with the requirements of Section 409A and
Section 162(m) of the Code.
AGREEMENT
In consideration of the mutual
promises contained in the Agreement and herein and for good and
valuable consideration, the receipt of which is mutually
acknowledged, the Executive, the Company, and NCM LLC agree as
follows:
1. Section 4 of the Agreement,
“Bonuses,” is hereby amended by adding a new
subsection (c) to read in its entirety as follows:
(c) Effective on and after
January 2, 2008, notwithstanding the foregoing, the amount,
time and form of payment of any bonus award to the Executive
hereunder shall be determined under the Company’s applicable
performance bonus plan.
2. Section 8 of the Agreement,
“Termination of Employment,” is hereby amended
by adding a new subsection (i) to read in its entirety as
follows:
(i) Section 409A; Time
and Form of Payments and Benefits . The parties intend that
each payment and benefit provided to the Executive upon his
termination of employment, shall be eligible for certain regulatory
exceptions to the limitations imposed on deferred compensation by
Section 409A or shall comply with the requirements of
Section 409A. The purpose of this subsection 8(i) is to amend
the Agreement to comply with, or be eligible for one or more
exceptions from, the requirements of Section 409A.
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(i)
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Time and
Form of Payment . Each
of the following amounts payable to the Executive under this
Agreement shall constitute a separate payment for purposes of
Section 409A:
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(1)
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The amount of
Base Salary payable pursuant to subsection 8(b)(i), and each
installment thereof, shall constitute a separate payment defined as
the “ Disability Payment .” The Disability
Payment shall be paid in equal installments on the same date that
the Company makes its normal payroll payments in accordance with
the Company’s payroll practices in effect for the Executive
on the Effective Date, provided, however, that if the six month
delay in payment required by subsection 8(i)(iii) hereof applies,
the installment payments for the first six months following the
date of separation from service shall be withheld and paid on the
first pay date that is more than six months following the date of
separation from service. The first installment payment of the
Disability Payment shall be made on the first pay date that is 60
days or more following the date of separation from service by the
Executive, provided that the Executive must execute and not revoke
a release of claims against the Company within such 60 day
period.
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(2)
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The amount of
Base Salary payable pursuant to subsections 8(d)(i) or 8(e), and
each installment thereof, shall constitute a separate payment
defined as the “ Severance Payment .” The
Severance Payment shall be paid in equal installments on the same
date that the Company makes its normal payroll payments in
accordance with the Company’s payroll practices in effect for
the Executive on the Effective Date, provided, however, that if the
six month delay in payment required by subsection 8(i)(iii) hereof
applies, the installment payments for the first six months
following the date of separation from service shall be withheld and
paid on the first pay date that is more than six months following
the date of separation from service. The first installment payment
of the Severance Payment shall be made on the first pay date that
is 60 days or more following the date of separation from service by
the Executive, provided that the Executive must execute and not
revoke a release of claims against the Company within such 60 day
period.
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2
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(3)
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Any incentive bonus payable to
the Executive pursuant to subsections 8(a)(ii), 8(b)(ii), 8(c)(ii),
8(d)(ii) or 8(e) shall be determined under the terms of the
applicable performance bonus plan in which he participates (the
“ Bonus Plan ”) and shall constitute a separate
payment defined as the “ Accrued Bonus .” The
Accrued Bonus shall be paid in a lump sum payment no later than the
15 th day of the third month following
the later of (A) the end of the Company’s taxable year
or (B) the end of the calendar year to which the performance
bonus relates, except as requir
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