Exhibit 10.14.1
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
Kurt C. Hall (“ Executive ”) to be effective as
of January 1, 2009 (the “ Effective Date
”), unless otherwise provided.
RECITALS
A. Executive currently serves as the
President and Chief Executive Officer of the Company and the
Company provides management services to NCM LLC.
B. The terms of Executive’s
employment are covered by an employment agreement among 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. 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, Executive, the Company, and NCM LLC agree as
follows:
1. Section 3.2 of the
Agreement, “ Annual Bonus ,” is hereby amended
by adding the following sentence at the end to read in its entirety
as follows:
“Effective on and after
January 2, 2008, notwithstanding the foregoing, the amount,
time and form of payment of any bonus award to Executive hereunder
shall be determined under the Company’s applicable
performance bonus plan.”
2. Section 6 of the Agreement,
“ Termination of Employment ,” is hereby amended
by adding a new Section 6.7 to read in its entirety as
follows:
6.7 Section 409A; Time
and Form of Payments and Benefits . The parties intend that
each payment and benefit provided to 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 Section 6.7 is to amend
the Agreement to comply with, or be eligible for one or more
exceptions from, the requirements of Section 409A.
|
|
(a)
|
Time and
Form of Payment . Each
of the following amounts payable to Executive under this Agreement
shall constitute a separate payment for purposes of
Section 409A:
|
|
|
(i)
|
Any incentive bonus payable to
Executive pursuant to subsections 6.1(a)(i), 6.2(a)(i), 6.3(a)(i),
6.4(i) or 6.5(i) shall be determined under the terms of the
applicable performance bonus plan in which he participates (the
“ Bonus Plan ”), but prorated pursuant to this
Agreement and shall constitute a separate payment defined as the
“ Prorated Bonus .” The Prorated 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 required by
Section 6.7(c) hereof.
|
|
|
(ii)
|
The amount
payable to Executive (as determined, as applicable, in accordance
with subsection (iii) immediately below) pursuant to
subsections 6.1(a)(ii), 6.2(a)(ii) and 6.3(a)(ii), and each
installment thereof, shall constitute a separate payment defined as
the “ Salary Continuation Payment .” The Salary
Continuation 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
Executive on the Effective Date, provided, however, that if the six
month delay in payment required by subsection 6.7(c) 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 Salary Continuation Payment shall be made on the first pay
date that is 30 days or more following the date of separation from
service by Executive. Notwithstanding the preceding two sentences,
if Executive separates from service pursuant to Section 6.2
within two years following a Change of Control or within one year
following a Change of Control pursuant to Section 6.3, but in
each case only if such Change of Control also constitutes a
“change in control” event for purposes of Treasury
Regulation Section 1.409A-3(i)(5), Executive shall receive
payment of the Salary Continuation Payment in a cash lump sum
within 30 days following his separation from service, except as
required by subsection 6.7(c) hereof.
|
2
|
|
(iii)
|
In lieu of the
amounts otherwise payable to Executive pursuant to subsection
6.2(a)(ii), the Salary Continuation Payment shall be three times
his then current Base Salary or pursuant to subsection 6.3(a)(ii)
shall be four and one-half times his then current Bas
|
