Exhibit 10.2


 


THIS AGREEMENT IS SUBJECT TO ARBITRATION


 


	
  STATE OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY OF DALLAS

  	
  §

  



 


AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”)
is made and entered into as of the 31st day
of December, 2008, but effective as of December 31, 2008, by and between
DG FastChannel, Inc., a Delaware corporation (the “Corporation”),
and Neil Nguyen (the “Employee”).


 


WHEREAS, the Corporation and Employee are parties to an Amended and
Restated Employment Agreement (the “Prior Agreement”) made and entered
into as of the 30th day of August, 2006 and effective as of July 1,
2006, which sets forth the terms and conditions of Employee’s employment with
the Corporation; and


 


WHEREAS, the Corporation and Employee desire to further amend and
restate the Prior Agreement on the terms and conditions as set forth herein;


 


NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants and promises hereinafter contained, do hereby agree as follows:


 


1.            
Employment.  The Corporation hereby employs Employee in the
capacity of Executive Vice President — Sales and Operations, or in
such other position of the same or greater stature as the Corporation may
direct or desire, and Employee hereby accepts the employment, on the terms and
subject to the conditions hereinafter set forth.


 


2.            
Duties.  The Employee’s principal duties and responsibilities shall
be to manage the Corporation’s sales and operations personnel or such other
duties consistent with his position reasonably assigned to Employee from time
to time by the Chief Executive Officer.  Employee agrees to perform such
services and duties and hold such offices as may be reasonably assigned to him
from time to time by the Corporation, consistent with his position, and to
devote substantially his full time, energies and best efforts to the
performance thereof to the exclusion of all other business activities, except
any other activities as the Corporation may consent to in writing.  As the
Corporation’s Executive Vice President — Sales and Operations, all
operation and sales personnel shall report to Employee.


 


3.            
Term.  The term of employment hereunder shall begin on the
effective date hereof and continue until December 31, 2011 unless earlier
terminated as herein provided.


 


4.            
Salary and Other Compensation.  As compensation for the services to
be rendered by the Employee to the Corporation pursuant to this Agreement, the
Employee shall be paid the following compensation and other benefits:


 

















 


(a)          
Base Salary.  $335,000 for the twelve months ending December 31,
2009, $345,000 for the twelve months ending December 31, 2010 and $355,000
for the twelve months ending December 31, 2011, each payable in equal bi-weekly
installments or in accordance with the Corporation’s then standard practices,
or such higher compensation as may be established by the Corporation from time
to time (“Base Salary”).  Any increase in Base Salary shall
automatically amend this Agreement to provide thereafter that Employee’s Base
Salary shall not be less then the annual amount to which the Base Salary has
been increased.  If the Employee, during any period of Partial Disability,
receives any periodic payments representing lost compensation under any health
and accident policy or under any salary continuation insurance policy, the
premiums for which have been paid by the Corporation, the amount of salary that
the Employee would be entitled to receive from the Corporation during the Partial
Disability shall be decreased by the amounts of such payments.  “Partially
Disabled,” for purposes of this subsection, means the inability because of any
physical or emotional illness to perform his assigned duties under this
Agreement for forty (40) hours per week.


 


(b)          
Bonus.  Employee shall be eligible to receive an annual bonus in an
amount up to $140,000 per year, with the criteria upon which any bonus would be
awarded to be determined in the sole discretion of the Compensation Committee (or
other applicable committee) of the Board of Directors (the “Compensation
Committee”) based in part on revenue and EBITDA goals. Any annual bonus
that becomes payable pursuant to this Section 4(b) shall be paid
between January 1 and March 15th of the year following the year for
which such annual bonus was earned; provided, however, in no event will the
bonus be paid after December 31 of the year following the year for which
such annual bonus was earned.


 


(c)          
Stock Options.  The Employee will be awarded a stock option
covering 200,000 shares of the Corporation’s common stock, under the
Corporation’s stock incentive plan, at an exercise price equal to the fair
market value of the Corporation’s common stock on the grant date, as determined
by the Compensation Committee.  In
addition, the Employee may receive additional awards under such stock incentive
plan as the Compensation Committee may determine from time to time, subject to
any limitation as may be provided by applicable law or regulation or the terms
of the stock incentive plan.  All
outstanding stock options held by or on behalf of the Employee shall become
fully vested and exercisable upon the occurrence of a change in control of the
Corporation (as defined in the applicable stock option agreement or related
plan document).


 


(d)          
Car Allowance.  The Corporation shall pay to the Employee a car
allowance in an amount equal to $500 per month, in arrears, during the
Employment Term payable pursuant to the Corporation’s customary payroll practices.


 


(e)          
Employee Benefit Plans. The Employee shall be eligible to participate,
to the extent he may be eligible, in any profit sharing, retirement, insurance
or other employee benefit plan maintained by the Corporation.


 

















 


5.            
Life and Health Insurance.  The Corporation, in its discretion, may
apply for and procure in its own name and for its own benefit, life insurance
on the life of the Employee in any amount or amounts considered advisable by
the Corporation, and the Employee shall submit to any medical or other
examination and execute and deliver any application or other instrument in
writing, reasonably necessary to effectuate such insurance.  The
Corporation shall provide health insurance, including major medical coverage, for
the Employee, as described in the “DG Medical Options” schedule, a copy of
which has been provided to the Employee, which schedule may be modified from
time to time in the discretion of the Corporation.  The Corporation shall
be obligated to bear the expenses of the coverage contemplated by the previous
sentence, to the extent provided in such schedule.


 


6.            
Expenses.  The Corporation shall pay, or reimburse the Employee,
for the reasonable and necessary business expenses of the Employee.


 


7.            
Vacations and Leave.  The Employee shall be entitled to four (4) weeks
paid vacation per year to
be accrued in accordance with the Corporation’s vacation policy in effect from
time to time.


 


8.            
Non-Disclosure of Confidential Information.  The Employee
acknowledges that in and as a result of his employment by the Corporation, he
will be making use of, acquiring, and/or adding to confidential information of
a special and unique nature and value relating to such matters as the Corporation’s
patents, copyrights, proprietary information, trade secrets, systems,
procedures, manuals, confidential reports, and lists of customers (which are
deemed for all purposes confidential and proprietary), as well as the nature
and type of services rendered by the Corporation, the equipment and methods
used and preferred by the Corporation’s customers, and the fees paid by
them.  As a material inducement to the Corporation to enter into this
Agreement and to pay to Employee the compensation stated in Section 4,
Employee covenants and agrees that he shall not, at any time during or for
three (3) years following the term of his employment, directly or
indirectly divulge or disclose for any purpose whatsoever any confidential
information that has been obtained by, or disclosed to, him as a result of his
employment by the Corporation.


 


9.            
Reasonableness of Restrictions


 


(a)          
The Employee has carefully read and considered the provisions of Section 8,
and, having done so, agrees that the restrictions set forth in that Section are
fair and reasonable and are reasonably required for the protection of the
interests of the Corporation and its parent or subsidiary corporations,
officers, directors, shareholders, and other Employees.


 


(b)          
In the event that, notwithstanding the foregoing, any of the provisions of Section 8
shall be held to be invalid or unenforceable, the remaining provisions thereof
shall nevertheless continue to be valid and enforceable as though the invalid
or unenforceable parts had not been included therein.  In the event that
any provision of Section 8 shall be declared by a court of competent
jurisdiction to exceed the maximum restrictiveness such court deems reasonable
and enforceable, the time period and/or areas of restriction and/or related
aspects deemed reasonable and enforceable by the court shall


 

















 


become and thereafter be the maximum
restriction in such regard, and the restriction shall remain enforceable to the
fullest extent deemed reasonable by such court.


 


10.           Remedies
for Breach of Employee’s Covenants of Non-Disclosure.  In the event of
a breach or threatened breach of any of the covenants in Section 8, the
Corporation shall have the right to seek monetary damages for any past breach
and equitable relief, including specific performance by means of an injunction
against the Employee or against the Employee’s partners, agents,
representatives, servants, employers, employees, family members and/or any and
all persons acting directly or indirectly by or with him, to prevent or
restrain any such breach.


 


11.           Termination. 
Employment of the Employee under this Agreement may be terminated:


 


(a)          
By the Employee’s death.


 


(b)          
If the Employee is Totally Disabled.  For the purposes of this Agreement,
the Employee will be totally disabled if he is “totally disabled” as defined in
and for the period necessary to qualify for benefits under any disability
income insurance policy and any replacement policy or policies covering Employee
and the Employee has been declared to be totally disabled by the insurer for a
period of three (3) consecutive months.  At a minimum, “totally
disabled” shall mean that employee is unable to perform substantially all of
his current duties for a continuous period of three (3) consecutive
months, subject to compliance with all applicable state and federal laws
relating to any requirement the Corporation may have to accommodate any such
disability.


 


(c)          
By mutual agreement of the Employee and the Corporation.


 


(d)          
By the dissolution and liquidation of the Corporation (other than as part of a
reorganization, merger, consolidation or sale of all or substantially all of
the assets of the Corporation whereby the business of the Corporation is
continued).


 


(e)          
By the Corporation for Just Cause.  This Agreement and the Employee’s
employment with the Corporation may be terminated for Just Cause at any time in
accordance with Section 11(f).  For purposes of this Agreement “Just
Cause” shall mean only the following:  (i) habitual neglect of his
material duties or failure to perform his material obligations under this
Agreement, (ii) refusal or failure to follow lawful directives of the
Board, (iii) commission of an act of fraud, theft, or embezzlement, or (iv) conviction
of a felony or other crime involving moral turpitude; provided, however,
that Employee shall have thirty (30) days after written notice from the
Corporation or its Board of Directors to remedy any actions alleged under subsection
(i) or (ii) in the manner reasonably specified by the Board of
Directors (or Compensation Committee thereof).  Should the Employee
dispute whether he was terminated for Just Cause, then the Corporation and the
Employee shall enter immediately into binding arbitration pursuant to the
Commercial Arbitration Rules of the American Arbitration Association, the
cost of which shall be borne by the non-prevailing party.


 

















 


(f)          
Notice of Termination.  Any purported termination of the Employee’s employment
by the Corporation for Just Cause shall be communicated by a written Notice of
Termination to the Employee.  Such notice shall recite the facts and
circumstances claimed to provide the basis for such termination and specify the
Date of Termination. As used in this Agreement, “Date of Termination” shall
mean the date specified in the Notice of Termination, which date shall not be
less than thirty (30) nor more than sixty (60) days from the date the Notice of
Termination is given.  If within thirty (30) days from the date the Notice
of Termination is given, the Employee notifies the Corporation that a dispute
exists concerning such termination, the Date of Termination shall be the date
on which the dispute is finally resolved.  The Date of Termination shall
be extended by a notice of dispute only if such notice is given in good faith
and the Employee pursues the resolution of such dispute by entering immediately
into binding arbitration pursuant to the Commercial Arbitration Rules of
the American Arbitration Association, the cost of which shall be borne by the
non-prevailing party, except as otherwise required by law.


 


(g)          
By Employee for Good Reason.  This Agreement and the Employee’s
employment with the Corporation may be terminated for Good Reason at any time
within ninety (90) days of the occurrence of Good Reason.  For purposes of
this Agreement “Good Reason” shall mean only the following:  (i) the
relocation of the Corporation’s principal executive offices to a location more
than twenty (20) miles from the Corporation’s then current offices or the
transfer of the Employee to a place other than the Corporation’s principal
executive offices (excepting reasonable travel on the Corporation’s business), (ii) the
Corporation breaches any material provision of this Agreement, or (iii) a
material reduction in the Employee’s authority, duties or responsibility or the
assignment of responsibilities to the Employee materially inconsistent with his
current title of “Executive Vice President.” 
Notwithstanding the foregoing, the Employee may not terminate his
employment for Good Reason unless he provides the Corporation with at least 30
days prior written notice of his intention to resign for Good Reason and the
Corporation has not remedied the alleged violation(s) within such 30-day
period (which 30 days shall not count against the 90 day period above) and the
Employee may not terminate his employment for Good Reason if the Corporation
assigns the responsibility for the Corporation’s operations to a person other
than the Employee.


 


(h)          
At the end of the term provided in Section 3 above.


 


12.           Payments
Upon Termination.  In the event Employee’s employment is terminated by
the Corporation except for any reason covered by Sections 11(a) through 11(e) hereof,
or Employee terminates his employment for Good Reason, the Corporation shall (a) pay
to Employee the higher of (i) his Base Salary (and payment for accrued but
unused vacation) otherwise payable to Employee through the term of this Agreement
provided in Section 3 above or (ii) one year of Employee’s then
annual Base Salary, in either case payable in equal bi-weekly installments or
in accordance with the Corporation’s then standard practices.  If the
Employee is terminated by the Corporation for any reason covered by Sections 11(a) through
11(e) hereof, or the Employee terminates his employment without Good
Reason, the Employee shall be entitled


 

















 


to all
arrearages of salary, expenses and accrued but unused vacation, as of the Date
of Termination, but shall not be entitled to further compensation.


 


13.           Indemnification. 
The Corporation shall pay for legal counsel of the Corporation’s choosing to
defend and also shall fully indemnify Employee in connection with any claim,
dispute or action arising from Employee terminating his current employment
relationship and entering into the relationship with the Corporation
contemplated by this Agreement.


 


14.           Other
Termination Provisions.


 


(a)                                  Separation from Service.  Notwithstanding anything to the contrary in this
Agreement, with respect to any amounts payable to the Employee under Section 12
of this Agreement in connection with a termination of the Employee’s
employment, in no event shall a termination of employment occur under this Agreement unless such termination
constitutes a Separation from Service. 
For purposes of this Agreement, a Separation from Service shall mean the
Employee’s “separation from service” with the Corporation as such term is
defined in Treasury Regulation Section 1.409A-1(h) and any successor
provision thereto.


 


(b)                                 Section 409A Compliance. 
Notwithstanding anything contained in this Agreement to the Contrary, to
the maximum extent permitted by applicable law, amounts payable to the Employee
pursuant to Section 12 shall be made in reliance upon Treasury Regulation Section 1.409A-1(b)(9) (Separation
Pay Plans) or Treasury Regulation Section 1.409A-1(b)(4) (Short-Term
Deferrals).  However, to the extent any
such payments are treated as non-qualified deferred compensation subject to Section 409A
of  the Code, then if Employee is deemed
at the time of his Separation from Service to be a “specified employee” for
purposes of Section 409A(a)(2)(B)(i) of the Code, then to the extent
delayed commencement of any portion of the benefits to which Employee is
entitled under this Agreement is required in order to avoid a prohibited
distribution under Section 409A(a)(2)(B)(i) of the Code, such portion
of Employee’s termination benefits shall not be provided to Employee prior to
the earlier of (i) the expiration of the six-month period measured from
the date of the Employee’s Separation from Service or (ii) the date of
Employee’s death.  Upon the earlier of
such dates, all payments deferred pursuant to this Section 14(b) shall
be paid in a lump sum to Employee.  The
determination of whether the Employee is a “specified employee” for purposes of
Section 409A(a)(2)(B)(i) of the Code as of the time of his Separation
from Service shall made by the Corporation in accordance with the terms of Section 409A
of the Code and applicable guidance thereunder (including without limitation
Treasury Regulation Section 1.409A-1(i) and any successor provision
thereto).


 


(c)                                  Resignation Upon Termination.  In the event of termination of this
Agreement other than for death, the Employee hereby agrees to resign from all
positions held in the Corporation, including without limitations any position
as a director, officer, agent, trustee or consultant of the Corporation or any affiliate of the
Corporation.


 


15.           Waiver. 
A party’s failure to insist on compliance or enforcement of any provision of
this Agreement, shall not affect the validity or enforceability or constitute a
waiver of future enforcement of that provision or of any other provision of
this Agreement by that party or any other party.


 

















 


16.           Governing
Law.  This Agreement shall in all respects be subject to, and governed
by, the laws of the State of California.


 


17.           Severability. 
The invalidity or unenforceability of any provision in the Agreement shall not
in any way affect the validity or enforceability of any other provision and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision had never been in the Agreement.


 


18.           Notice. 
Any and all notices required or permitted herein shall be deemed delivered if
delivered personally or if mailed by registered or certified mail to the
Corporation at its principal place of business and to the Employee at the
address hereinafter set forth following the Employee’s signature, or at such
other address or addresses as either party may hereafter designate in writing
to the other.


 


19.           Assignment. 
This Agreement, together with any amendments hereto, shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors, assigns, heirs and personal representatives, except that the rights
and benefits of either of the parties under this Agreement may not be assigned
without the prior written consent of the other party.


 


20.           Amendments. 
This Agreement may be amended at any time by mutual consent of the parties
hereto, with any such amendment to be invalid unless in writing, signed by the
Corporation and the Employee.


 


21.           Entire
Agreement.  This Agreement amends and restates in its entirety the
terms and conditions of Employee’s employment with the Corporation,
notwithstanding the terms and conditions of any previous employment agreement
between the Corporation and Employee, including the Prior Agreement.  This
Agreement, along with the Corporation handbook to the extent it does not
specifically conflict with any provision of this Agreement, contains the entire
agreement and understanding by and between the Employee and the Corporation
with respect to the employment of the Employee, and no representations,
promises, agreements, or understandings, written or oral, relating to the
employment of the Employee by the Corporation not contained herein shall be of
any force or effect.


 


22.          
Burden and Benefit.  This Agreement shall be binding upon, and
shall inure to the benefit of, the Corporation and Employee, and their
respective heirs, personal and legal representatives, successors, and assigns.


 


23.          
References to Gender and Number Terms.  In construing this
Agreement, feminine or number pronouns shall be substituted for those masculine
in form and vice versa, and plural terms shall be substituted for singular and
singular for plural in any place where the context so requires.


 


24.          
Headings.  The various headings in this Agreement are inserted for
convenience only and are not part of the Agreement.


 


25.          
In-Kind Benefits and Reimbursements. 
Notwithstanding
any thing to the contrary in this Agreement, in-kind benefits and
reimbursements provided under this Agreement


 

















 


during any tax year of the Employee shall not affect in-kind benefits
or reimbursements to be provided in any other tax year of the Employee and are
not subject to liquidation or exchange for another benefit.  Notwithstanding any thing to the contrary in
this Agreement, reimbursement requests must be timely submitted by Employee
and, if timely submitted, reimbursement payments shall be made to the Employee
as soon as administratively practicable following such submission, but in no
event later than the last day of Employee’s taxable year following the taxable
year in which the expense was incurred. 
In no event shall the Employee be entitled to any reimbursement payments
after the last day of Employee’s taxable year following the taxable year in
which the expense was incurred.  This
paragraph shall only apply to in-kind benefits and reimbursements that would
result in taxable compensation income to the Employee.


 


26.          
Section 409A;
Separate Payments.  This Agreement is intended to
be written, administered, interpreted and construed in a manner such that no
payment or benefits provided under the Agreement become subject to (a) the
gross income inclusion set forth within Code Section 409A(a)(1)(A) or
(b) the interest and additional tax set forth within Code Section 409A(a)(1)(B) (together,
referred to herein as the “Section 409A Penalties”), including, where
appropriate, the construction of defined terms to have meanings that would not
cause the imposition of Section 409A Penalties.  In no event shall the Corporation be required
to provide a tax gross-up payment to Employee or otherwise reimburse Employee
with respect to Section 409A Penalties. 
For purposes of Section 409A of the Code (including, without
limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)),
each payment that Employee may be eligible to receive under this Agreement
shall be treated as a separate and distinct payment.


 


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IN WITNESS WHEREOF, the Corporation and
Employee have duly executed this Agreement as of the day and year first above
written.


 


 


	
   

  	
  CORPORATION:

  
	
   

  	
   

  
	
   

  	
  DG FASTCHANNEL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott K. Ginsburg

  
	
   

  	
   

  	
  Scott K. Ginsburg

  
	
   

  	
   

  	
  Chief Executive Officer

  



 


 


	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
  /s/ Neil Nguyen

  
	
   

  	
  NEIL NGUYEN

  



 


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