SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
SECOND
AMENDMENT TO EMPLOYMENT AGREEMENT
This
second amendment (“Second Amendment”) is effective as of February 12, 2008
(“Amendment Date”) by and between Twistbox Entertainment, Inc. (as
successor-in-interest to The WAAT Corporation) (“Twistbox”) and Adi McAbian
(“Employee”), and amends that certain Letter Agreement dated May 16, 2006 by and
between Twistbox and Employee, as amended as of December 31, 2007 (collectively,
the “Agreement”). Unless otherwise defined herein, defined terms shall have
their meanings as set forth in the Agreement.
RECITALS
WHEREAS,
Twistbox
and Mandalay Media, Inc. (“Mandalay”) have entered into that certain Agreement
and Plan of Merger dated December 31, 2007, as amended (‘Plan of Merger”),
pursuant to which Employee has agreed to sell, assign, transfer and convey
his
shares of capital stock in Twistbox in exchange for shares of capital stock
of
Mandalay (the “Merger”);
WHEREAS,
the
parties believe it is in the best interest of Twistbox and Employee to mutually
agree to certain modifications to the Agreement; and
WHEREAS,
the
parties hereto desire to memorialize their mutual understandings as contained
herein.
AMENDMENT
NOW
THEREFORE,
in
consideration of the foregoing, Twistbox and Employee desire to amend and/or
modify the Agreement and enter into this Amendment on the terms and conditions
provided below:
Subject
to and expressly conditioned upon the close of the Plan of Merger, Employee’s
Agreement shall be modified as follows:
| 1. |
Paragraph
3 shall be deleted in its entirety and replaced with the
following:
|
“In
consideration of your full time employment during the Employment Term, the
Company will pay you a base salary at the rate of $200,000 on an annualized
basis, in accordance with the usual payroll practices of the Company.”
| 2. |
Sub-section
(a) of paragraph 9 shall be deleted in its entirety and replaced
with the
following:
|
“Non-Competition.
During
the Employment Term and for the twelve month
period following expiration or termination of your employment (the “Restricted
Period”),
you
will not, directly or indirectly, enter into Competition
with the Company or any of its affiliates (the “Employer”).
“Competition”
means
participating, directly or indirectly, as an individual proprietor,
partner, stockholder, officer, employee, director, joint venturer, investor,
lender or in any capacity whatsoever in any
activities or businesses
related to the provisioning of any of the following products and/or
services in connection with Mobile Adult WAP, Adult MobileTV, Adult
Off-Deck Services, Mobile AVS Systems and Mobile Adult Advertising
Services.”
| 3. |
All
terms and conditions of the Agreement not specifically and expressly
modified or amended herein are hereby ratified and confirmed in all
respects and shall remain in full force and
effect.
|
| 4. |
Each
person who executes this Second Amendment represents and warrants
to the
other party hereto that they have the authority to do so and to bind
such
party as contemplated hereby, and agrees to hold harmless the other
party
from any claim that such authority did not exist. This Second Amendment
will inure to the benefit of and be binding upon the parties and
their
respective shareholders, successors and permitted
assigns.
|
| 5. |
Employee
acknowledges and agrees that this Second Amendment and the agreement
by
Employee in Section 2 above is also given in consideration of Employee’s
sale, transfer and conveyance of his shares of capital stock in Twistbox
and his receipt of consideration in exchange
thereof.
|
2
IN
WITNESS WHEREOF,
the
parties hereto have executed this Second Amendment as of the Amendment Date
set
forth above.
|
TWISTBOX
ENTERTAINMENT, INC.
(AS
SUCCESSOR-IN-INTEREST TO
THE
WAAT CORPORATION)
|
EMPLOYEE |
| By: Xxxxx Xxxxxxx | By: /s/ Adi McAbian |
| Name: Xxxxx Xxxxxxx | Name: Xxx XxXxxxx |
|
Title:
EVP/General
Counsel
|
Title: Managing Director |
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