FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
FIRST
AMENDMENT TO EMPLOYMENT AGREEMENT
This
first amendment (“First Amendment”) is effective as of February 12, 2008
(“Amendment Date”) by and between Twistbox Entertainment, Inc. (“Twistbox”) and
Xxxxxxx Xxxxx (“Employee”), and amends that certain Employment Agreement dated
as of December 11, 2006 by and between Twistbox and Employee (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;
WHEREAS,
Twistbox and Employee 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 further amend
and/or modify the Agreement and enter into this First Amendment on the terms
and
conditions provided below:
Employee’s
Agreement shall be modified as follows:
| 1. |
Section
I of the Agreement is hereby deleted and replaced with the
following:
|
“EMPLOYMENT.
The
Company hereby employs Employee and Employee hereby accepts such employment
upon
the terms and conditions hereinafter set forth commencing as of February 12,
2008 (“Employment Date”) through and including February 12, 2011 (the “Term”).
On or about August 12, 2010, Employee and the Company shall meet in good faith
to discuss the terms of a renewal, in order to negotiate terms related to,
among
other things, base salary, bonus percentage and additional grants of stock
options.”
| 2. |
The
first sentence of Sub-section A of Section III of the Agreement shall
be
deleted and replaced with the
following:
|
“A. Base
Salary.
The
Company will pay to Employee a base salary at the
annual rate of $204,000 from February 12, 2008 through March 31, 2008 and
$240,000
from April 1, 2008 through February 11, 2009; $252,000 from February
12, 2009 through February 11, 2010; and $264,600 from February 12, 2010
through February 12, 2011.”
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3. A
new
Xxx-xxxxxxxxx X.0 shall be added to Section III of the Agreement following
Sub-paragraph G thereof as follows:
“G.2.
Stock
Options.
On the
Employment Date, the Company shall cause Mandalay to grant to Employee an
initial option (the “Mandalay Option”) to purchase 350,000 shares of Mandalay’s
common stock (“Common Shares”) at an exercise price equal to the closing price
of the Common Shares on the date of grant. Each Mandalay Option shall represent
the right to acquire one (1) Common Share. The Mandalay Option shall vest in
full and become immediately exercisable as follows: (a) one-third shall
immediately vest on the Employment Date, (b) one-third shall vest on the first
anniversary of the Employment Date and (c) one-third shall vest on the second
anniversary of the Employment Date.
The
Mandalay Option shall be evidenced by a written option agreement and be governed
by the terms and conditions thereof and the terms and conditions of Mandalay’s
2007 Stock Plan. Notwithstanding anything to the contrary,
the Mandalay Option is subject to full accelerated vesting upon a change of
control and/or the sale of all or substantially all of the assets of
Mandalay.”
| 3. |
The
first sentence of Sub-section D.3 of Section IV of the Agreement
shall be
deleted and replaced with the
following:
|
“3. Other
than Cause or Death or Disability.
If the
Company terminates
Employee’s employment for other than Cause or Death or Disability, this
Agreement shall terminate without further obligations to Employee other than
for:
(a)
the payment of Accrued Obligations and (b) the payment of Employee’s
base
salary in accordance with the usual payroll practices of the Company for a
period
equal to six (6) months following such termination.”
| 4. |
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.
|
| 5. |
Each
person who executes this Amendment represents and warrants to each
party
hereto that he has the authority to do so and to bind each entity
as
contemplated hereby, and agrees to hold harmless each other party
from any
claim that such authority did not exist. This Amendment will inure
to the
benefit of and be binding upon the parties and their respective
shareholders, successors and permitted
assigns.
|
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF,
the
parties hereto have executed this First Amendment as of the Amendment Date
set
forth above.
|
TWISTBOX
ENTERTAINMENT, INC.
|
EMPLOYEE |
|
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: EVP/General
Counsel
|
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx
Xxxxx
|
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