AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
EXHIBIT
10.2
AMENDMENT
NO. 1 TO EMPLOYMENT AGREEMENT
This
AMENDMENT NO.1 TO EMPLOYMENT AGREEMENT (this “Amendment
No. 1”)
is
made and entered into as of July 20, 2008 by and between eBaum’s World, Inc.
(formerly EBW Acquisition, Inc.), a Delaware corporation (the “Company”),
and
Xxxx Xxxxxx (“Employee”).
RECITALS:
WHEREAS,
the Company and Employee entered into that certain Employment Agreement dated
as
of October 31, 2007 (the “Employment
Agreement”);
and
WHEREAS,
the Company and Employee have agreed, upon the following terms and conditions,
to amend the Employment Agreement as provided herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto hereby agree as follows,
intending to be legally bound:
1. Duties
and Responsibilities.
The
first sentence of Section 5 is hereby amended by deleting it in its entirety
and
replacing it with the following:
“Subject
to the direction and control of the Chief Executive Officer of the Company,
Employee shall manage, control, administer and operate day to day business
affairs of the Company and the Managed Website Businesses (as such term is
defined in that certain Asset Purchase Agreement by and among ZVUE Corporation,
the Company, and Eric’s Universe, Inc. dated August 1, 2007, as amended on July
20, 2008 and thereafter).”
2. Base
Salary.
Section
6 of the Employment Agreement is hereby amended by deleting it in its entirety
and replacing it with the following:
“6. Base
Salary.
The
Company shall pay the Employee a base salary of not less than $180,000 per
annum, payable in pro rata installments not less frequently than monthly, which
base salary may be increased, but not decreased, from time to time as determined
by the Board. Notwithstanding the foregoing, for each of the months of August,
2008, and September, 2008, the Company shall pay Employee $1,666.67,
provided
that an
additional amount of $13,333.33 shall accrue for each of such months but shall
not be payable until January 1, 2009.”
3. Bonus
Program.
Section
9 of the Employment Agreement is hereby amended by deleting it in its entirety
and replacing it with the following:
“9. Bonus
Program.
Employee shall participate in a bonus program established by the Board and
tied
to performance of Employee, the criteria of which will be communicated in
writing to Employee (a) for calendar year 2008, within thirty (30) days
following the execution of this Amendment No. 1 and (b) for all subsequent
years, prior to January 31 of the applicable year. The maximum potential bonus
available for Employee for calendar year 2008 is $70,000 per annum (pro-rated
for that portion of the year after the date of this Amendment No. 1), which
maximum annual potential bonus may be increased, but not decreased, for
subsequent calendar years as determined by the Board.”
4. No
Other Amendments; Ratification.
Except
as
expressly amended herein, the terms of the Employment Agreement shall remain
in
full force and effect; and each of the parties hereby ratifies, confirms and
agrees that the Employment Agreement shall remain in full force and effect,
as
amended hereby.
5. Limitation
on Agreements.
The
amendments set forth herein are limited precisely as written and shall not
be
deemed: (a) to be a consent under or waiver of any other terms or condition
in the Employment Agreement, or (b) to prejudice any right or rights which
the Company or Employee now has or may have in the future under, or in
connection with the Employment Agreement, as amended hereby, or any of the
other
documents referred to herein or therein. From and after the date of this
Amendment No. 1, all references to the Employment Agreement shall be deemed
to be references to the Employment Agreement, after giving effect to this
Amendment No. 1, and each reference to “hereof”, “hereunder”, or “hereby”
and each other similar reference and each reference to “this Agreement” and each
other similar reference in the Employment Agreement shall from and after the
date hereof refer to the Employment Agreement as amended hereby.
6. Counterparts.
This
Amendment No. 1 may be executed in two or more counterparts, all of which
when taken together shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party hereto and
delivered to all of the other parties, it being understood that all parties
need
not sign the same counterpart. In the event that any signature is delivered
by
facsimile transmission or by email delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing
(or
whose behalf such signature is executed) with the same force and effect as
if
such facsimile signature page were an original thereof.
7. Governing
Law.
This
Amendment No. 1 shall be construed and enforced in accordance with and
governed by the law of the State of New York without regard to any provision
thereof that would allow or require the application of the law of any other
jurisdiction. The parties hereby agree that any dispute between or among them
arising out of or in connection with this Amendment No. 1 shall be
adjudicated before the courts of the State of New York, New York County, or,
if
any party has or can acquire jurisdiction, before the United States District
Court for the Southern District of New York, and they hereby submit to the
jurisdiction of such courts (and the appropriate appellate courts), with respect
to any action or legal proceeding commenced by any party, and irrevocably waive
any objection they now or hereafter may have respecting the venue of any such
action or proceeding brought in such courts or respecting the fact that such
courts are an inconvenient forum, relating to or arising out of this Amendment
No. 1, and consent to the service of process in any such action or legal
proceeding by means of registered or certified mail, return receipt requested,
in
care
of
the address set forth above or such other address as the undersigned shall
furnish in writing to the other.
(Remainder
of this page left blank intentionally. Next page is signature
page.)
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be
duly executed by their respective authorized officers effective as of the day
and year first above written but executed on the dates set forth
below.
COMPANY:
EBAUM’S
WORLD, INC.
By:
/s/
Xxxx
Oscodar
Name:
Xxxx Oscodar
Title:
President & CEO
EMPLOYEE:
/s/
Xxxx
Xxxxxx
Xxxx
Xxxxxx, individually
