AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
AMENDMENT
NO. 1 TO EMPLOYMENT AGREEMENT
This
Amendment No. 1 (the “Amendment”), made and entered into as of this 8th day
of December, 2008, amends that certain Employment Agreement (the “Agreement”),
dated as of October 30, 2008, by and between Octavian Global Technologies, Inc.,
a Nevada corporation (the “Company”), and Xxxxxx Xxxxxxxxxxxxxx
(“Executive”). All terms used with initial capital letters, unless
otherwise defined herein, shall have the same meanings as assigned in the
Agreement.
1.
Paragraph 3(b)(i) of the Agreement which provides for the issuance of shares of
Common Stock to the Executive, as additional compensation, based on the
Company’s having achieved certain EBITDA target amounts during the applicable
periods, is hereby amended in its entirety to read as follows:
(i) Earn
Out.
(x) In
addition to the Base Salary payable to the Executive hereunder, and subject to
any adjustments as provided hereafter, the Company shall issue to the Executive
shares of the Company’s common stock, par value $0.001 per share (”Common Stock”),
subject to the Company’s achieving not less than the following earnings before
interest, tax, depreciation and amortization (“EBITDA”), as reported
in the Company’s audited financial statements for the applicable periods
described below (the “Earn-Out
Shares”):
Year Ended December 31,
|
EBITDA
|
Number of Shares of Common
Stock
|
2008
|
-0-
|
214,000
|
2009
|
$9,200,000
|
642,000
|
2010
|
$16,500,000
|
428,000
|
2011
|
$21,900,000
|
428,000
|
2012
|
$27,100,000
|
428,000
|
2013
|
$35,726,016
|
640,000
|
Earn-Out
Shares shall only be issued to the Executive, with respect to any year, to the
extent that the Company has reported EBITDA of at least the amount set forth for
that year. The Company’s failure to achieve the EBITDA set forth
above for any applicable year shall not preclude the Executive from receiving
Earn-Out Shares for any future years, to the extent that the applicable EBITDA
amounts are achieved for any such future years. In the event that the
Executive is entitled to the issuance of Earn-Out Shares for any year provided
herein, the Company shall issue a certificate to the Executive for the
applicable number of shares on or before the earlier of ten (10) days after (i)
the date of filing of the Company’s Annual Report on Form 10-K for the
applicable year or (ii) the 100th day
after the end of the applicable year.
(y) If
the Company, at any time during the period that any Earn Out Shares are issuable
hereunder: (i) pays a stock dividend or otherwise make a distribution or
distributions on shares of its Common Stock or any other equity or equity
equivalent securities payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, (iii)
combines (including by way of reverse stock split) outstanding shares of Common
Stock into a smaller number of shares or (iv) issues by reclassification of
shares of the Common Stock any shares of capital stock of the Company, then in
each case the number of Earn-Out Shares which the Company shall issue to the
Executive shall be multiplied by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding immediately after such event and of
which the denominator shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding immediately before such
event. Any adjustment made pursuant to this subparagraph (y) shall
become effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
combination or reclassification. Notwithstanding anything to the
contrary contained herein, the adjustment provisions of this subparagraph (y)
shall not be applicable to the 1-for-5.0174 reverse stock split that the
Company’s stockholders approved as of November 27, 2008, which the Company
expects to be effective on or around December 12, 2008 and no adjustment shall
be made to the number of Earn-Out Shares issuable to the Executive with respect
to such reverse stock split.
(z) The
Company shall provide the Executive with prompt written notice after the
occurrence of any of the events described in subparagraph (y) above that result
in an adjustment to the Earn-Out Shares issuable to him hereunder.
2. The
above sets forth all amendments to the Agreement made pursuant to this Amendment
and all other provisions of the Agreement shall remain unchanged and in full
force and effect. Any conflicts between the provisions of this
Amendment and the provisions of the Agreement shall be resolved in favor of the
provisions of this Amendment which shall have priority.
3. This
Amendment may be executed in two or more counterparts, including by facsimile
transmission, all of which together shall constitute a single
instrument.
[signatures
on the next page]
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OCTAVIAN GLOBAL TECHNOLOGIES, INC. | |||
|
By:
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/s/ Xxxxx Xxxxxxx | |
Name: Xxxxx Xxxxxxx | |||
Title: President | |||
/s/ Xxxxxx Xxxxxxxxxxxxxx
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XXXXXX
XXXXXXXXXXXXXX
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