EXHIBIT 10.1
Amendment No. 1 to Employment Agreement
This Amendment No. 1 dated as of July 5, 2005, by and between MediaBay,
Inc. (the "Company") and Xxxxxxx Xxxxxx (the "Executive") amends the Employment
Agreement made on June 6, 2005 by and between the Company and the Executive (the
"Agreement"). Capitalized items used herein and not defined herein shall have
the same meanings as set forth in the Agreement.
W I T N E S S E T H
(1) The following shall be added as a new Section 9(f) to the Agreement:
"(f) In the event the Executive is terminated by the Company, other than
for Cause (as defined in the Agreement or as defined in the stock
incentive plan under which the Existing Option (as defined below)
was granted) or the Executive terminates his employment with the
Company for Good Reason (as defined in the Agreement),
notwithstanding anything to the contrary in any option agreement
granted to the Executive prior to the date hereof under the
Company's stock incentive plans (the "Existing Options"), each
Existing Option shall be immediately vested in full and shall remain
exercisable for the full term as provided for in the respective
Existing Option, regardless of any provision in any agreement
relating to such Existing Option providing for earlier expiration of
the Existing Option as a result of termination of the Executive's
employment."
(2) Each agreement relating to an Existing Option is hereby amended to (i)
provide that the Existing Option shall fully vest immediately upon
termination of the Executive's employment with the Company, other than for
Cause (as defined in the Agreement or under the stock incentive plan under
which such Existing Option was granted) and (ii) delete any provision
provided for termination of the Existing Option as a result of termination
of the Executive's employment with the Company, other than for Cause (as
defined in the Agreement or under the stock incentive plan under which
such Existing Option was granted.
(3) All other terms and provisions of the Agreement and agents relating to the
Existing Option remain unchanged and of full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
"COMPANY"
MEDIABAY, INC., a Florida Corporation
By: /s/ Xxxxxx Xxxxxxx
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Printed Name: Xxxxxx Xxxxxxx
Title: Chairman
"EXECUTIVE"
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx X. Xxxxxx
