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. (as
successor-in-interest to The WAAT Corporation) (“Twistbox”) and Xxxxx Xxxxxxx
(“Employee”), and amends that certain Employment Agreement dated as of June 5,
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. |
The
first sentence of Section I of the Agreement shall be 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, from February 12, 2008
(“Employment Date”), to 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 $300,000 from
February 12, 2008 through February 11, 2009; $315,000 from February 12, 2009
through February 11, 2010, and $330,750 from February 12, 2010 through February
12, 2011.”
| 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 450,000 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.”
4. Lines
6
through 9 of sub-paragraph C of Section IV of the Agreement that provides as
follows, “(iii) the Company requires employee to report directly to any officer
other than Xxx Xxxxx, Chief Executive Officer, without Employee’s consent; (iv)
Xxx Xxxxx is no longer the Chief Executive Officer of the Company”, shall be
deleted in their entirety.
5. The
last
sentence of sub-paragraph E.2 of Section IV of the Agreement beginning with
“Upon” and ending with “termination.” is hereby deleted in its entirety and
replaced with the following:
“Upon
a
termination as a result of Death or disability, the Options, to the extent
outstanding and not previously vested at the time of such termination, shall
thereupon vest in full and shall continue to be exercisable for a period of
three (3) years after such termination.”
6. Lines
6
through 12 of sub-paragraph E.3 of Section IV of the Agreement beginning with
“(b)” and ending with “deductions” shall be deleted in their entirety and
replaced with the following:
“(b)
upon
Employee’s execution, and non-revocation, of a release substantially in the form
attached hereto as Exhibit B, payment to Employee of a sum equal to base salary
in accordance with the usual payroll practices of the Company for a period
equal
to six (6) months following such termination;”
7. Section
VI of the Agreement shall be deleted in its entirety and replaced with the
following: “INTENTIONALLY LEFT BLANK.”
8. 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.
9. 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]
IN
WITNESS WHEREOF,
the
parties hereto have executed this First Amendment as of the Amendment Date
set
forth above.
|
TWISTBOX
ENTERTAINMENT, INC.
(AS
SUCCESSORS-IN-INTEREST TO
THE
WAAT CORPORATION)
|
EMPLOYEE |
|
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: CEO/PRES
|
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx
Xxxxxxx
|
