AGREEMENT BETWEEN GARY E. BAN AND OASYS MOBILE, INC.
Exhibit
10.2
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X. BAN AND OASYS MOBILE, INC.
THIS
AGREEMENT (the "Agreement") is entered into as of the 29th
day of
September, 2006 (the "Effective Date") between Xxxx X. Ban ("Ban”) and Oasys
Mobile, Inc., a Delaware corporation (“Oasys Mobile”). Ban and Oasys Mobile
occasionally are referred to collectively herein as the "Parties."
WHEREAS,
Ban is an individual residing
at 000 Xxxxx Xxxxx Xxxxx, Xxxx, XX 00000;
WHEREAS,
Oasys Mobile is a Delaware corporation with its principal place of business
at
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000;
WHEREAS,
Ban currently serves as the Chief Executive Officer and as a Director of
Oasys
Mobile and desires to resign from these and any and all other positions with
Oasys Mobile, its subsidiaries or affiliates;
WHEREAS,
in consideration for the resignation from the positions as set forth above;
and
WHEREAS,
the Parties agree that they knowingly and voluntarily executed this Agreement
after having the opportunity to secure the advice of competent legal counsel
of
their choosing.
NOW
THEREFORE, in consideration of the foregoing and of the mutual understandings
set forth below, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:
1. OBLIGATIONS
OF BAN. Ban
agrees that:
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(a)
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as
of the Effective Date, the Employment Agreement (the “Employment
Agreement”) between Oasys Mobile and Ban dated as of June 21, 2005, is
canceled and of no effect between the
Parties.
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(b)
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as
of the Effective Date, he shall resign from his positions as a
Director
and Chief Executive Officer of Oasys Mobile and from any and all
other
positions he may hold with Oasys Mobile, its subsidiaries or its
affiliates.
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| (c) |
he
shall return all of Oasys Mobile’s property in his possession including,
but not limited to, all written and electronic documents, electronic
equipment, check books and bank statements, debit cards, invoices,
accounting records, and all of the tangible and intangible property
belonging to the Company and relating to Ban’s employment with the
Company. Ban further represents and warrants that he has not retained
any
copies, electronic or otherwise, of such property. Ban further
waives any
rights to copies of company documents, except those to which he
may be
entitled as a shareholder pursuant to applicable statutes and
regulations.
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(d)
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upon
receipt of all amounts to be paid to Ban pursuant to Section 2
of this
Agreement, he shall execute the Mutual Release (the “Mutual Release”)
between Ban and Oasys Mobile attached to this Agreement as Appendix
A.
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(e)
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he
shall not make any comments relating to Oasys Mobile or its employees
which are critical, derogatory or which may tend to injure the
business of
Oasys Mobile or the reputation of the employees.
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(f)
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he
shall keep all matters related to this Agreement and the Mutual
Release
confidential, except to immediate family, Ban’s attorneys and financial
advisors and except as may be required by applicable
law.
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2. OBLIGATIONS
OF OASYS MOBILE.
Oasys
Mobile agrees that:
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(a)
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as
of the Effective Date, the Employment Agreement is canceled and
of no
effect between the Parties.
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| (b) |
it
shall pay Ban:
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| (i) |
his
earned and unpaid payroll owed to him through September 30, 2006,
in the
amount of $8,750.00.
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| (ii) |
his
outstanding vacation pay in the amount of
$8,076.92.
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| (iii) |
a
lump sum severance payment of $210,000.00.
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| (iv) |
Reimbursable
expenses submitted to date in the amount of $4,851.04 and any other
reimbursable expenses made prior to the Effective Date.
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| (c) |
it
shall provide Ban health care benefits as provided by Oasys Mobile
to all
of its employees in accordance with its corporate policies, however
in no
event less than the current level of health care benefits received
by Ban,
through September 30, 2007; provided, however, that if Ban receives
employment prior to September 30, 2007, this obligation shall terminate.
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| (d) |
all
stock option grants to purchase shares of Oasys Mobile common stock
issued
to Ban prior to the Effective Date shall be vested in full and
shall
expire by their terms as set forth in the respective stock option
grant
documents. A list of the stock options is attached hereto as Exhibit
1.
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| (e) |
upon
receipt by Oasys Mobile of the executed Mutual Release by Ban,
it
shall
execute the Mutual Release.
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| (f) |
it
shall not make any comments relating to Ban which are critical,
derogatory
or which may tend to injure Ban or his reputation.
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(g)
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it
shall keep all matters related to this Agreement and the Mutual
Release
confidential, except as to Oasys Mobile’s attorneys and financial advisors
and except as may be required by applicable law.
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(h)
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Oasys
Mobile shall maintain Directors and Officers Insurance coverage
for Ban.
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3. REPRESENTATIONS
AND WARRANTIES BY OASYS MOBILE. Oasys
Mobile hereby represents, warrants, and covenants to Ban as
follows:
(a) Organization,
Good Standing and Power.
Oasys
Mobile is a corporation duly incorporated validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate
authority to carry on its business as now being conducted.
(b) Authorization,
Enforcement.
(i) Oasys Mobile has the requisite corporate power and corporate authority
to
enter into and perform its obligations under this Agreement; (ii) the execution
and delivery of this Agreement by Oasys Mobile and the consummation by it
of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action and no further consent or authorization of Oasys Mobile
or its
Board of Directors or shareholders is required, and (iii) this Agreement
shall
constitute a valid and binding obligation of Oasys Mobile enforceable against
Oasys Mobile in accordance with its terms, except as such enforceability
may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation, conservatorship, receivership or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application.
4. SURVIVAL
OF AGREEMENT.
Notwithstanding the Parties' respective releases in the Mutual Release, all
agreements, representations, warranties, rights, and obligations of the Parties
under this Agreement and the documents attached hereto shall survive the
execution and delivery of this Agreement and are not released by this
Agreement.
5. AUTHORITY.
The
Parties hereby expressly represent and warrant to each other that they have
entered into this Agreement voluntarily, with proper authority, and without
any
reservation. The Parties acknowledge that the only consideration for this
Agreement is expressly set forth within this Agreement and no further
inducements or representations have been exchanged in connection herewith.
The
Parties further hereby acknowledge that each Party has had adequate time
to
reflect upon, consider, and consult with legal counsel concerning the terms
of
this Agreement. The Parties further agree that this Agreement is not the
result
of fraud, duress, coercion, or undue influence on the part of either Party
or
its counsel.
6. MUTUAL
DRAFTING.
The
Parties agree that: (1) each Party to this Agreement has reviewed and revised
this Agreement and, accordingly, the normal rule of construction (to the
effect
that any ambiguities are to be resolved against the drafting Party) will
not be
employed in any interpretation of this Agreement; and (2) if any part, term,
or
provision of this Agreement shall to any extent be declared unenforceable
or
illegal by a court of competent jurisdiction, the remainder of this Agreement
shall not be affected thereby, and each part, term, or provision of this
Agreement (including, but not limited to, any enforceable and legal portion
of
the challenged part, term, or provision) shall be valid and enforceable to
the
fullest extent permitted by law
7. BINDING
ON PARTIES IN INTEREST.
The
Parties agree that this Agreement shall be binding and inure to the benefit
of
the Parties, their successors, predecessors, agents, affiliates, parent
corporations, subsidiaries, officers, shareholders, and assigns.
8. ASSIGNMENT.
Neither
Ban nor Oasys Mobile may assign or transfer this Agreement to any other person
or entity except upon the prior written consent of the other Party.
9. AMENDMENT.
This
Agreement may be amended or modified only by a written agreement signed by
all
Parties, but any such amendment or modification shall not be deemed a waiver
of
any prior or subsequent breach of this Agreement unless so
specified.
10.
COOPERATION.
The
Parties agree to cooperate with each other in good faith in order to carry
out
the purposes of, and to effectuate, this Agreement, and to execute and deliver
any and all additional documents necessary or appropriate to carry out and
implement the provisions of this Agreement.
11.
ENTIRE
AGREEMENT. This
Agreement, including the attachments hereto, embodies the entire agreement
and
understanding of the Parties hereto are an integral part of this Agreement
and
are incorporated by reference herein. This Agreement supersedes all prior
agreements and understandings between the Parties with respect to the
transactions contemplated by this Agreement.
12.
COUNTERPARTS.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
13.
WAIVER;
CONSENT.
Except
as otherwise provided in this Agreement, any failure of one of the Parties
to
comply with any obligation, representation, warranty, covenant, agreement
or
condition herein may be waived by the Party entitled to the benefits thereof
only by a written instrument signed by the Party granting such waiver, but
such
waiver or failure to insist upon strict compliance with such obligation,
representation, warranty, covenant, agreement or condition shall not operate
as
a waiver of, or estoppel with respect to, any subsequent breach or other
failure. Whenever this Agreement requires or permits consent by or on behalf
of
any Party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth in this Agreement.
14.
HEADINGS.
The
headings used in this Agreement are for convenience only and shall not limit
or
expand the meaning of the Agreement's provisions.
15.
NOTICES
AND CORRESPONDENCE.
All
notices and correspondence shall be sent by either Party to the other in
all
matters dealing with this Agreement, by certified mail or overnight courier,
at
the following addresses:
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TO
BAN:
000
Xxxxx Xxxxx Xxxxx
Xxxx,
XX 00000
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TO
OASYS MOBILE:
000
Xxxxxxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
XX 00000
Attn:
General Counsel
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;or
any
other address timely provided by written notice to the other Party.
16.
ATTORNEYS'
FEES.
In the
event of default hereunder, the defaulting Party agrees to pay all reasonable
attorneys' fees and costs of collection incurred in the filing and pursuit
of
any legal action to enforce this Agreement.
17.
JURISDICTION.
Oasys
Mobile agrees to submit to the personal jurisdiction of the courts of the
North
Carolina for any proceedings arising out of obligations under this Agreement.
18.
NORTH
CAROLINA LAW TO APPLY. This
Agreement shall be construed and enforced pursuant to the substantive and
procedural laws of North Carolina (excluding its choice of law
rules).
IN
WITNESS WHEREOF, the Parties, through their respective authorized
representatives, set their hands to this Agreement on the dates indicated
below.
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XXXX
X. BAN
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/s/
Xxxx X. Ban
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By:
/s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Executive Vice President
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Dated:
September 29, 2006
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Dated:
September 29, 2006
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