AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT
TO EMPLOYMENT AGREEMENT
This
amendment ("Amendment") is effective as
of
December 30, 2007 ("Amendment
Date") by and between Twistbox Entertainment, Inc. (as successor-in-interest
to The WAAT Corporation) ("Twistbox") and Xxx Xxxxx ("Founder"), and
amends
that certain Employment Agreement dated as of May 16, 2006 by and between
Twistbox
and Founder ("Agreement"). Unless otherwise defined herein, defined terms
shall
have their meanings as
set
forth
in the Agreement.
WHEREAS,
Twistbox
and Xxx Xxxxx, Adi McAbian, Tal Xxxx XxXxxxx and Xxxxxx
Sayadeh ("the Founders"), and owners of a significant percentage of the common
stock
of
Twistbox, have instituted a company wide cost reduction plan;
WHEREAS,
Founder
deems it to be in the best interest of Twistbox to voluntary reduce
his Base Salary and waive certain rights under the Agreement; and
WHEREAS,
the
parties hereto desire to memorialize their prior oral agreements and
the
further mutual understandings contained herein.
AMENDMENT
NOW
THEREFORE, in
consideration of the foregoing, Twistbox and Founder desire
to
amend and/or modify the Agreement and enter into this Amendment on the
terms
and
conditions provided below:
| 1. |
Commencing
with the payroll paid on August 3, 2007 through August 31, 2007,
Founder
has agreed to reduce his Base Salary to Three Hundred Fifty Thousand
Dollars
($350,000).
|
| 2. |
Commencing
with the payroll paid on September 19, 2007 through November 9,
2007,
Founder has agreed to further reduce his Base Salary to Three Hundred
Thousand
Dollars ($300,000).
|
| 3. |
Commencing
with the payroll paid on November 23, 2007, Founder has agreed
to
reduce
his Base Salary to zero (subject to California minimum wage requirements);
provided that, Founder's Base Salary shall be reset to One Hundred
Fifty Thousand Dollars ($150,000) (the "Reset Base Salary") upon
Twistbox
achieving cash flow break-even, as
that
term is customarily understood and
applied under GAAP, with such cash flow break-even calculation
to include
Founder's
Reset Base Salary, interest payments to ValueAct SmallCap Master
Fund,
L.P for a period of three (3) months (the "Reduction Period") and
such
other
ordinary and usual amounts, including earned interest income; provided
further,
however, in the event the Company achieves cash flow break-even
ninety
(90)
days following the Amendment Date, Twistbox shall cause the Board
of
Directors to convene a subcommittee of independent directors to
consider
awarding
bonuses to Founder, so long as
any
such award does not result in the Company
no longer being cash flow break-even in any given calendar
month.
|
| 4. |
Twistbox
and Mandalay Media, Inc. ("Mandalay") intend to enter into a plan
of
merger
whereby Twistbox shall become a wholly owned subsidiary of Mandalay
("Merger"). In the event the Merger is not consummated, Founder hereby
agrees to
waive his right to seek the Severance Period benefits under the Agreement.
In exchange for such waiver, Twistbox shall issue to Founder an option
to
buy One Hundred
Twenty-Five Thousand (125,000) shares of common stock of Twistbox
at
the then current fair market value (the "Option"). The Option shall
vest
in twelve
(12) equal monthly installments commencing upon the first day following
Twistbox's
final determination not to pursue the
Merger.
|
| 5. |
Twistbox
hereby agrees and acknowledges that nothing contained herein shall
serve
as a waiver of any other rights or remedies, in law or equity, which
Founder may
have by virtue of his Agreement and/or any statutes, laws or regulations
governing
employer/employee matters.
|
| 6. |
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.
|
| 7. |
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.
|
IN
WITNESS WHEREOF, the
parties hereto have executed this Amendment as of the Amendment
Date set forth above.
| TWISTBOX ENTERTAINMENT, INC. FOUNDER (AS SUCCESSOR-IN-INTEREST TO THE WAAT CORPORATION) | FOUNDER | |
| By: /s/ Xxxxx Xxxxxxx | By: /s/ Xxx Xxxxx | |
|
Name:
Xxxxx Xxxxxxx
|
Name: Xxx Xxxxx | |
| Title: EVP/General Counsel | Title: President/CEO |
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