EMPLOYMENT AGREEMENT
Exhibit
10.1
This Employment Agreement (this “Agreement”) is entered into as of the
9th
day of
May, 2006 (the “Effective Date”), between Oasys Mobile, Inc., a Delaware
corporation (the “Company”),
and
Xxxxxxxx Xxxxxxx (the “Executive”).
RECITALS:
WHEREAS, the Company desires to employ Executive, and Executive desires to
be
employed by the Company, on the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the mutual premises herein contained,
the
parties agree as follows:
1. Employment.
The Company hereby employs Executive as Chief Marketing Officer, and Executive
hereby accepts such employment on the terms and subject to the conditions
hereinafter set forth.
2. Duties
of Executive.
2.1 Executive shall report directly to the
Chief Executive Officer, and shall perform such duties consistent with his
position as Chief Marketing Officer pursuant to the direction of the Chief
Executive Officer.
2.2 Executive shall be required to devote
his full business time, attention and effort to the Company’s business and
affairs except for vacation time and reasonable periods of absence due to
sickness, personal injury or other disability and shall perform diligently
such
duties as are customarily performed by executives in similar positions with
companies similar in character or size to the Company, all subject to the
direction of the Board, together with such other duties as may be reasonably
requested from time to time by the Board, which duties shall be consistent
with
his positions as set forth above. Executive agrees to use all of his
skills and business judgment and render services to the best of his ability
to
serve the interests of the Company. Subject to the terms of Section 7
hereof, this shall not preclude Executive from serving on community and civic
boards, participating in industry associations, pursuing his personal financial
and legal affairs or otherwise engaging in other activities, so long as such
activities do not unreasonably interfere with his duties to the
Company.
3. Support
Services.
Executive shall be entitled to all the administrative, operational and facility
support customary to a similarly situated executive. This support shall
include, without limitation, a suitably appointed office, and payment of
or
reimbursement for reasonable cellular telephone expenses, travel and
entertainment expenses and any and all other business expenses reasonably
incurred on behalf of or in the course of performing duties for the Company,
all
in accordance with the expense reimbursement policies established from time
to
time by the Company. Executive agrees to provide documentation of these
expenses as may be reasonably required.
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4. Term.
Except
as set forth in this Agreement, Executive’s employment shall be “at will”, and
such employment shall be able to be terminated by either party immediately
upon
notice to the other party
5. Compensation.
Throughout the Term, the Company shall pay or provide, as the case may be,
to
Executive the compensation and other benefits and rights set forth in this
Section 5.
5.1 Base
Salary.
The Company shall pay to Executive a base salary (“Base Salary”), payable
in accordance with the Company’s usual pay practices (and in any event no less
frequently than monthly), of $195,000 per annum (the “Initial Base
Salary”). The Compensation Committee may annually review Executive’s Base
Salary in light of the base salaries paid to other executive officers of
the
Company and the performance of Executive, and the Compensation Committee
may, in
its discretion, increase such Base Salary by an amount it determines is
appropriate.
Once
Executive’s Base Salary is increased, it shall not thereafter be reduced for any
reason.
5.2 Performance
Bonus.
(a) The
Executive may receive a bonus of up to 100% of his then current Base Salary
upon
the achievement of annual objectives, as set by the Chief Executive Officer
and
Board of Directors. These targets for the 2006 fiscal year shall be set within
thirty (30) days of the execution of this Agreement. Any such bonus earned
for
the 2006 fiscal year shall be pro rated for the length of service of the
Executive in the 2006 fiscal year. Bonus paid to the Executive may consist
of
cash, stock options or a combination of both at the Executive’s option.
(b) The
Company may also consider the Executive for a cash bonus for each fiscal
year,
or part thereof that he is employed by the Company, in an amount to be
determined at the discretion of the Board.
5.3 Option
Grants.
The
Company shall grant to the Executive options to purchase 200,000 shares of
the
Company’s common stock on the terms as set forth in the Stock Option Agreement
attached to this Agreement as Appendix A, which is incorporated into this
Agreement for all purposes.
5.4
Insurance.
The Company shall provide medical, vision, hospitalization, disability and
dental insurance for Executive, his spouse and eligible family members, subject
to and in accordance with the Company’s policy, the proportion of the cost
thereof to be borne by the Company and Executive to be in accordance with
such
policy.
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5.5 Employee
Benefit Plans.
Executive shall be eligible to participate in all retirement and other benefit
plans of the Company generally available from time to time to employees of
the
Company and for which Executive qualifies under the terms thereof (and nothing
in this Agreement shall, or shall be deemed to, in any way affect Executive’s
rights and benefits thereunder except as expressly provided
herein).
5.6 Other
Benefit Plans.
Executive shall be entitled to participate in any equity or other employee
benefit plan that is generally available to senior executive officers, as
distinguished from general management, of the Company, at the highest level
provided for any employee. Executive’s participation in and benefits under
any such plan shall be on the terms and subject to the conditions specified
in
the governing document of the particular plan.
5.7 Vacation.
Executive shall be entitled to Twenty (20) days of vacation allowance each
year,
which shall accrue at the rate of five (5) days per calendar quarter, but
may be
used in advance of accrual. Vacation days not used in one calendar year
shall carry over to the following calendar year(s) up to a maximum of ten
days.
Executive shall also be entitled to a sick leave allowance as provided under
the
Company’s vacation and sick leave policy for executive officers.
6. Termination.
6.1 Bases
for Termination.
Executive’s employment under this Agreement and the Term shall be terminated
immediately on the death of Executive and may be terminated by the
Board:
(a) at
any time without Cause prior to a Change of Control;
(b)
at
any
time without Cause upon a Change of Control; or
(c)
at any time for “Cause” (as defined in Section 6.6 hereof);
6.2 Termination
by Death.
If Executive’s employment is terminated by death, Executive’s estate or
designated beneficiaries shall be entitled to receive:
(a)
any
accrued but unpaid salary;
(b)
a
cash
lump sum payment in respect of accrued but unused vacation days pursuant
to the
terms of this Agreement;
(c)
life insurance benefits pursuant to any life insurance policy purchased by
the
Company on the Executive, if any;
(d)
a pro rata portion of the bonus applicable to the calendar year in which
such
termination occurs, payable when and as such bonus is determined under Section
5.2; and
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(e)
reimbursement for all expenses incurred by Executive pursuant to Section
3
hereto
6.3.
Termination
by the Company without Cause prior to a Change of Control.
If Executive’s employment is terminated by the Company without Cause (as defined
in Section 6.6(a)) prior to a Change of Control, Executive shall be entitled
to
receive:
(a)
accrued
but unpaid Base Salary to the date of such termination;
(b)
a
cash
lump sum payment in respect of accrued but unused vacation days pursuant
to the
terms of this Agreement;
(c) a
cash lump sum payment equivalent to one (1) month of executive’s then current
base salary for every three (3) months Executive has served under this
Agreement, up to a maximum of one (1) year of Executive’s then current Base
Salary (the “Severance Period”) .
(d)
a cash lump sum payment of the pro rata bonus applicable to the calendar
year in
which such termination occurs; this cash lump sum payment shall be payable
within ten (10) days after the determination that the annual objectives,
as set
by the Board of Directors pursuant to Section 5.2 of this Agreement, have
been
met; and
(e)
reimbursement for all expenses incurred by Executive pursuant to Section
3 prior
to his termination.
6.4
Termination
by the Company without Cause Upon a Change of Control.
If
Executive’s employment is terminated by the Company without Cause (as defined in
Section 6.6(a)) upon a Change of Control (as defined in Section 6.6 (b))
within
six (6) months of such Change of Control, Executive shall be entitled to
receive:
(a)
accrued
but unpaid Base Salary to the date of such termination;
(b)
a
cash
lump sum payment in respect of accrued but unused vacation days pursuant
to the
terms of this Agreement;
(c)
a cash lump sum payment of the pro rata bonus applicable to the calendar
year in
which such termination occurs; this cash lump sum payment shall be payable
within ten (10) days after the determination that the annual objectives,
as set
by the Board of Directors pursuant to Section 5.2 of this Agreement, have
been
met;
(d) a
cash lump sum payment equivalent to six (6) months of executive’s then current
Base Salary; and
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(e)
acceleration of the vesting of one hundred percent (100%) of the unvested
portion of Executive’s stock options or other stock-based awards, together with
the right to exercise such stock options or awards for a period equal to
the
remaining term for exercising such options or awards under the applicable
agreement and/or plan;
(f)
continuation of the insurance provided by the Company pursuant to Section
5.4
for a period equivalent to six months; and
(g)
reimbursement for all expenses incurred by Executive pursuant to Section
3 prior
to his termination.
6.5
Termination
by the Company for Cause or by Executive.
If Executive’s employment is terminated by the Company for Cause or by
Executive, the Company shall not have any other or further obligations to
Executive under this Agreement, except
(a)
as
may be
provided in accordance with the terms of retirement and other benefit plans
pursuant to Sections 5.5 and 5.6 hereof;
(b)
as to
that portion of any unpaid Base Salary and other benefits accrued and earned
under this Agreement through the date of such termination;
(c) all
stock
option grants that have vested as of the Executive’s date of termination
pursuant to this Section 6.5 for the remainder of the term of such option
grants;
(d) as
to
benefits, if any, provided by any insurance policies in accordance with their
terms; and
(e)
reimbursement
for all expenses incurred by Executive pursuant to Section 3 prior to his
termination).
In
addition, if Executive’s employment is terminated by the Company for Cause at
any time during the Term, Executive shall immediately forfeit any and all
unvested stock rights, stock options and other such unvested incentives or
awards previously granted to him by the Company and any Bonus(es) earned
by him
but not paid pursuant to Section 5.2 of this Agreement. The foregoing
sentence shall be in addition to, and not in lieu of, any and all other rights
and remedies which may be available to the Company under the circumstances,
whether at law or in equity.
6.6
Definitions.
As used herein:
(a)
“Cause”
shall
mean:
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(1)
active participation by Executive in fraudulent conduct against the Company,
conviction of or a plea of guilty or nolo
contendere
with
respect to a felony involving theft or moral turpitude, an act or series
of
deliberate acts which were not taken in good faith by Executive and which,
in
the reasonable judgment of the Board, results or will likely result in material
injury to the business, operations or business reputation of the Company,
or an
act or series of acts constituting willful malfeasance or gross misconduct;
(2)
a substantial and continual refusal by Executive in breach of this Agreement
to
perform the duties, responsibilities or obligations assigned to Executive
pursuant to the terms hereof, which breach has not been cured (if it is of
a
nature that can be cured) to the Board’s reasonable satisfaction within ten (10)
days after the Company gives written notice thereof to Executive; or
(3)
excessive absenteeism by Executive; provided that absenteeism (i) related
to
illness or otherwise covered by Section 6 hereof, (ii) required to be permitted
under applicable federal or state laws, or (iii) permitted under Company
policy,
shall not be deemed to be excessive.
Executive shall be permitted to respond and defend himself before the Board
within thirty (30) days after delivery to Executive of written notification
of
any proposed termination for Cause which specifies in detail the reasons
for
such termination. If the majority of the members of the Board (excluding
Executive) do not confirm that the Company had grounds for a “Cause”
termination, Executive shall have the option to treat his employment as not
having terminated or as having been terminated pursuant to a termination
without
Cause.
(b)
A “Change
in Control”
shall
occur if:
(1)
there shall be consummated any consolidation or merger of the Company in
which
the Company is not the continuing or surviving corporation;
(2)
any Person (as defined in Section 2(a)(2) of the Securities Act of 1933,
as
amended) other than the Company, subsequently becomes the beneficial owner,
directly or indirectly (including by holding securities which are exercisable
for or convertible into shares of capital stock of the Company) of forty
percent
(40%) or more of the combined voting power of the then outstanding shares
of
capital stock of the Company entitled to vote generally in the election of
directors;
(3)
the Company sells, leases, exchanges or otherwise transfers all or substantially
all of its property and assets (in a transaction or series of transactions
contemplated or arranged by any party as a single plan);
(4)
Continuing Directors cease to constitute at least a majority of the Board;
or
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(5)
a majority of the Outside Directors determine that a Change in Control has
occurred.
(c)
“Continuing
Directors”
shall
mean the members of the Board in office
on
July 16, 2004, and any successor to any such director whose nomination
or
selection was approved by a majority of the directors in office at the time
of
the director’s
nomination or selection.
(d)
“Outside
Director”
means
a
member of the Board who is not, and
who
during the past six months was not, an employee of officer of the Company.
(e)
“Termination
Upon a Change in Control”
means
termination of Executive’s employment by the Company or the Company’s successor
within one year following a Change in Control other than a termination for
Cause
or a termination resulting from Executive’s death.
6.7 Mitigation
of Damages.
Executive is not required to mitigate the amount of any payments to be made
by
the Company pursuant to this Agreement following his termination by seeking
other employment or otherwise. In addition, the amount of any
post-termination payments provided for in this Agreement shall, except as
otherwise expressly provided herein, not be reduced by any remuneration earned
by Executive during the period following the termination of his employment
as a
result of employment by another employer or otherwise after the date of
termination of his employment with the Company.
7.
Covenants and Confidential Information.
7.1 Restrictive
Covenants.
Executive acknowledges the Company’s reliance on and expectation of Executive’s
continued commitment to performance of his duties and responsibilities during
the term. In light of such reliance and expectation on the part of the
Company, during the applicable period hereafter specified in Section 8.2,
Executive shall not
(a) directly
or indirectly, do or suffer any of the following;
(1)
own, manage, control or participate in the ownership, management or control
of,
or be employed or engaged by or otherwise affiliated or associated as a
consultant, independent contractor or otherwise with, any other corporation,
partnership, proprietorship, firm, association or other business entity engaged
in the business of, or otherwise engage in the business of, information
processing of multimedia over mobile and wireless networks within the
United States in competition with the Company; provided, however, that the
beneficial and/or record ownership of not more than 4.9% of any class of
publicly traded securities of any entity shall not be deemed a violation
of this
covenant;
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(2)
solicit any business or contracts from any customers of the Company or its
affiliates, any past customers of the Company or its affiliates, or any
prospective customers of the Company or its affiliates (i.e., potential
customers from which the Company or its affiliates has solicited business
at any
time during the one year period preceding the expiration or termination of
the
Term), except as necessitated by Executive’s position with the Company and then
only in furtherance of the business interests of the Company or its affiliates;
(3)
induce or attempt to induce any such customer to alter its business relationship
with the Company or its affiliates except as necessitated by Executive’s
position with the Company and then only in furtherance of the business interests
of the Company or its affiliates;
(4)
solicit or induce or attempt to solicit or induce any employee of the Company
or
its affiliates to leave the employ of the Company or any of its affiliates
for
any reason whatsoever or hire any employee or any person who was an employee
of
the Company or its affiliates within the twelve (12) month period prior to
such
hiring; or
(b)
disclose, divulge, discuss, copy or otherwise use or suffer to be used in
any
manner, other than in accordance with Executive’s duties hereunder, any
confidential or proprietary information relating to the Company’s business,
prospects, finances, operations or properties or other trade secrets of the
Company, it being acknowledged by Executive that all such information regarding
the business of the Company compiled or obtained by, or furnished to, Executive
while Executive shall have been employed by or associated with the Company
is
confidential and/or proprietary information and the Company’s exclusive
property; provided, however, that the foregoing restrictions shall not apply
to
the extent that such information: (A) is clearly obtainable in the public
domain; (B) becomes obtainable in the public domain, except by reason of
the
breach by Executive of the terms hereof or by another person barred by a
similar
duty of confidentiality; or (C) is required to be disclosed by rule of law
or by
order of a court or governmental body or agency.
7.2 Applicable
Periods.
The applicable periods shall be:
(a)
so long as Executive is an employee of the Company;
(b)
as to Section 7.1(b), at any time after Executive is no longer an employee
of
the Company; and
(c)
for a period of 6 months after termination of employment.
7.3 Injunctive
Relief.
Executive agrees and understands that the remedy at law for any breach by
him of
this Section 7 will be inadequate and that the damages flowing from such
breach
are not readily susceptible to being measured in monetary terms.
Accordingly, it is acknowledged that the Company shall be entitled to immediate
injunctive relief and may obtain a temporary order restraining any threatened
or
further breach. Nothing in this Section 8 shall be deemed to limit the
Company’s remedies at law or in equity for any breach by Executive of any of the
provisions of this Section 8 which may be pursued or availed of by the
Company.
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7.4 Acknowledgment
by Executive.
Executive has carefully considered the nature and extent of the restrictions
upon him and the rights and remedies conferred upon the Company under this
Section 7, and hereby acknowledges and agrees that the same are reasonable
in
time and territory, are designed to eliminate competition which otherwise
would
be unfair to the Company, do not stifle the inherent skill and experience
of
Executive, would not operate as a bar to Executive’s sole means of support, are
fully required to protect the legitimate interests of the Company, and do
not
confer a benefit upon the Company disproportionate to the detriment of
Executive.
7.5 Survival.
Executive acknowledges that Executive’s obligations under this Section 7 shall
survive in accordance with Section 7.2 hereof regardless of whether Executive’s
employment by the Company is terminated, voluntarily or involuntarily, by
the
Company or Executive, with Cause or without Cause.
8. Proprietary
Rights.
8.1
At all times during the Term, all right, title and interest in all copyrightable
material which Executive shall conceive or originate, either individually
or
jointly with others, and which arise out of the performance of this Agreement,
will be the property of the Company and are by this Agreement assigned to
the
Company along with ownership of any and all copyrights in the copyrightable
material. At all times during the Term, Executive agrees to execute all
papers and perform all other acts necessary to assist the Company to obtain
and
register copyrights on such materials in any and all countries, and the Company
agrees to pay expenses associated with such copyright registration. Works
of authorship created by Executive for the Company in performing his
responsibilities under this Agreement shall be considered “works made for hire”
as defined in the U.S. Copyright Act. In addition, Executive hereby
assignees to the Company all proprietary rights, including but not limited
to,
all patents, copyrights, trade secrets and trademarks Executive might otherwise
have, by operation of law or otherwise, in all inventions, discoveries, works,
ideas, information, knowledge and data related to Executive’s access to
confidential information of the Company during the Term.
8.2 All know-how and trade secret
information conceived or originated by Executive which arises out of the
performance of his obligations or responsibilities under this Agreement during
the Term shall be the property of the Company, and all rights therein are
by
this Agreement assigned to the Company.
8.3 If, during the term, Executive is
engaged in or associated with the planning or implementing of any project,
program or venture involving the Company and a third party or parties, all
rights in such project, program or venture shall belong to the Company.
Except as formally approved by the Board, Executive shall not be entitled
to any
interest in such project, program or venture or to any commission, finder’s fee
or other compensation in connection therewith other than the compensation
to be
paid to Executive as provided in this Agreement.
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8.4 Upon termination of the Term, Executive
shall deliver promptly to the Company all records, manuals, books, documents,
letters, memoranda, notes, notebooks, reports, data, tables, calculations,
customer and prospective customer lists, and copies of all of the foregoing,
which are the property of the Company, and all other property, trade secrets
and
confidential information of the Company, including, but not limited to, all
documents which in whole or in part contain any trade secrets or confidential
information of the Company, which in any of these cases are in his possession
or
under his control.
8.5 The obligations of Executive under this
Section 8 shall survive the termination or expiration of the Term.
9. Indemnification.
During the Term, the Company shall indemnify Executive and hold Executive
harmless from and against any claim, loss or cause of action arising from
or out
of Executive’s performance as an officer, director or employee of the Company or
any of its subsidiaries or in any other capacity, including any fiduciary
capacity, in which Executive serves at the request of the Company to the
maximum
extent permitted by applicable law. If any claim is asserted hereunder
with respect to which Executive reasonably believes in good faith he is entitled
to indemnification, the Company shall pay Executive’s legal expenses (or cause
such expenses to be paid), on a monthly basis, provided that Executive shall
reimburse the Company for such amounts if Executive shall be found by a court
of
competent jurisdiction not to have been entitled to indemnification. In
addition, the Company agrees to provide Executive with coverage under a
directors and officers liability insurance policy.
10. Miscellaneous.
10.1 Representation
and Warranty by Executive.
Executive represents and warrants that he is not a party to any agreement,
contract or understanding, whether employment or otherwise, which would restrict
or prohibit him from undertaking or performing employment in accordance with
the
terms and conditions of this Agreement.
10.2 Severability.
The provisions of this Agreement are severable and if any one or more provisions
may be determined to be illegal or otherwise unenforceable, in whole or in
part,
the remaining provisions and any partially unenforceable provision, to the
extent enforceable in any jurisdiction, nevertheless shall be binding and
enforceable.
10.3 Assignment.
This Agreement shall be binding upon and inure to the benefit of the heirs
and
representatives of Executive and the assigns and successors of the Company,
but
neither this Agreement nor any rights or obligations hereunder shall be
assignable or otherwise subject to hypothecation by Executive (except by
will or
by operation of the laws of intestate succession) or by the Company, except
that
the Company may assign this Agreement to any successor (whether by merger,
purchase or otherwise) to all or substantially all of the stock, assets or
business of the Company, and the Company shall require such successor to
expressly agree to assume the obligations of the Company hereunder.
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10.4 Dispute
Resolution.
Any controversy or claim arising out of or relating to this Agreement, or
the
breach thereof, shall be settled by mediation, and if not settled within
14 days
of the submission to meditation, by arbitration in accordance with the Voluntary
Arbitration Rules of the American Arbitration Association, and the arbitration
shall be held in the Raleigh, North Carolina area. The arbitrator shall be
acceptable to both the Company and Executive. If the parties cannot agree
on an acceptable arbitrator, the dispute shall be heard by a panel of three
(3)
arbitrators, one appointed by each of the parties and the third appointed
by the
other two arbitrators. Judgment upon the award rendered by the arbitrator
or arbitrators may be entered in any court having jurisdiction thereof.
The arbitrator or arbitrators shall be deemed to possess the power to issue
mandatory orders and restraining orders in connection with such arbitration;
provided, however, that nothing in this Section 11.4 shall be construed so
as to
deny the Company the right and power to seek and obtain injunctive relief
in a
court of equity for any breach or threatened breach by Executive of his
covenants contained in Section 8 hereof. All costs and expenses of
arbitration shall be paid one-half by the Company and one-half by
Executive.
10.5 Notices.
All notices and other communications required or permitted under this Agreement
shall be in writing, and shall be deemed properly given if delivered personally,
mailed by registered or certified mail in the United States mail, postage
prepaid, return receipt requested, send by facsimile or sent by Express Mail,
Federal Express or other nationally recognized express delivery service,
as
follows:
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If
to Oasys Mobile:
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If
to Executive:
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000
Xxxxxxxxxxxx Xxxxxx
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Xxxxx
000
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Xxxxxxx,
Xxxxx Xxxxxxxx 00000
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Attn:
Chief Executive Officer
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Notice
given by hand, certified or registered mail, or by Express
Mail, Federal Express or other such express delivery service, shall be effective
upon receipt. Notice given by facsimile transmission shall be effective
upon actual receipt if received during the recipient’s normal business hours, or
at the beginning of the recipient’s next business day after receipt if not
received during the recipient’s normal business hours. All notices by
facsimile transmission shall be confirmed promptly after transmission in writing
by certified mail or personal delivery.
Any party may change any address to which notice is to be given to it by giving
notice as provided above of such change of address.
10.6 Amendment.
This Agreement may only be amended by written agreement of the parties
hereto.
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10.7 Beneficiaries;
References.
Executive shall be entitled to select (and change, to the extent permitted
under
applicable law) a beneficiary or beneficiaries to receive any compensation
or
benefit payable hereunder following Executive’s death, and may change such
election, in either case by giving the Company written notice thereof. In
the event of Executive’s death or a judicial determination of his incompetence,
reference in this Agreement to Executive shall be deemed, where appropriate,
to
refer to his beneficiary, estate or other legal representative. Any
reference to the masculine gender in this Agreement shall include, where
appropriate, the feminine.
10.8 Survivorship.
The respective rights and obligations of the parties hereunder shall survive
any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations. The provisions of this
Section are in addition to the survivorship provisions of any other section
of
this Agreement.
10.9 Governing
law.
This Agreement shall be construed, interpreted and governed in accordance with
the laws of the State of North Carolina without reference to rules relating
to
conflicts of law. For purposes of jurisdiction and venue, the Company
hereby consents to jurisdiction and venue in any suit, action or proceeding
with
respect to this Agreement in any court of competent jurisdiction in the state
in
which Executive resides at the commencement of such suit, action or proceeding
and waives any objection, challenge or dispute as to such jurisdiction or venue
being proper.
10.10 Effect
of Prior Agreements.
This Agreement contains the entire understanding between the parties hereto
with
respect to the subject matter hereof, and supersedes in all respects any prior
or other agreement or understanding between the Company or any affiliate of
the
Company and Executive with respect to the subject matter hereof.
10.11 Withholding.
The Company shall be entitled, to the extent permitted or required by law,
to
withhold from any payment of any kind due Executive under this Agreement to
satisfy the tax withholding obligations of the Company under applicable
law.
10.12 Counterparts.
This Agreement may be executed in two counterparts, each of which shall be
deemed an original.
[Remainder
of this page is blank]
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IN
WITNESS WHEREOF, the
parties hereto, having duly been authorized, have executed this Agreement as
of
May 9, 2006.
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XXXXXXXX
XXXXXXX
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By:
_________________________
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________________________________
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Name: Xxxx
X. Ban
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Title:
Chief Executive Officer
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